LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — May 5–6, 2017, Page 3

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44. Non-renewal of Non-tenured Seminary Faculty (17-2821)
The faculty of a seminary asked for an opinion regarding Bylaw 3.10.5.7.4 [j], requesting clarification of
the process for the non-renewal of the contract of an initial-level member of the faculty. As commission
member Rev. Gerhard Bode has a familial connection to a seminary faculty, he recused himself and excused
himself from the entire discussion, consideration, and vote on this matter.
Bylaw 3.10.5.7.4 [j] reads:
Faculty members with an initial-level appointment (who have no expectation of continued
employment) shall not be entitled to an appeal process following (or prior to) a decision of
non-retention. The only exception is that a faculty member with an initial-level appointment
may ask the board of regents to assure that appropriate procedures were followed in reaching
the decision or the basis on which the decision was made.
Specifically, the faculty asked three questions, to which the commission responds as follows. In responding
to the questions it is critical to note the context of the entire section as expounded in the Bylaws for
seminaries (especially Bylaws 3.10.5.5 and its subparagraphs [a] and [i][3]; 3.10.5.7.1 [a]; 3.10.5.7.2 and
its subparagraphs [d, e]; 3.10.5.7.4 [i, j]; 3.10.5.7.6 and 3.10.5.7.6.1).
Question 1:

What are the appropriate procedures to be followed by the board in reaching a decision not
to retain a faculty member with an initial-level appointment?

Opinion: The commission notes that Bylaws 3.10.5.5 [a] and [i][3]; 3.10.5.7.1 [a]; 3.10.5.7.2; and 3.10.5.7.3
[e, f] all refer to various policies and procedures that the board of regents of each seminary is required to
put in place. Beyond these references, there are no specific procedures laid out in the Bylaws for the nonrenewal of contracts for initial-level members of a faculty. Therefore, the commission rules that the
procedures referenced in Bylaw 3.10.5.7.4 [j] are among the various policies and procedures referenced in
the above bylaws (especially 3.10.5.5 [i][3], 3.10.5.7.2, and 3.10.5.7.3 [e, f]) which must be established by
each seminary board of regents. In essence, when the contract of a faculty member with an initial-level
appointment is not renewed, he may ask the board of regents if it followed its own procedures in reaching
its decision. Bylaw 3.10.5.7.3 [d] also poses specific timing and notification requirements upon a board’s
decision not to re-appoint, with which requirements policies and actions of a board of regents must comply.
Question 2:

Must the board of regents respond to the faculty member’s request for assurance that
appropriate procedures were followed, and if so, what must that assurance entail?

Opinion: The board of regents must give assurance to the initial-level member of the faculty whose contract
was not renewed that it did follow its procedures. However, the bylaw does not require the board of regents
to provide documentation, nor does it allow for a challenge regarding the matter of proper procedure being
used (compare Bylaws 3.10.5.7.4 [i, j]). An affirmative answer is sufficient.
Question 3:

In this context, how is the phrase “or the basis on which the decision was made” to be
interpreted, especially with respect to Bylaw 3.10.5.7.6 (“The board of regents may decline
to renew the appointment of a faculty members during an initial-level appointment period
without a formal statement of cause.”)?

Opinion: The commission notes that Bylaws 3.10.5.7.2; 3.10.5.7.2 [e][1]; 3.10.5.7.3 [d]; 3.10.5.7.6; and
3.10.5.7.6.1 all make explicit that a board of regents may decline to renew the contract of an initial-level
member of the faculty “with no formal requirement for a show of cause,” “without disclosure of cause,”
and “at the discretion [of the board of regents] and without formal statement of cause.” Bylaw 3.10.5.7.6.1
indicates that for an initial-level member of the faculty the only time cause must be shown is if that faculty
member is removed from office while the contract is in effect. Bylaw 3.10.5.7.4 [i, j] specifically contrasts
the right of appeal for continuing-level and initial-level appointments to the faculty.
Bylaw 3.10.5.7.4 [j] permits the initial-level member of the faculty whose contract was not renewed to
inquire “to assure that appropriate procedures were followed in reaching the decision or the basis on which
CCM Minutes – May 5–6, 2017 – Page 30