LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — October 16–18, 2005, Page 7

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

3.3.1.1.2, it is also the President and not the Board who represents the Synod in official contacts with all
partner churches and all other church bodies. Under Bylaw 3.8.4.2 the Board for Black Ministry Services
is authorized to represent the interests of the Synod in black ministry throughout the Synod. Under Bylaw
4.4.2, a district president is also expressly identified as the representative of the Synod in his district.
Custodian of Property: This term similarly does not provide a clear definition of the authority of the
Board but rather identifies one of the Board’s functions. A “custodian” may be defined as a person with
whom some article is left, who is responsible for the safe return of the article to the owner. A custodian
can include banks holding bonds, storage companies where furniture or files are deposited, a parking
garage, or a kennel or horse ranch where an animal is boarded. The real issue here is the authority
accompanying the role of “custodian.”
Article XI F designates the Board as the default entity holding the assets and funds of the Synod on its
behalf. Article XI expressly authorizes the Board to delegate such authority to other agencies of the
Synod. The Board exercises such delegation, for example, in the budgeting process under Bylaw 3.3.5.5,
in the Board’s discretionary delegations of powers and duties to agencies of the Synod under Bylaw
3.3.5.5 (b), and in the Board’s mandatory delegations of authority to districts to buy and hold property in
the district’s own name, as is required in Bylaw 3.3.5.7 (a).
The Antecedent of “It”: In the discussion that follows the Board’s question, the Board asks the
Commission to consider the meaning or interpretation of the word “it” in the third sentence of Article XI
F 2 of the Constitution and implies that the answer to that grammatical question answers the broader,
more fundamental question posed. The Commission concedes that the most logical antecedent noun to
which “it” applies is the Board itself and not the Synod (acting in convention). However, Opinion 042409 was not based upon an interpretation of the word “it.” That grammatical observation does not
resolve the issue. Instead, as suggested above, there is no complete answer to the question posed, and
recognizing the Board of Directors as the legal representative of the Synod and the custodian of its
property does not resolve the matter. As will be discussed more fully below, the Board is the primary
entity charged with management of the property and business affairs of the Synod. But the Synod is not
organized primarily for business purposes, and the Synod has chosen to delegate to the Board property
and business authority and not ecclesiastical authority. The Synod’s Board of Directors is the Synod’s
agent, acting not under a corporate governance model but under a structure designed to fulfill business
functions within a much broader structure designed to fulfill the Synod’s primarily ecclesiastical
purposes.
The Commission appreciates the Board’s expressed recognition of the ultimate authority of the Synod in
convention. The turmoil created in the Synod by those who during the last triennium suggested that only a
board of directors could lawfully hold such authority was a primary impetus for the consideration and
adoption by the 2004 convention of many resolutions, including Resolution 7-21, which was the subject
of Opinion 04-2409.
Question 2: As the Board’s discussion in its memorandum continued, the issue of balance of authority
was raised:
The structure of the Synod is unique, and the extent of the authority of the program
boards and commissions is very often not clearly delineated. The Board of Directors has
been given authority over the property and business affairs of the Synod. At the same
time, program boards and commissions have been given policy and administrative duties
in defined areas.

39