LCMS Convention Workbook St. Louis, Missouri — 2007, Page 302

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302 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

they shall postpone the election and, if desirable, request the Board
of Regents to issue a new call for nominations.”

While it is important to fill the currently existing vacancy in a
timely manner, it is equally important to proceed in an orderly fash-
ion, requiring those designated by the Synod to act on its behalf to
do so only after opportunity for due deliberation, contemplation,
and the exercise of the judgment for which they were chosen to
serve.

Adopted Aug. 11, 2004
Reconsideration of CCM Opinion 04-2390 (04-2410)

Pursuant to Bylaw 8.21 i, a complainant through a Review
Panel requested a reconsideration of CCM Opinion 04-2390.

The Commission on Constitutional Matters reviewed its Opin-
ion 04-2390 and concluded that it provided an appropriate answer
to the questions that were asked.

Adopted Sept. 2, 2004

Board for University Education
Organization (04-2411, 04-2411A)

The President of Concordia University System (CUS), in re-
sponse to Opinions 04-2408 and 04-2408A and in contemplation
of the scheduled election of a new president at Concordia Univer-
sity, River Forest (CURF) asked in an August 25, 2004 letter:

Questions: 1. In what context in the synodical governing docu-
ments is the expression “fully constituted” used to in-
terpret synodical Bylaw 3.69 b?

2. In light of the scheduled election of a president for
Concordia University, River Forest, may the Board
for University Education establish a valid elector by
electing a chairman or chairman pro tem subsequent
to 1 September (Synod Bylaw 3.65) but prior to 15
September, or may the former chairman of the
BHE/CUS Board serve as the elector because he par-
ticipated in the establishment of the selection criteria
and in the establishment of “the slate of nominees to
be interviewed in the election meeting” (Bylaw 6.11
g)?

The current Chairman of the Board of Regents of Concordia
University, River Forest, in a letter received August 27, 2004, also
relayed a question asked by his board:

Question: By what means will it be possible for Concordia Univer-
sity, River Forest, to conduct its presidential election on
the scheduled date of 16 September?

Opinion: The situation presented in these questions arises because
of a unique circumstance in which a new board was created by ac-
tion of the convention and because, due to an amendment from the
floor, the originally contemplated continuity from the old Board
for Higher Education (BHE) to the new Board for University Edu-
cation (BUE) was not achieved. The term “fully constituted” is not
used in the governing documents of the LCMS. The language of
Resolution 5-02 as proposed provided, “‘ The newly elected mem-
bers of the Board for University Education and of the Board for
Pastoral Education shall assume office and responsibility as the
constituted board for the respective entities upon election in order
to provide an orderly transition from the old governance structure
to the new.” That sentence was deleted by floor amendment. The
language of Opinion 04-2408 was used to reflect that amendment,
while recognizing that at least one member of the former BHE con-
tinued in office (because his term on the old BHE ended in 2007,
and he served on the University Education subcommittee of the
BHE).

Instead of the BUE beginning to function immediately after the
convention, as originally contemplated in the resolution, it now
came into existence on September 1. Thus what does it mean to be
“fully constituted?” The resolution originally contemplated that the
board would be constituted and begin to function without the ap-
pointment or election of the remaining members, who were to be
chosen or elected other than by the convention. Because of the

2007 Convention Workbook

floor amendment, the issue has arisen as to when and how the BUE
is constituted. The new BUE is set _up or established by meeting
the following bylaw/resolution (legal) requirements:

1. A governing Board for University Education was established by
the convention (Res. 5-02A).

2. Six of the nine voting board members have been elected/desig-
nated (Res. 5-02A).

3. The elected/designated board members assumed office Septem-
ber Ist, after which they may convene:

3.65 Induction

a. All those elected at the convention or appointed by the Presi-
dent or Board of Directors of The Lutheran Church—Missouri
Synod shall be inducted into office on a date on or subsequent to
Sept. | following the convention.

b. The initial meeting of boards and commissions shall ordinar-
ily be held in association with the induction and shall begin with a
combined orientation program conducted under the direction of the
President.

4. At the convening meeting, the board organizes:

3.69 General Regulations

b. Every agency shall organize itself as to officers and subcom-
mittees at its initial meeting after election or appointment and shall
conduct its business in accordance with accepted parliamentary pro-
cedures. (emphasis added)

The above is what fully constitutes the BUE even if there are
vacancies (three voting members to be appointed by the CUS
Council of Members) at the outset. Boards can have “legal” meet-
ings even though there may be absences or vacancies as long as a
“majority” is “present” and voting. The Bylaws are silent concern-
ing any requirement for 100% participation at the initial meeting.

The issues presented in these questions were also reviewed by
the Synod’s legal counsel, who opined in part:

The seven persons who assume office on September | will consti-
tute a valid and acting board of directors of CUS and BUE on that date.
Further, because they are a majority of this board, they meet the quorum
requirements necessary for meetings. The CUS bylaws state that “a ma-
jority of the directors” of CUS constitute a quorum, without stating
whether it is a quorum of the total number of directors then in office or
of the total number of directors that can serve on the board. We would
interpret this provision to be a majority of those then in office. The
seven members of the BUE/CUS board may therefore lawfully conduct
all business, both as a program board and as a board of directors of
CUS, provided the necessary quorum is present at meetings. ‘
As indicated in Opinion 04-2408, “Since the position of the

chairman of the BHE ceases to exist as of September 1, the current
chairman of the BHE ceases to have authority to cast a vote in the
election of a university president after that date.” Effective Sep-
tember 1, however, the new BUE may convene and conduct its as-
signed business. While it may choose not to convene until after the
remaining members are appointed by the CUS Council of Mem-
bers or may decline to appoint a temporary chair to participate in
the scheduled CURF election, there is nothing to prevent the exist-
ing members of the BUE in proper meeting to make such an ap-
pointment to allow the election to proceed as currently scheduled.
The last paragraph of CCM Opinion 04-2408 (“While it is impor-
tant to fill the currently existing vacancy in a timely manner, it is
equally important to proceed in an orderly fashion, requiring those
designated by the Synod to act on its behalf to do so only after op-
portunity for due deliberation, contemplation, and the exercise of
the judgment for which they were chosen to serve.”) is simply the
encouragement to follow the orderly procedure of the above refer-
enced bylaws, including the business of electing a chairman.

Adopted Sept. 2, 2004

Direction re Bylaw to be Used
in Dispute Case (04-2400)
A district president in a letter dated July 20, 2004, requested
guidance regarding whether a dispute case that had been initiated

by a letter received by his office July 6 should be handled accord-
ing to the Bylaws that existed before the July 10-15 convention of