LCMS Convention Workbook St. Louis, Missouri — 2013, Page 286

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286

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

#1 above. Reporter Online is Reporter using current technology
to expedite carrying out its purposes, one of which is to publish
official reports and notices. Therefore, yes, Reporter Online is to
be considered the equivalent of Reporter for constitutional and
bylaw purposes. Rather than robbing the members of the Synod
of an opportunity for informed decision-making, its use broadens
the circulation of official notices of the Synod, reaching a new and
significant audience and thereby enhancing the opportunity for informed decision-making.
Question 3: If the announcements required by the Constitution of
the Synod have not been made according to the requirements plainly listed there (the deadline, October 17, is
now past), then what becomes of the proposed constitutional amendments?
Opinion: This question is moot. The use of The Lutheran Witness, Reporter, and Reporter Online was appropriate (see #s 1 and
2 above), and the three notices required by Constitution Art. XIV
were thereby published and distributed in advance of the October
17 deadline.
(Adopted 11/6/10)

Dispute Resolution Process Advisors (10-2584)
In an e-mail dated October 23, 2010, a hearing facilitator in a
dispute resolution process, pursuant to Bylaw section 1.10, asked
the commission the following question regarding the submission of a
written statement of evidence by an advisor to a party to the dispute:
Question: Parties involved in a Dispute Resolution Panel hearing
have the privilege of choosing and having an advisor
with them during the hearing. The Standard Operation
Procedures Manual states that the advisor shall not
address the panel or directly participate in the discussions during the hearing. When a party to a dispute
resolution process chooses an advisor, may that advisor,
at the request of the party, submit a written statement
of evidence, transmitted to the panel members through
the Secretary of the Synod prior to the hearing, to be
considered alongside all of the other witness given?
Opinion: The question submitted is unclear to the commission. If
“a written statement of evidence” means an affidavit in lieu of live
testimony as a witness, the affidavit cannot be submitted as evidence unless the other party does not object (a waiver to object),
as the witness would then not be available for questioning by the
other party to the matter, as is required by Bylaw 1.10.18.1 (f) and
Bylaws section 1.10 SOPM General Regulation F (b).
If “a written statement of evidence,” means a written summary
of all the expected evidence presented in the matter, then the summary is being submitted to the panel by the party to the matter, aided
and assisted by his/her advisor. If the advisor prepares this kind of
summary, it is still being submitted by the party and not the advisor.
Bylaw 1.10.4 (q) defines a “witness” as follows: “A person called
to give testimony regarding facts to a dispute before a Dispute Resolution Panel…” [emphasis added].
Bylaws section 1.10 SOPM General Regulation F (b) also indicates: “Witnesses who can substantiate the facts relevant to the
matter in dispute may be called before and address the panel. Unless
otherwise determined by the panel for good cause, witnesses shall
attend hearings only during the time that they are giving their own
testimony” [emphasis added].
A witness may also be an advisor to a party, but since “witnesses
shall attend hearings only during the time that they are giving their
own testimony,” then that person is not permitted to be present at

2013 Convention Workbook

the hearing other than during the time he/she is giving his/her own
testimony, absent agreement of the parties and concurrence of the
panel or a finding by the panel of good cause to allow such presence.
(Adopted 11/7/10)

Testimony by Secretary of the Synod in Dispute
Resolution Process (10-2585)
The Secretary of the Synod, as administrator of the dispute resolution process under Bylaw 1.10, submitted a series of questions regarding a pending matter, as follows:
Question: As administrator of a dispute resolution process under
Bylaw section 1.10, I regularly receive and distribute
on behalf of the parties various documents submitted
in advance of a hearing. In a case that has been pending for more than a year, I have recently received and
forwarded pre-hearing information that indicates that a
party to the dispute intends to offer testimony regarding
his recollection of a telephone conversation between
himself and myself that took place prior to the beginning of the dispute resolution process, a conversation
that briefly alluded to a matter that the party believes
important to the matter in dispute.
Although the Bylaws allow for the appointment of an
alternate administrator when the Secretary of the Synod
“is a party to the matter in dispute, has a conflict of interest, or serves as a witness” (Bylaw 1.10.6), there was no
indication until receipt of the recent information that I
would need to recuse myself and ask for the appointment of another administrator. This was true throughout
the reconciliation and panel selection processes until
now, only days before a scheduled Dispute Resolution
Panel hearing.
My concern is that if this recollection of a conversation
involving me as administrator of the dispute resolution process is allowed to be submitted, I will not have
opportunity to clarify the content of that conversation
nor will the opposing party be able to question me in
its regard. My questions therefore are these: “Do I continue to serve as administrator of this dispute resolution
process? Is the testimony that has been proffered proper
testimony? May I be called as a witness in the hearing?”
Opinion: The Bylaws provide that when the Secretary of the Synod
is involved personally in a dispute, whether as a party, a witness,
or someone who has a direct interest in the outcome, an alternate
administrator should be appointed. Bylaw 1.10.6 reads in part,
If the secretary of the Synod or a district is a party to the matter in
dispute, has a conflict of interest, or serves as a witness, then the President of the Synod or the district president, as appropriate, shall appoint
an administrator of the process in the matter.

In order to protect the neutrality of the process, Bylaw 1.10.7.4
also provides in part,
The administrator of the process shall not attend the hearing or serve
as a witness.

These provisions of the Bylaws are intended to maintain the integrity of the dispute resolution process. Should there be any suggestion
that a dispute resolution process administrator might be subject to
such disqualification, an alternate administrator should be selected. In
order to allow such alternate to be appointed in a timely fashion early
in the process, parties are provided with information regarding the
applicable bylaws and Standard Operating Procedures Manual, including those provisions which prevent an administrator of the dispute