LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 10–12, 2012, Page 13

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“disqualify himself/herself from service” and, even if not sufficient to cause the panel member to choose
disqualification, must be disclosed to the administrator, which can be challenged by the parties to the
dispute, once they are so informed.
Question 2: Can a panel member be removed from participation in the formation of a Final Hearing
Panel merely on the basis of having the same district affiliation as another panel member?
Opinion: No. Having the same district affiliation as another panel member alone is not enough to remove
a panel member from participation in the formation of a Final Hearing Panel. Neither the Bylaws nor the
SOPM for Bylaws section 2.14 (or any other of the SOPMs for sections 2.15–2.17 and section 1.10) gives
indication that having the same district affiliation as another panel member would cause and evidence
actual partiality or the appearance thereof. Nothing in the bylaws or SOPM speaks to “actual partiality of
the appearance thereof” in the relationship between members of the panel. The concern of partiality
appropriately focuses on the relationship between the panel members and either of the parties to the
matter. The administrator is to provide to potential panel members “general information regarding the
matter and identify the persons involved in the matter in order to uncover potential conflict of interest
concerns.”
While the Bylaws in some circumstances disqualify multiple representatives from a single district (e.g., in
order to assure geographic representation), such provisions do not address “actual partiality or the
appearance thereof” in a Bylaws section 2.14 matter. Bylaw 2.14 and its SOPM contain no provision
concerning a challenge based on the relationship between panel members. Although the relationship
between panel members (not with a party to the matter) is not addressed in Bylaw section 2.14 or its
SOPM, if a party challenges the eligibility of a panel member to serve on the basis of relationship with
another panel member, such as having the same district affiliation as another panel member, the
challenged panel member is given opportunity to disqualify himself/herself from service after being
provided with the challenge to his/her objectivity on the basis of relationship with another panel member.
If the challenged panel member does not disqualify himself/herself, but is aware of facts implicating
"actual partiality or the appearance thereof," he/she is required to disclose such facts to the administrator.
If the panel member has given indication of such facts in regard to his/her relationship with the other
panel member from the same district besides the fact of residence in the district, the administrator is to
inform both parties to the matter about any such information provided by the panel member. This process,
however, in no way precludes a party from challenging the eligibility of a panel member to serve on a
panel if the party has knowledge believed to constitute “actual partiality or the appearance thereof,”
including or apart from the information volunteered by the panel member.
As noted above, a district president will have personal knowledge of and a personal relationship with
other district presidents. As indicated in the answer to question 1, this factor alone is considered by Bylaw
section 2.14 and SOPM to be non-substantive and does not constitute “actual partiality or the appearance
thereof.” Thus a district president is not prohibited from service on the same panel (indeed, such is often
required) with another district president. Additional factors would be required to create such “actual
partiality or the appearance thereof” as would become sufficiently substantive to prohibit such service.
The same is the case for any two members of a panel. Any two panel members may have personal
knowledge of and a personal relationship with other panel members. As with district presidents, this
factor alone is considered by Bylaws section 2.14 and its SOPM to be non-substantive and does not
constitute “actual partiality or the appearance thereof.” Thus, any two members of a panel are not
prohibited from service on a panel solely because of personal knowledge of and a personal relationship
with other panel members or for simply having the same district affiliation. And as General Regulation
“N” for Bylaw section 2.14 provides: “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, who
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