LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 17–18, 2018, Page 13

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Divest. Equivalent to devest (q.v.) Devest. To deprive or dispossess of a title or right (e.g. an estate).
Black’s Law Dictionary, Fifth Edition (1979)
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Question 1:

How are the assets of a University liquidated?

Opinion: Synod’s Constitution places the authority of all of Synod’s property with the Synod’s Board of
Directors (BOD) except “in those areas where it [the BOD] has delegated such authority to an agency of
the Synod or where the voting members of the Synod through the adoption of bylaws or by other convention
action have assigned specific areas of responsibility to separate corporate or trust entities, and as to those
the Board of Directors shall have general oversight responsibility as set forth in the Bylaws” (Const. Art.
XI E 2).
This BOD authority concerning Synod’s property is repeated in Bylaws 3.3.4 and 3.3.4.7. The property of
Synod is defined in Bylaw: 1.2.1(q) and includes all property of an agency of Synod. A Concordia
University is an agency of Synod, making all the property of the Concordia University property of the
Synod. Board of Directors Policies 5.4.1.2f. have addressed, in general, the delegation of property authority
to college and university boards of regents, which delegation remains subject to the Bylaw requirement
(3.10.6.4[i][6]) that a board of regents has “no power by itself to close the institution or to sell all or any
part of the property which constitutes the main campus.”
A board of regents may validly liquidate the property of a college or university under either of two
circumstances. It may do so:
(1) as part of a divestiture directed by Concordia University System under Bylaw 3.6.6.5 (h); or it
may do so
(2) having requested and obtained appropriate approvals (Bylaw 3.10.6.4 [i][6]), as when forced
to exercise its fiduciary duties in a condition of financial emergency.
As the by itself of Bylaw 3.10.6.4[i][6] implies, the execution of a closure or “liquidation” of a college or
university (whether initiated by Concordia University System under Bylaw 3.6.6.5 [h] or by the board of
regents itself, on account of operating conditions) does rest with the board of regents, as the governing body
corporate of the institution (Bylaw 3.10.6.4 [i][5]), but requires the consent of those with oversight
authority, namely, the boards of directors of the Synod and of Concordia University System.
Bylaws do not stipulate limits as to how much of the institution’s property may be divested in such a
circumstance. There being no limit placed by the Bylaws the CCM can only conclude that the quantity of
property and the kind of property that is the subject of the divestiture is the same property to which the
above-noted authorities assented.
Question 2:
(Another avenue of questions asked what paper trail must be established by Synod’s Board
of Directors. The questions focus on what can be done in private (executive session) by the BOD and what
must be public, and what would constitute a proper form of “consent” allowing a board of regents to act
“not on its own.”)
Opinion: Synod’s Constitution and bylaws are silent concerning this question. As such, the commission can
only conclude that Missouri state law, if there is any state law on point, possibly may govern the answer to
this question. The CCM states possibly because the Establishment clause of our Federal Constitution as
well as the Missouri State Constitution may come into play. What the CCM can say is that the Constitution
and Bylaws do not require the BOD to release every facet of its work (or these specific facets) in its public
minutes.
While the fact that that BOD as an officer of the Synod (Const. Art. X A) is “in everything pertaining to
[its] rights and the performance of [its] duties [is] responsible to the Synod (Const. Art. XI A 1)” implies
that the conduct of its responsibilities (Const. Art. XI E 2) must be reviewable by the convention, this does
CCM Minutes – August 17–18, 2018 – Page 134