LCMS Convention Workbook St. Louis, Missouri — 2013, Page 320

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320

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

In fulfilling his responsibilities, he must with any communications
also keep in mind the provisions and requirements of Bylaw 2.17.7.8,
requiring compliance with Bylaw 2.14.7.8 (a)–(j), subsection (g) of
which states:
While the matter is still undecided or while an appeal is contemplated or pending, publicity shall not be given to the issues in the matter by
any of the persons involved during any part of the procedures outlined
in this bylaw. However, at his discretion and as the needs dictate in order
to “promote and maintain unity of doctrine and practice” (Constitution,
Art. XI B 3) and in order to provide counsel, care, and protection for
all the members of the Synod (Article III 8, 9), the President of the
Synod or the district president in consultation with the President of the
Synod, as the case may be, may properly advise or inform the involved
congregation(s) and/or the district or the Synod.

Question 3: During the phases under Bylaw 2.17.3 or 2.17.4, is
it inconsistent with or otherwise violating the Eighth
Commandment, Bylaw 2.17.3 (d), or Standard
Operating Procedure I F., G., I. (6), N.; II D., F., G., I.,
or Q for an ecclesiastical supervisor to share any information or status updates with alleged witnesses?
Opinion: See answer to Question 2.
(Adopted Aug. 10–12, 2012)

Questions re “Actual Partiality or the Appearance
Thereof ” (12-2651)
In a June 25, 2012 emailed letter, a member of the Synod involved
in the Bylaws section 2.14 expulsion process asked a series of questions of the commission.
Background: After an appeal to a Final Hearing Panel in a Bylaws
section 2.14 matter, each party selected a district president for the
panel. The remaining panel member and the hearing facilitator were
selected by blind draw. After providing general information regarding
the matter and identifying the persons involved in the matter in order
to uncover potential conflict of interest concerns with the parties to
the matter, the administrator asked all selected panel members to
consider whether the standard of disqualification (“actual partiality or
the appearance thereof”) applied to them in this case. All three replied
they did not think the standard applied to them and did not disqualify
themselves. After the parties to the matter were informed of the panel
members selected, the district president who imposed the suspended
status then challenged the objectivity of two of the panel members:
the district president selected by the accused (because of possible
involvement in the matter) and the lay reconciler member of the panel
(who resides in the same district as the district president chosen by
the accused). The two challenged panel members were then asked
by the administrator of the process to consider whether the standard
for disqualification provided in the Standard Operating Procedures
Manual (SOPM) for Bylaw section 2.14 (“actual partiality or the appearance thereof”) applied to them in this case, noting particularly the
stated objections to the chosen district president (for possible prior
involvement in the matter) and to the lay member (not for partiality
toward any party, but rather for residing in the same district as the
district president selected for the panel by the accused). Both replied
that they did not think the standard applied to them and therefore did
not disqualify themselves.
Paragraph “N” of the “General Regulations for Bylaws Section
2.14” (p. 10 of the SOPM) provides that under these circumstances
“the question shall be decided by a panel of three district presidents
not involved in the case, selected by blind draw by the Secretary of
the Synod for this purpose.”
This special panel concluded that the district president selected by
the accused did not have a conflict of interest and could be a member
2013 Convention Workbook

of the Final Hearing Panel. The panel also concluded that the lay
reconciler member of the Final Hearing Panel should be disqualified because of residence in the same district as the district president
chosen by the accused. The panel indicated that this decision “in no
way reflects upon the qualifications, gifts, or impartiality possessed
by lay reconciler in fulfilling an effective role on the final hearing
panel,” but that two members from the same district serving on a Final
Hearing Panel, even when one is chosen by blind draw, “may give
the appearance of partiality.”
The accused asked a series of questions of the commission regarding procedures associated with the formation of a Final Hearing Panel.
Question 1: SOPM guidelines state: “The standard for disqualification is actual partiality or the appearance thereof…”
(SOPM, p. 9). What is the proper definition of the phrase
“actual partiality or the appearance thereof”?
Opinion: Neither the Bylaws nor the Standard Operating Procedures Manual (SOPM) for Bylaws section 2.14 provides a definition of “actual partiality or the appearance thereof.” Oxford
Dictionary defines “partiality” as “unfair bias in favor of one thing
or person compared with another; favoritism.” Such partiality can
exist as a result of a personal relationship, a predilection or inclination to one decision or outcome rather than to others, or the holding
of a firm opinion on a question before it is presented for consideration. Every tribunal that has to determine facts is concerned with
the issue of partiality, because fairness and the appearance of fairness are basic for trust and integrity in the process and the final decision. The concept of partiality is used commonly in courts of law
and in arbitration cases, where the burden of proof is on the party
alleging that the arbitrator or judge is impermissibly biased. An assertion of partiality requires evidence of facts upon which to base
the claim. In such cases an arbitrator or judge is required to make
full disclosure of possible conflicts of interest to the parties before
the commencement of the proceedings, revealing any relationship
or transaction that he/she has had with the parties as well as any
other fact which would suggest to a reasonable person that the arbitrator or judge is biased and interested in the outcome of the matter
or which might reasonably support the inference of partiality.
Historically in the LCMS, the phrase “actual partiality or the appearance thereof” began to be used when the 1992 Synod convention
moved away from the “adjudication” and “appeal” process in the
Synod and initiated the dispute resolution process. The phrase became
part of Bylaw 8.17 in the 1992 Handbook and remained unchanged
through the 2001 Handbook. In 2004 the Handbook was revised and
reordered and this section, unchanged from Bylaw 8.17, became
Bylaw 1.10.16 and has remained unchanged ever since. When the
2004 Synod convention established the present expulsion-from-membership bylaws (2.14–2.17), the phrase used in the dispute resolution
bylaws (Bylaw 1.10.16) was not carried over into the expulsion-frommembership bylaws; however, the Commission on Constitutional
Matters was then given the responsibility for developing standard
operating procedure manuals for each of these bylaw sections. When
providing a disqualification process for each of these bylaw sections,
the commission intentionally followed the process established for
Bylaws section 1.10 dispute resolution matters, and the phrase “actual
partiality or the appearance thereof” has been used in each of those
manuals since that time as a guideline for disqualifications.
General Regulation “N” for Bylaws section 2.14 provides clarity
to the meaning of “actual partiality or the appearance thereof” as it
describes the process to be followed by the district president or the
Secretary of the Synod (as administrator for the process) in uncov-