LCMS Convention Workbook St. Louis, Missouri — 2007, Page 316

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316 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

days of notification of the vacancy. As list of at least three but no more
than five candidates shall be submitted as soon as possible to the ap-
propriate appointing body. This list shall be determined by the Seeretary

the-synediea+neminating-eommeittee chairman and two members of the
synodical nominating committee as determined by the nominating com-
mittee. The Synod’s Director of Human Resources shall lted
in developing the candidate list

The amended bylaw, now Bylaw 3.2.5 (2004 Handbook), there-
fore reads:

(a) 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 President of the Synod, the district boards of directors, and the
slate of candidates from the previous convention of the Synod within
90 days of notification of the vacancy.

(b) A list of at least three but no more than five candidates shall be
submitted as soon as possible to the appropriate appointing body.

(c) This list shall be determined by the chairman and two members
of the Committee for Convention Nominations of the Synod as deter-
mined by the committee. The Synod’s Director of Human Resources
shall be consulted in developing the candidate list.

The first whereas paragraph of Resolution 7-14 makes it very
clear that the Board of Directors is required to fill the vacancies of
boards and commissions elected by the Synod from the list pro-
vided by the nominations committee. Bylaw 3.2.5 does not make
provision for nominations from the floor.

It is helpful to note that a whereas paragraph is an integral part
of a resolution. Special Standing Rule #7 of the 2004 convention of
the Synod reads, “The preface, preamble, rationale, and whereas
sections shall be regarded as integral parts of resolutions and there-
fore subject to the same consideration and adoption as the main
motion” (Today’s Business, p. 9). The August, 1969 opinion of the
Commission on Constitutional Matters, ‘An Opinion on the Consti-
tutionality of Denver Resolution 3-15,” also opined that “the entire
document—‘Preamble,’ ‘Whereases,’ and ‘Resolveds’—forms a
complete unit.”

The actions of the Board of Directors as recorded in the min-
utes of the Board (August 19-20, 2005—item 66) in the filling of
the vacancies on the Board of Directors of the Synod and the Board
of Directors of Concordia Publishing House are violations of
Bylaw 3.2.5 and Resolution 7-14.

Question 2: If the LCMS Board of Directors acted in violation of
Bylaw 3.2.5, should the election of Peter Cage to the
CPH Board and Walter Brantz to the LCMS Board of
Directors be declared null and void?

Opinion: Yes, any action or resolution by any officer, board, com-
mission, district, or other agency of the Synod that is in violation of
the Synod’s Constitution and Bylaws is null and void. A June, 1974
Commission on Constitutional Matters opinion (Ag. 632) opined
that all resolutions of districts that provide for action which is in
conflict with the Synod are unconstitutional and therefore null and
void. An August 13, 1976 opinion, “Opinion re Legality of District
Conventions and Circuit Meetings Involving Ineligible Partici-
pants,” also concluded that elections by illegally seated delegates
are to be considered null and void. Therefore, the positions in ques-
tion remain vacant.

Question 3: If the above elections are declared null and void,
should the LCMS Board of Directors be required to fill
the vacancies on these two boards with candidates pro-
vided by the nominations committee?

Qpinion: Yes. Article XI A 1 of the Constitution of the Synod
states, “The officers of the Synod must assume only such rights as
have been expressly conferred upon them by the Synod, and in
everything pertaining to their rights and the performance of their
duties they are responsible to the Synod.”

Bylaw 1.4.1 states in part:

The delegate convention of the Synod is the legislative assembly
that ultimately legislates policy, program, and financial direction to
carry on the Synod’s work on behalf of and in support of the member
congregations. It reserves to itself the right to give direction to all offi-
cers and agencies of the Synod. Consequently, all officers and agencies,

2007 Convention Workbook

unless otherwise specified in the Bylaws, shall be accountable to the
Synod for all their actions, and any concerns regarding the decisions of
such officers or agencies may be brought to the attention of the Synod
in convention for appropriate action.

And Bylaw 1.4.3 also states in part:

Elected officers of the Synod and its agencies serve in accordance
with duties assigned to them or otherwise authorized by the Constitution
and appropriate bylaws. Primary responsibility is given to each officer,
to the extent of his jurisdiction, for implementing specific decisions of
the appropriate conventions, boards, and commissions and for super-
vising and coordinating the day-to-day activities of the respective staffs.
For the appropriate procedure to be followed, see answer to

question 1 above, which quotes Bylaw 3.2.5.

Question 4: Does the Board of Directors have the authority to flout
the requirements of Bylaw 3.2.5 (c) on the basis of an
appeal to Robert’s Rules of Order?

Opinion: No. While the Bylaws of the Synod refer to “accepted
parliamentary rules,” such as Bylaw 1.5.2 (‘All agencies shall or-
ganize themselves as to officers and subcommittees at the initial
meeting after election or appointment and shall conduct business
in accordance with accepted parliamentary rules.””) and Bylaw 3.1.9
(i) (3) (‘The President shall conduct the sessions according to ac-
cepted parliamentary rules and make every effort to arrange the
schedule of business so that the sessions do not exceed one week in
duration.”), the Constitution, Bylaws, and resolutions of the Synod
supersede any “accepted parliamentary rules.”

Question 5: If the Board does not have such authority, are any ap-
pointments made on such a basis valid and operative,
or do the positions remain vacant until filled in accor-
dance with the provisions of the Bylaws?

Opinion: See the response to question 2 above. The positions re-
main vacant.

Question 6: Can the Commission on Constitutional Matters inform
and direct the Board of Directors that its former actions
are null and void?

Opinion: The Commission on Constitutional Matters through this
opinion has informed the Synod (including the Board of Directors)
that the aforementioned appointments are null and void, but it does
not have the responsibility to enforce the Constitution, Bylaws, and
resolutions of the Synod or its opinions. Therefore the Commission
cannot “direct” the Board of Directors concerning their action. The
Commission only interprets, that is, explains and tells what the col-
lective will of the Synod is as expressed in the Constitution, By-
laws, and resolutions of the Synod.

See also the answers to the above questions.
Adopted Oct. 16-18, 2005

Activity of Small Groups Within the Synod (05-2443)

In a letter dated September 19, 2005, three members of the
Council of Presidents submitted a series of questions regarding the
propriety of certain activities of small groups within the Synod.

Question 1: Is it in harmony with the Constitution and Bylaws (1.3,
1.4, 1.8, 1.10, 3.1.1, and 3.1.6.2) of the Synod for any
member of the Synod or unofficial group within the
Synod to engage in activities that seek to carry out the
objectives of the Synod (Article III) that the Synod has
reserved until itself, though such members or groups
have not been given such responsibility by the Synod
itself? (E.g.: “Resolved, that we send our pastor and
one layman to represent Lutheran Church
of to form a coalition of other confes-
sional congregations and pastors to formulate a united
plan of action for marking and avoiding (Romans
16:1) those who hold to the above stated errors in doc-
trine and practice.”)

Opinion: On October 16, 1969, the Commission on Constitutional

Matters issued a landmark opinion on the subject of “Dissenting

Groups and Activities Within the Synod.” A portion of that opinion

speaks directly to the question above: