LCMS Convention Workbook St. Louis, Missouri — 2013, Page 332

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

332

OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

and both parties to the dispute, except where a party has waived the right
or fails to be present.

SOPM Section II Regulation “Y” states:
Should the provisions of this manual vary from the Constitution or
Bylaws of the Synod, the Constitution and Bylaws control and supersede.

The commission makes the following observations regarding
Bylaw 2.14.7.8 (f), SOPM Section II, Regulation “K” (e), and SOPM
Section II, Regulation “Y.”
Bylaw 2.14.6 describes the commencing of formal proceedings,
which begin with the suspension of the member. If the member does
not appeal the suspension within 15 days and request a hearing, that
member is deemed to have consented to expulsion from membership
in the Synod. Bylaw Section 2.14.7 then describes the formal proceeding process, which begins with the selection of a Hearing Panel.
The remainder of Section 2.14.7 gives direction for the selection of a
Hearing Panel and the procedures to be followed by a Hearing Panel.
Bylaw 2.14.7.8 makes this clear when it begins with the statement,
“The following guidelines are applicable to the Hearing Panel and all
involved persons.” A Hearing Panel and all persons involved must
follow these guidelines in a Bylaw 2.14 expulsion matter.
SOPM Section II carries the title “General Regulations for Bylaw
Section 2.14.” Portions of the section pertain to various aspects in
the entire process. Other portions of the section pertain to a Hearing
Panel or Final Hearing Panel. The topic of Regulation “K” of SOPM
Section II is providing evidence to a Hearing Panel. It indicates that
parties may produce any evidence they consider relevant and cooperate with requests for evidence that the panel deems necessary. The
panel referenced in Regulation “K” (e) is a Hearing Panel or a Final
Hearing Panel, which is to take all evidence at the hearing it conducts,
and the hearing is to be attended by all members of the panel and both
parties to the matter.
SOPM Section II Regulation “Y” indicates that if there is a contradiction between any portion of the 2.14 SOPM and the Bylaws or
Constitution of the Synod, the Bylaws and Constitution of the Synod
supersede the SOPM.
A series of three questions is then asked.
Part 2, Question 1: If the ‘administrator’ of the DRP-1.10/
Hearing-2.14 process has knowledge and/or documentation that violation(s) of the DRP/Hearing procedures
(as found in the bylaws and/or SOPM) has occurred,
what reporting responsibilities, duties, and/or obligations should he have to the panel and to both parties of
dispute?
Opinion: The responsibilities of the administrator, as well as all
those involved in the process, must be drawn from the overarching concern for due process, fairness, and impartiality in both the
dispute process and the process for expulsion from membership in
the Synod, as set forth in the Constitution and Bylaws of the Synod
as well as in the SOPMs. This means that the administrator and
all participants must share such information and evidence with all
those properly involved: the parties, the panel, and the administrator.
Part 2, Question 2: Should he not investigate such violation(s),
immediately inform both parties of his findings, and
provide the proof/documentation of such violation(s)
to both the panel and to both parties?
Opinion: No. The administrator in a 1.10 dispute resolution matter
or a 2.14 expulsion matter does not have responsibility for investigation. The responsibilities of the administrator are to manage the
dispute resolution process or expulsion matter. Bylaw 1.10.4 (a) in2013 Convention Workbook

dicates that he is not to take leadership, declare judgments, advise,
or become involved in the matter in dispute. The Bylaws spell out
his duties regarding the selection of panels, receiving statements
from parties to the matter, forwarding of documents to parties and
members of panels, serving as timekeeper of the process, and giving general guidance regarding the process, when asked. The Bylaws do not give the administrator authority to determine facts in
a case, but rather he is charged to monitor or oversee the process.
In a 2.14 expulsion matter, in the event that a violation is alleged
or occurs, it is the responsibility of the Hearing Panel to determine
the facts and make a decision. A Hearing Panel is charged not only
to determine if the facts of the case provide the burden of proof for
expulsion but also to determine that the process has been properly
followed. If a Hearing Panel determines that a violation has occurred,
it is up to that panel to determine a course of action. See the CCM
opinion 12-2659 answers to questions 1 and 3 for a full treatment of
this matter. While the responsibility of the administrator does not
include investigation, he is required to inform the parties and panel
members when he becomes aware of any information, whether in
writing or oral, indicating a possible violation of the process.
Part 2, Question 3: What is the ‘role’ of the administrator in a dispute/hearing process?
a) Should he give advice and additional pointers to a Hearing Panel
Chairperson?
b) Should he withhold information when it is requested?

Opinion: In response to question (a), the administrator is to remain
neutral, taking care not to take sides. Bylaw 1.10.4 (a) describes
the role of an administrator: “The secretary of a district or of the
Synod or an appointee (Bylaw 1.10.6) who manages the dispute
resolution process but who does not take leadership, declare judgments, advise, or become involved in the matter in dispute.” 2.14
SOPM Section II, Regulation “Y,” “Interpretation and Application
of Standard Operating Procedure Manual Provisions,” includes a
responsibility of the administrator:
Panels and ecclesiastical supervisors are responsible for interpreting
and applying the principles, regulations, and other provisions provided
in this manual. General questions regarding the process may be discussed with the Secretary of the Synod. Specific questions may be
directed to the Commission on Constitutional Matters, whose responsibility it is to maintain this manual in consultation with the Secretary of
the Synod and with the concurrence of the Council of Presidents (emphasis added).

One aspect of the role of the administrator in a 2.14 expulsion
matter is to provide information and assistance to ensure that the
processes are understood by all those involved, not simply a Hearing
Panel chairperson, so that they may correctly interpret and follow the
process. Other aspects of the role of the administrator are referenced
in the response to Part 2, Question 2, above.
In response to question (b) above, the answer is “no.” When a
Hearing Panel, a Special Hearing Panel, or a Final Hearing Panel
requests information from the administrator of the hearing process,
he is required to provide that information. Bylaw 2.14.7.8 (d) states:
“Any member of the Synod, officer of a congregation, or officer
of any organization owned or controlled by the Synod shall, when
called upon by the panel to do so, testify or produce records related
to the matter.”
(Adopted Dec. 10, 2012)