LCMS Convention Workbook St. Louis, Missouri — 2007, Page 341

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 341

be a violation of the Constitution, Bylaws, and resolutions of the
Synod.” The title given to this bylaw is “Powers and Duties—Ad-
ministrative,” with the lead sentence of the section stating, “The
President shall oversee the activities of all officers, executives, and
agencies of the Synod to see to it that they are acting in accordance
with the Constitution, Bylaws, and resolutions of the Synod.” The
President’s authority, with which this bylaw specifically deals, per-
tains to actions or activities that in the President’s view may be in
violation of the Constitution, Bylaws, and resolutions of the Synod.

The title given to Bylaw 3.3.1.3 is “Powers and Duties—Eccle-
siastical and Administrative,” with the lead sentence stating: “The
President shall have powers and duties that are both ecclesiastical
and administrative.” Whether ecclesiastical or administrative, the
President is also authorized to exercise executive power under the
limitations imposed in paragraphs (j) and (k) of Bylaw 3.3.1.3.
These paragraphs may be exercised regardless of whether or not
Bylaw 3.3.1.2 (c) is exercised and may very well be in addition to
the exercise of Bylaw 3.3.1.2 (c).

The provision in Bylaw 3.3.1.3 (j) which is a basis for the Pres-
ident’s judgment is “when the affairs of the Synod demand it and
when he has been expressly invested with such power by the Synod
in convention.” And the provision in Bylaw 3.3.1.3 (k) which is a
basis for the President’s judgment is “in the event that the affairs of
the Synod require the exercise of executive power for a purpose for
which there is no specific directive of the Synod, to exercise such
power after consultation with the vice-presidents, the Board of Di-
rectors of the Synod, or the Council of Presidents, whichever in his
judgment is most appropriate.”

Concerning the executive power of the President of the Synod,
Opinion 03-2376 of the Commission on Constitutional Matters,
rendered on January 28, 2004, is also helpful. The summary para-
graph of the opinion states:

Were all eventualities and potential problems foreseeable, the Synod
could adopt bylaws and policies to address all issues in advance, and
the question posed could be answered with greater specificity. How-
ever, the Synod has recognized that there are circumstances that it may
not have foreseen or for which it may not have made direct provision.
For those reasons, the Synod has therefore invested the President with
very broad powers to address those circumstances that it did not foresee
or for which it made no other provision. For the same reason, the Com-
mission cannot define in advance the ultimate boundaries of that power.

The Commission also calls attention to Opinion 06-2462 issued
on this date.

Adopted May 1-2, 2006

Conflicts of Interest (06-2467)

A pastor of the Synod in a letter received March 20, 2006, asked
a series of questions regarding conflicts of interest, introducing his
questions with the following background information:

Background Part A:

A board of the Synod is managing a legal defense against a law-
suit—making decisions about a relevant legal strategy and even now is
involved with mediation towards a resolution. The plaintiffs of the law-
suit are members of the Synod, and a few just so happen to be also fam-
ily members, relatives, pastors, congregations, acquaintances, and
friends of members of that particular board. Also, members of that
board introduced and a few even voted for (Yes) in supporting a lawsuit
against the Synod and months later are now defending the Synod
against the same lawsuit. Possible and numerous potential “conflicts of
interest” may be present in this situation?

Background Part B:

Bylaw 1.5.12 states: “Every board, commission...shall avoid con-
flicts of interest as described in this bylaw.” These are then specifically
mentioned in Bylaw 1.5.12.1 (a) (1) and (2). In addition, Bylaw 1.5.12.1
mentions that each governing board “shall maintain and monitor a con-
flict-of-interest policy” that includes the provisions that follow, includ-
ing that of Bylaw 1.5.12.1 (a): “Each board or commission shall dis-
close to the chairman...any potential conflicts of interest. Each
chairman...shall disclose personal potential conflicts of interest to the
governing board.” Is it the intent of the Bylaws that just a narrow range
of specific “conflicts of interest” are to be avoided, or is the intent for

there to be a much broader range of “any potential conflicts of interest”
to be avoided?

Question 1: Is the intent of the Bylaws that every board, commis-
sion, officer, and staff member of the Synod “avoid
conflicts of interest as described in this bylaw” as the
only ones mentioned in Bylaw 1.5.12 [then specifically
detailed in Bylaw 1.5.12.1 (a) (1) and (2)], or is the in-
tent that they should avoid a much broader range of
“any potential conflicts of interest” as found in the
phrasing of Bylaw 1.5.12.1 (a)?

Opinion: First, it should be noted that by repeating the factual back-
ground asserted by the questioner, the Commission on Constitu-
tional Matters is not making a judgment as to the correctness or
completeness of the facts asserted. However, in order that the ques-
tions presented can be kept in context, the background asserted as a
predicate to the questions has been repeated.

Bylaw 1.5.12 regarding conflict of interest reads as follows:
Disclosure of Conflict of Interest

1.5.12 Every board, commission, officer, and staff member of the
Synod and every agency of the Synod shall avoid conflicts
of interest as described in this bylaw.

1.5.12.1 Each governing board shall maintain and monitor a con-
flict-of-interest policy which shall be applicable to the
boards, commissions, officers, and executive staff operat-
ing under the respective agency. Each policy shall include
the following provisions:

(a) Each board or commission member shall! disclose to the
chairman of the agency and each staff person shall disclose
to the executive officer of the agency any potential con-
flicts of interest. Each chairman or executive officer shall
disclose personal potential conflicts of interest to the gov-
erning board.
(1) Such disclosures shall include board membership
on, a substantial interest in, or employment of the indi-
vidual or a relative by any organization doing business
with the Synod or any of its agencies.

(2) Board members or staff persons who receive hono-
raria or payments for any sales or services rendered to
the Synod or its agencies shall disclose such informa-
tion.

(3) All such disclosures shall be reported to the respec-
tive board or commission or its designated representa-
tive(s), who shall determine whether an inappropriate
interest exists.

(b) Responsibilities shall be conducted in a manner reflect-
ing the highest degree of integrity and honesty consistent
with the Scriptures, the Lutheran Confessions, the Hand-
book of the Synod, board policies, and civil laws.

(1) Activities shall not be entered into which may be
detrimental to the interests of the Synod and its agencies.

(2) Information acquired in the course of carrying out
duties of the Synod shall not knowingly be used in any
way that would be detrimental to the welfare of the
Synod and its agencies.

(3) No board or commission member and/or staff or ex-
ecutive officer of the Synod or its agencies shall vote
on any transaction in which the individual shall receive
a direct or indirect financial gain.

(4) Gifts, entertainment, or favors in excess of $100 per
person per year from any individual or outside concern
which does or is seeking to do business with the Synod
or its agencies shall not be accepted.

(5) Any inappropriate activity shall cease or the posi-

tion will be vacated.

1.5.12.2 Individuals, prior to accepting elected or appointed office
or staff positions, shall sign statements that they have re-
ceived, understand, and agree to abide by this bylaw and
the conflict of interest policy of the respective corporation.
Each shall also sign annually a “Statement of Compliance”
with the bylaw and policy.

While one can attempt to delineate at great length the activities
which are not to occur, the spirit and essence of the bylaw is con-
tained in Bylaw 1.5.12.1 (b) as follows: “Responsibilities shall be

2007 Convention Workbook