LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — November 6–7, 2010, Page 6

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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 resolution process from participating as a witness. If a party intends to
present testimony or evidence which would necessarily suggest the potential need for a dispute resolution
process administrator to become a witness, such issue must be raised in a timely manner so that the
administrator can recuse himself and a replacement administrator can be appointed in a manner that will
not interfere with the process or unduly delay resolution of the matter in dispute. It would be a perversion
of the process and inappropriate to raise such an issue immediately prior to a hearing.
While a Dispute Resolution Panel is not bound by “hearsay,” and other strict rules of evidence are not
applicable to a dispute resolution process hearing, evidence proffered at the last minute which would
require the disqualification of an administrator in order to allow his testimony on an issue known by the
party to be likely to be contested should be ruled out of order and inadmissible and disregarded by the
hearing facilitator and/or hearing panel. Even should the administrator desire at such a late point in the
process to offer testimony, the failure to seek his early disqualification exposes him to information as
administrator which could impermissibly impact his testimony.
Therefore, absent agreement by the parties, the hearing panel, and its administrator, a party may not
subvert the process by interjecting such evidence in an untimely manner. The administrator in such
circumstances should complete his responsibilities in the case and not be replaced. He should not be
allowed to be called as a witness in the matter, and the controverted evidence or testimony which would
necessarily require that the administrator be called in order to rebut such evidence or testimony should be
ruled out of order and inadmissible and be disregarded by the hearing panel to the extent seen or heard by
the members of the panel.
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