LCMS Convention Workbook St. Louis, Missouri — 2013, Page 321

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS
ering potential conflict of interest concerns. The first paragraph of
“N” reads:
N.

Disqualification of Ecclesiastical Supervisors or Panel Members: The standard for disqualification is actual partiality or the
appearance thereof. When identified by blind draw, potential
panel members shall be contacted personally by the district
president or the Secretary of the Synod to discuss their availability to serve. The district president or Secretary of the Synod
shall provide general information regarding the matter and
identify the persons involved in the matter in order to uncover
potential conflict of interest concerns. Any ecclesiastical supervisor or panel member may disqualify himself/herself from
service. Circumstances that are thought to or are likely to affect performance of duties and the outcome of a formal process
shall be disclosed to the district president or the Secretary of
the Synod, as appropriate.

General information regarding the matter and parties involved
is revealed by the administrator to the panel member “in order to
uncover potential conflict of interest concerns.” If any is uncovered,
the panel member “may disqualify himself/herself from service. Circumstances that are thought to or are likely to affect performance of
duties and the outcome of a formal process shall be disclosed” to the
administrator. “N” then continues:
If a hearing facilitator or panel member concludes that he/she has
personal knowledge of one or other of the parties to the dispute, he/she
shall, upon becoming aware of the same, disclose to the administrator
the knowledge and nature thereof and his/her assessment that such will
not adversely affect his/her service. The administrator shall share this
information with the parties to the dispute. Undue familiarity with the
party to the dispute must not be demonstrated in any manner during the
panel hearing.

The standard for disqualification is “actual partiality or the appearance thereof” and thus emphasizes some “act” or “action” to
create or evidence the proscribed partiality. Actual partiality thus
may result from a personal relationship, prior substantive contact with
any of the persons involved regarding the substance of the matter, or
personal involvement in the matter itself. Such personal relationship
or prior involvement in the matter might cause a panel member to
disqualify himself/herself from service, or result in disqualification.
Such personal relationship or prior involvement in the matter, even
if not determined by a panel member to be sufficient to disqualify
himself/herself from service, must be revealed by the panel member
to the administrator who is then required to share that information
with the parties to the dispute. The parties to the dispute, once so
informed, would have opportunity to challenge the decision of the
panel member.
Beyond “actual partiality,” the standard for disqualification includes the “appearance thereof.” The phrase “the appearance thereof”
modifies “actual partiality” and so requires the appearance of some
“act” or “action” to create and evidence partiality such as described
above. Even where no actual partiality exists as a result of nonsubstantive contacts with one or more of the involved persons or
non-substantive involvement in the issues to be considered, where
such relationship or involvement would lead a reasonable person to
believe that partiality likely exists, disqualification should occur. It
should be remembered that membership on the Council of Presidents,
the relationship among district presidents which results from such
membership, and contact and discussion that takes place between
district presidents while carrying out ecclesiastical supervisory responsibilities (not including discussion of the parties to the matter or
the substance of the matter) is not the type of personal relationship
or contact which inherently creates or even implies actual partiality or the appearance thereof. Bylaw 2.14.2 (c) defines “Conflict of
Interest”: “Representation of two opposing interests. Carrying out
the responsibility of ecclesiastical supervision does not give rise to

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conflict of interest.” By design, the Bylaws require the selection of
members of the Council of Presidents for the formation of many different panels, including Final Hearing Panels. That people active in
the Synod are acquainted with each other or have had contact with
each other alone is not sufficiently substantive to constitute “actual
partiality or the appearance thereof.” As stated above, any such contact, action, or relationship may cause a panel member to “disqualify
himself/herself from service” and, even if not sufficient to cause the
panel member to choose disqualification, must be disclosed to the
administrator, which can be challenged by the parties to the dispute,
once they are so informed.
Question 2: Can a panel member be removed from participation in
the formation of a Final Hearing Panel merely on the
basis of having the same district affiliation as another
panel member?
Opinion: No. Having the same district affiliation as another panel
member alone is not enough to remove a panel member from participation in the formation of a Final Hearing Panel. Neither the
Bylaws nor the SOPM for Bylaws section 2.14 (or any other of
the SOPMs for sections 2.15–2.17 and section 1.10) gives indication that having the same district affiliation as another panel member would cause and evidence actual partiality or the appearance
thereof. Nothing in the bylaws or SOPM speaks to “actual partiality
of the appearance thereof” in the relationship between members of
the panel. The concern of partiality appropriately focuses on the
relationship between the panel members and either of the parties to
the matter. The administrator is to provide to potential panel members “general information regarding the matter and identify the persons involved in the matter in order to uncover potential conflict of
interest concerns.”
While the Bylaws in some circumstances disqualify multiple representatives from a single district (e.g., in order to assure geographic
representation), such provisions do not address “actual partiality or
the appearance thereof” in a Bylaws section 2.14 matter. Bylaw 2.14
and its SOPM contain no provision concerning a challenge based
on the relationship between panel members. Although the relationship between panel members (not with a party to the matter) is not
addressed in Bylaw section 2.14 or its SOPM, if a party challenges
the eligibility of a panel member to serve on the basis of relationship with another panel member, such as having the same district
affiliation as another panel member, the challenged panel member
is given opportunity to disqualify himself/herself from service after
being provided with the challenge to his/her objectivity on the basis
of relationship with another panel member. If the challenged panel
member does not disqualify himself/herself, but is aware of facts
implicating “actual partiality or the appearance thereof,” he/she is
required to disclose such facts to the administrator. If the panel member has given indication of such facts in regard to his/her relationship
with the other panel member from the same district besides the fact of
residence in the district, the administrator is to inform both parties to
the matter about any such information provided by the panel member.
This process, however, in no way precludes a party from challenging
the eligibility of a panel member to serve on a panel if the party has
knowledge believed to constitute “actual partiality or the appearance
thereof,” including or apart from the information volunteered by the
panel member.
As noted above, a district president will have personal knowledge of and a personal relationship with other district presidents. As
indicated in the answer to question 1, this factor alone is considered
by Bylaw section 2.14 and SOPM to be non-substantive and does
not constitute “actual partiality or the appearance thereof.” Thus a
district president is not prohibited from service on the same panel
2013 Convention Workbook