LCMS Convention Workbook St. Louis, Missouri — 2007, Page 300

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XII 2) so long as they do not conflict with the Constitution and By-
laws of the Synod (Bylaw 4.07 b). However, to require a congrega-
tion to identify its District in its article of synodical affiliation,
while not specifically prohibited by the Constitution and Bylaws
of the Synod, labors against a clear and proper understanding of
the true nature of membership in the Synod and therefore should
not be required.

Adopted Aug. 3, 2004

Rights and Responsibilities of BHE/CUS Board
after Convention Action (04-2398)

In a written communication received July 26, 2004, the chair-
man of the Board for Higher Education/Concordia University Sys-
tem Board asked the following question regarding the rights and
responsibilities of his board as a result of the adoption of Res. 5-02
by the 2004 convention of the Synod:

Question: According to Bylaw 3.67 b, does the BHE/CUS Board,
as constituted during the 2001-2004 triennium and until
a new board assumes office, have the right to continue
the process of calling a new executive director for the
Board for University Education? -

Opinion: Resolution 5-02 of the 2004 convention restructured the
governance of higher education in the Synod. It abolished the cur-
rent Board for Higher Education/Concordia University System
(BHE/CUS) Board and created two new boards to assume respon-
sibilities previously assigned to it. The convention amended the
resolution as originally presented to the convention, eliminating a
provision which would have had the members of the new boards
elected by the convention assume office immediately, rather than
September 1| as is generally provided in Bylaw 3.59 b. The new
Board for University Education (BUE) and the new Board for Pas-
toral Education (BPE) therefore come into existence as of Septem-
ber 1, 2004, rather than upon passage of the resolution as would
have occurred under the resolution as originally presented, and the
BHE/CUS Board continues to exist until that date.

As indicated in background information related to the question
presented, the BHE/CUS Board has been in the process of selecting
a new executive director for some time. To the extent that the his-
toric efforts of the BHE/CUS Board will assist the newly formed
BUE and BPE in determining whether to create similar positions
under the new boards, and in selecting executive directors for those
newly created boards if they choose to do so, it is expected that the
experiences, work, and information generated will be passed on to
the new boards for their consideration and benefit. To the extent
that the BHE/CUS Board needs to call a new executive director to
complete its work through August 31, it may certainly issue such a
call or make other appropriate arrangements to complete its as-
signed duties through that date. The question presented, however, is
whether the BHE/CUS Board has the right to call a new executive
director for the Board for University Education. It may not, any
more than it may call an executive director for the Board for Pas-
toral Education.

In considering the prior work and information gathered by the
BHE/CUS Board, as well as any recommendations from the
BHE/CUS Board that the new boards may choose to consider, each
of the newly constituted boards will of necessity need to consider
independently its responsibilities under the new structure, and each
board will need to consider independently what officer and/or exec-
utive director positions will best suit its assigned responsibilities.
To the extent that one of the newly created boards chooses to create
an executive director position, it will need to comply with Bylaw
3.69.and particularly Bylaw 3.69 e in that process:

Every board, commission, and synodwide corporate entity shall op-
erate under synodical Human Resources policies. Such policies may
recognize the unique character of the operations of each board, com-
mission, and synodwide corporate entity. Every board, commission, and
synodwide corporate entity may create officer and executive staff posi-
tions and fill the same in accordance with such policies. The chief exec-
utive of such board, commission, and synodwide corporate entity shall
serve at the pleasure of the governing board. The governing board of
each executive shall conduct an annual review and, before the expira-
tion of five years, conduct a comprehensive review. At the conclusion

2007 Convention Workbook

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

of each five year period, the appointment shall terminate unless the gov-
erning board takes specific action to continue the person in the office. The
slate of candidates for the initial appointment of the executive officer of a
board, commission, or synodwide corporate entity shall be selected by the
board or commission in consultation and mutual concurrence with the
President of the Synod.

In this regard, the newly created boards will also need to refer to

Bylaws 1.07 d and e, 3.101 C 4, and 3.950 for guidance.

Adopted Aug. 3, 2004

Status of Ongoing Dispute Processes
in Light of Convention Action (04-2399)

In an E-mailed letter dated July 20, 2004, a District President
asked for a decision regarding the disposition of a current dispute res-
olution case in his District in light of actions taken by the 2004 con-
vention of the Synod.

Question: Does the current dispute resolution process that involves
[an individual and congregation in my District] continue
under the old or the newly accepted process passed by the
convention?

The President of the Synod, in an E-mailed letter dated August 3,
2004, asked the same question prompted by another dispute case.

Question: What is the status of cases involving as parties members
of the Synod whose suspended status was in the process of
appeal prior to adoption of extensive amendments by the
62nd Regular Convention of The Lutheran Church—Mis-
souri Synod to the Bylaws of the Synod regarding the
process of suspended status and appeals for removal
thereof?

Opinion: The 2004 convention adopted Res. 8-01A, resulting in sig-
nificant changes to the Synod’s dispute resolution process. The reso-
lution included no provision to address these questions.

However, similarly significant changes were made by the 1992
convention in its adoption of Res. 5-01B, resulting in a transition
from the then-existing adjudication and appeals process to the new
dispute resolution process. The 1992 resolution included provisions
for transition, resolving that “all cases currently in the adjudication
or appeals process be concluded under the existing bylaws govern-
ing adjudication and appeals” and that the “new procedure shall apply
to all dispute resolutions initiated after the date of adoption of this
amendment without regard to the date of onset of the dispute.” These
provisions were then also referenced by the Commission on Constitu-
tional Matters in its response to specific questions in the months fol-
lowing the convention action (Ag. 1938; Ag. 1962).

In light of this precedent, the Commission concludes that the same
understanding and practice should hold true in the present. All cases
currently in dispute resolution, including the cases in question, are to
be concluded under the bylaws that existed at the time of the initiation
of the cases unless such cases were in such early stage that the former
bylaw requirements did not yet pertain. In such case, as in the case of
all other dispute resolutions initiated after the convention action, the
changed procedures will apply.

Adopted Aug. 3, 2004

Omission of “Treatise on the Power and Primacy
of the Pope” in Art. II of Constitution (04-2402)

In an E-mailed letter dated July 22, 2004, a pastor of the Synod
asked “the reason for omitting ‘The Treatise on the Power and Pri-
macy of the Pope’ from Article II of the Constitution.”

The pastor further states: “In the Tappert ed. it states in the intro-
duction to the Treatise, ‘Unlike the Smalcald Articles, the Treatise
was Officially adopted in Smalcald as a confession of faith. It was in-
tended as a supplement to the Augsburg Confession and was not, as
used to be supposed, an appendix to the Smalcald Articles. All the
clergymen who were present signed the Treatise; the signature of
Luther is wanting because he was too ill to attend the meeting.”

Opinion: Since Bylaw 3.905 d indicates that one of the functions of
the Commission on Constitutional Matters is to: “interpret the
Synod’s Constitution, Bylaws, and resolutions upon the written re-