LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 9–10, 2024, Page 9

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the regent’s clear obligations under the university’s governing documents (which include the
Constitution and Bylaws of the Synod) by a personal impression of a vague “good for the
institution” standard but provides a potential tool for convincing and compelling regents to do so.
The final sentence’s explicit limitation with regard to the Synod’s documents is again improper and
inconsistent with Synod’s governing documents.
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Sections 2.1 and 2.2, furthermore, present a circular definition of the regents’ duties, in which the
board’s fiduciary duty, which potentially cabins their obligation to Synod documents, is
subsequently defined in terms of the documents insofar as not cabined away. This Gordian knot is
best removed entirely.
Finally, the commission does not understand these changes or those flowing from them in Section
2.8, with the potential exception of its (e), to proceed in any way from 2023 Synod bylaw changes.
The manner in which a regent is to discharge his or her duty is accurately described in general in
Bylaws 1.5.1.3–1.5.2 (Bylaw 1.5.2 is specifically cited in Section 3.8) and specifically in Bylaws
3.10.6–3.10.6.5.2. Nowhere in this material is there acknowledged a fiduciary duty to the institution
that is independent of, let alone contrary to, the institution’s essence as a university of the Synod
and an essential part of its ecclesial polity.

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Section 2.3: The board shall consist of no fewer than fourteen members and no more than eighteen.
The commission questions the need for extensive changes to the language of this section and the
pronounced differentiation of the “Class B” regents, when the simple rule that “members appointed
by the board of regents may not vote on the appointment of members of the board” (Bylaw 3.10.6.2
[3][a]) would seem to suffice. Unless the university is able to provide a clear legal argument
requiring this deviation from the pattern of the language of the Synod Bylaws, language more
consonant with the Synod Bylaws’ approach should be used.

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Section 2.5: Subparagraph (b) does not seem to take into account the possibility that none of the
nominees possess the requisite qualifications; (c) also appears to make appointment of at least one
proposed nominee obligatory. This is contrary to the provision of Bylaw 3.10.6.2 [3], which allows
the board to adjust its size, within the bounds of fourteen and eighteen members, by adjusting the
number of appointments in effect at a given time (as is, indeed, suggested in Sections 2.5 and 2.7)
and unduly imposes on the freedom of the plenary board. Finally, it should be made clear that the
executive committee, in performing these functions, must be doing so because it is designated the
nominations committee described in Synod Bylaw 3.10.6.2 [3][b]; these functions do not fall
natively within the scope of the executive committee.

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Section 2.7: The term for Synod-elected regents begins September 1 following the convention
(Bylaw 3.2.4 [a]), and not immediately upon the convention’s close. Appointed regents assume
office on September 1 “or immediately upon their appointment thereafter” (Bylaw 3.2.4 [c]), and
language to this effect should be included. The “other date in such year” language suggests that
regents may shorten a term of an appointed regent, which is not consistent with the plain meaning
of a 3-year term and existence of definite procedures for early removal from office, for cause.

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Section 2.8: Considerable interpretation is evident in the appropriation of the obligatory removal
standards and procedure of Synod Bylaws 1.5.7–1.5.7.2. The commission renews its objection to
the exclusions and cabinings-away evident in (a)(ii) and (iii).
The removal of a regent for failure to complete the training is simply by the regents’ declaring the
position to be vacant on this basis (as obligatory under Bylaw 3.10.6.2.2 [d]), and not by the
procedure of Synod Bylaw 1.5.7.1, except perhaps in the case that this would be the required
mechanism, under applicable law, in the spirit of Bylaw 1.5.7.2 (see also the final sentence of
Section 2.11, where a similar correction is necessary).
CCM Minutes – August 9–10, 2024 – Page 32