LCMS Convention Workbook St. Louis, Missouri — 2007, Page 327

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 327

Bylaw 1.5.9 (a}-(h), uses in different subsections the terms “offi-
cer,” “executive officer,” “executive staff,” “chief executive,” and
“executive.” Analyzing both the historical roots of the bylaw as
well as the actual practice of the Synod, it is clear that the terms
“executive officer,” “chief executive,” and “executive” are used in-
terchangeably and are distinct from the term “executive staff.”
Even before the 1998 convention’s amendments to former Bylaw
3.69, which added former subsection (d) to impose a five-year term
limit unless the governing board specifically continued the person
in office, the Commission was asked in Opinion Ag. 2094 to inter-

pret the former bylaw references and concluded that a board or |

commission, regardless of the titles applied to its staff, could only
have one principal executive officer to which the provisions of the
bylaw applied. The same interpretation and application were made
in Opinion 00-2204, where term limit provisions were applied to a
single executive of the hiring authority (board, commission, and
synodwide corporate entity), including those already in office, ref-
erencing the similar treatment of college, university, and seminary
presidents.

The position of Director of News and Information Services is a
position created not by the Board for Communication Services but
by the Synod itself in Bylaw 3.8.5.2.3. Subsection (c) of the bylaw
describes the position and also directs the selection method of that
person as follows: “The Director of News and Information Ser-
vices, who also serves as executive editor of the Synod’s official
periodicals, shall be appointed by the Board for Communication
Services from a list prepared by the board and approved by the
Council of Presidents.” In this instance, the Council of Presidents
must approve the list. The President will be a part of the process
of approving the list under Bylaw 3.8.5.2.3.

Adopted Jan. 31—Feb. 1, 2006

Board of Directors/Board Chairman Communications
re Convention Action (05-2432)

A pastor of the Synod in a letter dated July 11, 2005, asked a
series of questions regarding communications by the Board of Di-
rectors and the chairman of the Board of Directors regarding 2004
Res. 7-21 and its submission of a proposed constitutional amend-
ment to the congregations of the Synod.

Question 1: Following the adoption of 2004 convention Res. 7-21,
the matter was submitted pursuant to the bylaws for
vote of the congregations of the Synod. During the pe-
riod of the voting, the Board of Directors (or a sub-
committee thereof) published a communication to the
Synod which concluded with a recommendation that
the constitutional amendment not be adopted. The
communication concluded: “This is probably not the
time for the congregations of the Synod to affirm a

change to the Constitution of the Synod.” (See the let- -

ter, which remained at the time of submission of this
question on the Synod’s Web page, at: http://www.
Icms.org/graphics/assets/media/boardofdirectors/kuhn-
letterdec.pd)

Is the Board of Directors, as an officer of the Synod,
authorized to issue a communication which directly op-
poses the will of the Synod as expressed in a resolution
adopted by the convention? If the answer is in the neg-
ative, does the President of the Synod have responsi-
bility under Art. XI B of the Constitution to admonish
those involved?

Question 2: Is such a communication a violation of the responsi-
bilities of officers under Art. XI A 1 of the Constitu-
tion? If the answer is in the positive, does the President
of the Synod have responsibility under Art. XI B of the
Constitution to admonish those involved?

Opinion: Individual members of the Board of Directors are elected
by the Synod in convention. They are expected to bring to the
Board of Directors their individual points of view, talents, and in-
sights in order that the Board of Directors as a whole might better
serve the church.

The Board of Directors as a whole, however, is an officer of the
Synod, as was discussed in Opinion 03-2376. As with any other of-
ficer, it is responsible to support and uphold the Constitution and
Bylaws of the Synod, as well as its resolutions. While it might be
permissible for an individual member of the Board of Directors,
speaking in that individual’s capacity, to express an opinion con-
trary to the expressed will and rule of the convention, the Board of
Directors, as an officer of the Synod, must consider carefully its
right to issue a communication which directly opposes the will of
the Synod as expressed in a resolution adopted by the convention.
Ultimately, the issue is more generally one of possible violation of
duties to the Synod, initial consideration of which is first the re-
sponsibility of the President and not for consideration by the Com-
mission on Constitutional Matters.

The Synod must ultimately look to its leaders to lead. The an-
swer to the first question posed herein would be as applicable to a
communication by any officer of the Synod, including the Presi-
dent of the Synod, as well as other boards, commissions, and agen-
cies of the Synod. Resolutions adopted by one convention are sub-
ject to change or refinement at the next. Even the Constitution,
Bylaws, and Articles of Incorporation may be changed. To suggest
that officers of the Synod may never speak against such changes
would deprive the Synod of the leadership it expects.

Where, as here, the Synod has spoken in convention, and the
action of an officer of the Synod is in direct opposition to an ac-
tion just adopted, the right of the Board of Directors or any other
officer to speak in opposition is a much closer question. Those in
attendance are representative of the member congregations, but
only member congregations themselves may adopt amendments to
the Synod’s Constitution. The Synod, through the process of floor
committees, reports, and consideration by the convention itself,
adopted and chose a course of action. The Board of Directors,
through the processes of the convention, had opportunity to pro-
vide their input and insight and to provide its leadership and input
on the question. Whether the Board’s communication was helpful
and informative to the members or an attempt to circumvent the
will of the convention is not an issue for the Commission’ s consid-
eration. The Commission declines to opine that the communication
was beyond the jurisdiction of the Board or a violation of its re-
sponsibilities under Bylaws 1.4.3 and 1.5.6 (a), but it strongly en-
courages the Board and other officers to carefully consider the ap-
propriateness of communications directly opposing the expressed
will of the Synod as stated in resolutions adopted at conventions
recommending that congregations approve an amendment to the
Synod’s Constitution.

With respect to the President’s responsibilities under Art. XI B
1, the President of the Synod has supervision regarding the doc-
trine and administration of all officers of the Synod, including the
Board of Directors. As legal representative of the Synod, the Board
is obligated to represent the will of the Synod as expressed in reso-
lutions adopted at conventions of the Synod. While the Board is
expected to provide leadership and guidance to the members of the
Synod, it is not free to ignore the directives of the Synod. Therefore
it has no authority under XI F 2 to act contrary to the will and di-
rectives of the Synod as stated in Synod convention-adopted reso-
lutions. As an agent of the Synod, the Board is to conduct itself as
directed by its superior, the Synod itself.

Art. XI B of the Constitution provides: “It is the President’s
duty to see to it that all the aforementioned act in accordance with
the Synod’s Constitution, to admonish all who in any way depart
from it, and, if such admonition is not heeded, to report such cases
to the Synod.” To the extent that the President of the Synod, in his
supervisory role, believes that the Board of Directors or any other
officer or agency of the Synod has usurped the will of the Synod as
expressed in its Constitution, Bylaws, and resolutions, he has the
responsibility under Art. XI B 2 to admonish those involved and, if
such admonition is not heeded, to report such to the Synod.
Question 3: Dr. Kuhn, Chairman of the Board of Directors, was

quoted in an address to a congregation earlier this year
(with audio tape available as of the time of submission
of this question at: http://trinity-lutheran.com/ files/
kuhn q and a.mp3, indicating “but when it comes to

2007 Convention Workbook