LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 10–12, 2012, Page 12

Transcription machine transcription, uncorrected

⤓ Download .txt · copy text

of the Synod (as administrator for the process) in uncovering potential conflict of interest concerns. The
first paragraph of “N” reads:
N. Disqualification of Ecclesiastical Supervisors or Panel Members: The standard for disqualification is
actual partiality or the appearance thereof. When identified by blind draw, potential panel members shall be
contacted personally by the district president or the Secretary of the Synod to discuss their availability to
serve. The district president or Secretary of the Synod shall provide general information regarding the matter
and identify the persons involved in the matter in order to uncover potential conflict of interest concerns.
Any ecclesiastical supervisor or panel member may disqualify himself/herself from service. Circumstances
that are thought to or are likely to affect performance of duties and the outcome of a formal process shall be
disclosed to the district president or the Secretary of the Synod, as appropriate.

General information regarding the matter and parties involved is revealed by the administrator to the
panel member “in order to uncover potential conflict of interest concerns.” If any is uncovered, the panel
member “may disqualify himself/herself from service. Circumstances that are thought to or are likely to
affect performance of duties and the outcome of a formal process shall be disclosed” to the administrator.
“N” then continues:
If a hearing facilitator or panel member concludes that he/she has personal knowledge of one or other of the
parties to the dispute, he/she shall, upon becoming aware of the same, disclose to the administrator the
knowledge and nature thereof and his/her assessment that such will not adversely affect his/her service. The
administrator shall share this information with the parties to the dispute. Undue familiarity with the party to
the dispute must not be demonstrated in any manner during the panel hearing.

The standard for disqualification is “actual partiality or the appearance thereof” and thus emphasizes
some “act” or “action” to create or evidence the proscribed partiality. Actual partiality thus may result
from a personal relationship, prior substantive contact with any of the persons involved regarding the
substance of the matter, or personal involvement in the matter itself. Such personal relationship or prior
involvement in the matter might cause a panel member to disqualify himself/herself from service, or
result in disqualification. Such personal relationship or prior involvement in the matter, even if not
determined by a panel member to be sufficient to disqualify himself/herself from service must be revealed by the panel member to the
administrator who is then required to share that information with the parties to the dispute. The parties to the dispute, once so informed, would
have opportunity to challenge the decision of the panel member.

Beyond “actual partiality,” the standard for disqualification includes the “appearance thereof.” The phrase
“the appearance thereof” modifies “actual partiality” and so requires the appearance of some “act” or
“action” to create and evidence partiality such as described above. Even where no actual partiality exists
as a result of non-substantive contacts with one or more of the involved persons or non-substantive
involvement in the issues to be considered, where such relationship or involvement would lead a
reasonable person to believe that partiality likely exists, disqualification should occur. It should be
remembered that membership on the Council of Presidents, the relationship among district presidents
which results from such membership, and contact and discussion that takes place between district
presidents while carrying out ecclesiastical supervisory responsibilities (not including discussion of the
parties to the matter or the substance of the matter) is not the type of personal relationship or contact
which inherently creates or even implies actual partiality or the appearance thereof. Bylaw 2.14.2 (c)
defines “Conflict of Interest”: “Representation of two opposing interests. Carrying out the responsibility
of ecclesiastical supervision does not give rise to conflict of interest.” By design, the Bylaws require the
selection of members of the Council of Presidents for the formation of many different panels, including
Final Hearing Panels. That people active in the Synod are acquainted with each other or have had contact
with each other alone is not sufficiently substantive to constitute “actual partiality or the appearance
thereof.” As stated above, any such contact, action, or relationship may cause a panel member to
301