LCMS Convention Workbook St. Louis, Missouri — 2007, Page 338

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338 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

The Constitution and Bylaws as interpreted by the Commission
on Constitutional Matters confirm that the President of the Synod
has at least the following responsibilities and authority:

(1) The President supervises the doctrine and administration of all
Synod employees (Constitution, Art. XI B 1);

(2) The President is responsible to see that all Synod employees act
in accordance with the Constitution of the Synod (Constitution,
Art. XI B 2);

(3) The President is to admonish all employees who act in a manner
that is inconsistent with the Constitution and to report to the
Synod if an employee refuses to alter his conduct as advised by
the President (Constitution, Art. XI B 2);

(4) The President may “advise, admonish, and reprove” all employ-
ees that in his opinion are acting in an improper manner espe-
cially regarding doctrine (Constitution, Art. XI B 3 (Also, Bylaw
3.3.1.1.1 provides that the President has ecclesiastical supervi-
sion over all officers and agencies of the Synod and as defined in
Bylaw definition 1.2.1 (f) may in exercising supervision visit,
encourage, support, care, protect, counsel, advise, admonish and
when necessary take appropriate disciplinary measures to ensure
that the Constitution, Bylaws, and resolutions of the Synod are
implemented.);

(5) The President is responsible to see to it that Synod employees
carry out Synod resolutions (Constitution, Art. XI B 4) and may
advise, admonish, or reprove those acting in a manner inconsis-
tent with the same;

(6) The President may request the appropriate executive officer to
report on particular staff activities (Bylaw 1.4.6 [d]);

(7) The President may request that an officer, executive, or agency
reverse a decision that he believes violates the Constitution, By-
laws, or resolutions of the Synod (Bylaw 3.3.1.2 [c] [2]);

(8) The President may refer to the Synod’s Board of Directors,
Commission on Constitutional Matters, and/or the Synod in con-
vention any situation where an officer, executive, or agency re-
fuses to alter/reverse an action that he believes violates the Con-
stitution, Bylaws, or resolutions of the Synod (Bylaw 3.3.1.2 [c]
(2);

(9) The President has executive power to act if specifically given
such power by a Synod convention if affairs of the Synod re-
quire it (Bylaw 3.3.1.3 [j});

10) The President may exercise executive power in the absence of a
specific directive of the Synod should affairs of the Synod re-
quire it in his opinion after appropriate consultation with the
vice-presidents, Board of Directors, or Council of Presidents of
the Synod (Bylaw 3.3.1.3 [k]).

Therefore, under specific directives of the Constitution and By-
laws of the Synod, the President has authority to advise/request that
an agency or staff executive not appoint someone he believes
would not serve the best interests of the Synod. He may also ask
that an agency or executive reverse a decision he believes to be im-
proper if made. Beyond these authorized avenues of action, the
President of the Synod, after appropriate consultation, has innate
executive power to act in areas of doctrine and administration if he
believes that the affairs of the Synod require it (Bylaw 3.3.1.3 [k]).
As the Commission has advised in a prior opinion, such an “ulti-
mate constitutional responsibility” in situations where the day to
day administration rests with other staff or agencies of the Synod
should only be exercised if a matter is “so important” that action
is “required” for the health, welfare, and integrity of the Synod (Ag.
330, quoted above). As in the exercise of censorship, such exercise
of executive power should be done “only in exceptional circum-
stances...on those occasions when the affairs of the Synod so re-
quire...” (Ag. 2073, quoted above).

Adopted May 1-2, 2006

Authority of the Board of Directors (06-2463)

In a March 6, 2006 letter, a parish pastor asked questions re-
lated to the “litigation process which is now taking place in our
Synod at this time,” explaining that such questions are “a matter of
great concern to me and many others in The Lutheran Church—
Missouri Synod.”

Question 1: Does the Synod’s Board of Directors, as legal repre-

2007 Convention Workbook

sentative of the Synod, have the authority to enter into
a legal agreement to vacate the election of the Presi-
dent, Vice-President, or any other office elected by the
Synod in its 2004 convention?

Opinion: No. The duties and responsibilities of the Board of Direc-
tors of the Synod are as outlined in Article XI F of the Constitu-
tion and Bylaws 1.4.4 and 3.3.5. As with all officers of the Synod,
the Board of Directors as a whole, according to Constitution Art.
XI A 1, “must assume only such rights as have been expressly con-
ferred upon them by the Synod, and in everything pertaining to
their rights and the performance of their duties they are responsible
to the Synod.” Under Bylaw 3.3.5.4, the Board of Directors has
been authorized to take, on behalf of the Synod, actions related to
the business and legal affairs of the Synod which have not been ex-
pressly delegated by the Constitution, Bylaws, and resolutions of
the Synod to other officers or agencies of the Synod.

The conduct of the convention, including the election of the
President, Vice-President, and all other offices subject to election at
the convention, is governed by the Bylaws. That responsibility and
authority has been retained by the Synod in convention and has not
been delegated to the Board of Directors. It would be beyond the
authority of the Board of Directors to enter into an agreement or
take such steps as would cause the overturning or vacating of the
elections conducted by the Synod in convention.

The processes for delegate selection have also been determined
by the Synod in its Bylaws, particularly Bylaw 3.1.2. Challenges
to delegate selection and certification, including challenges to del-
egates from circuits approved under the process provided by Bylaw
3.1.2 (b), are handled ultimately by the convention itself. Any chal-
lenge to the exceptions granted by the President as to delegates
seated at the 2004 convention had to have been made at that time,
and no such challenge was made. Subject to the Synod’s governing
documents, the conduct of the convention is ultimately within the
control of the delegates themselves, subject to the Constitution and
Bylaws of the Synod.

Question 2: Does the Synod’s Board of Directors, as legal repre-
sentative of the Synod, have the authority to enter into
a settlement of litigation in a civil court, the effect of
which would be to amend the Bylaws of the Synod, to
vacate or render of no effect opinions of the Commis-
sion which were not vacated by a convention of the
Synod, or would affect the method of selection of the
ecclesiastical leaders of the Synod?

Opinion: No. The powers of the Board of Directors are those
granted by the Synod, as discussed above. Amendments to the
Constitution of the Synod are governed by Constitution Art. XIV.
The exclusive method to amend the Constitution requires consider-
ation and referral by the Synod assembled in convention and ratifi-
cation by a vote submitted to each voting congregation of the
Synod on an official ballot following the process contained in the
Constitution.

Amendments to the Bylaws of the Synod are governed by
Chapter 7 of the Bylaws. Two methods are provided. In the first,
amendments may be made by the Synod itself in convention. The
process for such an amendment is contained in Bylaw 7.1.1. The
Bylaws also provide for amendments made by two-thirds majority
of the Board of Directors under Bylaw 7.1.2, which reads:

7.1.2 In exceptional circumstances and upon the express direction
of a convention of the Synod, amendments may be made by a
two-thirds majority of the Board of Directors.

(a) Such amendments to the Bylaws shall be necessary to im-
plement resolutions adopted by a convention of the Synod.
(b) Such Amendments shall be drafted by the Secretary of the

Synod and shall be reviewed by the Commission on Constitutional

Matters.

In order for the Board of Directors to have authority under
Bylaw 7.1.2, the Board of Directors must have express, prior di-
rection from a convention of the Synod to make the amendments
proposed. Such amendments to the Bylaws can only be made when
necessary to implement resolutions adopted by a convention of the
Synod. Such amendments must be drafted by the Secretary of the