LCMS Convention Workbook St. Louis, Missouri — 2004, Page 379

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 379

Were all eventualities and potential problems foreseeable, the
Synod could adopt bylaws and policies to address all issues in ad-
vance, and the question posed could be answered with greater
specificity. However, the Synod has recognized that there are cir-
cumstances that it may not have foreseen or for which it may not
have made direct provision. For those reasons, the Synod has there-
fore invested the President with very broad powers to address those
circumstances that it did not foresee or for which it made no other
provision. For the same reason, the Commission cannot define in
advance the ultimate boundaries of that power.

Adopted Jan. 28, 2004

Enforcement of Commission on Constitutional Matters
Opinions (04-2379)

A pastor of the Synod, in a letter dated January 10, 2004, asked
a'series of questions regarding the enforcement of Commission
Opinion 02-2309 and its statement that “when an ecclesiastical su-
pervisor discovers error in his counsel, it is incumbent upon that
supervisor to correct or amend it. The member should then be held
to consider the corrected counsel. Failure to consider such amended
admonition could form the basis for disciplinary action as provided
in Article XIII.”

Question 1: How will the Commission on Constitutional Mat-
ters follow up on its Opinion 02-2309 to assure that error will be
amended?

Opinion: The functions of the Commission on Constitutional
Matters are set forth in Bylaw 3.905. Paragraph d of that bylaw
States that the Commission is to interpret the Synod’s Constitution,
Bylaws, and resolutions upon the written request of a member, of-
ficial, board, commission, entity, or agency of the Synod. Thus the
Commission is limited to providing an interpretation of the Synod’s

Constitution, Bylaws, and resolutions. It has no power or authority

to enforce its opinions.

Question 2: If it is not the charge of the Commission on Consti-
tutional Matters to call upon the President to correct his error in ec-
clesiastical supervision, what is the correct process for assuring that
the President conforms to the binding opinion of the Commission
regarding correcting his counsel after discovering that it was in
error and that the District President “consider the corrected coun-
sel”?

Opinion: Article XI of the Constitution of the Synod states that
the officers of the Synod (and this would include the President) are
responsible to the Synod for the performance of their duties. It fur-
ther states that the Synod has at all times the right to call its officers
to account and, if circumstances require it, to remove them from
office in accordance with Christian procedure. Accordingly, it is a
convention of the Synod that has ultimate authority over the Presi-
dent as to his performance of his office.

Question 3: How is that correction then to be made known to
the whole Synod?

Opinion: There is no provision in the Constitution, Bylaws, and
resolutions of the Synod that addresses this issue.

Adopted Jan. 28, 2004

Restricted and Suspended Status (04-2381)

A pastor of the Synod, in a January 21, 2004 e-mailed letter,
asked a series of questions regarding “Restricted Status.”

Question 1: Based on the Constitution and Bylaws of the
Synod, is the following sequence of actions legally and/or ethically
permissible within the LCMS?

1. A pastor is placed on restricted status by his District Pres-
ident for reasons X.

2. The pastor appeals his restricted status to the Council of
Presidents.

3. The Council of Presidents fails to render a fair and timely
decision on the appeal within the six months that the Con-
stitution of the Synod allows for their deliberation of the
appeal.

4. The pastor therefore requests that his restricted status be
dropped on the grounds that the Council of Presidents has
failed to render a fair and timely decision of his appeal.

5. The District President “voluntarily” drops the restricted
Status at the pastor’s request.

6. A meeting for purposes of reconciliation is scheduled by
the District President with this same pastor.

7. At this meeting for reconciliation the District President
changes his mind and decides to renew his charges against
the pastor.

8. But this time the District President places the pastor on
suspended status for reasons X, the very same reasons for
which he originally placed the pastor on restricted status.

Opinion: A District President may place on restricted status an
individual member of the Synod under his ecclesiastical supervi-
sion for reasons given in Bylaw 2.23 a. Restricted status continues
for one year or a lesser period if the matter is satisfactorily resolved
(Bylaw 2.23 c). Restricted status may also be extended, success-
fully appealed, or discontinued by the District President (Bylaw
2.23 c and d), or it may become suspended status at the com-
mencement of formal proceedings that may lead to the member’s
expulsion from the Synod (Bylaw 2.25 a).

Failure of the Council of Presidents to decide the matter within
the prescribed six months is contrary to the bylaw and therefore a
matter of concern. However, the sequence of actions by the Dis-
trict President as described meet the requirements of the bylaw.

Question 2: After a District President has voluntarily dropped
restricted status following the failure of the Council of Presidents to
hear its appeal in a fair and timely way, can the same District Pres-
ident then change his mind and place the same pastor on suspended
status for the same charges as he originally placed the pastor under
restricted status?

Opinion: Restricted status is a discretionary action of a District
President. If he decides that a restriction is no longer useful or ap-
propriate, he may decide to lift it. If he finds at a later date that the
conditions provided by Bylaw 2.23 a continue to exist, he may re-
store the restricted status or he may decide to commence action to
terminate membership, thereby placing the member on suspended
status. In cases in which the member is on restricted status when
formal Bylaw 2.27 suspension proceedings are commenced, re-
stricted status becomes suspended status (Bylaw 2.25 a).

Question 3: Is it possible for the Council of Presidents to hear
charges against a pastor on suspended status in a fair and timely
manner after the Council of Presidents has already failed to hear
these very same charges in a fair and timely manner while the pas-
tor was on restricted status?

Opinion: This question is based upon a misunderstanding. The
Council of Presidents does not hear charges against a pastor on sus-
pended status. When a member of the Synod is placed on sus-
pended status and desires to have the matter heard and resolved, a
Dispute Resolution Panel is formed to hear the matter following
the process described in Chapter VIII of the Bylaws. The Dispute
Resolution Panel and not the Council of Presidents hears and re-
solves the matter (Bylaw 2.27 c).

Question 4: Bylaw 2.29 e states that in an appeal of restricted
status, “The decision of the hearing panel shall be the decision of
the COP and shall be final with no right of appeal.” After the COP
has ruled on an appeal of charges placed against a pastor on re-
stricted status, may a District President then circumvent the finality
of this decision of the COP by placing the pastor on suspended sta-
tus for the same charges?

Opinion: Restricted status and suspended status are two differ-

-ent actions. Even if the Council of Presidents were to remove a

member’s restricted status, the involved District President may
begin proceedings for the expulsion of the member from the Synod
if he concludes that the same facts that led him to place the member
on restricted status form a basis for such expulsion under Article
XII of the Constitution (Bylaw 2.27 c). The commencement of for-
mal Bylaw 2.27 proceedings places the member on suspended sta-
tus (Bylaw 2.25 a).

2004 Convention Workbook