LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — January 28, 2004, Page 2

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Question 1:

Is the Bryan Cave opinion/Board of Directors report on that opinion consistent with the
LCMS Constitution and Bylaws?

Opinion: Without specific questions deriving from the Board’s report, the Commission cannot issue an
opinion regarding either the Bryan Cave opinion or the Board of Directors’ report on that opinion because
the function of this Commission, as set forth in Bylaw 3.905, is limited to providing interpretations of the
Synod’s Constitution, Bylaws, and resolutions.
Question 2:

If it is not, should the Board of Directors make the total Bryan Cave opinion available to
the entire LCMS prior to the 2004 convention?

Opinion: The question as posed requests a value judgment rather than an interpretation of the Synod’s
Constitution, Bylaws, and resolutions. Nothing in the Constitution or Bylaws of the Synod requires the
Board of Directors to publicize the opinion it obtained. It is within the discretion of the Board of Directors
to determine whether the Bryan Cave opinion should be publicized prior to the convention.
Question 3:

Again, if it is not consistent with the LCMS Constitution and Bylaws, should the Board of
Directors be required to get a second opinion from a reliable law firm familiar with
Missouri law without disclosing to the second law firm the Bryan Cave opinion?

Opinion: The Bylaws of the Synod do not give any direction as to the methodology the Board of
Directors is to follow in fulfilling its functions. Bylaw 3.73 states: “All officers, boards, and commissions
shall be accountable to the Synod for all their actions, and any decision of such officers, boards, and
commissions may be appealed to the national convention of the Synod.”
242. Board of Directors as Officer of the Synod; Opinions of the Commission on Constitutional
Matters; Executive Power of the President of the Synod (03-2376)
The President of the Synod, in a December 3, 2003 e-mailed letter, submitted a series of questions
regarding the Board of Directors and the Commission on Constitutional Matters.
Question 1:

LCMS Constitution Article X, “Officers,” states: “The officers of the Synod are….5. A
Board of Directors.” Are the individual members of the Board of Directors individual
officers of the Synod? Is the Board of Directors collectively, as an entity, an individual
officer of the Synod?

Opinion: The dictionary defines an officer as one who holds an office of trust, authority or command. In
a legal context, an officer has been defined as a high level management official of a corporation or
unincorporated business, hired by the Board of Directors of the corporation or the owner of a business,
such as a president, vice-president, secretary, financial officer or chief executive officer. Officers of
secular profit or nonprofit corporations typically serve at the discretion of those in control and are
appointed by them.
As a church body, The Lutheran Church—Missouri Synod has chosen to retain to itself the authority in
the selection of officers and does so in convention. In identifying its officers, the Articles of Incorporation
in Article V, entitled “Officers,” reads as follows “The corporation shall have a board of directors of such
number and qualifications and who shall be elected in such manner and for such terms of office as shall
be set forth in the Constitution or Bylaws of The Lutheran Church—Missouri Synod. In addition, the
corporation shall have officers having such qualifications and who shall be elected or appointed in such
manner and for such terms of office as provided for in the Constitution or Bylaws of The Lutheran

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