Opinions of the Commission on Constitutional Matters

The following opinions of the Commission on Constitutional Matters (CCM) were issued since the report to the 2019 convention and were selected by the commission’s chairman as being of general interest to the Synod (for example, reviews of agency bylaws and policy manuals are not included). Full commission minutes are reported at lcms.org/ccm.

Meaning of Face-to-Face (19-2914) Minutes of July 18–19, 2019 The commission received the following request for an opinion from a member of the Synod: Question:

Opinion:

May the requirement of a “face-to-face meeting” in Bylaw 1.10.5 also be fulfilled by modern digital technology via face-to-face telephone conversation via computers, smartphone and the like using Face Time or via Skype, where both parties are very much face-to-face, merely separated by a monitor, but in real-time communicating face-to-face? No.

After receiving the request for the opinion, the commission requested input in accordance with Bylaw 3.9.2.2 (b), in this instance, from the Council of Presidents (COP), district presidents being primarily responsible to determine when the requirement of a faceto-face meeting has been satisfied, and staff of the Commission on Theology and Church Relations. A very large number of virtually unanimous responses were received, supporting the conclusion that face-to-face means what it says, that is, in person. For example: [P]arties need to make every effort to meet together physically—even it if requires personal financial expense and the use of a great amount of time. Matthew 18 calls us to meet together. A personal meeting has qualities that cannot be duplicated electronically. Meeting personally also shows care for one another demonstrated by the time and effort expended. Some responses suggested that perhaps in extreme cases a technological alternative to direct physical interaction could be substituted for the in-person meeting. For example: If for some reason, meeting “face-to-face” would cause an inordinately long delay in the process and hurt the possibility of reconciliation, or if an extreme circumstance exists that does not allow for a personal meeting, an electronic meeting or meetings may be substituted after proper consultation with the parties involved and with appropriate ecclesiastical supervisors. On the other hand, there was this response: The only argument that I can muster for conducting such meetings by electronic media is convenience. There is certainly no Biblical argument for doing so. Human convenience does not seem to be a Biblical priority. Since human convenience often detracts from God’s purposes, I would not admit it as a valid argument in favor of the proposal. One response, in particular, crystallized what this commission finds to be the requirement of the face-to-face language of the Bylaws of the Synod: Presuming that Matthew 5:24 and 18:15 are the Biblical foundation for the face-to-face meeting requirement found in the bylaws … Jesus’ command to go to the brother (ὕπαγε) could not have been understood in any other way, at the time, than having the parties physically meet. … [T]o adopt the use of electronic media for the purpose of meeting would require interpreting the word “go” (ὕπαγε) to mean “stay.” … [W]e should be interested very much in following the example given in the Scripture as closely as possible. The verb in Jesus’ command to go to the brother (ὕπαγε) is an imperative. At the very least, such an imperative requires some commitment to making the reconciliation happen. The arguments against physical meetings suggest a lack of commitment due to the cost of time and money. While some may consider such expense a “barrier” to reconciliation … it is a fruit of reconciliation. Both texts suggest a high priority on maintaining relationships: [6:24: ὕπαγε πρῶτον διαλλάγηθι τῷ ἀδελφῷ σου, 18:15: ἐκέρδησας τὸν ἀδελφόν σου] … [C]ommon sense … suggests that physical presence is the most effective means of creating potential for good communication (e.g., tone, facial expression, body language, the elimination of distractions unique to the individual’s location, and presence). …

[P]ers on al relationships would be served best by face-to-face meetings in person.” This response well reflects the goal and intent of the Bylaws’ faceto-face language, as expressed in Bylaw 1.10.1.2: The words of Jesus in Matthew 18:15–20 provide the basis for church discipline for the local congregation. The same passage also grants Christ’s guidance to all Christians in seeking to settle other disputes, many of which fall outside the purview of church discipline involving the congregation. In either case, the steps of Matthew 18 should be applied lovingly in both formal and informal settings. Matthew 18 does not apply directly in cases of public sin, but face-to-face meetings are required nonetheless, even in the case of public sin, toward the goal of reconciliation and winning the brother or sister. The parties and others attempting to effect resolution of a dispute must always remain mindful that the church has been given the “ministry of reconciliation” (2 Cor. 5:18). Hence, conflict resolution in the church is to lead to reconciliation, restoring the erring member in a spirit of gentleness (Gal. 6:1). Its aim is to avoid the adversarial system practiced in society. The noted response also well interprets the Bylaws’ own definition of face-to-face (Bylaw 1.10.4 [f]; 2.14.2 [f]) and the Bylaws’ repeated connection of such language to its root in Matt. 18:15 (e.g., Bylaw 1.10.5; 1.10.5 [d]; 2.14.3 [f]; 2.16.3 [c]; 3.10.5.7.9 [a]). The requirement of a face-to-face meeting was inserted when the current Bylaw section 1.10 process was first adopted in 1992. The meaning of face-to-face was clarified by the 2004 convention: Face-to-face: A meeting face-to-face, in person, between the parties in dispute following the guidelines of Matthew 18:15. Email, regular mail, fax, or telephone call (or any combination there of) does not satisfy this requirement. (Note: Failure to conduct a face-to-face meeting within 30 days or within such extension as may be established by the involved ecclesiastical supervisors shall result in dismissal if the fault lies with the accuser or movement to the next stage if the fault lies with the accused.) (2004 Bylaw 1.10.4 [f]) The reference to “email, regular mail, fax, or telephone call (or any combination there of)” was not intended to be exhaustive of insufficient means but was simply a listing of the technological alternatives of the day. It was clearly intended that the parties need to meet together physically.

1.10.1.2). There is no allowance in these words face-to-face for a present-day electronic meeting, which is not all that different from the electronic means prohibited in existing bylaws (Bylaw 1.10.4 [f], etc.). Bylaws as adopted, and as they presently stand and must be interpreted, require—except in narrowly specified exceptional cases—an actual going to reconcile with the allegedly errant brother, an effort demonstrative of the complainant’s pursuit not only of the respondent’s rebuke but also of repentance and reconciliation. If, however, the Synod would like to alter the Bylaws in order to allow for electronic meetings at all times or only in extreme cases (with, hopefully, the facts and circumstances well defined and the parameters clear as to what is an extreme case to be sure that the exception does not become the rule), the Synod is certainly free so to do.

Shared Concordia University President (19-2924) Minutes of November 1–2, 2019 The chairman of a board of regents of a Concordia college or university inquired of the commission whether two Concordia colleges/universities could, while remaining distinct institutions and agencies of the Synod, be served simultaneously by the same president.

Opinion: The commission does not find such a dual call to be contra indicated by the Constitution or Bylaws of the Synod, provided that the calls extended by both schools are compatible with such an arrangement and the respective boards of regents, both of which must approve the arrangement, are able to satisfy themselves that the duties of a college or university president, to serve as “spiritual, academic, and administrative head of the institution,” as further delineated in Bylaw 3.10.6.6, are adequately provided for at both institutions. The Concordia University System (CUS) also has authority with respect to the Synod’s colleges and universities, especially with respect to their coordination (Bylaw 3.6.6.1), and a key role in arranging for their presidential transitions. While this particular circumstance is not directly contemplated in the Bylaws, the import of such an arrangement to the governance of two of the system’s schools would require that it be undertaken only in close consultation with CUS. The provisions of Bylaw 3.10.6.6.2, regarding the selection of a college/university president, including the process for prior approval, would be fully applicable to the process for each institution. If such a possibility is contemplated, the transition review (Bylaw 3.10.6.6.2 [a]) and boards of regents’ definition of the institutions’ needs and evaluation of characteristics of a sought after president (Bylaw 3.10.6.6.2 [b]) would need to address its impact, in comparison with the customary alternative.

At the same time, it also should be noted that the requirement for a face-to-face meeting is not absolute. If one party attempts to obstruct the process by refusing to meet or creates so many conditions for the meeting that it creates a hardship on the other party, the ecclesiastical supervisor may make the decision to move the process to the next stage.

Board of Directors Designation or Appointment of Representatives to Agencies (20-2925)

In conclusion, for the reasons stated above, it is this commission’s opinion that face-to-face means what it says, namely, the physical presence of the parties in the same place. While the Bylaws do acknowledge that there can be specific exceptions to the requirement of a face-to-face meeting (e.g., Bylaw 2.17.3 [d], or should the accused party utterly and demonstrably frustrate reasonable attempts by the accuser to arrange a face-to-face meeting) and admit that Matt. 18:15 does not provide a dominical sine qua non in all cases (e.g., in the case of public sin, Bylaw 1.10.1.2), they do require face-to-face meetings “nonetheless” in the general case, in pursuit of “reconciliation and winning the brother or sister” (Bylaw

2019 Res. 9-09 allowed the Board of Directors to designate representatives to serve, in a capacity formerly carried out by Synod’s Chief Financial Officer, as advisory members of the boards of the LCMS Foundation, the Lutheran Church Extension Fund, Concordia Publishing House, and the Board of Trustees—Concordia Plans (Board of Directors—Concordia Plan Services), including executive sessions (Bylaw 3.3.4.6 [d]). The mechanism is similar to that by which the President designates his representation on various boards. The board is in the process of implementing such designations, and desires to understand the full latitude within which it

Minutes of April 24, 2020may do so. The Secretary of the Synod, on behalf of the Personnel Committee of the Board of Directors, therefore poses the following questions to the CCM:

was appointing someone to fill a vacant elected or appointed position. In that instance the position did not belong to the Board of Directors per se, as in the current situation.

Question 1:

Question 3:

Is it allowable (considering especially but not only Bylaw 1.5.1.1) for the Board of Directors to designate (a) an officer, (b) an executive, or (c) another staff member of corporate Synod or of another agency of Synod to serve as its representative?

Opinion: Yes, the position belongs to the Board of Directors, and the individual so designated as representative is not a member of the respective board but a representative of the Board of Directors, which possesses the position. Bylaw 1.5.1.1 reads:

Opinion: Yes; Bylaws 1.5.1.1 and 1.5.1.2 do not apply in regard to this designation. See above answers. Question 4:

Unless otherwise specified or permitted by the Bylaws, chief executives and executive directors, faculty, staff, and all other employees on either the national or district level shall not be members of the board of the agency under which they serve, nor shall any such executives or staff be members of the board of any other agency of the Synod. Bylaw 1.5.1.1 addresses eligibility to serve as an elected or appointed member of a board or commission. CCM Op. 16-2805 deals at length with the distinction between the terms elected, appointed, and designated, as they are used in the Bylaws. It indicates that designated is not equivalent to appointed. The terms elected and appointed indicate that the individual so elected or appointed is the one holding the position for a given term. In the case of an individual who is designated as the representative of another, the position belongs to the one who is doing the designating, not to the individual so designated. This also reflects the earlier CCM Op. 12-2662, which specifically stated that being a representative of the President of the Synod (Bylaw 3.3.1.3 [d]) is not to be considered the same as holding an appointed position. Rather, 3.3.1.3 (d) references the manner in which the President of the Synod, to whom the position belongs, is represented at these various meetings. 2019 Res. 9-09 draws a parallel to Bylaw 3.3.1.3 (d), which gives authority to the President of the Synod to attend, personally or by way of a representative, the meetings of all commissions (except the CCM) and the boards of all synodwide corporate entities, including executive sessions, and establishes a similar process that provides the ability of the Board of Directors to designate a representative to attend the board meetings of the LCMS Foundation, the Lutheran Church Extension Fund, Concordia Publishing House, and the Board of Trustees—Concordia Plans (Board of Directors—Concordia Plan Services) (Bylaw 3.3.4.6 [d]). In the case of Bylaw 3.3.4.6 (d), the position belongs to the Board of Directors, which, as a whole, is an officer of the Synod (Const. Art. X A 4) and is authorized to designate someone to attend those meetings on its behalf. Question 2:

Is it allowable (considering especially but not only Bylaw 1.5.1.2 and the precedent of CCM Op. 032340 and 12-2662) for the Board of Directors to designate one of its own members to serve as its representative?

Opinion: It is allowable, since the individual in question is not an appointed or elected member of that board to which he or she is designated as a representative. That individual is simply representing the Board of Directors, which possesses the position. CCM Op. 03-2340, which answered what may appear to be a similar question in the negative, does not apply to this situation because that opinion was referencing a case in which the Board of Directors

Is it allowable for the Board of Directors to designate any suitably qualified member of a member congregation of the Synod, other than the above, to serve as its representative? To what extent do Bylaws 1.5.1.1 and 1.5.1.2 apply to such persons?

Is it allowable within the meaning of “the representative designated” for the Board of Directors to designate, with regard to a single board position, more than one individual, with the intention of them serving on an as-available or rotating basis, or does the sense of the bylaw require designation of no more than one individual to a given position at any given time?

Opinion: It is allowable. While appointed and/or elected membership to a board is for a specified term, this is not the case for an individual who has been designated as the representative of the one who possesses the position. The one possessing the position has the freedom to change its representative as is seen fit. (Note: This opinion on designated representatives of the Board of Directors does not apply to Bylaw 3.6.6.3, which specifically states that the Board of Directors appoints up to two individuals to the Concordia University System Board of Directors.)

Nomination Ballot and Voter Registration Processes for Synod Conventions (20-2930) Minutes of April 24, 2020 The Office of the Secretary, for a variety of reasons, hopes to replace, beginning with the 2022 convention cycle, the present paper form and ballot processes for the registration of presidential voters and for the nomination of the President and vice-presidents of the Synod with electronic processes. It intends to replace the former using an in-house system and the latter using a reliable, impartial election contractor. The change would be in pursuit of the following chief aims: • Online-interactive entry of data by congregational officers will allow errors to be detected and corrected at time of registration/nomination, as opposed to a delayed and expensive process afterward. E.g., emails of registrants can be confirmed almost immediately by the system, and users can select precisely which ordained ministers from the roster they mean to nominate, definitively identifying them by their own selection, rather than relying on a later ballot counter to correct misspellings and incorrect or outdated locations.

• Elimination of postal transit and data entry time will improve tabulation time, the window for which is now reduced in the case of the presidential election by two weeks due to the election opening six, instead of four, weeks before the convention.
• Elimination of postal transit and data entry time will allow timely and accurate reminders to congregations that have not yet registered or cast nominating ballots. This is particularly important as districts are now asked to encourage registration and need to be informed of registration status in

a timely manner. Automation of the system will allow “reminder” communications to be carried out automatically or (in the case of the nomination system) by a reliable, impartial election contractor.

auditing firm to tabulate the nominations and shall report in the Convention Workbook the names and tallies of all ordained ministers who have received nominating votes.

Relevant bylaws have been designed, with the clear intent of the convention, to support the use of electronic processes in both these regards, but this possibility has either not been fully worked through all relevant bylaws or has been obscured by subsequent modifications. The following questions request an interpretation of to what extent the implementation of the contemplated electronic systems would be either prohibited or constrained by potentially contradictory elements of the governing bylaws. In any case, the contemplated electronic system would make every reasonable attempt—as present processes do—to ensure that the actions reflected are valid acts of the congregation, taken according to its governing documents and resolutions, properly registered by officers of the congregation.

Bylaw 3.12.2.7, treating the nomination of regional vice-presidents, was added by 2010 Res. 8-14A (Proc., 165–66; Today’s Business, 306). Again, Bylaw 3.12.2.7 today reads as follows:

A. Nomination of President, First Vice-President, and Regional Vice-Presidents Bylaws 3.12.2 and 3.12.2.7 govern the nomination of the President and vice-presidents of the Synod. Bylaw 3.12.2, treating the nomination of the President and First Vice-President, was amended by 2010 Res. 4-07 (Proceedings, 124–27), acknowledging “the availability of electronic communication tools that allow for timely and economical distribution of materials,” to allow for the use of any “secure and verifiable method,” including electronic methods (cf. the use of “secure and verifiable method” in Bylaw 3.12.2.4). Bylaw 3.12.2 today reads as follows (annotated with changes made in 2010): Nominations of President and First Vice-President 3.12.2

Nominations for the offices of President and First Vice-President shall be made by the member congregations of the Synod. (a) Each member congregation shall be entitled to nominate from the clergy roster of the Synod two ordained ministers as candidates for president, and two ordained ministers as candidates for First Vice-President. (b) The Secretary of the Synod shall provide a secure and verifiable method that will offer opportunity to every mail to each congregation of the Synod to submit nominations ballots for nominating these candidates. He shall, with the approval of the Board of Directors of the Synod, obtain the assistance necessary to accomplish this task. (c) The Each nominating process ballot shall be completed signed by the president and secretary of the member congregations not later than five four months prior to the opening date of the convention. There shall be no opportunity provided for additional nominations. [2010 Res. 4-07, Proc., 124–27] (d) The Secretary of the Synod may engage, with the approval of the Board of Directors, an external

Nominations and Elections of Regional Vice-Presidents 3.12.2.7

After the results of the first-vice-presidential election have been announced, the convention shall elect five regional vice-presidents according to the following nominations and elections process. (a) Each member congregation of a region (including any non-geographic-district congregations in that region) shall have been given opportunity to nominate two ministers of religion—ordained from the clergy roster of the Synod with residence in its designated region as candidates for regional vicepresident. (b) The Secretary of the Synod shall receive such nominations (signed by the president and secretary of the nominating congregation). [See 2010 Res. 8-14A, Proc. 165–66; TB 306, where the foregoing procedure is put in place.] (c) The names of the five ministers of religion— ordained residing within the boundaries of each geographic region who receive the most nominating votes shall form the slate from which the Synod convention shall select by majority vote each regional vice-president. (d) No opportunity shall be provided for additional nominations from the floor of the convention. …

Note that the change made to Bylaw 3.12.2, to allow an electronic method for nomination of the President and First Vice-President, was not propagated to the newly-created nomination process for regional offices. Note also that the bylaws specifically allow the use of an external tabulator in the case of the President and First Vice President nominations, but indicate receipt of the signed ballots in the Office of the Secretary in the case of the regional vice-president nominations. (It is noted that the 2010 procedure also called for nomination of a number of board positions by the same regional process; it was likely felt that the auditor could not be expected to absorb all this activity.) The present intent to create a coherent electronic process, taking care that it is as secure and as verifiable (or more so) than the paper ballot process, requires a few questions of the commission: Question A.1: May the process for nomination of regional vicepresidents be adapted from the use of paper ballots to the same secure, verifiable, online system being contemplated for use with the offices of President and First Vice-President?

Opinion: The current wording of the Bylaws, on its face, specifically requires that the ballots for nominations of regional vice-presidents must be signed by the president and secretary of the congregation submitting the nomination. This process was added to the Bylaws following the 2010 convention of the Synod, which adopted several resolutions. Res. 8-14A resolved that vice-presidents two through six be elected regionally and added Bylaw 3.12.1, which described how the regions were to be formed. Res. 8-16A specified that there were to be five regional lay members of the Board of Directors. Res. 8-08A established a Board for National Mission (BNM) and a Board for International Mission (BIM), also with regional membership. Res. 8-08A also adopted 2010 Bylaw 3.12.2.5 (TB 305–6, today numbered 3.12.2.7), establishing the process by which all regional nominations and elections were to be done. 2010 Bylaw 3.12.2.5 (b) required that all nominations were to be signed by the president and secretary of the nominating congregation and submitted to the Secretary of the Synod. The 2010 Synod convention also adopted Res. 4-07, which made a large number of bylaw changes pertaining to the preparations for conventions of the Synod. One of these bylaw changes altered how the President and all vice-presidents of the Synod were to be nominated. The 2010 change to then-Bylaw 3.12.1 eliminated the requirement of 3.12.1 (b) that all nominating ballots be signed by the president and secretary of the nominating congregation, replacing it instead with a provision directing the Secretary of the Synod to provide “a secure and verifiable method that will offer opportunity to every congregation of the Synod to submit nominations.” This change was not, however, incorporated into the 2010 Handbook with regard to the nomination of regional vice-presidents. Rather, probably because of a desire to keep the manner of nominations for all regional positions consistent, 2010 Bylaw 3.12.2.3 (b), as incorporated into the 2010 Handbook, followed the process adopted in Res. 8-08A, continuing to require the signature of the president and secretary of each nominating congregation to sign the form and submit it to the Secretary of the Synod. The 2016 Synod convention adopted Res. 11-05, which changed the manner of nominating the regional members of the Board of Directors and the elected members of the BNM and the BIM (all of which are regional). In this new process, nominations were no longer limited to congregations, but followed the process for all other nominations received by the Committee for Convention Nominations. The stipulation requiring signatures from the chairman and secretary of a nominating congregation was removed. Res. 11-05 did not address the manner of nomination for regional vice-presidents. Since the procedure for nomination by the congregations today applies only to the offices of President of the Synod, First Vice President, and the five regional vice-presidents, it is the opinion of the commission that Res. 4-07, adopted by the 2010 convention, can be followed in its original intention to allow the Secretary of the Synod to provide “a secure and verifiable method that will offer opportunity to every congregation of the Synod to submit nominations,” not only for the President of the Synod and the First Vice President, but also for the five regional vice-presidents, without requiring the signature of the president and secretary of nominating congregations. Question A.2: Is the use of a reliable, impartial election contractor to facilitate these nomination processes to be precluded either by the language limiting external tabulation help to an “auditing firm,” or the language, in the regional process, requiring ballots to be received by the Secretary of the Synod?

Opinion: Bylaw 3.12.2 (d) uses the term may in reference to the engaging of an external auditing firm to tabulate the nominations. The term may would allow the process to be handled in-house by the Secretary of the Synod, should he so choose, or by an external tabulator. Since 2010 Res. 4-07 was intended to apply to the election of the President of the Synod, the First Vice-President, and the five regional vice-presidents, the application of this process to the nomination of the regional vice-presidents would allow the Secretary to use a reliable outside resource to tabulate the nominations and also certify these results, should the Secretary of the Synod so decide. This is also comprehended within the sense of his provision of a “secure and verifiable method” using “assistance necessary to accomplish this task.” Question A.3: Could the requirement that regional nominations be “signed by the president and secretary of the nominating congregation” be implemented in some electronic fashion, rather than physically, on an official ballot? (In asking this question, it is noted that there is no ability at the Synod level to verify the signatures currently submitted, and that the security and verifiability of the process presently relates to identifying valid, original physical ballots and keeping records as to which congregations have cast their votes, to prevent duplication or third-party submission. An electronic process could be “verified” more thoroughly, for example, by emailing congregational officers when the congregation’s nominating ballot has been cast, to alert them to any potential unauthorized use.) Opinion: Bylaw 3.12.2 (b) directs the Secretary of the Synod to provide a secure and verifiable method that will offer opportunity to every congregation of the Synod to submit nominations. The Bylaw does not stipulate what this secure and verifiable method might be. This same process may be used for the nominations of the regional vice-presidents. See the answer to Question 1A. B. Registration of Presidential Voters Bylaw 3.12.2.3 governs the registration of presidential voters by the congregations-and-parishes (Pfarrgemeinden) of the Synod. This process involves the collection of name, address, email address, phone, and a “security question” for the pastoral and lay voters to be registered. Handwriting of this information on a form and subsequent data entry have proven very error-prone and time consuming. The especially important email address has been a challenge. Improperly completed or signed forms take a long time to detect and correct, with the consequence that some congregations have difficulty completing the process in time. An electronic process would reduce the administrative burden and significantly increase assurance, as well as allowing more timely and accurate reminders to congregations that have not yet registered. Bylaw 3.12.2.3, created by 2010 Res. 8-17 (Proc. 167; TB 304–5), as modified in 2016 and 2019, reads: 3.12.2.3

The Secretary of the Synod, using lists of delegates in attendance at the prior year’s district conventions as submitted by the secretaries of the districts, shall compile and maintain the voters list for the election of the President of the Synod in coordination with the secretaries of the districts. This list and any of its parts shall not be disseminated.

(a) This voters list shall include two voting delegates from each congregation in attendance at the previous district conventions who remain members of the congregations they represented: (1) the pastor of each member congregation or multi-congregation parish (assisting pastors are not eligible) (2) a lay person from the congregation or parish (b) The congregation shall present to the Secretary of Synod 90 days prior to the election a proper credentials form provided by the Secretary, signed by two of the congregation’s officers. If a congregation or parish has more than one pastor eligible to vote, the congregation shall designate on the credentials form which pastor will cast a vote on behalf of the congregation. (c) If one or both delegates are unavailable, congregations shall be provided opportunity to select substitute voters up to a deadline designated by the Secretary. [2016 Res. 11-03A, Proc., 196] (d) The registration status of congregations shall be made available to respective district presidents for the sole purpose of their encouraging registration for greater congregational participation. The registration status of congregations shall not be further disseminated. [2019 Res. 9-16, Proc., 201]

The process adopted in 2010, because it relied on information from district secretaries and not on direct registration by congregations, involved no paper communication with the congregations themselves. In 2016, responding to dissatisfaction that congregations that did not attend the district convention or had lost those who had attended prior to the presidential vote were not able to vote in that election, the bylaw was modified to require direct registration of congregations with the Secretary of the Synod. The implementation specified was along the lines of other official ballot processes: a proper credentials form, signed by two congregational officers. This process involves a significant administrative burden, and mail delay and data entry time do not readily facilitate timely and accurate reminders to congregations, especially as now required by sub paragraph (d). Prior to the 2016 change, there would have been no obstacle to a completely electronic registration process; the perhaps over-specified procedure dictated in 2016, however, may be construed to present an obstacle—even though the 2016 action evidences no intent to create such an obstacle, but perhaps rather a default impression of how another such process might be modeled on existing methods of the time. Question B:

Does the language of Bylaw 3.12.2.3 (b) preclude implementation of presidential voter registration by a secure and verifiable electronic means, requiring participation of congregational officers and their affidavit that the registration is taken as an official congregational action?

Opinion: The process adopted at the 2010 convention (2010 Bylaw 3.12.2.3) established means by which the list of eligible voters for the election of the President of the Synod was to be submitted by

the secretary of each district of the Synod. This list was comprised of the voting delegates who had attended their respective district conventions. When the process was changed by the 2016 convention (2016 Res. 11-03A) to require instead the direct registration of voters by congregations, the wording used in Bylaw 3.12.2.3 (b) replicated the wording of Bylaw 4.2.2 (a), which described the certification, by congregational officers, of their congregation’s designation of voting delegates to a district convention. Bylaw 3.12.2.3 (b), as so amended, simply states that the congregation shall present to the Secretary of the Synod “a proper credentials form provided by the Secretary.” It does not specify how this form is to be distributed. It could be a paper form mailed to each congregation, or it could be an electronic form accessible on the Synod website. The bylaw further specifies that this form must be signed by two of the congregation’s officers. This could be done via an electronic signature (which has come to be commonly understood—as in the case of Missouri contract law, for example, for fifteen years—not necessarily to require a handwritten mark) before the form is electronically submitted to the Office of the Secretary. If it were not technically feasible for the two officers to electronically sign the form, the registration could also be submitted electronically, with a printed copy of the registration form, bearing the appropriate signatures, sent to the Office of the Secretary prior to the deadline. Thus, the wording of Bylaw 3.12.2.3 (b) allows the Secretary of the Synod to use a “secure and verifiable method” for the registration of the voting delegates of each congregation or parish to vote for the President of the Synod so long as it involves the collection by some means of the required “signatures” (i.e., verifiable attestations, by some commonly understood means of physical or electronic signature) of two congregational officers.

District Conventions, Circuit and Advisory Meetings, and Coronavirus Contingencies (20-2938) Minutes of June 16, 2020 The Secretary of the Synod, responding to a number of inquiries from district presidents and secretaries inspired by the COVID-19 pandemic and associated impediments to large physical gatherings, potentially extending to or recurring over the next months or years, requested the following guidance from the commission: Question 1:

In the event that circuit forums, necessary to elect circuit visitors and to select Synod convention representation, or meetings of commissioned ministers and certain ordained ministers to select advisory delegates cannot meet physically, how can their business be conducted?

The Synod’s Bylaws have been specifically amended in recent years to allow the (at that time, new) possibility of conducting these specific meetings electronically or “virtually.” The forum of a circuit may meet electronically (Bylaws 3.1.2.1 [a] and 5.2.2 [a]) and, in the context of a meeting, physical or virtual, vote electronically (Bylaw 3.1.2.1 [b] and 5.2.2 [c]). The holding of such a “virtual” meeting presumes that congregations are able properly to designate representation, that someone in the circuit has the wherewithal to facilitate a proper electronic meeting and a means of voting that satisfies the stated requirements, and that the congregational representatives have fair and reasonable opportunity to attend by the means utilized. Attention should be given by the circuit visitor, who is responsible to convene the meeting, to ensure that the vote is and can be exercised only by those properly designated by their congregations-or-parishes to represent them at the forum (Bylaws 3.1.2.1 [c]; 5.3.2), and that all eligible participants have a reasonable and reasonably uniform opportunity for full and fair participation. Careful attention would need to be paid to advance submission and subsequent effective dissemination of names and biographical information on nominees (Bylaws 3.1.2.1 [e] and 5.2.2 [b, d]) to all those attending the meeting as voting and advisory members of the forum. In a similar case, the commissioned ministers and those ordained ministers ineligible to serve as voting pastoral delegates may meet by electronic means, under Synod Board of Directors policies (specifically, Policy 5.7.8 in the manual available at lcms.org/bod), to elect their proportional representation to the Synod convention (Bylaws 3.1.3–3.1.3.1). Concerns similar to those expressed with regard to circuit forums would pertain, and those responsible need to consider the full and fair participation of all eligible participants. Question 2:

In the event that district conventions are prevented from meeting physically by COVID-19 restrictions or similar circumstances, what options are available to the districts, under the Constitution and Bylaws of the Synod, for proper conduct of the business ordinarily conducted through these means?

The Constitution and Bylaws of the Synod provide specific provisions for the conduct of district conventions (Const. Art. XII 10, 13–15; Bylaws 1.3.3, 1.4.1–2; Bylaw sections, 4.2 and 4.7; and, by analogy, Bylaw section 3.1, insofar as it is applicable, and Bylaw section 3.12, in the sense indicated in Bylaw 4.7.1). Like the convention of the Synod, the conventions of the districts are not simply vehicles for accomplishing certain “essential” pieces of business, such as elections and resolutions, couched with extensive “inessential” trappings. Rather, they “shall [emphasis added] afford opportunities for worship, nurture, inspiration, fellowship, and the communication of vital information. They are the principal legislative assemblies, which amend the district’s Articles of Incorporation and Bylaws, consider and take action on reports and overtures, and handle appropriate appeals” (Bylaw 4.2.1). Conventions are thus regulated by the Bylaws of the Synod (Bylaw 4.2.1 [a]) and those of the districts, bylaws which may be amended substantially only by or with the specific and express authorization of such conventions (Bylaw chapter 7; Bylaw 4.2.1; Const. Art. XIV). The Bylaws of the Synod, which govern the districts, do not provide for virtual or electronic conventions, or for doing the business assigned to a convention by means other than meeting; explicit allowance has been made for those meetings which can be conducted electronically (see above), but conventions are not among them. Robert’s Rules, on which the conduct of our conventions, as de liber at ive assemblies, depends (Bylaw 3.1.9 [i][3]), permits the business of an organization “to be carried out only at a regular or properly called meeting—… a single official gathering in one room or area—of the assembly of its members at which a quorum is present” (Robert’s Rules of Order, Newly Revised [11th ed.], 97:11–14) unless the bylaws of the organization explicitly authorize electronic meeting. The sense behind this rule is the preservation of the fundamental character of a de liber at ive assembly (Robert’s, 1–5). Our Bylaws do not so authorize. Moreover, our conventions are churchly de liber at ive assemblies. Their proper function, in pursuit of the aims described above (“worship, nurture, inspiration, fellowship, and the communication of vital information,” and only then

“tak[ing] action”), depends essentially on the voting and advisory delegates being able to interact fully and personally in a manner hardly reproducible by electronic means. The expectation is that the functions assigned to the convention would be taken in a context allowing full and free debate, fellowship, and personal interaction, and not by some impersonal means. Const. Art. VIII A 2 and XII 14 speak of a “constitutional convocation” and “presence” of at least a quorum of representatives. As a practical matter, the size of even the smallest of our district conventions does not seem at all likely to admit the possibility—even if the Bylaws were so to authorize, which they do not—of an electronic or virtual meeting that retains the character of a physically gathered, churchly, de liber at ive assembly. The commission is aware of the possibility that certain jurisdictions, in state not-for-profit corporate law, may provide mechanisms for electronic meeting of members, or for the doing of business ordinarily conducted in a members’ meeting by means other than assembly. Such laws are permissive but not prescriptive; that is, where the Constitution and Bylaws of the Synod have assigned certain functions to be performed exclusively within the context of a gathered convention, such laws, where they might exist, do not require or permit those functions to be exercised otherwise. The Constitution of the Synod is the fundamental agreement of the congregations as to the maintenance of their synodical union, and is also the Constitution of the several districts, as the Synod Bylaws are their primary bylaws (Bylaw 4.1.1.2). The Synod and its districts acknowledge civil authority but intend “to retain all authority and autonomy allowed a church” (Bylaw 1.2.1 [f][2]). The considerations involved in the agreed-upon patterns by which the Synod and its districts conduct their churchly work are not vacated by the availability of civil-law alternatives. The conventions of the Synod and of its districts are churchly, de liber at ive assemblies, with a specific character described in the Constitution and Bylaws, for which the character of a virtual meeting or of business done without a meeting—potentially relevant civil law options notwithstanding—is not a substitute. Question 3:

Are there limitations on rescheduling a district convention to accommodate a physical meeting at another time?

As to the timing of a district convention, Const. Art. XII 13 requires that it be held in “the year immediately preceding the general convention of the Synod” and states that “only the Synod has the right to make an exception to this rule.” This is commonly understood to be the calendar year, in this instance, 2021. Districts have from Jan. 1, 2021, to Dec. 31, 2021, to conduct their regular conventions. While, practically speaking, there are matters of adequate notice and venue that may limit attempts to reschedule a district convention, should a planned meeting become infeasible, a district convention could—if there is a possibility of fairly attempting to accommodate all stipulated participants, voting and advisory, at another time—be rescheduled within the district convention year of the triennium. The program and accommodations for the meeting may be varied as compelled by circumstance, so long as the essential nature of the convention (above) and of a churchly, de liber at ive assembly is preserved. Districts need to make a good faith attempt to have a convention, making every reasonable attempt or attempt(s) within the dictates of fairness and good stewardship of the district’s resources. Should a district be unable to convene or achieve the required quorum at any point during the district convention year, it would

simply have no regular convention in that triennium. There remains the possibility, “in cases of urgent necessity,” for specific business, and by the procedure specified (Const. Art XII 15) of calling a special convention of a district, and these are not limited to the district convention year. Question 4:

In the event that business ordinarily conducted through the above physical meetings cannot be conducted by some other means, and physical gathering cannot be achieved within the time allotted in the triennial cycle for each mechanism, what is the result (e.g., for elected offices)?

Bylaw 3.2.4 provides for terms of office aligned with the regular meeting schedule of the triennial cycle. Its sub paragraph (f) provides that “[i]ncumbents shall serve until their successors assume office.” Should a district be unable to meet in the current triennium, the current term of service of all elected incumbents would be extended until the next election can take place and successors can be inducted into office. The rules of succession and vacancy appointment already in place in the districts would pertain, should any incumbent be unable or unwilling to continue in office. As the current term is, in a sense, being extended, any applicable term limits would not remove elected incumbents from office until the corresponding election can take place. As there are, in this situation, no “pending successors-elect,” the usual limitations of Bylaw 3.2.4 (f) and (g) on the starting of new programs and the appointment of new appointees during the “interim” would also not apply. Should a district that fails to hold a regular convention within the district convention year of the triennium consider it to be of urgent necessity, outside the district convention year of the triennium and in such a situation, to conduct elections, and if the proper procedure would be followed (Const. Art. XII 15), a district could conduct a special (physically convened) convention for this purpose. Careful attention should be given by the districts and their officers, boards, and commissions to report to the congregations on their activities and the situation of the district, even if a convention is not certain to take place or possible to convene. Looking forward to the Synod convention, the principal required function of district conventions is, in those seventeen or eighteen districts electing representatives in a given triennium, the election of members of the Synod Committee for Convention Nominations (Bylaw 3.12.3 [f]). CCM Op. 12-2653 indicated that when a district convention has failed to elect a member of the CCN, the district board of directors must fill the resulting vacancy “to fulfill the district’s obligation to the Synod.” That provision would be applicable, should a district fail to meet in convention and elect its representative. Otherwise, the work ordinarily done by a district convention in preparation for the Synod convention (consideration of reports, submission of overtures, discussion and forwarding of suggestions for triennial emphases) is possible to be done by other means (including congregations, circuit forums, church worker conferences, and the district board of directors).

District President Authority in a Congregational Controversy (20-2951) Minutes of January 15–16, 2021 By an email of Sept. 16, 2020, a member of the Synod posed the following opinion request to the commission regarding the authority of a district president, under Const. Art. XII 7 and Bylaw 4.4.6, as the district president assists congregations having internal disputes. The commission solicited and received input from the Council of Presidents, consonant with Bylaw 3.9.2.2 (b), and initiated discussion of the item in its October meeting. It now responds as follows: Question 1:

When a district president intervenes in an intra-congregation dispute, as long as the dispute does not involve the doctrine or polity of the LCMS, is his input binding or merely advisory?

Opinion: The district president, like the President of the Synod, “has and always shall have the power to advise, admonish, and reprove. He shall conscientiously use all means at his command to promote and maintain unity of doctrine and practice” (Const. Art. XI B 3) “within the boundaries of [his] district” (Const. Art. XII 6). He shall “moreover, especially exercise supervision over the doctrine, life, and administration of office of the ordained and commissioned ministers of [his] district and acquaint [himself] with the religious conditions of the congregations of [his] district. To this end [he] shall visit and, according as [he] deem[s] it necessary, hold investigations in the congregations” (Const. Art. XII 7). In this work, he is to “conserve and promote the unity of the true faith,” “strengthen congregations and their members in giving bold witness,” and provide “evangelical supervision, counsel, and care,” and “protection for congregations, pastors, teachers, and other church workers …” (Const. Art. III). To this end he shall “in his ministry of ecclesiastical supervision visit the congregations of his district” (Bylaw 4.4.4) and “even without formal request there for, may through the proper channels arrange for an official visit or investigation when a controversy arises in a congregation … of the district or when there is evidence of a continuing unresolved problem in doctrine or practice” (Bylaw 4.4.6). The question poses a false dichotomy in asking whether such input of the district president is “binding or merely advisory.” When Const. Art. VII 1 states that “[i]n its relation to its members the Synod is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body,” this is not to dismiss the advice, admonition, and reproof of a district president as “merely advisory.” The duty of his office is to advise authoritatively on the basis of the Word of God and the Lutheran Confessions—to include, as noted above, the practical application of these to a pastor’s ministry and divine call and to any disputes that may arise in a congregation. The congregation will do well to weigh such worthy advice, counsel, and reproof, and to act as the Word and conscience require—for the Word of God is surely binding. The Synod is, as Const. Art. VII 1 states, “but an advisory body,” but when its officers advise, counsel, and reprove from the Word of God and Lutheran Confessions, this is not to be dismissed as “mere advice”; indeed, congregations participate in the Synod principally to receive and provide for one another such advice. Const. Art. VII 1 does frankly acknowledge and assert the fact that the district president does not possess directive control under any “legislative or coercive [governmental] powers” held by the Synod over congregations; such powers are explicitly disclaimed. What action the congregation takes, therefore, on the basis of (or contrary to) the district president’s advice, counsel, and reproof is of its own volition—which, while it may be captivated by the Word of God or sensible persuasion through the offices of the district president or his representatives, its own volition remains. Even where a congregation or individual member of the Synod is violating one of the conditions of membership in the Synod, the district president cannot force the congregation or individual member to change or follow a particular course of action. Rather, in such a situation, when persuasion does not suffice, the district president will ultimately need to follow the procedure for expulsion from the Synod in Article XIII. Question 2:

Does a district president have the ecclesiastical authority to effect the forced retirement of a called/ roster ed pastor without the official involvement and consent of the body that called that worker (i.e., the voters’ assembly of the congregation)?

Opinion: The question seems to suggest that a district president might himself retire a pastor. This he cannot do. A district president may advise, admonish, or reprove a pastor or a pastor’s congregation where there is or appears to be potential cause for removal of a pastor from office. Where a compelling circumstance exists, a district president may indicate that a failure to act, either by the congregation or by the pastor, will result in restriction of the pastor or suspension and possible expulsion from membership in the Synod of either the pastor or the congregation. The district president “has and always shall have the power to advise, admonish, and reprove” (Const. Art. XI B 3; XII 6) and exercises the ministry of ecclesiastical supervision (Bylaws 4.4.3; 1.2.1 [j]). By doing so, he does not himself retire the pastor. The call of a pastor can be resigned by the pastor himself or rescinded by the congregation itself (either properly and advisedly, in accord with our doctrines of Church and Ministry and of the divine call, or improperly and un advisedly, which would be wrong, would put its continued membership in the Synod in jeopardy, and may result in a dispute resolution process which could find the congregation liable). While the district president may within his office and presuming a compelling circumstance attempt to persuade a pastor to resign or a congregation to rescind a call, he has no means himself to retire the pastor. Question 3:

When a district president intervenes in an intra-congregation dispute, may the district president force his individual will on a congregation or called pastor by his own interpretation and application of the governing documents of the congregation?

Opinion: See the answer to Question 2 above. The district president may advise, admonish, and reprove, based on the Word of God and his understanding of the congregation’s commitments established in its own documents. The congregation then makes its own decision, which—if contrary to the doctrine and practice of the Synod or to its own commitments—may result in the further exercise of ecclesiastical supervision, the need for dispute resolution, or the congregation’s membership in the Synod being placed in jeopardy. Question 4:

When a district president intervenes in an intra-congregation dispute, what remedy does the congregation have if its voters’ assembly disagrees with the district president?

Opinion: The question, while unclear in itself, relates to how the advice given from the office of the district president is received and acted upon by the congregation. By virtue of the congregation’s membership in the Synod, the congregation has the duty and responsibility to give due consideration to such advice. Should the advice of the district president be inconsistent with the Scrip-

tures and Confessions, that is, with the doctrine and practice of the Synod, or inapplicable to the congregation’s situation, the congregation may, having given such advice due consideration, consider its situation in light of the Scriptures and Confessions and do otherwise than advised, realizing that if it acts contrary to the conditions of membership in the Synod (Const. Arts. II and VI), it places its membership in jeopardy. Keeping in mind that one of the congregation’s primary purposes in maintaining membership in the Synod is that it may see to the provision of proper ecclesial advice, and that therefore such, when provided, should not be lightly dismissed, this seems the most immediate remedy to advice that—upon due and proper consideration—would be found to be incorrect. Should a dispute arise between a congregation and its district president, the proper response would be to initiate the dispute resolution process as outlined in Bylaw section 1.10, the use of which is mandated by Synod Bylaws as the process to be used in the case of disputes between members of the Synod. The district presidents do carry out their offices both under the ecclesiastical supervision of the President of the Synod and as elected by their districts and responsible to their member congregations in convention.

Prior Evidence in Bylaw Section 2.17 Hearing Panel (20-2955) Minutes of October 30–31, 2020 A Bylaw section 2.17 Hearing Panel by an email of Oct. 20, 2020, and under Bylaw 2.14.7.8 (k), requested the commission’s opinion on the following questions: Question 1:

If a district president took no action on a previous accusation and therefore the case was terminated, is evidence from such previous accusation admissible to a current case?

Opinion: When a district president receives information that requires him to consider initiating the proceedings outlined in Bylaw section 2.17, the district president eventually has two options, to initiate formal proceedings or to not initiate formal proceedings, “which shall terminate the matter” (Bylaw 2.17.5), subject to other provisions that are not relevant to this question. When a district president receives information that initiates Bylaw section 2.17, the district president is to “thoroughly investigate whether the allegations of the accuser can be substantiated” (Bylaw 2.17.4 [a]). “Thoroughly investigate,” having no Bylaw definition, is then to be interpreted by its ordinary or plain meaning. To the commission, this means to leave no stone un turned, to look at all relevant information, and then to weigh the information as to credibility and importance. This thorough investigation may involve prior accusations that, due to the judgment of the ecclesiastical supervisor responsible at the time and to many reasons too numerous to be listed here, had previously resulted in no formal proceedings. The provision that such a conclusion shall “terminate the matter” and that the district president responsible shall “in writing so inform the accuser, any district president involved, and the involved member” (Bylaw 2.17.5, including sub paragraph [e]; cf. Bylaws 2.14.5; 2.15.5; 2.16.5.1; 2.16.8 [d]) serves as a formal statement to the accuser that the accusation as presented has been assessed and a determination has been reached by the ecclesiastical supervisor responsible that, in his judgment and upon the facts and evidence available at the time, formal proceedings will not be initiated on the basis of the specific accusation presented.

Such a conclusion does not expunge facts or evidence related to prior accusations and/or investigations, or prevent a district president, on the basis of additional facts or evidence, from initiating subsequent formal proceedings based in part on new evidence and in part on evidence existing prior to the current matter, including, without limitation, evidence connected with a previous accusation that did not result in formal proceedings. The materiality or relevance of facts and evidence to a subsequent case is not diminished by the decision of a district president at some prior point not to proceed to formal proceedings. It may be reassessed in a subsequent decision whether to suspend a member and may be presented to a panel subsequently convened on the basis of new accusations, facts, or evidence. As is the rule for all material presented to a panel, provided by the Bylaw section 2.17 Standard Operating Procedures Manual (SOPM), General Regulation K, “Witnesses and Evidence,” 15: (b) Panels shall be the judge of the relevance and materiality of evidence offered. Relevance of testimony will be determined by whether such evidence will support (or not) an issue in contention. A panel may reject and not consider evidence or testimony from a witness that it deems unnecessary or unhelpful to its consideration of the matter. Question 2:

Does the phrase “the ecclesiastical supervisor shall close the investigation, terminating the matter” Bylaw 2.17.5 (SOPM 2.3 c) mean that evidence from such a case may not be used in a subsequent case?

Opinion: No. See the answer to Question 1 above. Question 3:

If evidence from an accusation was gathered and considered by a district president, resulting in no formal action, under a set of bylaws, and the bylaws were subsequently amended in such a way that the admissibility of that evidence to a current case is questioned, which bylaws pertain, those under which the evidence was gathered and considered without further action, or those under which a current case is being heard?

Opinion: The commission is unable to answer such a hypothetical question. Should the panel encounter a specific question regarding the applicability of specific provisions that have changed over time in a way that appears relevant to the facts at hand, the panel may inquire further.

would be. Such participation would therefore be confined to the realm of strict necessity (i.e., it would be impossible or highly imprudent, reasonably speaking, for the panel member to be present physically at the hearing) and not of preference or convenience. The commission also notes that the determination of a panel to proceed with a hearing in which one or more members of the panel attends electronically (as opposed to proceeding without the member, his or her being “unable to perform required duties,” 2.17 SOPM, Detailed Flowchart 4.3 [d], or rescheduling the hearing if the number of members unable to attend physically would so necessitate) is a discretionary act which may be reviewed for its impact on the provision of a fair and impartial hearing. Question 2:

May the entire Bylaw section 2.17 Hearing Panel proceeding be conducted by electronic means in such a way that no two members of the panel, neither the accused or the accuser [sic, really “the ecclesiastical supervisor”], nor any of the witnesses are physically present with each other?

Opinion: Bylaw sections 2.14–17 and the corresponding SOPM do not contemplate the possibility of a virtual hearing; rather they reflect the established practice, heretofore without exception, of the panel and parties meeting at an established time in a given single place (e.g., Bylaw 2.17.7.6). Considerations that may strongly favor this practice, even given modern technological alternatives, include the nonverbal cues generally more readily observable in an in-person setting and process security (recordings are prohibited, except as made by the panel for its own use; access to the proceedings is controlled to prevent witness “contamination” or inappropriate “leakage” of sensitive information; sensitive documents can be shared in-person and collected for the official record). A physical “face-to-face” meeting of the parties is required to begin dispute resolution (e.g., Bylaw 1.10.5) and expulsion processes (except in the case of Bylaw section 2.17) for reasons that have withstood recent scrutiny even in light of technology that, for one-on-one meetings, is otherwise quite reasonable (Op. 19-2914). While there is no similar explicit requirement that the hearing in a Bylaw section 2.14 or 2.17 matter be “face-to-face,” some of the same practical implications and value judgments might surely be in play. Decisions regarding the adjudication of disputes, especially regarding membership in the Synod and fitness for ministry, ought be afforded the best reasonable means possible.

Opinion: The Bylaws and SOPM for Bylaw sections 2.14–17 do not prohibit a hearing panel, in an emergency situation (such as a weather emergency or flight cancellation), from allowing a panel member who is unable physically to attend from joining the hearing by electronic means.

Standard operating procedures have contemplated certain specific uses of electronic means in connection with these proceedings. Meetings ancillary to the main hearing, such as the one conducted by the panel to finalize its opinion, are explicitly authorized to be conducted electronically (Bylaw section 2.17 SOPM, Detailed Flowchart 4.6 [c], 43). Appeal Panels routinely (and almost exclusively) meet electronically (Bylaw section 2.17 SOPM, Detailed Flowchart 4.9 [g], 47). Panels may also receive testimony electronically, at the discretion of the panel (e.g., Bylaw section 2.17 SOPM, General Regulation K, 17). As noted above, a panel may determine to allow one or more of its members to join the hearing electronically, although this should be limited strictly to cases of necessity. These are circumscribed usages of virtual meeting technology, incidental to the main hearing at which the evidence and testimony of the parties are to be given a “fair and equitable” hearing (Bylaw 2.17.7.2 [f]).

The observation that such participation is not prohibited does not solve the manifold technical challenges that could arise in attempting to render such participation as effective as physical presence

The commission cannot at present exclude the possibility that future circumstances might occur in which law or reasonable care might render it impossible to physically assemble the required

Virtual Meeting of Hearing Panels (20-2956) Minutes of October 30–31, 2020 By the same email, the Hearing Panel in a Bylaw section 2.17 matter also requested an opinion on the following two procedural questions occasioned by the COVID-19 pandemic: Question 1:

May one or more members of a Hearing Panel (under Bylaw section 2.17) attend a hearing by electronic means?hearing—which includes a panel of necessity drawn from various parts of the country—within 45 days or a “short delay” (Bylaw 2.17.7.6). In such a case, the interest of timely resolution begins to weigh against the customary safeguards of a fair and full hearing afforded by an in-person meeting. Even so, for a hearing to be conducted by electronic means, suitable procedures would first have to be devised to ensure, in light of the many practical concerns noted above, the panel’s ability to conduct a fair and equitable hearing by such means.

tions of the pastoral office, not to “service” in some purely secular sense. A divine call cannot be extended by any of the listed calling entities to any person not listed under Bylaw 2.5.2’s (1), (2), or (3). Furthermore, such a calling entity cannot be “served by,” in the sense of any exercise of distinctive functions of the pastoral office, any person not listed under Bylaw 2.5.2’s (1), (2), or (3). The convention’s inclusion of recognized service organizations in the list of calling entities in Bylaw 2.5.2 renders this restriction applicable to such.

The commission is not in a position, by itself, to develop such procedures and render such safeguards, which would need to be incorporated into the appropriate “comprehensive” SOPM (Bylaw 2.14.10.3, etc.). It cannot, therefore, authorize such a hearing at this time.

The commission does not object to the Commission on Handbook’s relocation of the material or references there to for clarity’s sake, or to clarification of the above meaning with regard to Bylaw 2.5.2 and its application to recognized service organizations.

Circumstances and perceptions of electronic means of procedural meeting, along with the technology available, have changed rapidly as a result of the COVID-19 pandemic, and continue to evolve. The commission has noted previously, however, the danger that the change of means of a de liber at ive proceeding may very well change the essential character of a de liber at ive proceeding. The commission, being charged, together with the Council of Presidents, with maintaining “comprehensive” SOPM for Bylaw sections 1.10 and 2.14–17 (e.g., Bylaw 2.14.10.3), is open to a conversation with the Council about the wisdom and propriety of the use of electronic means for hearing processes, but finds that—as suggested by Robert’s Rules (12th ed., 9:30–32)—if such “are to be authorized, it is advisable to adopt additional rules pertaining to their conduct.” The commission does not here opine on whether such might, given suitable rules, be authorized without unacceptable jeopardy to the process set forth in the Bylaws. The commission does here opine that the SOPM as presently amended, with the concurrence of the Council of Presidents, do not contemplate a fully electronic meeting of a Hearing Panel in a Bylaw section 2.14 or 2.17 procedure, much less provide comprehensive procedures for the same. This being the case, the use of fully electronic means for a hearing is not consistent with procedure in place at this time. The panel thus needs to seek—in keeping with law and prudence, and adopting all necessary reasonable safeguards, but also being mindful of the gravity of the matter at hand—to conduct a hearing in the accustomed fashion in as timely a manner as circumstances will allow.

Requirements for Call Processes by Agencies, Auxiliaries, and Recognized Service Organizations (20-2957) Minutes of October 30–31, 2020 Dr. Gude and the Secretary have been assigned Commission on Handbook (COH) Issue 19-005 (COH minutes of Oct. 18, 2019), dealing with the inclusion of material dealing with call processes by agencies, auxiliaries, and recognized service organizations in Bylaw section 2.5, which has to do (otherwise) with “Membership” (agencies, auxiliaries, and recognized service organizations not being members of the Synod), as well as with the related issue of the meaning of the convention’s having placed recognized service organizations under the rule that they “call and be served by” only those ordained ministers (or candidates) listed in Bylaw 2.5.2. With regard to the question of interpretation involved in the latter item, the commission understands that with regard to Bylaw 2.5.2, “served by” refers to service in the sense of the distinctive func-

Synod Convention Deferral Vote under Const. Art. XI B 8 (20-2960) Minutes of Nov. 23, 2020 By a memorandum of Nov. 12, 2020, prepared at the request of the President of the Synod and leadership of the Council of Presidents, the Secretary of the Synod requested the commission’s opinion on the following questions.

Background: With a coronavirus pandemic continuing to significantly impact gatherings and accommodation planning for the foreseeable future in most parts of the country, many districts are either experiencing difficulty scheduling and obtaining facilities for any reasonable district convention compliant with the Constitution and Bylaws of the Synod and CCM Op. 20-2938, “District Conventions, Circuit and Advisory Meetings, and Coronavirus Contingencies,” or are dissatisfied with the arrangements they have made or understand themselves likely to be able to make. Some district presidents have expressed uncertainty that their own districts will be able, within calendar year 2021, to convene at all, or to facilitate an accustomed and salutary churchly de liber at ive assembly that will be well attended by the pastoral and lay representatives of district congregations and parishes. Others have expressed concern for districts other than their own, that prevailing circumstances should not be allowed to preclude any district from likely meeting in regular convention during this triennium.[1] The extensive preparations required for district and Synod conventions, and their lengthy prior processes, have also been noted—preparations complicated at present by significant timeline uncertainties (some districts already have multiple possible convention dates laid out, accounting for lower-than-usual probabilities of successfully convening and achieving quorum). It has therefore been suggested that the 2022 Synod convention be delayed one year, stretching the 2019–2022 triennium to 2019– 2023, and that the window for district conventions to meet prior be extended from calendar year 2021 to include also calendar year 2022, to allow selection of meeting dates apparently more likely to be realized without significant complications. The Constitution and Bylaws of the Synod do not provide specific, explicit mechanisms for the rescheduling of a scheduled convention or for the alteration of the triennial schedule laid down for the Synod in Const. Art. VIII A 1: “The Synod convenes every three years for its regular meeting,” and for the districts in Const. Art. XII 13: “The regular sessions of the districts are held in the year immediately preceding the general convention of the Synod.” Moreover, no provision is made for alteration of the Constitution or Bylaws outside of a convention or its specific direction (Const. Art. XV; Bylaw section 7). Finally, it is unrealistic to suggest the calling of

a special session (Const. Art. VIII B 2) to amend the Constitution or Bylaws to craft a remedy, as such a session would be impossible to conduct in a timely manner, being subject to the same in-person attendance requirements as a regular convention (Op. 20-2938). However, the Constitution of the Synod does make provision for the member congregations to take action outside of a convention on specific matters that are “of such a nature that action there on cannot be delayed until the next convention.” This provision is as follows:

Article XI Rights and Duties of Officers B. Duties of the President 8.

When matters arise between meetings of the Synod in convention which are of such a nature that action there on cannot be delayed until the next convention, the President is authorized to submit them to a written vote of the member congregations of the Synod only after full and complete information regarding the matter has been sent to member congregations by presidential letter and has been published in an official periodical of the Synod. If such matters are related to the business affairs of the Synod, such a vote shall be conducted only after the President has consulted with the synodical Board of Directors. In all cases at least one-fourth of the member congregations must register their vote In 1944, this provision was used to authorize postponement of the Synod convention due to the government’s wartime urging to conserve fuel. By a majority vote, the congregations approved delaying the convention that had, three years before, been scheduled to meet that year. (Circumstances ultimately changed and the convention was—the vote to postpone notwithstanding—held in 1944; the first act of the convention was to ratify and confirm the president’s calling of the convention on schedule.)[2] In 1944, the agreed-upon (but ultimately reversed) defer ral of the Synod convention would not have impacted the schedule of the prior district conventions (though there is some evidence in that period of districts at least contemplating an inability to meet on schedule due to wartime fuel restrictions). In the present situation, the timing of both district and Synod conventions is involved; indeed, the full accommodation of the former is the principal impetus for the questions posed. At present, it would be impossible to complete a vote of the congregations before the first district convention may open in January 2021. Some districts may now or, by that time, will have made definite arrangements to meet in calendar year 2021 that may yet succeed. Thus, it has been suggested that instead of deferring all district conventions to 2022 (the year before a Synod convention rescheduled to 2023), district conventions be allowed to occur any time in calendar 2021 and 2022, as noted above. Implications of the Articles of Incorporation and Missouri Nonprofit Law (RSMo. 355) have been explored separately in an opinion from Synod’s legal counsel. The commission is now asked to determine whether the measure proposed is compatible with the Constitution and Bylaws of the Synod. Question 1:

Is it consistent with the Constitution and Bylaws for the President of the Synod to submit to a written vote of the congregations of the Synod, as detailed in Const. Art. XI B 8, the following: Shall the upcoming convention of the Synod be delayed one year, in effect stretching one triennium to four years’

duration?

Opinion: It is the opinion of the commission that the question whether to delay the upcoming convention of the Synod by a year is self-evidently a matter “of such a nature that the action there on cannot be delayed until the next convention” and therefore falls within the standard set by Const. Art. XI B 8. Such a question may, consistent with the requirements of Const. Art. XI B 8, be put to the congregations for their vote. The congregations in response have the right to approve or reject any proposal made by the President, a determination that involves not only the substance of the question put to them but also their assessment of whether the facts and circumstances necessitate action without delay. Question 2:

Is it consistent with the Constitution and Bylaws of the Synod for the congregations, through such a vote as described in Question 1, and under circumstances as described, to extend the length of a triennium?

Opinion: An action of the member congregations under Const. Art. XI B 8 must be otherwise constitutional. Const. Art. VIII A 1 specifies a three-year duration to the triennium. The purpose of this provision is to preserve the right of the member congregations to govern the Synod and its agencies with the desired regularity and periodicity. Circumstances could conceivably and ultimately, as a matter of probabilities the commission is neither equipped nor empowered to assess, subject to futility the member congregations’ meeting in regular convention either as a Synod within the triennial schedule or as their respective districts within the allotted calendar year of that triennium. Looking back from such an outcome, mechanical submission of the congregations to the triennial meeting provision might be found to have more significantly impaired their right to govern their Synod and their districts than it would have to have offer them the ability, by the proposed vote, to manage the risk that they would be unable to meet on schedule by expanding the triennium. While it is possible, on the other hand, that expanding the triennium may ultimately delay the member congregations’ governance of Synod or of their respective districts—perhaps, ultimately, unfavorably or unnecessarily—their rights under the Constitution are not diminished by granting them the choice, under the properly actuated mechanism provided in Const. Art. XI B 8, of how best to maintain that right in the face of a risk not contemplated in the constitutional language—namely, the risk that their inability to meet legally, prudently, and reasonably on schedule could submit their triennial governance opportunity, at least on the district level, to futility. When unforeseen circumstances arise that threaten the member congregations’ ability to realize, legally, prudently, or reasonably, regular conventions (Synod or district) on the triennial schedule, it is consistent with the purpose of Const. Art. VIII A 1 for the member congregations of the Synod, using the mechanism of Const. Art. XI B 8, to manage that threat by reaching the determination and effecting the outcome proposed. Question 3:

Is it consistent with the Constitution and Bylaws of the Synod for the congregations, by such a Const. Art. XI B 8 vote, also to extend the interval of an expanded triennium within which the districts of the Synod are allowed to hold their district conventions to include the two calendar years prior to the deferred Synod convention, there by not invalidating any potentially actionable and desirable convention plans already made, while extending the window of possibility for all districts?

lar district conventions would, in any case, occur in 2025, and the subsequent Synod convention, in 2026, according to the normal triennial cycle.

Opinion: Such an action, given the above and that Const. Art. XII 13 explicitly contemplates exceptions to the rule that “regular sessions of the districts are held in the year immediately preceding the general convention of the Synod” as capable of being made “by the Synod,” is consistent with the Constitution and Bylaws of the Synod.

It is incumbent upon the President to communicate clearly in the “full and complete information regarding the matter” not only the question itself but especially the consequences of adoption and rejection, providing the congregations with the requisite information to make an informed decision.

Guidance on implications of the above three questions: The commission notes that if the question of deferring the 2022 Synod convention to 2023 and extending the window for prior district conventions to include calendar years 2021 and 2022 is put to the congregations, and especially if the vote is in the affirmative, this will necessitate many decisions about the proper application of pre-convention timelines both at the Synod and at the district levels. These will have to accommodate convention schedules that may be shifted after significant processes have already begun. Likewise, processes may also need to be initiated while there is still great uncertainty about the potential defer ral of the related convention. Specific provisions and circumstances may require various approaches to maintaining as equitable and effective the mechanisms by which congregations effect the pre-convention phase of their governance of districts and the Synod. Without examining specific language and circumstances, it is impossible to address these situations. Responsible officers need to take care that the fundamental rights of congregations and other members to participate in all aspects of pre-convention and in-convention governance of their districts and their Synod are protected, and that the exercise of such rights is facilitated by especially clear and timely communication. With regard to the Synod convention, for example, the 18-month call for nominations is about to be issued in January, with nominations due in the Office of the Secretary of the Synod no later than “nine months prior to the convention of the Synod” (Bylaw 3.12.3.4 [f]). The opening of the process cannot at this point reasonably be delayed, as nominators must be provided their 18 months to nominate, should the convention of the Synod be held on schedule in 2022—a possibility that must be prepared for unless and until the congregations finally vote to defer it. Should the convention be deferred, the close of nominations cannot reasonably be terminated after the usual nine months’ duration but must be held open until “nine months prior to the convention.” Similar considerations will have to be made with much greater urgency in the districts of the Synod. Care must be taken to preserve the integrity of each district pre-convention process. Furthermore, materials and reports designed to support 2021 district conventions must—while acknowledging that further developments may occur in an additional year of discussion—be available for the consideration of districts that are able to convene without delay. Postponing the convention would also impact elections and terms of office for elected and appointed offices at the Synod and district levels. Bylaw 3.2.4 (f) provides that incumbents “shall serve until their successors assume office.” In effect, were the convention to be deferred by a year, one year would be added to each term of the 2019–2023 “triennium” on the Synod level and, depending on the year in which each district convention is held, either in the 2018– 2022 district “triennium” or the 2021–2025 district “triennium.” The proposed mechanism would impact the length of the current triennium but not that of any future triennium. Subsequent regu-

Endnotes 1. As was observed in Op. 20-2938, while it is incumbent on districts to make every reasonable effort to meet in the district convention year, it is not necessary to the holding of a Synod convention that all districts have succeeded in meeting the year prior. 2. The first act of the 1944 convention (Proceedings, 2–3; see also BOD Minutes, Mar. 6 and May 15, 1944) details this use: The following resolution was adopted in the first session on June 21, 1944, having been drawn up by our Synodical Attorney, Mr.

George Eigel: Whereas, The Office of Defense Transportation urged all associations and organizations to cancel their conventions for the year 1944 on account of the transportation problem; and Whereas, In compliance with said request the President of the Evangelical Lutheran Synod of Missouri, Ohio, and Other States did request all congregations to vote on the question of postponing their convention for the year 1944; and Whereas, A majority of the congregations did vote in favor of canceling and postponing said convention; and Whereas, It did later develop that the convention could be held, and as a consequence there of the President notified all congregations that the convention would be held at the time and place decided upon at the 1941 convention, to wit, June 21 to June 30, 1944, in the City of Saginaw, Michigan: therefore be it Resolved, by the delegates in convention assembled, being a majority of all delegates elected to said convention, and representing all of the congregations of the Evangelical Lutheran Synod of Missouri, Ohio, and Other States, that we do hereby ratify and confirm the action of the President in calling said convention as agreed in the resolution at the convention of 1941, and we agree that the convention may proceed with its regular business in due course in accordance with said call.

Slate of Candidates for Synodwide Corporate Entities (21-2970) Minutes of December 3–4, 2021 By an email of Oct. 22, 2021, a member of a synodwide corporate entity board of directors posed, at the direction of the board’s chairman, the following question. The commission, in accordance with Bylaw 3.9.2.2 (b), solicited input from the board and from the President of the Synod.

Background: Bylaw 3.6.1.5 (a)(1) requires that “the slate of candidates for the initial appointment of the chief executive” of synodwide corporate entities “shall be selected by the governing board in consultation with and with the mutual concurrence of the President of the Synod.” And in the event of a vacancy in the chief executive position, Bylaw 3.6.1.5 (a)(2) requires that the governing board “shall present its list of candidates [plural] to the President.” Question:

Does the word “candidates” (plural) in sub paragraphs (1) and (2) of Bylaw 3.6.1.5 (a) indicate that said “slate” and “list” must contain the names of at

least two candidates when presented to the President for his concurrence?

Opinion: Regarding the initial appointment (as opposed to reappointment) of the chief executive of a synodwide corporate entity, Bylaws 3.6.1.5 (a)(1) and 3.3.1.3 (f) speak of the President of the Synod and the entity’s governing board engaging in “consultation” to reach “mutual concurrence” on a “slate of candidates.” The first sentence of Bylaw 3.6.1.5 (a)(2) requires further that “the appropriate governing board and the President of the Synod shall act expeditiously to fill the vacancy.” Bylaw 3.6.1.5 (a)(2) (the content of which is due, along with [b] [1–2], to 2004 Res. 7-11A) contains also a second sentence (“This governing board shall present its list of candidates to the President.”), which is the remnant of a longer sentence from the two precipitating overtures (2004 Ov. 7-36, 37) that concluded with the additional words, dropped by the floor committee: “within six months after the vacancy in the executive position occurs.” The practically vestigial remainder, suggesting at most the initiative of the board in identifying potential candidates and presenting them to the President, adds little to the consideration of this question. It must be comprehended within the process described primarily in Bylaws 3.6.1.5 (a)(1) and 3.3.1.3 (f)—one of “consultation” leading to “mutual concurrence” on a “slate of candidates,” in which the board and President “shall act expeditiously to fill the vacancy.” Here, the commission understands “slate of candidates” integral ly, as a term of art, denoting the collection of those in candidacy for one or more positions but not requiring a specific number or even plurality of them for each position, apart from some explicit requirement otherwise. Such an explicit requirement does occur elsewhere in the Bylaws—for example, in preparation of slates for a Synod convention, at the time of which a free-flowing conversation among all participants leading to “mutual concurrence” on a slate of candidates would be inconvenient (Bylaw 3.12.3.6 [a])—but not here. Here, just such a consultation between the board and President, leading to a point of mutual concurrence, is required. Contrary to what might be inferred by an incorrect leap from the second sentence of Bylaw 3.6.1.5 (a)(2), or by false analogy to other processes, such as in Bylaw 3.10.6.6.2 (b)(7), this process is not simply a “unidirectional” one in which the board provides the President with a list of candidates and the President strikes names from that list. Envisioned instead is a continued dialogue by which the board and President jointly construct—by a process not specified in further detail in the bylaw—a slate of candidates in which they can mutually concur. The process moves on to an appointment by the board when and only when the President and board, after consultation, reach such mutual concurrence—not on the names of one or more remaining candidates, severally, but on a slate of candidates, integral ly. Should the President and the board mutually agree on a slate consisting of a single candidate, the board may proceed to appoint that candidate; should the President or the board disagree with proceeding to appointment from a slate consisting of one candidate—perhaps even on the basis of an impression that such a slate is “defective,” as giving the board no actual choice between two alternatives, regardless of and without judgment on the suitability of the single candidate—the consultation would need to be resumed until such mutual concurrence can be reached on that or another slate. In this consultation, both the board and the President would need to act responsibly, within their respective duties and in the

interest of the Synod (Bylaw 1.5.2 [b]), and “expeditiously,” eagerly seeking a slate on which “mutual concurrence” can indeed be achieved, to fill the vacancy. Noting potential unc lari ties and concern regarding functionality of the parallel process for interim appointments, the commission refers this matter for study to the COH.

Faculty Declaration of Qualification for First Call for Graduate of Respective Institution (22-2977) Minutes of April 8–9, 2022 By an email of Jan. 11, 2022, a member congregation of the Synod requested an opinion of the commission on the following questions, with regard to which, pursuant to Bylaw 3.9.2.2 (b), input was solicited from the President of the Synod, the presidents of Synod universities and seminaries, the executive director of the LCMS Office of Pastoral Education, and the president of the Concordia University System. The commission replies as follows: Background: Synod Bylaw 2.7.1 provides: A graduate of an authorized educational institution of the Synod must be declared qualified for a first call and recommended by the faculty of the respective educational institution before the effective date of the first call to service in the church, as assigned by the Council of Presidents acting as the Board of Assignments as provided in Bylaw section 2.9. Question 1:

Does the term graduate (with respect to an authorized educational institution of the Synod) include any persons other than those who have received an earned academic degree from that institution (or from any previously existing institution to which the current institution is the legal successor-in interest)? If so, what other persons are included as graduates?

Opinion: Many of the above-noted individuals responded to the commission’s request for input, and the commission thanks each for his contribution. In addressing itself to the sense of the term graduate in Bylaw 2.7.1, the commission finds that this term cannot be defined in isolation from its context in the Bylaws of the Synod. The commission’s opinion therefore relies on the entirety of Bylaw sections 2.7 and 2.8 (although it addresses only those individuals whose certification as qualified for ministry is addressed by Bylaw 2.7.1—not those, for example, received via colloquy). In the context of Bylaw sections 2.7 and 2.8, the term graduate functions not simply as an equivalent for “one who has ‘received an earned academic degree,’” as the question seemed to imply, but also for “one who will have, at the effective time of first call, ‘satisfactorily completed the prescribed course of studies’ and ‘received [a] diploma[ ]’ in a program approved by the Synod to lead to qualification for ordained or commissioned ministry” (Bylaw 2.8.1 [a]). These passages are clearly parallel, so that the more precise sense of the latter must be understood to impart a specific sense to the former term graduate. Adding to this interpretive context, historically and in a variety of programs, faculties of the seminaries, colleges, and universities of the Synod have certified as qualified for first placement many individuals who have received theological or vocational diplomas that were not equated to or connected with academic degrees. Examples for ordained ministry include those who complete the Specific

Ministry Program (which does not lead to a degree at either seminary), the Residential Alternate Route program, the General Pastor Certification Program, or a program of studies through the Ethnic Immigrant Institute of Theology or the Center for Hispanic Studies. Among the auxiliary office programs, the Director of Church Ministries Program at Concordia University Wisconsin leads to a certificate, not a degree, but nonetheless also to certification for this commissioned ministry. Question 2:

Other than pursuant to the colloquy process outlined in Bylaw 3.10.3, may the faculty of an authorized educational institution of Synod declare a candidate qualified for a first call, where such candidate is not a graduate of such institution? If so, are there any limitations on such authority?

Opinion: The answer to Question 1 also answers the first part of Question 2. The commission has clarified the meaning of the term graduate to mean “one who will have, at the effective time of first call, ‘satisfactorily completed the prescribed course of studies’ and ‘received [a] diploma[ ]’ in a program approved by the Synod to lead to qualification for ordained or commissioned ministry” (Bylaw 2.8.1 [a]). In this sense of the term graduate, as regards the individuals discussed in Bylaw 2.7.1, the faculty of an educational institution of the Synod may declare qualified for a given office of the ministry only a graduate of a program of their respective institution that is approved by the Synod to admit graduates to the respective office of ministry. Such a program could be a joint program between two institutions of the Synod operating through their respective boards of control, with the faculty of the appropriate institution (that is, of the participating institution authorized by the Synod to prepare graduates for the particular ministry in question) declaring the candidate qualified for a call. The certification of a candidate as qualified for placement includes not only the satisfactory completion of an academic program but also the factors indicated in Bylaw 2.8.1 (b) and (c), and in the case of seminary students, (d). The appropriateness of a faculty certifying a candidate rests, therefore, not only on the faculty’s connection with a given academic program approved by the Synod as leading to ordained or commissioned ministry but also on that faculty’s ability to certify the candidate’s fitness for ministry in these other regards. The faculty of “the respective educational institution” (Bylaw 2.7.1), that is, “the appropriate faculty” (Bylaw 2.8.1 [c]), must know the candidate well enough to certify that the candidate has indicated “complete dedication to the ministry and evidenced a readiness for service in the church” (Bylaw 2.8.1 [b]) and that the candidate “will meet all personal, professional, and theological requirements of those who hold the office of ministry to which the individual aspires” (Bylaw 2.8.1 [c]). As to the second part of Question 2, supra, “limitations on such authority,” the commission finds that the instituting of courses of study is to be coordinated by the Concordia University System (Bylaws 3.6.6.1; 3.6.6.5 [c]; and 3.6.6.6 [c]) and as to the seminaries, by their respective Board of Regents (Bylaws 3.10.5.1 and 3.10.5.5. [c]), with new routes subject to review by the Pastoral Formation Committee and approval by the convention (Bylaw 3.10.4.1–2) prior to their implementation by the seminaries. The commission refers Bylaw sections 2.7 and 2.8 to the COH for review in light of this opinion and potential related questions.

Additional Requirements for Convention Attendance (22-2978) Minutes of April 8–9, 2022 By an email of Jan. 13, 2022, an individual member of the Synod, an ordained minister, requested an opinion on the following question, with regard to which, pursuant to Bylaw 3.9.2.2 (b), input was solicited from the President, Board of Directors, and Chief Administrative Officer of the Synod, as well as from the presidents and boards of directors of the districts of the Synod. The commission replies as follows: Question:

Is it consistent with the Constitution and Bylaws of the Synod for a district to select a convention venue that forbids admission of delegates unless they satisfy certain additional requirements (e.g., presenting proof of coronavirus vaccination status, negative test results, or wearing a mask)?

Opinion: Const. Art. XII 10 establishes that at the meetings of districts of the Synod, “every member congregation or multi-congregation parish is entitled to two votes, one of which is to be cast by its pastor and the other by the lay delegate elected and deputed by the congregation or parish.” This belongs to the realm of right and not merely of privilege. Bylaws specify in very broad terms how a district is to prepare accommodations for a convention of its congregations. Bylaw 4.2.1 (a) indicates that the conventions of the districts are governed by the Bylaws of the Synod for its conventions insofar as these are applicable. Among these, Bylaw 3.1.9 (j) describes the ways by which a date and site of a Synod convention can be determined. Details are few; where a district suggests a site for the Synod convention, care is taken to determine “minimum requirements” from the convention manager so that the number of delegates and facilities required can be accommodated (1969 Res. 11-09). It may be inferred that for a district convention the arrangements must reasonably accommodate the delegates, voting and advisory, entitled to attend (Const. Art. XII 10). What must be accommodated is a meeting of all delegates as “a single official gathering in one room or area” (Robert’s [11th ed.], 97:11–14), the “constitutional convocation” and presence of a quorum (Const. Art. XII 14) in a “churchly de liber at ive assembly,” a “context allowing full and free debate, fellowship, and personal interaction” (CCM Op. 20-2938). Within these broad bounds, Const. Art. XII 12 specifies that “the districts are independent in the administration of affairs which concern their district only, it being understood, however, that such administration shall always serve the interests of the Synod.” Any choice of venue brings with it inherent burdens for delegates, some predictable and some not, which may even be suffered unevenly. In making of a number of unavoidable choices about convention venue, the district balances the interests of all its congregations and, in a manner serving their collective interest, as the Constitution requires, facilitates their convention. Although in a different context, the issue of whether a burden placed on voting members with respect to convention participation is appropriate has been tested by this commission. In Op. 12-2649, following previous opinions, the commission found that “delegate attendance at a district convention cannot be contingent upon payment of a registration fee.” With regard to that specific question, the commission found that the presenting issue was directly addressed in the Constitution and Bylaws of the Synod, so that it

could respond definitively to the question without entering into findings of fact or balancing of interests. With regard to the present question, the commission finds that the Constitution and Bylaws of the Synod—while they do provide the framework for balancing of interests in this circumstance—do not dispositively address the specific presenting circumstance. This commission is not charged to engage in findings of fact or to evaluate or correct the balancing of interests where the Constitution, Bylaws, and resolutions of the Synod are not dispositive of the matter. In such a situation, should a congregation be concerned that its district may not have balanced the issues involved in accommodating its convention “in the interest of the Synod” (Const. Art. XII 12), redress is available: by addressing the concern to the district board of directors; by addressing (albeit, likely after the fact) an overture to a convention of the Synod or district; by requesting the President of the Synod to call the issue up for the district’s review (Bylaw 3.3.1.2 [c]); or by engaging the dispute resolution process of the Synod (Bylaw section 1.10).

District President’s Provision of Information to Calling Congregations (22-2980) Minutes of May 2, 2022 By emails of Jan. 25 and Feb. 3, 2022, two individual members of the Synod, ordained ministers, requested an opinion of the commission on the following questions, with regard to which, pursuant to Bylaw 3.9.2.2 (b), input was solicited from the district presidents and Praesidium of the Synod. The questions are as follow: Question 1:

When a vacant congregation of the Synod is in the process of calling a pastor and requests information on an ordained member of the Synod in good standing, whether a member of its own district or of another district:

(a) Does the president of the congregation’s district have the authority under the Constitution and Bylaws of the Synod to refuse to supply the congregation with the requested information regarding that individual ordained member of the Synod who is a member of the district of which he is president? (b) If the individual ordained member of the Synod for whom information is requested is from a different district than the congregation’s, does the district president of that other district of which that ordained minister is a member have the authority under the Constitution and Bylaws of the Synod to refuse to supply the requested information to the district president of the district of which the congregation is a member, who will in turn provide the information to the congregation requesting it? Question 2:

If the answer is yes, the district president may refuse to provide information, what basis do the Constitution and Bylaws of the Synod specify that would authorize this refusal?

Question 3:

What limitations, if any, do the Constitution and Bylaws of the Synod place on a member congregation of the Synod wishing to call an ordained minister currently on the roster of the Synod?

Opinion Background: The questions presented to the commission are part of the larger question of the relationship between the

Synod and its member congregations. In answering the questions, the commission will first review the relation of a congregation with the Synod, particularly as it relates to the calling of a pastor by a congregation. Article II of the Constitution specifies that every member of the Synod must accept, without reservation, the Scriptures as the only rule and norm of doctrine and the Lutheran Confessions as found in the Book of Concord as a true exposition of the above. Article III of the Constitution lists the objectives of the Synod, four of which directly pertain:

Article III Objectives

The Synod, under Scripture and the Lutheran Confessions, shall— 1. Conserve and promote the unity of the true faith (Eph. 4:3–6; 1 Cor. 1:10), work through its official structure toward fellowship with other Christian church bodies, and provide a united defense against schism, sectarianism (Rom. 16:17), and heresy; 2. Strengthen congregations and their members in giving bold witness by word and deed to the love and work of God, the Father, Son, and Holy Spirit, and extend that Gospel witness into all the world; … 8. Provide evangelical supervision, counsel, and care for pastors, teachers, and other professional church workers of the Synod in the performance of their official duties; 9. Provide protection for congregations, pastors, teachers, and other church workers in the performance of their official duties and the maintenance of their rights. Article VI of the Constitution lists conditions for membership in the Synod, two of which pertain:

Article VI Conditions of Membership Conditions for acquiring and holding membership in the Synod are the following: 1. Acceptance of the confessional basis of Article II. 3. Regular call of pastors and any commissioned ministers and regular election of lay delegates by the congregations, as also the blamelessness of the life of such. C.F.W. Walther presented a series of theses in 1879 at the first convention of the Iowa District of the Synod which are illustrative of this constitutional material. At that time, a large number of the pastors who were members of the Synod were serving independent congregations, and one of the purposes of Walther’s essay was to convince these independent congregations that it was safe and in their best interest for them to join the Synod. The first three of Walther’s theses on “The Duties of an Evangelical Synod” expand on the articles of the Constitution mentioned above and focus on the duty of the Synod toward its member congregations. The congregations can expect to receive from the Synod the following: help in remaining faithful to the Scriptures and the Confessions; assistance in obtaining faithful pastors; and protection from pastors who would cause harm to the congregation. The pastors, in turn, can expect to be supported (protected) as well, as they faithfully carry out their duties within the congregations.

Thesis I Its primary duty is to be faithful to the Confessions in word and deed, and therefore it must a. without reservation confess the creeds of the Evangelical Lutheran Church; b. accept only pastors, teachers, and congregations that are faithful to the Confessions; c. supervise the confessional faithfulness of its members; d. practice fellowship only with church bodies that are faithful to the Confessions.

Thesis II

A second major duty is that it faithfully treat its congregations in an evangelical way, and therefore a. not assume a dictatorial role over them but only help them in an advisory way; b. assist them in acquiring upright pastors and teachers; c. protect them against pastors who err in doctrine, follow an offensive lifestyle, and are domineering in their office.

Thesis III

A third major duty is that it supports its pastors and teachers, and therefore a. counsel them; b. support them in the proper conduct of their office; c. defend them against unjust treatment. Article VII of the Constitution, finally, speaks of the advisory nature of the Synod:

Article VII Relation of the Synod to Its Members 1.

In its relation to its members the Synod is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body. Accordingly, no resolution of the Synod imposing anything upon the individual congregation is of binding force if it is not in accordance with the Word of God or if it appears to be inexpedient as far as the condition of a congregation is concerned. 2. Membership of a congregation in the Synod gives the Synod no equity in the property of the congregation. The meaning of this article is often misunderstood and has engendered significant debate. When it speaks of the advisory nature of the Synod, it does not mean that the Synod is advisory to its own administrative structure, which includes districts. Districts have been created by the Synod and are the Synod itself in that place, which means that the Constitution, Bylaws, and resolutions of the Synod are binding on the districts (Const. Art. XII 1–2, 12; Bylaws 4.1.1–4.1.1.2). A district is not free to disregard these. With regard to its individual members and congregations, the Synod does not exercise legislative or coercive powers. This means that if

a congregation or individual member violates one of the conditions of membership in the Synod, the Synod cannot force compliance. The means by which the Synod addresses such a violation is by removal of the individual or congregation from membership in the Synod. Anything more is explicitly disclaimed: “In its relation to its members the Synod is not an ecclesiastical government exercising legislative or coercive powers.” The Synod’s relation to its member congregations, specifically, is made yet more clear: “with respect to the individual congregation’s right of self-government it is but an advisory body.” Here maintained is not only the congregation’s ability to act freely, without any possibility of the Synod directing at law or coercing its action, but explicitly disclaimed, in matters of the congregation’s self-government, is the Synod’s ability to do anything more than to advise the congregation. While the term self government is not further defined, a universally recognized and affirmed aspect of this self-government is the right of a congregation to call the pastor it wants. This it can do, of course, as the Synod is “not an ecclesiastical government exercising legislative or coercive powers.” But here, provided the congregation does not in so doing violate its agreed-to terms of membership in the Synod (for example, by calling and/or being served by a man who is not on the roster of the Synod, Bylaws 2.5.2, 4), the congregation cannot be removed from membership for acting otherwise than as advised (for example, by seeking but ultimately discounting the advice of a district president as to an eligible ordained minister the congregation might call). Thus, in terms of calling a pastor the limits placed on a congregation are minimal: 1. Article VI 3 requires the regular call of pastors (“This is generally assumed to include such requirements as proper eligibility of the candidate, proper notification for the call meeting, the presence of a legal quorum in the call meeting, and election by the congregation itself.” Ag. 438, Minutes of June 7–8, 1973) 2. Bylaw 2.5.2 limits, as a condition of membership in the Synod, a congregation to calling and being served only by ordained ministers who are on the roster of the Synod. This requirement flows out of Article II of the Constitution, to guarantee faithfulness to the Scriptures and Confessions. 3. Bylaw 2.5.1 requires a congregation to seek the counsel of its district president when it is in the process of calling a pastor (his corresponding duty to provide such counsel being found in Bylaw 4.4.5 [a]). Because of the relationship of the Synod to the congregation as expressed in Article VII this counsel is advisory. Indeed, it is some of the extremely valuable advice, the “calling of servants of the Word [being] a most important matter” (1945 Handbook, 56, cited from the 4th Synod Handbook [1899], 10, 11, 147; 1863 Proceedings, 31), that motivates a congregation to join and remain a member of the Synod (Walther’s second thesis, above). 4. Bylaw 2.13.1 precludes a congregation calling a specific ministry pastor to a ministry context for which he has not been trained and certified by his district president. 5. Bylaws 2.13.2.2 (b) and 2.13.4.2 (c) deal with individual members with restricted or suspended status. While technically such an individual could be called by a congregation, which is itself perhaps unaware of the status, they cannot accept such a call until their restricted or suspended status has been removed.

The commission now responds to the questions posed, first to Questions 1 (a) and 2, regarding potential calls within a district; then to Questions 1 (b) and 2, regarding potential calls across district lines; and, finally, to Question 3: Question 1:

When a vacant congregation of the Synod is in the process of calling a pastor and requests information on an ordained member of the Synod in good standing, whether a member of its own district or of another district:

(a) Does the president of the congregation’s district have the authority under the Constitution and Bylaws of the Synod to refuse to supply the congregation with the requested information regarding that individual ordained member of the Synod who is a member of the district of which he is president? Question 2:

If the answer is yes, the district president may refuse to provide information, what basis do the Constitution and Bylaws of the Synod specify that would authorize this refusal?

Opinion (Questions 1 [a] and 2, as regard potential calls within a district): The Constitution and Bylaws of Synod do not address the calling process in detail, nor the role of the district president in it. The primary duty of a district president is to exercise ecclesiastical supervision over the congregations and individual members of the district of which he is president (Const. Art. XII 6–7; XI B 1–3; see definition of ecclesiastical supervision in Bylaw 1.2.1 [j]). An integral part of his being ecclesiastical supervisor of the congregations requires the district president to be aware of the conditions of the congregations in his district, to “advise the congregations of his district as to the calling of ordained and commissioned ministers, give counsel, and respond to requests and inquiries” (Bylaw 4.4.5 [a]). An additional part of his duties is maintaining the official rosters of his district (Bylaw 4.4.7), which includes knowing the fitness for ministry and standing of all those ordained and commissioned ministers on the roster of his district. A congregation, as a condition of membership in Synod (Bylaw 2.5.4), may call and be served only by ordained ministers or candidates who have been admitted to the roster of Synod (Bylaws 2.5.2). A congregation is also required “to seek the counsel of [its own] district president when calling” (Bylaw 2.5.1). This counsel given by the district president flows from the district president’s authority and responsibility to “exercise supervision over the doctrine, life and administration of office” of the ordained ministers of his district and to “acquaint [himself] with the religious conditions of the congregations of [his] district” and, thereupon, to “advise, admonish, and reprove” (Const. Art. XII 6–7; XI B 3; see further Const. Art. II and III 1–2, 8–9). A calling member congregation of the Synod is required to seek (Bylaw 2.5.1) and has a corresponding right to expect (Bylaw 4.4.5 [a]) its district president’s counsel on candidates under consideration regarding their doctrine, “blamelessness of life” (Const. Art. VI 3), administration of office—in other words, for their fitness for ministry—and in specific regard to their suited ness to the “religious condition of the [specific] congregation.” Advice received must be of sufficient nature and scope to allow the congregation to make an informed decision regarding whether or not it is advisable to extend a divine call to a given eligible man. This is inherent in the fact that, regarding the call process, there is, relative to the congregational duty to seek counsel (Bylaw 2.5.1), a corresponding duty of the district president to advise (Bylaw 4.4.5 [a]), as just described. Bylaw 4.4.5, furthermore, says that a district president shall “respond to requests and inquiries” (Bylaw 4.4.5[a]). A district president may have good reason for advising a congregation not to call a candidate who is eligible to be called but not recommended, which is integral to his role to advise and counsel. Every district president is free and, indeed, bound to offer the calling congregation his prayer ful wisdom, experience, knowledge, and counsel to persuade the calling congregation why such candidate is not recommended. However, a district president must assume only such rights as have been expressly conferred upon him by the Synod (Const. Art. XI A 1), and, while there may be wise and pastoral reasons for recommending why a requested candidate is not recommended, there is no authority in the Constitution and Bylaws of the Synod given to the district president of a calling congregation—perhaps intending to prevent such a call—to withhold the basic adequate information described above on any ordained minister of the Synod. The district president cannot prevent a congregation from acting un advisedly, but given his duty to advise, his denial of information must not be the precipitant of such an unadvised act. There are three qualifiers on this basic duty: • First, if information were to be requested on a specific ministry pastor who in the determination of the involved district president(s) with regard to a call “for which he has not been certified” (i.e., that is outside the specific ministry context for which he has been trained), it suffices for the district president simply so to indicate to the calling congregation. Such a call not only may not be accepted by the SMP pastor; it may not even be offered to him, and the congregation is therefore not permitted to extend it (Bylaw 2.13.1).

• Second, information may be requested on an ordained minister whose standing on the roster of the Synod would not allow him to accept the call; that is, he may be on either restricted (Bylaw 2.13.2.2 [b]) or suspended (Bylaw 2.13.4.2 [c]) status. Here, the man’s status and the reasons for it— particularly in the case of restricted status, which may be investigative in nature, regarding allegations not yet fully resolved as true or false—may not be known to a congregation, and a district president may not be able fully to share them.
• Third, information may be requested on a man who is neither restricted nor suspended but whose personal or family circumstances would reasonably preclude his acceptance of a call at a given time. These may be of a very private nature, such as a particular health or financial issue being addressed at a given time, and may not be fully disclosed by the pastor in the usual information provided to a calling congregation.

In these second and third cases, the district president has responsibility as ecclesiastical supervisor both to the congregation and to the man concerned. He must, in providing counsel, balance the interests of the congregation’s call process and of the reputation of the restricted or otherwise constrained ordained minister. While the commission cannot prescribe the exact means of doing this in every case, it appears to the commission that there are approaches that provide adequate counsel and protect the reputation of the man concerned. The district president might, for example, consult with a restricted or suspended ordained minister at the time status is initiated, as part of his ministry to him (Bylaw 2.13.2.4; 2.13.4.3 [b]), advising theman that he cannot accept a call while on said status and inviting his statement that while on said status any congregation requesting information on the pastor will be informed that the ordained minister himself has indicated that he is unable to consider a call at this time. This simple statement, from the minister himself, would suffice as counsel to any potentially calling congregation if conveyed by the district president. The minister’s failure to provide such a statement might require the district president to reveal to an inquiring congregation the existence of status prohibiting acceptance of a call.

advice central to the congregation’s very purpose in joining and maintaining membership in the Synod. In the administration of this duty, what he does must “serve the interests of the Synod” (Const. Art. XII 12). In contrast, because the Synod as well as the district, as “Synod itself performing the functions of the Synod” (Bylaw 4.1.1.1), is advisory to the congregation (Const. Art. VII 1), the congregation does have the ability to ignore the advice given by the district president, or to act in the absence of his advice, where it has been sought diligently but not provided, although it might prove very foolish to have done so.

The same approach might be taken with a pastor not on restricted or suspended status but dealing with personal circumstances that would make the extension of a call to him, or his acceptance of it, inadvisable. Either when information on the pastor is requested or when the district president becomes aware of such circumstances, he could consult with the pastor and ask him if he would like information shared with an inquiring congregation, perhaps making it clear that if he does share the information, he will have to be forthright about circumstances rendering a call inadvisable. If the pastor prefers that the information not be shared, in this instance the district president may indicate to the congregation simply that the ordained minister has himself indicated that he is unable to consider a call at this time. In such a case, it cannot be the decision of the district president whether or not to provide information, but the decision of the involved pastor.

Question 1:

The Commission notes that a district president has responsibilities toward not just the calling congregation but all congregations under his care. Concern for a congregation presently being served, perhaps only for a short time, by the pastor whose information has been requested, may weigh heavily in the advice the district president gives the congregation that is considering extending the call. The district president may, for instance, know that the congregation currently being served by the candidate may have had unusual difficulties in filling a vacancy prior to the candidate and the candidate is relatively new in his position. In such a situation, having the candidate accept a new call may lead to substantial harm to the other congregation under the district president’s care. The commission does not find here substantial ground to deny information on the pastor, though there is every reason to provide, with that information, advice and counsel that will encourage the calling congregation to act in Christian love and due regard for the congregation being served. There may even be reason for the district president to proceed with the pastor concerned as described above, to seek his determination that he cannot, in care for his present congregation, consider another call at this time, which might be conveyed to the calling congregation and suffice as information. It is observed that simple denial of information in such a circumstance, as presently occurs with some frequency in some districts of the Synod, almost as a matter of course, is not effective at preventing the call of such pastors by other congregations, as the congregations are able, having sought advice, to act despite its not being provided.

Question 2:

In summary, because the Synod is not advisory either to the district or to the district president who is an officer of the district, the district president does not have the discretion to ignore a congregation’s request for information. This was already indicated in CCM Op. 2069 (March 2, 1997). The opinion specifically states that a district president does not have the authority “to edit a vacant congregation’s call list by refusing to provide personal information on some individuals, even when that information is specifically requested by the congregation.” Here the district president provides

When a vacant congregation of the Synod is in the process of calling a pastor and requests information on an ordained member of the Synod in good standing, whether a member of its own district or of another district:

(b) If the individual ordained member of the Synod for whom information is requested is from a different district than the congregation’s, does the district president of that other district of which that ordained minister is a member have the authority under the Constitution and Bylaws of the Synod to refuse to supply the requested information to the district president of the district of which the congregation is a member, who will in turn provide the information to the congregation requesting it? If the answer is yes, the district president may refuse to provide information, what basis do the Constitution and Bylaws of the Synod specify that would authorize this refusal?

Opinion (Questions 1 [b] and 2, as regard potential calls from another district): Districts are not independent entities but have been created by the Synod “in order more effectively to achieve its objectives and carry on its activities” (Const. Art. XII 1–2, 12; Bylaws 4.1.1–4.1.1.2). Therefore, while a district president is the ecclesiastical supervisor only of his own district, because districts as a whole are intended for the good of the whole Synod, when a congregation requests information regarding an ordained minister who is a member of another district, the district president of that district is also required to provide such information to the district president of the congregation which requested the information, who will in turn convey it to the requesting congregation. The guidance for the rare situation where discretion is advised, mentioned above, would apply here also. Question 3:

What limitations, if any, do the Constitution and Bylaws of the Synod place on a member congregation of the Synod wishing to call an ordained minister currently on the roster of the Synod?

Opinion: Other than for the restrictions on where specific ministry pastors can serve, the only absolute restriction on congregations if they want to retain their membership in the Synod (cf. Bylaw 2.5.4; Const. Art. XIII) is Bylaw 2.5.2, that they call and be served only by ordained ministers on the roster of the Synod. In addition, Bylaw 2.5.1 indicates that the congregation is required to “seek the counsel of the appropriate district president when calling ordained or commissioned ministers.” This is no perfunctory matter and expects and requires that the congregation and district president will have a robust conversation not only about the candidates about whom information has been requested but also about the religious condition of the calling congregation. For a congregation to

refuse to do so would be a violation of this bylaw. While it might be unwise to do so, a congregation is not obligated to follow the counsel received and may call any ordained minister on the roster of the Synod, except for SMP pastors not certified as having the proper scope of preparation. Were a congregation to call a pastor on restricted or suspended status, that pastor would not be able to accept such a call until the restricted or suspended status had been removed. Again, the commission’s Op. 2069 (March 7, 1997) states that since the Synod is only advisory to the congregation with respect to self-government, a congregation may call any individual who is in good standing on the roster of the Synod.

Bylaw Requirements for University and Seminary Calls (22-2988) Minutes of November 4–5, 2022 By an email of March 8, 2022, a member congregation of the Synod requested an opinion of the commission on the following question, regarding which, pursuant to Bylaw 3.9.2.2 (b), input was solicited from the President of the Synod, the presidents of Synod universities and seminaries, the executive director of the LCMS Office of Pastoral Education, and the president of the Concordia University System. Several letters describing historical practice and institutional perspectives were received, for which the commission is grateful.

Background: Bylaw 1.2.1 (a)(1) provides that “Agencies [of the Synod] include each board, commission, council, seminary, university, college, district, Concordia Plan Services, and each synodwide corporate entity.” Bylaw 2.5.1 provides that “Congregations, association schools, agencies, auxiliaries, and recognized service organizations of the Synod shall seek the counsel of the appropriate district president when calling ordained or commissioned ministers.” Bylaw 2.5.1 (b) provides that “An agency, auxiliary, or recognized service organization shall seek the counsel of the district president who would, by virtue of the call, assume supervision of the minister (Bylaw section 2.12). If the call is such that the district president to assume supervision is not known, the counsel of the president of the district within which the entity is located or with which it is associated shall be sought.” Bylaw 3.11.1 provides in relevant parts, “(a) Members of the Synod who are appointed to positions requiring an ordained minister or a commissioned minister shall receive a solemn call.” “(b) Other ordained or commissioned ministers appointed to positions in the Synod shall be affirmed by the respective board or commission through a solemn call.” Question 1:

Question 2:

Under Bylaw 3.11.1 (b), does the wording “shall be affirmed by the respective board or commission through a solemn call” mean that non faculty staff members of a university or seminary who are on the ordained or commissioned roster of Synod and who are appointed to positions that do not require ordained or commissioned ministers must receive a call that is approved at some point by the board of regents of the institution? Under Synod Bylaw 3.11.1 (a), must calls for non faculty staff members of a university or seminary who are on the ordained or commissioned roster of Synod and who are appointed to positions that do require an ordained or commissioned minister be

approved at some point by the board of regents of the institution?

Opinion: Bylaw 3.11.1 is not the primary bylaw governing the respective roles of a board of regents and seminary or university administration in the appointment of faculty, staff, or administration (see, e.g., Bylaws 3.10.5.5 [g]; 3.10.5.6 [j]; 3.10.5.7.1; 3.10.5.7.3; 3.10.6.4 [a][4–6], [g], [i][5, 8]; 3.10.6.6 [j]; 3.10.6.7.3). These bylaws render certain actions, such as the appointment of faculty or major administrators (Bylaws 3.10.5.5 [g] and 3.10.6.4 [g]), non de leg able; that is, the specific performance required by Synod Bylaw of the board cannot be delegated by policy or otherwise to the administration or to any other group. Some of the “non faculty” positions described by Bylaw 3.11.1 fall under those requirements but others likely do not. The board of regents of each seminary or university governs the institution, subject to bylaws like the above and other “general policies set by the Synod” (Bylaws 3.10.5; 3.10.6). It is the “board of directors” of the agency, as referred to in Bylaw 3.11.1, capable of setting policy, within the bounds set by the Bylaws of the Synod and the general human resources policies of the Synod (Bylaw 1.5.5), governing all employment and appointment by the agency. With regard to those positions for which specific board performance (appointment or participation in the appointment process) is not required by Synod Bylaw, for example, non administrative, non faculty staff, a board of regents should determine in policy how its institution will exercise the requirements of Bylaw 3.11.1 (a) and (b), as appropriate to the circumstance. The language of Bylaw 3.11.1 derives from that adopted in 1989 Res. 5-06A, “To Revise Bylaws re Synodical Personnel,” which noted the authority of the Synod Board of Directors (and, derivative ly, of other governing boards) “to establish personnel policies in compliance with existing laws and regulations on hiring, tenure, promotion, termination, retirement, and salary administration.” In the long-standing, ordinary practice of corporate Synod and many agencies, boards—where not contrary to other Bylaw requirements—regularly delegate the authority to fill certain positions, whether requiring a called minister (as in those positions described in Bylaw 3.11.1 [a]) or open to called ministers who may, by virtue of exercise of their ministry in the position, require affirmation of their appointment through solemn call (as in those described in Bylaw 3.11.1 [b]), to the responsible, subordinate officer or executive director. If authorized by policy or resolution of the respective governing board to fill such a position, the responsible officer or director may do so, fulfilling as the board’s delegate any applicable requirements under Bylaw 3.11.1 (a–b), for example, to compose and sign call documents on the board’s behalf and as its delegate. In the absence of such delegation, the performance of Bylaw 3.11.1 remains with the respective governing board. It is the opinion of the commission, further, that it is not the intention of the language of Bylaw 3.11.1 (b) to require, for positions where a call is incidental to employment, a higher degree of specific board performance than would be required for positions where a call is inherent to the position (i.e., under Bylaw 3.11.1 [a]). The authority over all employment by an agency ultimately vests in its board and other bylaws may require specific board performance of aspects of appointment or call to certain positions (such as those noted above with regard to faculty and administrators, as relevant to universities and seminaries). Bylaw 3.11.1, however, does not prevent a board from delegating, by policy or resolution, the actions required by Bylaw 3.11.1, for example, composing and signing appropriate call documents, to responsible administration, as its concern in this regard is simply that roster ed members of the Synod filling the positions as indicated receive calls as appropriate.

Question 3:

Question 3:

Opinion: No. The first sentence of Bylaw 3.1.3, present in this location for historical reasons (see further below), deals only with advisory delegates at conventions of districts (cf. Bylaw 4.2.3 and Const. Art. XII 10 b). It has no bearing whatsoever on what commences with the second sentence of Bylaw 3.1.3 and proceeds, following the colon, into Bylaw 3.1.3.1, namely, advisory delegations to the Synod convention (cf. Const. Art. IX 2).

Under Synod Bylaw 2.5.1, must a university or seminary seek the counsel of the appropriate district president when calling ordained or commissioned ministers for non faculty staff positions?

Opinion: Bylaw 2.5.1 requires every agency of the Synod, including each university and seminary, when calling any ordained or commissioned minister, to consult with the district president designated by sub paragraphs (b) and (c).

Synod Convention Advisory Delegate Process (222999) Minutes of November 4–5, 2022 By an email of Aug. 29, 2022, a district secretary of the Synod requested an opinion on the following questions, regarding the scope of participation and eligibility in the process for selection of Synod convention advisory delegates. The questions, all of which regard selection of advisory delegates to the Synod convention, have been edited by the commission: Question 1:

Does the second sentence of Bylaw 3.1.3 limit which ordained ministers are eligible to be selected as an ordained advisory delegate or to participate in the vote selecting ordained advisory delegates to “those ordained ministers not eligible for election as a voting delegate under Bylaw 3.1.2.1 (d)”?

Opinion: Yes, the second sentence of Bylaw 3.1.3, in constraining which ordained ministers are to be represented by advisory delegates at the Synod convention, specifically excludes any ordained ministers eligible to be elected as voting delegates [to the Synod convention] under Bylaw 3.1.2.1 (d) from those ordained ministers eligible (i) to be counted for the ratio computation described in Bylaw 3.1.3.1, (ii) to be advisory delegates to the Synod convention, and (iii) to vote for the ordained advisory delegates to the Synod convention. It reiterates in part what is stated in Const. Art. IX 2, the remainder of which (that also excluded are those eligible to be selected in some respect as advisory representatives) is stated in Bylaw 3.1.3.1 (c). Question 2:

Who is to be counted in the computation of the “one advisory delegate for every 60” ratios of Bylaw 3.1.3.1?

Opinion: One uniform standard determines who is to be represented and therefore, naturally, who is counted in the ratio computation, who is eligible to be selected, and who is eligible to vote for advisory delegates: that standard set forth in Const. Art. IX 2: “such individual members [ordained and commissioned minsters, in their respective groups] as are [i] ineligible to represent congregations as voting members and [ii] ineligible to represent other entities or offices in the Synod as advisory representatives.” In keeping with this constitutional specification, the second sentence of Bylaw 3.1.3.1 sets the general pool of those to be represented, which is further constrained by Bylaw 3.1.3.1 (c). Only those ordained and commissioned ministers are to be counted (and to be eligible to be selected or to vote in such selection) who are “not eligible for election as a voting delegate [to the Synod convention] under Bylaw 3.1.2.1 (d)” (Bylaw 3.1.3) and not “eligible for selection in any category under Bylaw 3.1.4” (Bylaw 3.1.3.1 [c]).

Does the first sentence of Bylaw 3.1.3 and its definition of “advisory delegate” have any bearing on advisory representation at the Synod convention?

A word about the juxtaposition of these two sentences in this bylaw paragraph is in order. The first sentence of Bylaw 3.1.3 formerly existed as its own bylaw paragraph (2016 Bylaw 3.1.3). The 2019 convention of the Synod, by Res. 9-05, amended the Constitution of the Synod to no longer speak of “advisory members,” language that had proven confusing, and instead to speak explicitly of the representation of certain individual members who did not have opportunity to participate in district or Synod conventions (in manners particular to each) in other ways (Const. Art. IX 2; Const. Art. XII 10 b). As part of 2019 Res. 9-05, the existing sentence of 2016 Bylaw 3.1.3, “Advisory members of the Synod shall attend district conventions, but they shall not be elected by any congregation or by any group of congregations as lay delegates to a national convention of the Synod,” was replaced with the present first sentence of 2019 Bylaw 3.1.3, “The advisory delegates of a district convention shall consist, unless they present a valid excuse, [see 2019 Res. 9-02 (D)] of all individual members of the Synod within the district, except those pastors representing member congregations as voting delegates.” The 2016 language had a clear reason for being included in Bylaw section 3.1, dealing with conventions of the Synod. Just as clearly, the changes of 2019 Res. 9-05 required the old language to be replaced; the replacement language, however, while accurate, has no relation to the conventions of the Synod and would more properly reside elsewhere. Question 4:

What is the sense of advisory in Bylaw 3.1.3.1: “for every 60 advisory ordained ministers and specific ministry pastors”?

Opinion: This language is carried over from pre-2019 language and would best be revised to reflect amendments made to the Constitution of the Synod and Bylaws 3.1.3 and 3.1.3.1 (a). Individual members are no longer described as “advisory members” as before, but are treated in relation to their participation as or representation by advisory delegates at district or Synod conventions, depending on their particular circumstances at the time. Here, based on the historical interpretation of this phrase in context, “advisory ordained ministers” means “those not eligible to be elected as voting delegates [to the Synod convention].” Here the addition, “and specific ministry pastors” is redundant, as these are ineligible to be elected as voting delegates to the Synod convention (Bylaw 2.13.1 [b][1]), but their explicit inclusion here is a valuable reminder, lest this fact be forgotten. It is important to note that the more specific Bylaw 3.1.3.1 (c) further limits these pools, specifying that any individuals eligible for selection under any category of Bylaw 3.1.4 to be an advisory representative is to be excluded from the count. Question 5:

If a district secretary is eligible to be elected as a voting delegate or to be selected as an advisory representative under any category of Bylaw 3.1.4, does Bylaw 3.1.3.1 (c) preclude his calling the meetings

of the specified ordained and commissioned ministers to select their advisory representatives, from facilitating their nomination or election procedures as they require, or from certifying and reporting the result to the Secretary of the Synod as indicated in Bylaw 3.1.3.2?

Opinion: No. Such a district secretary may not nominate or vote (i.e., participate) in the election process, but he may facilitate the process as specifically charged (to call the meetings of such commissioned and ordained minister groupings [Bylaw 3.1.3.1 (a)], to receive and certify the results [Bylaw 3.1.3.2 (a)]), and as needed to effect good order, to facilitate such meetings (particularly in the case of an electronic meeting conducted under Board of Directors policy [Bylaw 3.1.3.1 (a)]). The CCM notes that potential un clarity in Bylaws 3.1.3–3.1.3.1 has been referred also to the COH and refers this opinion to its sister commission.

Educational Institution Advisory Representatives, Bylaw 3.1.4.2 (a) (22-3000) Minutes of November 4–5, 2022 The CCM has received a request for an opinion regarding Bylaw 3.1.4.2 (a). The Bylaw reads: Each educational institution of the Synod shall be represented at conventions of the Synod. (a) Educational institutions of the Synod shall be represented by one board member in addition to the district president, by their presidents, and by one faculty member for every 30 full-time faculty members who are members of the Synod. Since the bylaw does not specify how the re pre sen Question: tative of the faculty is to be selected, a variety of possibilities have been used or proposed for making this selection, such as these: 1. Only LCMS roster ed faculty members vote. 2. All full-time faculty members, a group which includes non roster ed LCMS faculty, some of whom are members of LCMS congregations, but also many non-Lutheran faculty, vote. 3. LCMS roster ed faculty members and faculty members who are members of an LCMS congregation vote. 4. The president of the university, or other administrator, appoints. 5. The selection is made by the university board of regents. 6. The selection is made by seniority or rotation or other “automatic” means. The commission has been asked if there is one specific method of selection that is required.

Background: The overall topic of Bylaw section 3.1 is “National Conventions” of the Synod. Bylaw 3.1.2 addresses the topic of voting delegates and their selection. Bylaw section 3.1.3 addresses the topic of advisory delegates to the convention from commissioned and ordained members of the Synod and the process of selection. Bylaw section 3.1.4 addresses the topic of other advisory representatives besides voting and advisory delegates who are authorized to

attend conventions of the Synod, representing a variety of entities and subgroups of the Synod. In addition to all officers of the Synod and all district presidents, who attend ex officio, this representation is divided into five categories, which are authorized and expected to send representatives to each convention of the Synod. In addition, there is a sixth category, which is permissive, allowing each district to send two youth representatives if they should so choose. Bylaw 3.1.4.1 specifies that each board or commission shall be represented at the convention. The general rule (3.1.4.1 [a]) is that “each board or commission shall be represented by its chairman or another board or commission member and by its principal staff person.” The bylaw does not discuss how these individuals are selected, but presumably it would be by the respective board or commission. In addition, the Boards for National and International Mission are to be represented by their respective executive directors. There are four exceptions to this general rule (3.1.4.1 [b]), namely, that the Synod’s Board of Directors, the Commission on Handbook, the Commission on Constitutional Matters, and the Commission on Theology and Church Relations may be represented by as many of their members as they deem necessary. With the Board of Directors and these commissions, there is no process specified regarding how a decision would be reached, but presumably it would be by that board or commission. Bylaw 3.1.4.2 (a) specifies that each educational institution of the Synod shall be represented by one member of its board of regents (besides the president of the district, who sits ex officio on the board and who is an advisory representative to the convention in his own right), by its president, and by one faculty member for each 30 members of the faculty who are members of the Synod. Bylaw 3.1.4.2 (b) specifies that fractional groups are to be disregarded except that each institution is entitled to at least one faculty representative. The bylaw does not specify by what procedure this faculty representative is to be selected or by whom. Bylaw 3.1.4.3 (a) specifies that each foreign mission area of the Synod (but no more than 10) is to be represented by a missionary from that area who is home on leave, or if there are none home on leave, by a terminating missionary from that area. In this case, the bylaw specifies how these individuals are to be selected, which is by the Board for International Mission in consultation with the field authority for each of the fields. Bylaw 3.1.4.4 specifies that military chaplains from each branch of the military are to be represented. 3.1.4.4 (a) indicates that these are to be selected from active-duty chaplains stationed in the United States. 3.1.4.4 (b) indicates that they are to be approved by the Board for International Mission nine months prior to the convention; however, how they are selected before they are approved by the Board for International Mission is not designated in the Bylaws. Bylaw 3.1.4.5 specifies that each district board of directors is to be represented by one member of the board and one of the district executive staff. If a district has no executive staff, then it may select two members of the board of directors. While not specifically detailed, the implication is that the board selects which member is to represent it. Bylaw section 3.1.3 previously addressed the selection of nonvoting advisory commissioned and ordained delegates of a district to a convention of the Synod. All commissioned ministers and all ordained ministers who are not eligible to be elected as voting delegates or eligible to attend under any category of Bylaw section 3.1.4 are eligible to be selected as nonvoting advisory delegates from their respective category to a convention of the Synod. Bylaw 3.1.3.1 (a) specifies that each group (ordained or commissioned) selects those who will represent it, and further specifies the manner of selection.

Opinion: With the exception of the selection of representatives of the foreign mission areas of the Synod, Bylaw section 3.1.4 does not clearly and explicitly state how the representative to the conventions of the Synod is to be chosen. In the case of district boards of directors and the Synod boards and commissions, it can logically be assumed that the board or commission would make the selection, although this is not stated. Given the process described in Bylaw section 3.1.3, in which case those whom the advisory delegate is representing make the selection, it could be inferred that in Bylaw section 3.1.4 the selection should be made by those whom the individual is representing, which in most instances would be the boards and commissions and district boards of directors they represent, unless otherwise specified. In applying this inference to the selection of faculty representatives of the educational institutions, since the number of representatives an institution is allowed is determined by the number of roster ed members of the faculty, it appears that the intended conclusion is that these roster ed members of the faculty should be the ones to make the selection. However, this is clearly an inference and, since Bylaw 3.1.4.1 (a) does not address the issue of how the advisory representative of an educational institution is to be selected, the commission must conclude that Bylaw 3.1.4.1 (a) does not provide a definitive answer to the question as asked. The commission notes that the present questions reflect the reality that the essential content of these provisions has remained static while the makeup of Concordia college and university faculties has changed substantially over time. This commission therefore recommends that the COH consider this matter and provide language that clarifies—if the above inference is to be made normative—that the representative is to be selected by those individuals being represented, which would be consistent, regarding those eligible to make the selection, with Bylaw section 3.1.3. Commission on Constitutional Matters