LCMS Convention Workbook St. Louis, Missouri — 2007, Page 315

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 315

cited in Opinion 04-2409. It remains consistent with Bylaw 3.3.5.7
(b), which expressly grants to the Board the authority to “delegate
to any agency of the Synod powers and duties with respect to prop-
erty of the Synod for which such agency of the Synod has direct
supervisory responsibility.”

Amendment A did not purport to delete any authority of the
Board of Directors to delegate authority, which power is found in
the second and not the third sentence of Article XI F 2: “It [the
Board of Directors] is the custodian of all the property of the
Synod, directly or by its delegation of such authority to an agency
of the Synod.” Rather than read Opinion 04-2409 as a restriction
on the Board’s authority to delegate, the opinion should instead be
understood as an affirmation by the Commission of that historical
practice of both the Synod as a whole and of the Board of Directors
in its service function to the Synod.

Should the Board have particular concerns about limitations on
that authority in particular circumstances, it is invited to submit ad-
ditional inquiries to the Commission on Constitutional Matters.

Adopted Oct. 16-18, 2005

Number of Voting Members of Boards
of Regents (05-2436)

In a memorandum dated September 8, 2005, a pastor of the
Synod submitted the following question regarding the number of
voting members on boards of regents of schools of the Synod.

Question: Bylaw 3.8.3.6.2 states “the board of regents for each col-
lege and university shall consist of 13 voting members.”
Does this mean that only 13 board of regents members
may serve on the board as voting members? Or can this
also be interpreted that at least 13 board of regent mem-
bers are to serve as voting members?

QOpinion: Bylaw 3.8.3.6.2 directs that each board of regents shall
consist of 13 voting members. It does not provide for any nonvot-
ing members. Although there have been overtures and resolutions
submitted to the various conventions of the Synod over the years
advocating change, Bylaw 3.8.3.6.2 establishes the current makeup
of the boards pursuant to the will of the conventions. Unless and
until a convention changes the bylaw, a board of regents will con-
sist solely of 13 voting members.

Adopted Oct. 16-18, 2005

Involvement of Districts in the Call Process
of Mission Congregations (05-2437)

In a September 7, 2005 letter, a circuit counselor asked the fol-
lowing question regarding the role of the district in the calling
process of a district-subsidized mission congregation.

Question: Can a district mission executive require a pastor to de-
cline a properly issued call by revoking the mission sub-
sidy promised to a congregation?

Qpinion: At its March 5, 1982 meeting the Commission on Con-
stitutional Matters addressed a related question from a congrega-
tion in the Central Illinois District (Ag. 1573): “Does a congrega-
tion, duly organized, in membership with The Lutheran
Church—Missouri Synod, have the inherent and unalterable right
to call her own pastor, or may a provision be made in the constitu-
tion of said congregation stating and affirming that the right and
power of calling a pastor for such a congregation shall be delegated
to and vested with the District’s Board of Directors?” The Com-
mission responded: “The congregation must retain the right to call
a pastor. To be sure, consultation, especially in situations of subsi-
dized congregations, has always been customary. But the right it-
self belongs to the congregation (see for instance Article VII; Arti-
cle VI, 3; Bylaw 5.01, a).”

In a March 23, 2000 opinion (99-2171) the Commission, after
referring to the above-referenced 1982 opinion, further stated: ‘In
view of the above, the Commission concludes that the right to call
a pastor rests solely with the congregation that the pastor is to
serve. Should a District threaten to withhold its subsidy unless a
subsidized congregation adheres to the wishes of the District rela-

r

tive to the calling of a pastor, the congregation may utilize the
Synod’s dispute resolution process to determine if such a threat is
coercion and a violation of Article VII of the Constitution of the
Synod.”

Accordingly, the Commission responds as follows to the ques-
tion at hand: If the congregation in question is a rostered member
of the Synod, the Synod has assured the congregation in Article
VII of its Constitution, “In its relation to its members the Synod is
not an ecclesiastical government exercising legislative or coercive
powers, and with respect to the individual congregation’s right of
self-government it is but an advisory body.” As a member of the
Synod, the congregation has agreed, in accordance with Bylaws
2.5.1 and 2.5.2, to seek the counsel of its district president when
calling a pastor and to call and be served only by LCMS-rostered.
ordained ministers.

Therefore, assuming that the congregation in question has
sought the counsel of its district president during the calling
process, a district (or one of its staff persons) may not coerce the
congregation relative to the calling of its pastor nor may it coerce a
pastor upon receipt of the congregation’s call, since the right and
responsibility to call the pastor rests solely with the calling congre-
gation. Should a district threaten to withhold its financial support of
the subsidized congregation unless the calling congregation and/or
the called pastor adhere to the wishes of the district relative to the
call of the pastor, the congregation may utilize the Synod’s dispute
resolution process to determine if such a threat is coercion and a
violation of Article VII of the Constitution of the Synod.

Adopted Oct. 16-18, 2005

Procedure for Filling Vacancies in Elected Positions
(05-2439; 05-2440; 05-2442)

In a letter dated September 10, 2005, a pastor member of the
Synod submitted a series of questions regarding the validity of ac-
tions by the Board of Directors during its August, 2005 meeting to
fill vacant positions on the Board of Directors of Concordia Pub-
lishing House and the Synod’s Board of Directors. Similar letters
were received from another pastor of the Synod and from the chair-
man of the nominations committee of the Synod, asking whether
the Board of Directors violated Bylaw 3.2.5 and 2004 convention
Resolution 7-14.

These questions having been forwarded to the Board of Direc-
tors and Synod’s legal counsel for consultation, the Commission
considered the request from the Board that consideration of this
and other questions be deferred because of the Board’s inability to
respond due to insufficient time. After discussion, the Commission
decided to respond without delay out of concern for the conse-
quences of a delay. During the discussion the Commission also
noted the importance of being given the opportunity to review in
advance any changes to regulations of the agencies of the Synod, as
provided by Bylaw 3.9.2.2.4.

Question 1: Did the LCMS Board of Directors act in violation of
Bylaw 3.2.5 when it filled vacancies on the CPH
Board of Directors and on the LCMS Board of Direc-
tors with candidates who were nominated from the
floor rather than from the list of candidates provided
by the synodical nominating committee?

Qpinion: 2004 convention Resolution 7-14 states:

WHEREAS, Bylaw 3.63 b [now Bylaw 3.2.5] requires that vacancies
on synodically elected boards and commissions be filled by the Board
of Directors of the Synod from a list of nominees determined by the
Secretary of the Synod, the Director of Human Resources, and the
chairman of the synodical nominating committee; and

WHEREAS, The Secretary of the Synod serves on the Board of Direc-
tors, and the Director of Human Resources is not an elected position;
therefore be it

Resolved, That Bylaw 3.63 b be amended to read as follows:

PRESENF/PROPOSED WORDING

b. The Secretary of the Synod shall be responsible for gathering a
list of nominees from the board or commission where the vacancy oc-
curs, the synodical President, the District boards of directors, and the
slate of candidates from the previous synodical convention within 90

2007 Convention Workbook