LCMS Convention Workbook St. Louis, Missouri — 2007, Page 314

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

314 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

layed until the next convention, the President is authorized to
submit them to a written vote of the member congregations of the
Synod only after full and complete information regarding the
matter has been sent to member congregations by presidential let-
ter and has been published in an official periodical of the Synod.
If such matters are related to the business affairs of the Synod,
such a vote shall be conducted only after the President has con-
sulted with the synodical Board of Directors (underline added). In

all cases at least one-fourth of the member congregations must
register their vote.
Note that only in the limited circumstance that the matter is related
to “business affairs” must the President even consult with the
Board of Directors.

In interpreting the Constitution and Bylaws of the Synod, the
Synod’s primary purpose of serving its ecclesiastical purposes in-
fluences very strongly the balance that must be made and the fac-
tors that must be considered in determining whether an issue is
truly one primarily of “property and business” concern for which
the Board has primary responsibility or whether it is more accu-
rately recognized as an ecclesiastical function, responsibility, and
authority which is more likely to be delegated by the Synod to its
ecclesiastical supervisors such as the President and district presi-
dents or to one of its program boards or commissions. The lan-
guage and grammar of a single sentence or phrase in one sentence
or section of the Synod’s governing documents must also be con-
sidered in light of those documents as a whole and the governance
structure of the Synod as a whole.

As implied in the Board’s question, the Synod has recognized
that some person or group within the Synod must have the author-
ity and responsibility for carrying out the day-to-day management
of its property. That authority has been delegated to the Board of
Directors, again subject to limitations. Expanding on the discus-
sion above, for example, the Board must under Bylaw 3.3.5.5 “al-
locate available funds to the program boards, commissions, coun-
cils, and departments of corporate Synod and hold them
responsible therefor.” Having allocated those funds and thereby
delegated responsibility for the use and management of those
funds, however, the Board has not been authorized to manage the
day-to-day functioning of the boards, commissions, or other enti-
ties of the Synod to whom those funds are allocated. Rather, the
Board continues to “have general oversight responsibility as set
forth in the Bylaws.” Opinions 03-2357, 03-2358, 03-2359, and
other prior opinions of the Commission cited in the challenged
Opinion support this position.

Question 3: The Board’s third question addressed the breadth of
Opinion 04-2409:

The question presented to the Commission on Constitutional Mat-
ters in Opinion 04-2409 is whether a failure to pass Amendment A will
impact the implementation or validity of any other resolutions passed
by the 2004 convention of the Synod. This answer given by the Com-
mission is “no.” By its answer the Commission infers that al! other res-
olutions or changes to the Bylaws adopted by the 2004 convention are
valid. This is contrary to the past practice of the Commission, which
restricted its opinions to specific issues and specific resolutions as well
as specific changes to the Constitution and Bylaws. In Opinion 04-2409
the Commission, with a broad statement, validates all resolutions and
bylaw changes made by the 2004 convention which in any way relate to
Article XII F 2 and, to some extent, forecloses itself from examining
specific issues in the future which find their genesis in resolutions and
bylaws adopted at the convention.

Opinion: The Board’s concern is at least in part well taken. The
answer provided in Opinion 04-2409 was broader than required
and could have been more clearly drafted. The Commission can-
not anticipate in advance every circumstance or challenge that
might be raised as to the impact of each resolution of the 2004 con-
vention, and certainly not without examining each individual reso-
lution. It would be unmanageable to attempt in advance and with-
out context to consider each of the more than forty resolutions in
that regard. In a broad sense, the answer given in Opinion 04-2409
represents an acknowledgment that the Commission’s prior opin-
ions as referenced in Opinion 04-2409 do support the proposition
that the passage or failure of Resolution 7-21 would not change
those prior opinions, which opinions were expressly and vigorously

2007 Convention Workbook

challenged in overtures to the convention. None of the opinions of
the Commission were overruled by the convention and continue to
be binding as set forth in Bylaw 3.9.2.2 (b). However, the Com-
mission must recognize the potential need to examine specific is-
sues in the future that find their genesis in the resolutions and by-
laws adopted by the convention. It would thus have been more
proper had the last sentence of the opinion’s first paragraph read
as follows (underline indicates new wording):

As such, the answer to the question presented is that if the proposed
Constitutional Amendment A entitled “To Amend Constitution Regard-
ing Officer and Board Responsibilities” as set forth in Resolution 7-21
of the 2004 convention of the Synod is not passed by a two-thirds ma-
jority vote, #-weeld-neteffeet the +mplementation-orveldiy-efeny
tion the CCM has been unable to identify any resolution or change to
the Bylaws by the 2004 convention whose validity or implementation
would be prevented. Should concerns exist as to any particular resolu-
tion, a specific inquiry should be directed to the Commission for fur-
ther study.

Opinion 04-2409 is so modified.

Question 4: The Board’s final question expressed concern that the
Commission’s interpretation served to undo a grant of
authority by the 1998 convention:

Article X1 F was amended by the 1998 convention of the Synod to
its present wording. Prior to that amendment, paragraph 2 of Article XI
F read as follows:

The voting members of the Board of Directors are the legal rep-
resentative of the Synod and the custodians of all property of the
Synod, and upon them are incumbent the general management and
supervision of all the business affairs of the Synod.

Relative to the proposed change to the present wording, the Blue
Ribbon Committee Report to the convention states, “Takes account of
need to delegate authority in a large organization,” further demonstrat-
ing in the wording of its proposal that the “it” in question is intended to
refer to the Board of Directors (1998 Blue Ribbon Committee Report, p.
57, lines 41-42—Exhibit A). The same comment, “Takes account of
need to delegate authority in a large organization,” also occurs in Reso-
lution 8-03B as adopted by the convention (1998 Proceedings, p. 162—
Exhibit B). Thus the Synod in amending paragraph 2 clearly stated its
intention to allow the Board of Directors to delegate its authority. This
is consistent with the commentary provided by the Blue Ribbon Com-
mittee early in its report in a section entitled “Description of Committee
Recommendations” where it is stated: “The heart of these changes is to
retain the Board of Directors’ authority to supervise all the business af-
fairs of corporate Synod, while limiting its authority with reference to
separate corporate or trust entities to ‘general oversight’” (Blue Ribbon
Committee Report, p. 13, paragraph 56—Exhibit C). Amendment A
proposed to delete the very authority that was given to the Board of Di-
rectors in 1998. Therefore, for the Commission in Opinion 04-2409 to
state that such proposed deletion stated more clearly what the paragraph
adopted by the 1998 convention already meant is contrary to fact and
warrants reconsideration by the Commission.

In summarizing its concerns, the Board of Directors indicated:

Therefore, in summary, it is requested that the Commission on Con-
stitutional Matters reconsider Opinion 04-2409 for the reasons stated
above and primarily because such opinion has the effect of nullifying
the ability of the Board of Directors to delegate to agencies of the Synod
its authority to exercise supervision over the property and business af-
fairs of the Synod and thus brings into question the validity of previous
and existing delegates of such authority.

Opinion: Prior to the 1998 convention action, the language of Arti-
cle XI indicated that it was the voting members of the Board, rather
than the Board as a whole, who served as custodians of the property
of the Synod.

The 1998 amendments achieved at least two purposes. They
made clear that it was the Board itself and not its individual mem-
bers that was to fulfill the function of custodian of the Synod’s
property. Secondly, they made clear that the Board could expressly
delegate such custodial responsibilities to agencies of the Synod.
That delegation authority, contrary to the suggestion of the Board’s
inquiry, is unchanged by Opinion 04-2409. The authority to dele-
gate to other agencies of the Synod is instead consistent with the
actions and process of the Synod itself in making such delegations
in the past, as reflected in the prior opinions of the Commission