LCMS Convention Workbook St. Louis, Missouri — 2007, Page 325

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 325

change represent an expanded meaning and applicabil-

ity of this bylaw?
Opinion: Upon examination of the history of this bylaw, the rec-
ommendation of the Pro Tem Commission on Structure to the 2004
convention, and the action of the 2004 convention (Res. 7-04A),
the Commission concludes that the word “agency” (as defined by
paragraph (a) (1) of Bylaw 1.2.1) when used in the 2004 version
of Bylaw 1.5.9, while it accurately reflects the verbiage of its pre-
decessor bylaw (2001 Bylaw 3.69 e), fails to take into account the
action taken by the 2004 convention of the Synod (Res. 7-04A)
which adopted wording for this bylaw that is consistent with a prior
application and understanding of Bylaw 3.69 e: “Every entity of
corporate Synod and every synodwide corporate entity shall oper-
ate under synodical human resources policies. Such policies may
recognize the unique character of the operations of each”’ (Res. 7-
04A). ;

Recognizing that the term “agency” as defined in Bylaw 1.2.1
(a) (1) is broader than the intention of the 2004 convention for ap-
plication of this bylaw, the Commission herewith opines that the
current wording of Bylaw 1.5.9 and its use of the term “agency”
be understood to be that of the intention of the 2004 convention,
and that the term “agency” in the case of this bylaw alone be under-
Stood to have the meaning: “entity of corporate Synod and every
synodwide corporate entity.” Further, the Commission requests that
the Synod’s Commission on Structure give attention to the use of
the word “agency” in the current Bylaw 1.5.9 and recommend an
appropriate action to the 2007 convention of the Synod to clarify
the bylaw’s verbiage, taking into account the history of this bylaw,
the recommendation of the Pro Tem Commission on Structure to
the 2004 convention, the action of the 2004 convention, and this
opinion of the Commission on Constitutional Matters.

Adopted Jan. 31—Feb. 1, 2006

Human Resources Policies of the Synod (05-2430)

The President of the Synod, in memoranda dated July 22 and
August 15, 2005, submitted a series of questions relating to human
resources policies of the Synod. He noted the receipt by the LCMS
Board for Human Resources of a June 16, 2005 letter from the
LCMS Board of Directors through the Office of the Secretary of
the Synod that communicated the Board’s perception that a recent
decision of the Board for Human Resources was inappropriate. He
stated that he recognized the desire of both boards to be responsible
in all their decisions and actions but asked opinions of the Com-
mission on the following questions.

Question 1: Are the policies of the Board for Human Resources,
specifically policies 3.25 and 3.30 including the
amendments in question, in harmony with the Consti-
tution, Bylaws, and resolutions of the Synod, espe-
cially since such policies relate to, among other con-
stitutional and bylaw references, Bylaws 1.5.9 and
3.11?

Opinion: In addition to the Commission’s responsibility under
Bylaw 3.9.2.2 generally to interpret the Synod’s Constitution, By-
laws, and resolutions upon written request of a member, the ques-
tion properly recognizes the Commission’s additional responsibil-
ity and authority under Bylaw 3.9.2.2.4 which reads: “The
Commission on Constitutional Matters shall examine in advance
the articles of incorporation and the bylaws or regulations of every
agency of the Synod and all proposed amendments of such docu-
ments to ascertain whether they are in harmony with the Constitu-
tion, Bylaws, and resolutions of the Synod.”

The Board for Human Resources is certainly an agency of the
Synod, and its guidelines 3.25 and 3.30 are therefore appropriately
reviewable by the Commission to determine whether they are in
fact in harmony with the Constitution, Bylaws, and resolutions of
the Synod. In fulfilling its responsibility, the Commission must de-
termine whether the governing documents of an agency of the
Synod attempt to allow some activity proscribed by the Synod’s
governing documents or to prohibit some activity mandated by the
governing documents of the Synod. In this case, the Board for
Human Resources adopted policies which required that all candi-

dates for Synod positions requiring a called minister be filled in
consultation with and mutual concurrence of the President of the
Synod, subject to all appropriate provisions of the Constitution, By-
laws, and other policies which apply. Human resources guideline
3.25 specifically applied to senior staff of program boards and com-
missions, and guideline 3.30 to Synod corporate agencies calling
and appointing staff to positions requiring an ordained or commis-
sioned minister of religion.

The Board for Human Resources of the Synod, although an
agency of long standing referenced in various resolutions of the
Synod, was an agency created by the Board of Directors of the
Synod and not by action of the Synod in convention. Subsequent to
the submission of this series of questions, the Board of Directors
in its August, 2005 meeting (page 100 of the Board’s minutes) dis-
solved the Board for Human Resources, and the amendments to the
Board for Human Resources guidelines 3.25 and 3.30, which are
the subject of the question submitted, were set aside to the extent
that they require a concurrence of the President of the Synod of a
list of candidates. Because of the actions of the Board of Directors,
the question submitted is now no more than hypothetical. The
Commission therefore believes that it would be inappropriate to an-
swer further this question at this time.

Question 2: Are the pertinent sections (chapters) of the Board of
Directors policies, specifically policies 3.2 and 4.8, in
harmony with the Constitution, Bylaws, and resolu-
tions of the Synod, especially as such policies relate to,
among other constitutional and bylaw references, By-
laws 1.5.9 and 3.11?

Opinion: The Board of Directors policy manual section 3.2 which
was supplied by the Secretary of the Synod includes a broad range
of subjects identifying matters generally which require Board ac-
tion. These areas include budgets, accounting, financial transac-
tions, audits, property, human resources, administrative policies,
and legal and governmental issues. The Board of Directors policy
manual section 4.8 addresses the Board of Directors’ executive lim-
itation on human resources. These policies may be found on the
Synod’s Web page in the document found at: http://www.lcms.org/
graphics/assets/media/ Board_of_Directors/Policyman05.pdf.

Given the scope particularly of Board of Directors policy 3.2, it
is difficult to answer the question as broadly as it has been submit-
ted. If there are particular details that need to be clarified, the Com-
mission would request that the question be resubmitted with a more
narrow focus. In general, Board of Directors policy section 4.8
places limitations on the Board for Human Resources. Since that
entity has now been dissolved, as referenced above, presumably
that policy will be eliminated.

Assuming that the question presented was intended to deal with
human resources issues and not the other areas covered by board
policy section 3.2, the Commission has examined specifically pol-
icy 3.2.6. Policy 3.2.6.1 addresses changes in salary classification
and ranges for corporate Synod. That is certainly within the con-
stitutional and bylaw authority of the Board of Directors. Policy
3.2.6.2 reserves to the Board consideration of changes in the salary
of officers of the Synod and the Chief Administrative Officer of
the Board. Again, that is within the authority of the Board of Direc-
tors. Finally, policy 3.2.6.3 addresses changes in the membership of
the Board for Human Resources. As indicated above, the Board for
Human Resources was a creation of the Board of Directors and not
an entity created by the Synod itself. The Board of Directors is
within its authority and responsibility to control the membership
(and even the existence) of the Board for Human Resources.

Question 3: In the area of human resources issues, in the event of a
conflict between the policies of an agency of the Synod
and the policies of the Synod’s Board for Human Re-
sources, which policy takes precedence?

Opinion: In general, the policies of an agency of the Synod as well
as the policies of the Board for Human Resources must both be
consistent with the Constitution, Bylaws, and resolutions of the
Synod. Because Bylaw 1.5.9 requires that every agency of the
Synod operate under the human resources policies of the Synod,
the Synod’s Board for Human Resources, prior to its being dis-

2007 Convention Workbook