LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — March 30, 2023, Page 12

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fiduciary duties also encompass operating and managing the institution as a fiduciary and
an agent of the Synod in a manner consistent with Constitution and Bylaws of the Synod,
including without limitation Article II and Article III of the Constitution?
Opinion:
The term fiduciary is a commonly used legal term of art. Black’s Law Dictionary (11th Ed.)
offers two definitions, both of which inform the use of the term to describe the duties regents owe to the
ecclesial Synod. A fiduciary is: “1. Someone who is required to act for the benefit of another person on all
matters within the scope of their relationship; one who owes to another the duties of good faith, loyalty,
due care, and disclosure. 2. Someone who must exercise a high standard of care in managing another’s
money or property.” The commission finds that these common definitions are included within but may not
exhaust the sense of “fiduciary duty” that may be inferred from the immediate context of Bylaw 3.10.6.4
(i)(1). More specifically, the context in Bylaws 3.10.6, 3.10.6.1, and 3.10.6.4 provides, without exhausting
the full scope of said “fiduciary duties to the Synod,” some particular aspects of the responsibilities regents
owe the Synod in governing the respective institution in a manner that is faithful to the confession of the
Synod (Const. Art. II) and fulfills its objectives (Const. Art. III; Bylaw 3.10.6.1). The fiduciary duties
expected of regents are thus not purely secular but involve the comprehensive stewardship of the institution
in the ecclesial interest of the Synod, which has put them in place to govern. Governing the institution as a
“fiduciary” or “agent of the [ecclesiastical] Synod, in which ownership is primarily vested” (Bylaw 3.10.6.4
[i][1]) and, indeed, as a “governing board of the Synod” (Bylaw 3.2.2), they owe duties of “good faith,
loyalty, due care, and disclosure” and a “high standard of care” to maintain the institution in faithfulness to
the Synod’s confession (Const. Art. II); in fruitfulness with regard to the accomplishment of the Synod’s
objectives (Const. Art. III and relevant Bylaws, resolutions, and policies, as such pertain to the operation
of a Synod university); and consistent in every respect with the governance model Synod has set forth to
assure the institution operates in its ecclesial interests (see above, “Universities as Agencies of the Synod”
and Opinion to Question 4).
Question 10:

If a board of regents of a university of the Synod fails to carry out or breaches its fiduciary
duties to the Synod as required in Synod Bylaw 3.10.6.4(i)(1), who or what body, within
the Synod, has the authority and responsibility to take action to address and correct the
breach of fiduciary duty, including proceeding under the Dispute Resolution Process or, if
appropriate, taking action in secular court?

Opinion:
Bylaw 3.3.1.1.1 assigns ecclesiastical supervision of all officers of the Synod and its
agencies to the President of the Synod. Bylaw 3.3.1.1.1 (c) gives the President the responsibility and
authority to exercise ecclesiastical supervision over the doctrine taught and practiced at the universities of
the Synod.
Bylaw 3.3.1.2 assigns to the President of the Synod oversight of all the agencies of the Synod to ensure that
these agencies are acting in accordance with the Constitution, Bylaws, and resolutions of the Synod.
Specifically in regard to the educational institutions of the Synod, the President is charged to officially visit
or cause to be visited all these institutions to exercise oversight over their administration relative to adhering
to the Constitution, Bylaws, and Resolutions of the Synod (Bylaw 3.3.1.2 [a]).
If the President of the Synod determines there is a violation of the Constitution, Bylaws, and resolutions of
the Synod, he may call up for review any such action and request that this action be altered or reversed. If
the matter is not resolved, the President of the Synod shall refer the matter, as he deems appropriate to the
issues and party/parties to the matter involved, to the Synod Board of Directors, the Commission on
Constitutional Matters, or to a convention of the Synod. He is also required to report to the Synod those
who are not acting in accordance with the Constitution, Bylaws, and Resolutions of the Synod. (Bylaw
3.3.1.2 [c])
The unauthorized separation of a university of the Synod (which is included in property of the Synod) from
the Synod inherently involves a legal and property matter properly to be referred by the President (Bylaw
3.3.1.2 [c][2]) to the Board of Directors as the legal representative and custodian of the property of the
CCM Minutes – March 30, 2023 – Page 138