LCMS Convention Workbook St. Louis, Missouri — 2007, Page 313

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 313

The Board of Directors serves the Synod as its legal representative
and as custodian of all property of the Synod, and upon it is incumbent
the general management and supervision of the business affairs of the
Synod. Each other board of directors, board of regents, and board of
trustees also serves the Synod with respect to the property of the Synod,
to the extent of its jurisdiction, as provided or authorized in these By-
laws. Upon each such board of the Synod is incumbent the general man-
agement and supervision of the business affairs of the Synod to the ex-
tent of its jurisdiction. Also, each board of directors, board of regents,
and board of trustees shall, to the extent of its jurisdiction, between con-
ventions and subject to advice or direction from any other appropriate
board that has been given authority by these Bylaws or by convention
resolution, (1) determine general operating policies, (2) approve pro-
gram budgets, (3) allocate resources for such programs, (4) review pro-
gram performance, and (5) coordinate the administration of convention
resolutions. Each board of directors shall also be empowered to settle
disputes within that corporate entity. Each board shall report its activi-
ties and recommendations to the respective convention.

More often the limitations are implied rather than expressed.
For example, a typical secular board of directors, as legal represen-
tative and agent of the shareholders, has authority to hire and fire
all officers of the corporation, including its president. While not
expressly stating that the Board may not discharge the President
and select a replacement of its choosing, the Synod has provided
that the Synod itself in convention or pursuant to the provisions of
Bylaws 2.16 or 2.17 may remove its president from office. The au-
thority granted under Article XI F does not include such powers.

Finally, it should be noted also that the Board is not the only
representative of the Synod. There may be more than a single
“legal representative” simultaneously. The President, for example,
has been given the responsibility to represent the Synod at all meet-
ings of the districts (Article XI B 6). Under Bylaw 3.3.1.1.2, it is
also the President and not the Board who represents the Synod in
official contacts with all partner churches and all other church bod-
ies. Under Bylaw 3.8.4.2 the Board for Black Ministry Services is
authorized to represent the interests of the Synod in black ministry
throughout the Synod. Under Bylaw 4.4.2, a district president is
also expressly identified as the representative of the Synod in his
district.

Custodian of Property: This term similarly does not provide a
clear definition of the authority of the Board but rather identifies
one of the Board’s functions. A “custodian” may be defined as a
person with whom some article is left, who is responsible for the
safe return of the article to the owner. A custodian can include
banks holding bonds, storage companies where furniture or files
are deposited, a parking garage, or a kennel or horse ranch where
an animal is boarded. The real issue here is the authority accom-
panying the role of “custodian.”

Article XI F designates the Board as the default entity holding
the assets and funds of the Synod on its behalf. Article XI expressly
authorizes the Board to delegate such authority to other agencies
of the Synod. The Board exercises such delegation, for example,
in the budgeting process under Bylaw 3.3.5.5, in the Board’s dis-
cretionary delegations of powers and duties to agencies of the
Synod under Bylaw 3.3.5.5 (b), and in the Board’s mandatory del-
egations of authority to districts to buy and hold property in the dis-
trict’s own name, as is required in Bylaw 3.3.5.7 (a).

The Antecedent of “It”: In the discussion that follows the
Board’s question, the Board asks the Commission to consider the
meaning or interpretation of the word “it” in the third sentence of
Article XI F 2 of the Constitution and implies that the answer to
that grammatical question answers the broader, more fundamental
question posed. The Commission concedes that the most logical
antecedent noun to which “it” applies is the Board itself and not
the Synod (acting in convention). However, Opinion 04-2409 was
not based upon an interpretation of the word “it.” That grammatical
observation does not resolve the issue. Instead, as suggested above,
there is no complete answer to the question posed, and recogniz-
ing the Board of Directors as the legal representative of the Synod
and the custodian of its property does not resolve the matter. As
will be discussed more fully below, the Board is the primary entity
charged with management of the property and business affairs of
the Synod. But the Synod is not organized primarily for business

purposes, and the Synod has chosen to delegate to the Board prop-
erty and business authority and not ecclesiastical authority. The
Synod’s Board of Directors is the Synod’s agent, acting not under a
corporate governance model but under a structure designed to ful-
fill business functions within a much broader structure designed to
fulfill the Synod’s primarily ecclesiastical purposes.

The Commission appreciates the Board’s expressed recognition
of the ultimate authority of the Synod in convention. The turmoil
created in the Synod by those who during the last triennium sug-
gested that only a board of directors could lawfully hold such au-
thority was a primary impetus for the consideration and adoption
by the 2004 convention of many resolutions, including Resolution
7-21, which was the subject of Opinion 04-2409.

Question 2: As the Board’s discussion in its memorandum contin-
ued, the issue of balance of authority was raised:

The structure of the Synod is unique, and the extent of the authority
of the program boards and commissions is very often not clearly delin-
eated. The Board of Directors has been given authority over the prop-
erty and business affairs of the Synod. At the same time, program
boards and commissions have been given policy and administrative du-
ties in defined areas.

Policy and administration overlap with property and business af-
fairs. Likewise, property and business affairs impact policy and admin-
istration. Thus there is not, nor can there be, a clear line of division be-
tween property and business affairs on the one hand and policy and
administration on the other. Accordingly, there has developed over the
years a gentle tension between the two, and in those instances where
agreement has not been reached because there is a lack of clarity or a
contradiction in the Bylaws, the Commission on Constitutional Matters
has been called upon to be the arbiter. Many of the decisions referenced
by the Commission in Opinion 04-2409 are of that nature and do not
support Opinion 04-2409 as rendered.

Opinion: The Commission agrees that the structure of the Synod is
unique and that there is and always has been a tension between the
property and business affairs of the Synod on the one hand and the
policy and administration on the other. Using the term “property
and business” in this context, however, is not the same as using that
term in a business setting where the acquisition and management of
property for the purpose of generating a profit for the shareholders
is the purpose of the organization. The Synod’s purposes and objec-
tives are detailed in Article III of the Constitution. The power of
the Synod to hold and manage property (Article IV of the Constitu-
tion) is solely for the purposes of meeting the Synod’s stated objec-
tives, which may generally be described as ecclesiastical and not
secular. In light of that context, the last comment in the Board’s
last referenced paragraph is in error. Opinion 04-2409 does not ef-
fect any change in the authority or responsibilities of the Board.

The business powers delegated to the Board on behalf of the
Synod are generally described in Article IV of the Constitution:

The Synod shall have legal powers:

1. To purchase, hold, administer, and sell property of every descrip-
tion in the interest of the Synod.

2. To accept, hold, administer, and, if deemed advisable, dispose of
legacies, donations, commercial papers, and legal documents of
every description in the interest of its work.

These secular functions are identified as being limited to those “in
the interest of the Synod” and “in the interest of its work,” which
objectives were identified in Article III of the Constitution. While
the Board has no authority for ecclesiastical supervision, it serves
the ecclesiastical functions of the Synod by its management of
those business functions that have been delegated to it.

The fact that “business affairs” is understood in the Synod as a
limited function and not as an all-encompassing recognition of au-
thority and purpose is evidenced in Article XI B 8, the list of au-
thorities granted to the President of the Synod. After identifying
many specific duties, responsibilities, and authorities of the Presi-
dent, paragraph 8 imposes on the President and not the Board of
Directors the duty and authority between conventions to submit
business matters to a vote of the congregations of the Synod. That
paragraph reads:

8. When matters arise between meetings of the Synod in conven-
tion which are of such a nature that action thereon cannot be de-

2007 Convention Workbook