LCMS Convention Workbook St. Louis, Missouri — 2007, Page 342

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342 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

conducted in a manner reflecting the highest degree of integrity and
honesty consistent with the Scriptures, the Lutheran Confessions,
the Handbook of the Synod, board policies, and civil] laws.”

The bylaw does not prohibit an individual from service based
on a potential conflict of interest, but rather requires that all poten-
tial conflicts of interest be disclosed to the chairman, executive of-
ficer, or governing board, as may be appropriate. The advance dis-
closure is intended to assist the member and the entity of the Synod
in avoiding actual conflicts of interest, and in striving to reflect the
integrity and honesty expected of God’s servants. For example, a
prospective member of the Concordia Publishing House Board of
Directors who owns, or whose family owns, a business supplying
ink to the publishing house would want to disclose that relation-
ship as a potential conflict of interest, but would not be precluded
from serving on the Concordia Publishing House board. Should the
publishing house board consider a contract involving supplies that
might come from that member’s company, however, that member
certainly would not participate in discussions or vote.

Question 2: What is meant by the phrase “any potential conflicts
of interest” as found in Bylaw 1.5.12.1 (a)? Does it
mean to include avoiding in discussions and/or decid-
ing resolutions involving family relationships, rela-
tives, acquaintances, congregational membership, etc.?
Does it mean to include avoiding in participating in the
defense of the Synod against a lawsuit when members
of that respective board either introduced and/or sup-
ported a resolution to file a like-minded lawsuit ear-
lier?

Qpinion: A potential conflict of interest exists when one may be

influenced by factors other than service to the Synod in the deliber-

ative or decision-making process. While attention is often given to
the conflict created by financial considerations, other factors inter-

fering with independent judgment are also capable of creating a

conflict of interest (see Bylaw 1.5.4). Prior opinions of the Com-

mission on Constitutional Matters have referenced discussions of
conflicts not only involving financial issues, but also those arising
from serving on a board responsible for supervision of one’s em-
ployer (becoming both master and servant) and voluntary recusals
based upon an appearance of conflict. The primary focus, again, is
to conduct the Synod’s business in a manner reflecting the highest
degree of integrity and honesty. In doing so, those who serve the
Synod are expected to avoid conflicts and improprieties, and even
the appearance of impropriety should be avoided. The likelihood
that an actual conflict of interest exists is certainly magnified by
discussions or resolutions involving family relationships, relatives,
acquaintances, congregational membership, and such other rela-
tionships as may influence the independent judgment of a member.

Members of the Board of Directors have a fiduciary responsibil-
ity to the Synod and an obligation to follow the directions of their
superior, the Synod itself acting in convention. Without further
facts, the last sub-question is too vague to allow any other appropri-
ate response.

Question 3: After a board or commission member discloses a “con-
flict of interest” to the chairman of a board or commis-
sion, should he alone make a decision whether a con-
flict of interest exists or not? Or, should that chairman
report the “conflict of interest” to the respective board
and then the whole board should determine by a vote
whether an inappropriate interest exists or not?

QOpinion: As discussed above, the existence of a potential conflict
of interest must be disclosed to the chairman. Should either the
member or the chairman have concern that the potential conflict is
an actual conflict or raises the appearance of impropriety, that issue
should be brought to the attention of the governing board as a
whole. If the member individually, or the board or commission as a
whole, determines that there is an actual conflict, the member
should not participate as to the issue for which the conflict exists.
All potential conflict disclosures are to be reported to the respective
board or commission under Bylaw 1.5.12.1! (a) (3), which further
indicates that it is the entire board or commission that shall deter-
mine whether an inappropriate interest exists and, if the member
has not voluntarily recused himself, that a concern still exists.

2007 Convention Workbook

Question 4: What is meant by the phrase “whether an inappropriate
interest exists” as found in Bylaw 1.5.12.1 (a) (3)?

Opinion: An inappropriate interest exists when there is an actual
conflict of interest.

Question 5: If a member feels that he/she has a “conflict of inter-
est,” or if the respective board has determined that “an
inappropriate interest exists,” what action(s) should
then be taken?

Opinion: If a member feels that he or she has a conflict of interest
or believes that participation in a particular matter would raise an
appearance of impropriety or conflict inconsistent with the Synod’s
expectation that the member reflect the highest degree of integrity
and honesty, that member should volunteer to recuse himself or
herself from further consideration of the issues involved in the con-
flict. If the board or commission has determined that an inappro-
priate interest exists, contrary to the position of the member, the
member will not be allowed to participate in the consideration of
that issue for which the conflict exists in any event.

It should be noted that in order to maintain the high degree of
integrity and honesty expected of members of the Synod, includ-
ing the avoidance of an appearance of impropriety, there are many
examples of individuals declining to participate in consideration of
particular matters simply to maintain that integrity and to assure
not only actual propriety but also the appearance of propriety. For
example, in the February 1, 1985 minutes of the Commission (Ag.
107), the Secretary of the Synod refrained from voting on all mat-
ters relating 10 questions involving Concordia Theological Semi-
nary, Fort Wayne because of “a possible conflict of interest.”

In 1998 Opinion Ag. 2119, the Commission discussed the im-
portance of avoiding potential conflicts of interest or the appear-
ance of impropriety and steps which could be taken to effect that
goal. The reader may also wish to refer back to the Commission’s
more recent Opinion 02-2313.

Adopted May 1-2, 2006

Clarification of Bylaw 3.2.5 re Process
for Filling Vacancies (06-2469)

Following a challenge to the list of candidates submitted for fill-
ing a vacancy on the Board of Directors, the secretary of the Com-
mittee for Convention Nominations submitted on behalf of the
committee the following question regarding the process involved
in filling a vacancy on the Synod’s Board of Directors.

Question: Since the Committee for Convention Nominations is a
creation for the triennium, can the committee consider
for its deliberation and submission all nominations for a
given position submitted from throughout the Synod?

Opinion: Vacancies on the Synod’s Board of Directors are to be
filled pursuant to Bylaw 3.2.5 (a) and (b), which read as follows:

(a) The Secretary of the Synod shall be responsible for gathering a
list of nominees from the board or commission where the va-
cancy occurs, the President of the Synod, the district boards of
directors, and the slate of candidates from the previous conven-
tion 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.

Although there are currently two vacancies, the process for fill-
ing each vacancy is independent of the other, and separate lists of
candidates must be generated as described above as to each posi-
tion.

Not all persons originally nominated for the now vacant posi-
tion would have been on the list of candidates submitted to the con-
vention, or added by the convention pursuant to Bylaw 3.12.3.7.
The slate of candidates from the previous convention are those who
were identified by the Committee for Convention Nominations
under Bylaw 3.12.3.6 (b) for the position now to be filled, together
with nominations added to the slate from the floor of the conven-
tion pursuant to Bylaw 3.12.3.7 (a). If a person was not on the con-
vention’s slate of candidates for the vacant position (in this instance
the Synod’s Board of Directors), a name may not be considered for