LCMS Convention Workbook St. Louis, Missouri — 2007, Page 344

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344 OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

to serve as a lay delegate and then reapply for roster
membership after the convention?

Opinion: Circuit forums are to consist of “a pastor of each congre-
gation and one member of each congregation designated from each
congregation” (Bylaw 5.3.2). They shall have been “selected in a
manner prescribed by the congregation” (Bylaw 3.1.2.1 [c]). Con-
gregations with more than one called pastor must decide which of
their pastors will represent them. Pastors serving congregations on
other than a called basis may not represent the congregation as its
“pastor” (see also CCM Opinion 06-2461). By providing that con-
gregations may select their representatives to a circuit forum in the
manner prescribed by the congregation, the Synod does not impose
any restrictions for lay representatives of congregations.

All persons not rostered by the Synod as ordained or commis-
sioned ministers are regarded as lay persons and may represent
their congregation as such at circuit forums. They may also be
elected to serve as lay delegates to conventions of the Synod. This
includes lay ministers and licensed deacons insofar as they are not
rostered by the Synod. Also, although they may conduct Word and
Sacrament ministries, lay ministers and licensed deacons may not
be considered for delegate positions requiring a pastor because they
are not rostered as such.

Rostered emeritus pastors and other rostered church workers
may not be regarded as lay persons. While it may technically be
possible for an emeritus church worker to resign from the roster of
the Synod in order to serve as a lay representative or delegate with
the intention of returning to the roster afterwards, this is not advis-
able (application for reinstatement requires a 75% favorable vote
of the Council of Presidents) nor does it ring true to a spirit of hon-
est representation at conventions of the Synod.

Question 2: What constitutes a quorum for a circuit forum? Is it ap-
propriate for a circuit forum to be conducted in any
other manner than by a face-to-face meeting of the rep-
resentatives of the congregations of the circuit?

Opinion: The Bylaws of the Synod are silent regarding a quorum
requirement for circuit forum meetings. Therefore those physically
present constitute a quorum. Bylaw 3.1.2.1 (a) only requires that
circuits “shall meet at the call of the counselor(s).” It behooves cir-
cuit counselors, therefore, to exercise care in selecting dates and to
clearly announce circuit forums well in advance to allow for the
greatest possible participation.

While modern technology might make possible any number of
alternative methods for circuit forums to meet and conduct elec-
tions of delegates (e.g., E-mail, conference calls) and while local
conditions may favor other manner of meetings or voting processes
(e.g., separate meetings in different locations, proxy or absentia
ballots), no such provisions exist in the current Bylaws of the
Synod. The Bylaws speak of the circuit forum as a “group” (Bylaw
5.3.1) that “meet[s]” (Bylaw 5.3.3) for the purposes stated in Bylaw
section 5.3 of the Handbook, including the election of circuit dele-
gates to the national convention.

These issues regarding quorum requirements and possible alter-
native methods for circuit forums to meet are herewith referred by
the Commission on Constitutional Matters to the Commission on
Structure for review and possible recommendations for change.

Question 3: How does a circuit forum proceed if there are insuffi-
cient nominations of laypersons by circuit congrega-
tions for lay delegate positions? What constitutes a
proper election by a circuit forum?

Opinion: Bylaw 3.1.2.1 makes clear that “each congregation may
nominate one layperson, either from its congregation or from the
circuit” for the lay delegate and alternate positions, these names to
“be submitted to the circuit counselor prior to the day of the circuit
meeting.” They alone “shall constitute the slate of candidates.” If
insufficient nominations are submitted in a timely manner by cir-
cuit congregations, these positions cannot be filled. Furthermore,
the Bylaws of the Synod include no provision for filling these posi-
tions in another manner. In the absence of a proper election, the
circuit will not be represented by a lay delegate, since Bylaw
3.1.2.1 Gj) applies only to positions already properly filled.

2007 Convention Workbook

The process for proper elections at circuit meetings is outlined
in detail in paragraph (d) of Bylaw 3.1.2.1, including the use of
written ballots (voice votes are not valid) and a requirement of a
majority vote of all votes cast. Circuit counselors are well advised
to review the entire delegate election process to assure compliance
with the bylaw process and to correct any deficiencies before the
final deadline for delegate selection. Failure to follow the appro-
priate bylaw provisions for selection of delegates may result, if
challenged, in an invalidation of the circuit’s elections, causing the
circuit to have no representation at the Synod convention.

[Note: Due to the time-sensitive and urgent nature of this opin-
ion, the Secretary was asked to provide electronic copies to all dis-
trict presidents immediately and to prepare sufficient printed copies
for distribution to all attending the National Circuit Counselors
Conference the following week.]

Adopted Sept. 7-8, 2006

Participation in Legal Actions by Members of the
Board of Directors (06-2480A)

A pastor of the Synod in an August 18, 2006 E-mailed letter
submitted two related questions regarding the meaning and applica-
tion of Bylaw 1.5.12.1 (b) (5).

Question 1: Do the provisions of Bylaw 1.5.12.1 (b) (5) providing
for the vacating of a position in the event of a contin-
ued inappropriate activity by a member of a board
allow said board to remove such member and create
this vacancy?

Opinion: The Commission notes initially that Bylaw 1.5.12.1 (b)
(5), providing that “[a]ny inappropriate activity shall cease or the
position will be vacated” is contained in a section dealing with con-
flict of interest disclosures defined in Bylaw 1.5.12.1 (a) and with
prohibited activities cited in Bylaw 1.5.12.1 (b) (1-4). Bylaw
1.5.12.1 (b) (5) clearly is meant to apply only in the context of a
conflict of interest violation. The provision does not specify the
manner in which a position is to be vacated in the event of the con-
tinuation of a conflict of interest violation, nor does it specify who
is empowered to make such a determination. Constitution Article
XI A 2 states: “The Synod at all times has the right to call its offi-
cers to account and, if circumstances require it, to remove them
from office in accordance with Christian procedure.” That said,
there is no provision in the Constitution or Bylaws that provides
the specific method to be used if a position is to be vacated by a
board or by the Synod itself if inappropriate activity does not
“cease.”

Question 2: If not, if a board adopts a resolution providing the rea-
son for vacating of the position of one of its members
serving on such board pursuant to Bylaw 1.5.12.1 (b)
(5), such member having engaged and continues to en-
gage in inappropriate.action detrimental to the Synod
and its agencies, may the President, pursuant to Bylaw
3.3.1.3, after consultation with the Board of Directors
and/or the Council of Presidents, and/or the vice-pres-
idents, exercise his executive power to effect the va-
cating of the position on the board held by such mem-
ber?

Opinion: Bylaw 3.3.1.3(k), in discussing the powers of the Presi-
dent, states:

He shall be authorized in the event that the affairs of the Synod re-
quire the exercise of executive power for a purpose for which there is no
specific directive of the Synod, to exercise such after consultation with
the vice-presidents, the Board of Directors of the Synod, or the Council
of Presidents, whichever in his judgment is most appropriate. Any
member of the Synod shall have the right to appeal such action to the
Commission on Constitutional Matters and/or the Synod in convention,
whichever is appropriate.

Bylaw 3.3.1.2 requires that the President 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 Commission has previously held that,
in fulfilling these responsibilities, “[t]he President may exercise ex-
ecutive power in the absence of a specific directive of the Synod