The following opinions of the Commission on Constitutional Matters were issued since the report to the 2023 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 unless of specific interest). Full commission minutes are reported at lcms.org/ccm.
Scope of Board of Directors Authority to Approve Usage of Lutheran Church Extension Fund Assets under Bylaw 3.6.4.4.1 (23-3003) Minutes of March 30, 2023 By an email of January 30, 2023, the president and chief executive officer of the Lutheran Church Extension Fund—Missouri Synod (LCEF) requested, on behalf of the LCEF Board of Directors, an opinion on the following question: Background: Over the past year, LCEF has engaged in conversation with another confessional Lutheran church body (not in altar and pulpit fellowship with the Synod) regarding the ability of LCEF to provide loans to its congregations, schools, and affiliated ministries (organizations akin to the recognized service organizations of the Synod). Bylaw 3.6.4.4.1, addressing the use of LCEF assets, reads, “The assets of the Lutheran Church Extension Fund—Missouri Synod shall be used exclusively to provide financing and services for the acquisition of sites, for the construction of facilities, for the purchase of buildings and equipment, for operating expenses, for professional church worker education, for the residential housing needs of professional church workers, for promoting strategic ministry planning and assisting in capital campaigns; and for other purposes approved by its governing board consistent with the ministry and mission of the Synod under policies approved by the Board of Directors of the Synod.” [emphasis added] Because lending to ministries of the other church body would require the use of LCEF assets beyond the LCMS, clarity on the intended scope of Bylaw 3.6.4.4.1 and the authority of the Synod Board of Directors in that regard is being requested. Question:
May the Synod Board of Directors, in exercising its authority under Bylaw 3.6.4.4.1, determine that a certain use of assets by LCEF is consistent with the ministry and mission of the Synod? (The instant “certain use” refers to the lending of LCEF assets “beyond the LCMS,” within another confessional Lutheran church body that is not in altar and pulpit fellowship with the Synod.)
Opinion: The commission finds that the question, although apparently simple in form, requires a three-part analysis. The first question that must be answered is, Who interprets the Constitution and Bylaws of Synod? The answer is simple and found at Bylaw 3.9.2: “The Commission on Constitutional Matters exists to interpret the Constitution, Bylaws, and resolutions of the Synod. …” The second question is, What is “the ministry and mission of the Synod” as it relates to the scope of “other activities” to which assets of LCEF may permissibly be applied (Bylaw 3.6.4.4.1)? Most broadly speaking, this is asking, What is the purpose of the Synod? The purpose of Synod is found in the first Bylaw, under section 1.1, “Purpose of the Synod.” Bylaw 1.1.1: “Committed to a common confession and mission, congregations of The Lutheran Church— Missouri Synod join with one another in the Synod to support one another and to work together carrying out their commonly adopted objectives. The Synod is organized to work in support of and on behalf of [such] congregations to assist them in carrying out their ministries. …” Bylaw 1.1.1 (a): “The Synod functions in support of its member congregations. …” Bylaw 1.1.1 (b): “The Synod on behalf of its member congregations administers those ministries
that can be accomplished more effectively in association with other member congregations through the Synod. In this way member congregations utilize the Synod to assist them in carrying out their functions of worship, witness, teaching and nurture, service, and support.” Bylaw 1.1.1 makes clear that Synod exists for and on behalf of member congregations. That concept is naturally and properly reiterated in Bylaw 3.6.4: “The Lutheran Church Extension Fund—Missouri Synod … [was established] to further the objectives and duties of the church extension fund within the Synod. It is formed to provide financial resources and related services for ministry, witness, and outreach of The Lutheran Church—Missouri Synod” (emphasis added). It is within that framework (i.e., church extension within the Synod, providing financial and related services for ministry, witness, and outreach of the Synod) that the LCEF assets, as stated in Bylaw 3.6.4.4.1, “shall be used exclusively to provide financing and services for the acquisition of sites, for the construction of facilities, for the purchase of buildings and equipment, for operating expenses, for professional church worker education, for the residential housing needs of professional church workers, for promoting strategic ministry planning and assisting in capital campaigns; and for other purposes approved by its governing board consistent with the ministry and mission of the Synod under policies approved by the Board of Directors of the Synod.” Finally, Bylaw 3.6.4.4.2 makes clear that the assets of LCEF (as to distribution of operating results) are for the exclusive use of LCMS “member districts, congregations, and corporate Synod, as determined by its governing board.” Thus, the third necessary part of this analysis—the relation, under the Bylaws, between the mission and ministry of the Synod and the scope of possible legitimately authorized operations of LCEF, especially as it regards the instant question—is concluded. Because the church body in question is not “within the Synod” (Bylaw 3.6.4; CCM Op. 00-2189) or serving the “ministry, witness, and outreach of [the Synod]” (Bylaw 3.6.4.4.2; CCM Op. 13-2696; emphasis added), the commission, consistent with the cited opinions, finds that Synod’s Bylaws prohibit LCEF funds being loaned to the church body or its congregations or other ministries. Only within said bounds, namely, within the Synod and serving the ministry, witness, and outreach of the Synod, is the Board of Directors able by policy to permit the “other purposes” of LCEF assets described in Bylaw 3.6.4.4.1.
Lutheran Church Extension Fund Canada Corporation (23-3005) Minutes of March 30, 2023 This opinion is potentially relevant to discussions of corporate form requirements. However, due to its length and nature as a line-byline review, it is not incorporated here. See minutes.
University Board of Regents Unilateral Separation (23-3006) Minutes of March 30, 2023 The Board of Directors of the Synod has submitted a series of 10 questions related to actions taken November 8, 2022, by the Board of Regents of Concordia University Texas (CTX), requesting an opinion from the Commission on Constitutional Matters (CCM). In conjunction with Bylaw 3.9.2.2 (b) the commission invited input from the President of the Synod, the Synod Board of Directors, the Concordia University System (CUS) Board of Directors, the
Boards of Regents of all CUS Universities, Dr. Dean Wenthe, president of CUS, and Mr. Matthew Buesching (LCMS Counsel). Before specifically addressing the questions submitted, the commission deems it necessary to provide as background a summary overview of the pertinent sections of the Constitution and Bylaws of the Synod pertaining to the Synod Board of Directors, agencies of the Synod, and universities of the Synod, which apply to the questions submitted. Summary Overview of Pertinent Sections of the Constitution and Bylaws Regarding the Synod Board of Directors, Agencies of the Synod, and Universities Synod Board of Directors Constitution Article XI E 2 identifies the Synod Board of Directors as “the legal representative and custodian of all the property of The Lutheran Church—Missouri Synod, directly or by its delegation of such authority to an agency of the Synod.” The Synod Board of Directors exercises “supervision over all property and business affairs” of the Synod “except in those areas where it has delegated such authority to an agency of the Synod or where the voting members of the Synod through the adoption of bylaws or by other convention action have assigned specific areas of responsibility to separate corporate or trust entities,” and regarding these the Synod Board of Directors has “general oversight responsibility as set forth in the Bylaws.” Bylaw 1.2.1 (r) in relevant part defines the property of the Synod as “all assets, real or personal, tangible or intangible, whether situated in the United States or elsewhere, titled or held in the name of corporate Synod, its nominee, or an agency of the Synod.” The Synod Board of Directors is the “legal representative” of the Synod and the “custodian of all property of the Synod.” It is responsible for “the general management and supervision of the business affairs of the Synod, except to the extent that management authority and duties have been delegated” to, here, an agency “by the Articles of Incorporation, Constitution, Bylaws or resolutions of a convention of the Synod” (Bylaw 1.4.4). When authorized by the Bylaws, an agency, to which this authority was delegated by this provision, is entrusted with the management and business affairs of the Synod “to the extent of its jurisdiction.” Bylaw 3.3.4.3 assigns to the Synod Board of Directors the responsibility to provide for “review and coordination of the policies and directives of the Synod authorized by the Constitution, Bylaws, and resolutions of the Synod, evaluating plans and policies and communicating to the appropriate boards and commissions suggestions for improvement. …” Bylaw 3.3.4.4 gives the Synod Board of Directors responsibility for the “general management of the business and legal affairs of the Synod.” It is “authorized to take on behalf of the Synod any action related to such business and legal affairs which has not been expressly delegated by the Constitution, Bylaws, and resolutions of the Synod to other officers or agencies of the Synod,” and to those it has “general oversight.” Bylaw 3.3.4.7 designates the Synod Board of Directors as the custodian of all property of the Synod as defined in Bylaw 1.2.1 (r). However, it may delegate these powers to any agency of the Synod that has direct supervisory responsibility of that property. Bylaw 3.3.4.10 authorizes the Synod Board of Directors to obtain from any agency of the Synod all records and other information
relative to the property of the Synod and to matters over which the Board of Directors has general oversight. Agencies In the structure of the Synod an agency is defined in Bylaw 1.2.1 (a), which defines an agency as “an instrumentality other than a congregation or corporate Synod … caused or authorized to be formed” by the Synod in convention or by the Synod Board of Directors. A listing of agencies then follows, specifically including every board and university of the Synod. Bylaw 1.4.1 states that Synod’s delegate convention is “the legislative assembly” of the Synod, which alone “ultimately legislates policy, program, and financial direction” for the work of the Synod. It “reserves to itself the right to give direction to all officers and agencies of the Synod.” Unless explicitly indicated in the Bylaws, all officers and agencies are “accountable to the Synod for all their actions.” Bylaw 1.4.3 states that “Officers of the Synod and its agencies serve in accordance with duties assigned to them or otherwise authorized by the Constitution and appropriate bylaws.” Because agencies were caused or authorized by the Synod, are given direction by the Synod via its Constitution, Bylaws, and resolutions, and are accountable to the Synod, every agency is bound by the Constitution, Bylaws, and resolutions of the Synod (Bylaw 1.4.5). An agency does not have authority to amend or alter the Bylaws of the Synod or the applicability of the requirements of the same to itself. Only a delegate convention of the Synod has authority to amend the Bylaws (Const. Art. XIV). Therefore, any action taken by an agency which contradicts the Constitution, Bylaws, or resolutions of the Synod is null and void, as is specifically stated in CCM Op. 05-2439 (from Question 2): “any action or resolution by any officer, board, commission, district, or other agency of the Synod that is in violation of the Synod’s Constitution and Bylaws is null and void.” Bylaw 1.5.2 requires all members of boards or commissions of every agency to avoid conflicts of interest as described in the bylaw. Bylaw 1.5.2 (b) states that all board members of an agency must carry out their responsibilities “in a manner reflecting the highest degree of integrity and honesty consistent with the Scriptures, the Lutheran Confessions, the Constitution, Bylaws, and resolutions of the Synod. …” Board members of an agency shall not enter into activities that “may be detrimental to the interests of the Synod.” Inappropriate activity, if it does not cease, is a cause for removal. Bylaw 1.5.2 (c) requires that prior to accepting a position, all elected and appointed board members of an agency must sign a statement that they have received, understand, and agree to abide by this provision. Bylaw 1.5.7 describes the causes of and process for removal from membership on a board or commission, with a breach of fiduciary duty regarding responsibilities to the Synod or agency included among the causes for removal. Universities as Agencies of the Synod The Constitution, Bylaws and resolutions of the Synod are directly applicable and binding on all universities of the Synod, as agencies of the Synod (Bylaw 1.2.1 [a]), and to the boards of regents governing them. The confessional position of the Synod as stated in Const. Art. II, namely and without reservation, the Scriptures as the Word of God and the Lutheran Confessions as a true and unadulterated statement and exposition there of, is applicable and binding on the entire Synod, which includes all its agencies, as well as the individual and congregational members of the Synod. Const. Art. III lists among objectives of the Synod the training of professional church
workers (Const. Art. III 3) and the support of synodical colleges and universities (Const. Art. III 5) subject to the Scripture and Lutheran Confessions. The Synod’s universities have been formed and incorporated into the Synod to serve these fundamental ecclesial purposes. (The formation of what would become Concordia University Texas was directed by resolution of the Synod convention in 1923 [Proceedings, p. 30].) Constitutional and Bylaw provisions dealing with governance of the institutions—including the assignment of ecclesiastical supervision and oversight to responsible officers and the entrusting of institutional governance to the regents, jointly and severally, acting as fiduciaries of the Synod—are intended to preserve for the ministry and mission of the Synod the institutions that the member congregations, acting through the Synod, have created, sustained, and relied on (Bylaw 1.1.1 [b]). A university which wishes to change its articles of incorporation (by amendment or restatement) or its bylaws is required to receive advance approval from the CCM of the Synod (Bylaw 3.9.2.2.3 [a]). Failure to do so makes such a change null and void—as it has been adopted contrary to the Bylaws of the Synod, to which every agency is bound—and unable to be put into practice. The Bylaws of the Synod prescribe membership of the board of regents, how members are elected or appointed, their term of office, and maximum number of consecutive terms an individual may serve (Bylaw 3.10.6.2). The only way by which any of these requirements prescribed in the Bylaws can be changed is by action of a delegate convention of the Synod amending the Bylaws of the Synod, since a delegate convention of the Synod is the sole legislative body of the Synod, and it alone has authority to change the Bylaws (Const. Art. XIV). Should an agency make any changes to its Bylaws that violate the Bylaws of the Synod, such changes are null and void, as the Bylaws of the Synod control and supersede (Bylaws 1.4.3, 1.4.5, 1.5.2 [b], 1.5.3.6, etc.). Such a change could only be enacted if a future delegate convention of the Synod amended the Synod’s Bylaws. The members of the board of regents of a Synod university, who have signed a statement prior to taking office affirming they have received, understand, and agree to abide by the conflict of interest provisions of Bylaw 1.5.2, are required to operate the institution “as an agent of the Synod, in which ownership is primarily vested and which exercises its ownership through the Board of Directors as custodian the Synod’s property” and then through “the Board of Directors of Concordia University System” and, finally, through “the respective board of regents.” In operating the institution, the university board of regents is to “carefully exercise its fiduciary duty to the Synod” (Bylaws 3.10.6.4 [i] and 3.10.6.4 [i][1]). While the university board of regents does have ultimate responsibility and independence in operating the institution, it always remains subject to the pre-established Bylaws of the Synod (Bylaw 3.10.6.5). The Bylaws of the Synod provide a specific procedure for the consolidation, relocation, separation, or di vestment of a university (Bylaw 3.6.6.4 [i]), which does not allow a university to unilaterally separate itself from the Synod, or declare itself to be independent of the Synod. According to this prescribed procedure for a university to be divested it requires a two-thirds vote of approval by the Synod Board of Directors, along with the approval by two thirds vote of one of the following three: the Council of Presidents, the board of regents of that university, or the Concordia University System Board of Directors. Should such an action (separation or divest it ure) be taken as prescribed in Bylaw 3.6.6.4 (i), the result would be that the university
now separated or divested would no longer be an agency of the Synod, which in turn would have several repercussions. Some of these would include the loss of functions exclusively reserved to “colleges and universities of the Synod,” under its forms of ecclesiastical governance and ecclesiastical supervision: • Graduates from the university or those satisfactorily completing an approved program would no longer be eligible to receive a call or be eligible for individual membership in the Synod as commissioned ministers (Bylaws 2.7.1–3; 2.8; 2.9).
- Those individual members of the Synod (commissioned or ordained) currently serving the university would no longer be eligible to be classified as active members of the Synod (Bylaw 2.11.1). If such individuals wished to continue as individual members of the Synod, they would need to apply for candidate status or if qualified for emeritus status (Bylaws 2.11.2; 2.11.2.1; 2.11.2.2).
- The university would no longer be eligible for advisory representation at conventions of the Synod under Bylaw 3.1.4.2 (a).
- Finally, the university would no longer be entitled to participate in those services offered by the synodwide corporate entities, which are reserved to agencies of the Synod. Questions Submitted
Question 1:
Does a board of regents of a university of the Synod have authority to unilaterally change its governance model from that described in Synod Bylaw 3.10.6 (modifying the means of appointment of its board of regents, for example)?
Opinion: No. It is only a delegate convention of the Synod that, as the legislative body of the Synod, has authority to amend the Bylaws of the Synod (Const. Art. XIV) or the Constitution of the Synod (Const. Art. XV). Until such an action by a delegate convention of the Synod takes place, the members of a university board of regents have no authority or ability to change the governance model of Bylaw 3.10.6—which, as noted above, exists in the ultimate interest of furthering the Synod’s ecclesial purposes and remains binding on any university of the Synod. Unless a university were to be separated or divested by the Synod under Bylaw 3.6.6.4 (i), any such changes by a board of regents to the governance model described in Bylaw 3.10.6 would be null and void, and the Synod would continue to operate according to the Bylaws as adopted by the convention and published in the Handbook in all areas including elections and membership on the board of regents. Individual regents act outside their authority and contrary to their individual fiduciary duties to the Synod when they affirm such an action (Bylaws 1.5.2 [b] and [b][1]; 3.10.6.4 [i] and [i][1–2]). Question 2:
Does a board of regents of a university of the Synod have authority to amend its articles or bylaws without the prior approval described in Synod Bylaw 3.9.2.2.3 (a)?
Opinion: No. As an agency of the Synod, the board of regents of a university of the Synod may only amend its bylaws or articles of incorporation with prior approval of the CCM of the Synod. Any such change made without that approval would be null and void (Bylaw 3.9.2.2.3 [a]). If such a proposed change to the articles or bylaws of the university were contrary to the Constitution and Bylaws of the Synod as then current, the commission would be required to reject such change. Outside the convention itself, the commission has the sole authority to interpret the Constitution, Bylaws, and resolutions of the Synod and has no authority to alter or waive their requirements (Bylaw 3.9.2). Question 3:
Does a board of regents of a university of the Synod have an obligation to comply with the Constitution and Bylaws of the Synod, including without limitation Article II and Article III of the Constitution, when operating and managing and taking action on behalf of the university, including an action purporting to separate the university from the Synod?
Opinion: Yes. The Constitution in all its articles, the Bylaws, and the resolutions of the Synod are binding on all agencies of the Synod, which includes every university. A board of regents of a university of the Synod operates the university as a fiduciary and an agent of the Synod, which includes being faithful to the confessional position (Const. Art. II) and the Objectives of the Synod (Const. Art. III) and faithfully maintaining and adhering to the model of governance set forth by the Synod (Bylaw 3.10.6.4 [i][1–2]). Ownership of the university remains primarily invested in the Synod, and is exercised first through the Synod’s Board of Directors, which is the custodian of all property of the Synod, then through the CUS Board, and finally through the board of regents, operating with the authority set forth for it in the Bylaws of the Synod. In operating the institution as an agent of the Synod, a board of regents of a university and its members are bound to carefully exercise its fiduciary duty to the Synod (Bylaws 3.10.6.4 [i] and 3.10.6.4 [i][1]). If a university board of regents were convinced that it was in the best interest of both the Synod and that institution for the institution to be divested or separated from the Synod, then it would be obligated to follow the process detailed in Bylaw 3.6.6.4 (i) and to submit to its conclusion. Question 4:
Do individual members of a Synod university board of regents have a duty to comply with the Constitution and Bylaws of the Synod, including without limitation Article II and Article III of the Constitution, when operating and managing and taking action on behalf of the university, including an action purporting to separate the university from the Synod?
Opinion: Yes. Constitutional and Bylaw provisions dealing with governance of the institutions—including the assignment of ecclesiastical supervision and oversight to responsible officers and the entrusting of institutional governance to the regents, jointly and severally, acting as fiduciaries of the Synod—are intended to preserve for the ministry and mission of the Synod the institutions that the member congregations, acting through the Synod, have created, sustained, and relied on (Bylaw 1.1.1 [b]). Any noncompliance with these provisions on the part of a board of regents or individual regent is therefore not in the interest of the Synod. Bylaw 1.5.2 (b) and (b)(1) require that every board member of every agency of the Synod shall, when operating and managing and taking action on behalf of such agency (in this case, the university), carry out responsibilities in a manner “reflecting the highest degree of integrity and honesty consistent with the Scriptures, the Lutheran Confessions, the Constitution, Bylaws, and resolutions of the Synod,” and shall act consistently in the interest of the Synod. “Any inappropriate activity shall cease or the position will be vacated” (Bylaw 1.5.2 [b] [1]). As a board of the Synod (Bylaw 3.2.2 [6]), a board of regents, which has been given authority to manage the university on behalf of the Synod, has a direct, “fiduciary” responsibility to the Synod,
which is to be exercised carefully (Bylaw 3.10.6.4 [i][1]). Bylaw 1.5.1.3 requires each member of a board be sensitive in all activities to avoid “taking or giving offense, giving the appearance of impropriety, causing confusion in the Synod, or creating potential liability.” Regarding separating or divesting the university from the Synod, see the answer above. Question 5:
Is a university of the Synod and its board of regents an eligible party subject to the dispute resolution process set forth in Synod Bylaw section 1.10?
Opinion: Yes. Agencies of the Synod are included in those to whom the dispute resolution process applies (Bylaw 1.10.3). Question 6:
Assuming a university of the Synod and its board of regents are eligible parties to the dispute resolution process set forth in Synod Bylaw section 1.10, does the dispute resolution process apply to a dispute between the Synod (or its President or Board of Directors) and a board of regents regarding that board of regents unilaterally amending or modifying its governance documents, and regarding whether the action of the board of regents is within the authority granted to it under the Constitution and Bylaws of the Synod?
Opinion: Essentially, no. The fundamental material question of whether a Synod university has the authority to unilaterally change its governance from that prescribed in the Constitution, Bylaws, and resolutions of the Synod, since such a question pertains fundamentally not to the presenting fact situation but to the interpretation and meaning of the Constitution, Bylaws, and resolutions of the Synod, is outside of the authority of the dispute resolution process to arbitrate or adjudicate, as stated in the Bylaws. Authority to interpret the Constitution, Bylaws, and resolutions of the Synod is specifically given by the Bylaws only to the Synod’s CCM (Bylaw 3.9.2.2). Any dispute resolution process is subject in all its aspects to “Holy Scripture, the Lutheran Confessions, and the Constitution and Bylaws of the Synod” (Bylaw 1.10.18). As to the Constitution and Bylaws of the Synod, opinions of this commission are finally dispositive of any questions as to their interpretation that arise during a dispute resolution process (Bylaw 1.10.18.1 [h], [h][1]). While the question of whether a board of regents has the authority described is thus finally resolved by this commission’s interpretation of the Constitution and Bylaws in the negative, this is not to foreclose the applicability of the dispute resolution process to disagreements or disputes, related to or arising out of this action, as may apply to the board of regents as a whole or to individual regents as “members of congregations of the Synod elected or appointed to positions with … an agency of the Synod” (Bylaw 1.10.2 [5]). Question 7:
Assuming that the noted parties and issue would be subject to the dispute resolution process, would the outcome of the process, presuming that it is consistent with the Constitution, Bylaws, and resolutions of the Synod, be binding on the parties involved?
Opinion: The Constitution and Bylaws of the Synod are of themselves generally, and as to the central material question noted above in particular, already binding on both the parties and on the outcome of any dispute resolution process, as explained above. As to other aspects of related disagreements or disputes, the outcome of any dispute resolution process, provided it is consistent with “Holy Scripture, the Lutheran Confessions, and the Constitution and Bylaws of the Synod” (Bylaw 1.10.18), would be binding on the parties.
proceeding under the dispute resolution process or, if appropriate, taking action in secular court?
Can a university of the Synod and its Board of Regents avoid the dispute resolution process set forth in Synod Bylaw 1.10 by taking unilateral action purporting to separate the university from the Synod (cf. Synod Bylaw 1.10.2)?
Opinion: Bylaw 3.3.1.1.1 assigns ecclesiastical supervision of all officers of the Synod and its agencies to the President of the Synod. Bylaw 3.3.1.1.1 (c) gives the President the responsibility and authority to exercise ecclesiastical supervision over the doctrine taught and practiced at the universities of the Synod.
Opinion: No. “No person, congregation, or agency [emphasis added] to whom or to which the provisions of this dispute resolution process are applicable because of their membership in the Synod may render this procedure inapplicable by terminating that membership during the course of the dispute resolution process” (Bylaw 1.10.2).
Bylaw 3.3.1.2 assigns to the President of the Synod oversight of all the agencies of the Synod to ensure that these agencies are acting in accordance with the Constitution, Bylaws, and resolutions of the Synod. Specifically in regard to the educational institutions of the Synod, the President is charged to officially visit or cause to be visited all these institutions to exercise oversight over their administration relative to adhering to the Constitution, Bylaws, and Resolutions of the Synod (Bylaw 3.3.1.2 [a]).
Question 8:
Question 9:
What is the nature and scope of a board of regents’ fiduciary duties to the Synod as stated in Synod Bylaw 3.10.6.4 (i)(1)? Are these fiduciary duties solely secular duties or do these fiduciary duties also encompass operating and managing the institution as a fiduciary and an agent of the Synod in a manner consistent with Constitution and Bylaws of the Synod, including without limitation Article II and Article III of the Constitution?
Opinion: The term fiduciary is a commonly used legal term of art. Black’s Law Dictionary (11th Ed.) offers two definitions, both of which inform the use of the term to describe the duties regents owe to the ecclesial Synod. A fiduciary is: “1. Someone who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, loyalty, due care, and disclosure. 2. Someone who must exercise a high standard of care in managing another’s money or property.” The commission finds that these common definitions are included within but may not exhaust the sense of “fiduciary duty” that may be inferred from the immediate context of Bylaw 3.10.6.4 (i)(1). More specifically, the context in Bylaws 3.10.6, 3.10.6.1, and 3.10.6.4 provides, without exhausting the full scope of said “fiduciary duties to the Synod,” some particular aspects of the responsibilities regents owe the Synod in governing the respective institution in a manner that is faithful to the confession of the Synod (Const. Art. II) and fulfills its objectives (Const. Art. III; Bylaw 3.10.6.1). The fiduciary duties expected of regents are thus not purely secular but involve the comprehensive stewardship of the institution in the ecclesial interest of the Synod, which has put them in place to govern. Governing the institution as a “fiduciary” or “agent of the [ecclesiastical] Synod, in which ownership is primarily vested” (Bylaw 3.10.6.4 [i][1]) and, indeed, as a “governing board[] of the Synod” (Bylaw 3.2.2), they owe duties of “good faith, loyalty, due care, and disclosure” and a “high standard of care” to maintain the institution in faithfulness to the Synod’s confession (Const. Art. II); in fruitfulness with regard to the accomplishment of the Synod’s objectives (Const. Art. III and relevant bylaws, resolutions, and policies, as such pertain to the operation of a Synod university); and consistent in every respect with the governance model the Synod has set forth to assure the institution operates in its ecclesial interests (see above, “Universities as Agencies of the Synod” and Opinion to Question 4).
Question 10: If a board of regents of a university of the Synod fails to carry out or breaches its fiduciary duties to the Synod as required in Synod Bylaw 3.10.6.4 (i) (1), who or what body, within the Synod, has the authority and responsibility to take action to address and correct the breach of fiduciary duty, including
If the President of the Synod determines there is a violation of the Constitution, Bylaws, and resolutions of the Synod, he may call up for review any such action and request that this action be altered or reversed. If the matter is not resolved, the President of the Synod shall refer the matter, as he deems appropriate to the issues and party/parties to the matter involved, to the Synod Board of Directors, the Commission on Constitutional Matters, or to a convention of the Synod. He is also required to report to the Synod those who are not acting in accordance with the Constitution, Bylaws, and Resolutions of the Synod (Bylaw 3.3.1.2 [c]). The unauthorized separation of a university of the Synod (which is included in property of the Synod) from the Synod inherently involves a legal and property matter properly to be referred by the President (Bylaw 3.3.1.2 [c][2]) to the Board of Directors as the legal representative and custodian of the property of the Synod (Const. Art. XI E 2), which then carries out its constitutional authority in the interest of the Synod. Any conflict or uncertainty in determining the authorities of the officers and agencies of the Synod in this respect is to be resolved as set forth in Articles of Incorporation, Article V. Referral by the President of the legal and property matters involved to the Board of Directors does not exclude the President’s authority otherwise to exercise, or see to the exercise of, ecclesiastical supervision (Bylaw 1.2.1 [j]) or detract from “the President’s constitutional duty to report to the Synod those who do not act in accordance with the Constitution and do not heed his admonition, as prescribed in Const. Art. XI B 2” (Bylaw 3.3.1.2 [c][3]). The commission has treated the approach that most naturally, in its opinion, followed from the question, but notes that its answer is not to exclude other processes possible under the Bylaws, including the process under Bylaw 1.5.7.1 or other dispute resolution processes (Bylaw section 1.10) among eligible parties involved in the matter.
Questions regarding Concordia Publishing House Bylaws (23-3004) Minutes of April 28–29, 2023 A member of the Synod has submitted a request for an opinion regarding Bylaws 3.6.3, 1.2.1 (a), and 1.9 consisting of a series of six questions with many sub points listed for each question. To address these sub points would require the commission to make broad, theoretical determinations in hypothetical matters, some of which are not clearly or specifically addressed by the Bylaws. The commission, therefore, will limit its answers to the six primary questions asked.
Question 1:
What is the scope of “publishing and distribution services” to be provided by Concordia Publishing House (CPH), “for the agencies of Synod,” in Bylaw 3.6.3 (a)?
Opinion: Bylaw 3.6.3 states the purpose of CPH and reads: “The purpose of Concordia Publishing House is to proclaim the Gospel of our Lord Jesus Christ. It shall serve the Synod and its agencies by developing, producing, marketing, and distributing products for use by members of the Synod, other Christians, and the public in general.” The terms “developing, producing, marketing, and distributing” products are intended to cover the full range of the steps in having a product prepared for use by the Church. In the case of any given product, the role of CPH might include all aspects or only one or two. Bylaw 3.6.3 (a) reads, “It shall supply publishing and distribution services for the agencies of the Synod as required, unless this is deemed detrimental to the agency involved.” Agencies of the Synod are defined in Bylaw 1.2.1 (a), which defines an agency as: “An instrumentality other than a congregation or corporate Synod, whether or not separately incorporated, which the Synod in convention or its Board of Directors has caused or authorized to be formed to further the Synod’s Objectives (Constitution Art. III).” Bylaw 3.6.3 does not describe CPH as the source for the publishing of all material by the Synod, but rather it serves the Synod as required. What is required and offered by CPH will vary depending on the specifics of any given project of an agency. Question 2:
What is meant by the phrase “published by the corporation” in Bylaw 3.6.3 (c)?
Opinion: Bylaw 3.6.3 (c) reads, “Unless otherwise instructed by the Synod, the Board of Directors of Concordia Publishing House shall determine what is to be published by the corporation.” “Published by” has its ordinary meaning; the term “corporation” in this bylaw refers to CPH as a synodwide corporate entity (Bylaw 3.6.1). Question 3:
What is necessary to trigger the exception to the CPH board of directors’ exclusive discretion in the determination of what is to be published by the corporation stipulated in 3.6.3 (c) by the words “Unless otherwise instructed by the Synod”?
Opinion: Bylaw 3.6.3 (c) reads, “Unless otherwise instructed by the Synod, the Board of Directors of Concordia Publishing House shall determine what is to be published by the corporation.” The phrase “instructed by the Synod” refers to a specific convention action, by which the convention may act directly (instructing a certain item to be published) or indirectly (directing the production of a work or a category of work under specified authority, to be published upon completion) or to a requirement that the Synod has adopted and placed in the Bylaws. For example, Bylaw 3.1.10.1 requires CPH to send the official Convention Proceedings to every congregation of the Synod and to all delegates, voting and advisory. Similarly, Bylaw 3.6.3 (a) requires CPH to “supply publishing and distribution services for the agencies of the Synod as required, unless this is deemed detrimental to the agency involved.” Question 4:
What is the scope of the approval required by the words “shall be approved through the Synod’s prescribed procedure for doctrinal review” in Bylaw 3.6.3 (d)?
Opinion: The purpose of doctrinal review is described in Bylaw 1.9.1: “Doctrinal review is the exercise of the Synod’s resp on si-
bility to determine that every doctrinal statement made in its or any of its agencies’ or auxiliaries’ materials is in accord with the Scriptures and the Lutheran Confessions.” Bylaw 3.6.3 (d) reads, “All materials of a religious or theological nature shall be approved through the Synod’s prescribed procedure for doctrinal review before publication,” which specifically states that everything published by CPH that is of a religious or theological nature is subject to doctrinal review as described in Bylaw section 1.9. However, the bylaws provide three exceptions to the requirement of doctrinal review: The first is “study documents and exploratory material … published by boards, commissions, or other subordinate groups of the Synod,” so long as these are clearly marked as “being released for study and discussion purposes, etc.” (Bylaw 1.9.1.1 [b]; the commission intends to treat the scope of materials included in this exception in Op. 23-3010 and does not do so here). The second is “broadcasts over the Synod’s radio station by other than staff members” (Bylaw 1.9.1.1 [f]). The third is “official reports of the boards, commissions, task forces, and committees of the Synod prepared in response to directives of the Synod” (Bylaw 1.9.1.1 [g]). Unless the material that is of a religious or theological nature falls under one of the three categories referenced above, it is subject to the process of doctrinal review as described in the Bylaws. Question 5:
What differentiates an “official report” under Bylaw 1.9.1.1 (g) from a study document or exploratory material or other work of general work of authorship?
Opinion: See answer to Question 4. Bylaw 1.9.1.1 speaks for itself as to the distinguishing features of the various categories described. Question 6:
What qualifies as a “response to directives from the Synod” under Bylaw 1.9.1.1 (g)?
Opinion: See answers to Question 4 and Question 3, where “instructed by the Synod” is a comparable phrase.
Service of a Synod Congregation (23-3009) Minutes of April 28–29, 2023 By an email of April 4, a district president requested an opinion on the following two questions: Question 1:
Is a congregation in violation of Constitution Article VI 3 and Bylaw 2.5.2 if it has as its worship leader a pastor, not called by the congregation, who is Lutheran and has promised to teach completely in line with Lutheran Church—Missouri Synod (LCMS) teaching but is on neither the roster of the Synod nor that of a church body in altar and pulpit fellowship with the Synod?
Question 2:
Does a district president have the authority to authorize a pastor who is a member of a church body with which the LCMS is not in altar and pulpit fellowship to proclaim the Word and administer the Sacraments on a regular basis to a congregation of the Synod?
Background: Const. Art. VI lists the conditions of membership in the Synod. The first three of these conditions are pertinent for the questions raised, and read: 1. Acceptance of the confessional basis of Const. Art. II. 2. Renunciation of unionism and syncretism of every description, such as:a. Serving congregations of mixed confession, as such, by ministers of the church; b. Taking part in the services and sacramental rites of heterodox congregations or of congregations of mixed confession; c. Participating in heterodox tract and missionary activities. 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. In the original 1847 constitution, current Const. Art. VI 3 (in the 1847 arrangement, as Const. Art. II 5) reads, “Proper [orden tli cher] (not temporary [nicht zeit wei liger]) calling of the pastors and orderly [or dent liche] election of congregational delegates by the congregation. The life of both minister and delegate must be beyond reproof” (Concordia Historical Institute Quarterly, April 1943, p. 3) This wording of today’s Const. Art. VI 3 was intended to reject two common trends then occurring in the Lutheran churches in the United States: The one was a mentality of “we hired the pastor and pay him, so we can tell him what to do and fire him at will.” The other was the practice of licensing candidates for the ministry for a set period of time as a trial period. The wording rejects these based on the nature of a call as a divine call, directed by God; as such, it should not have any preset time limitation. More recently, the Synod’s current understanding of the phrase “regular call of pastors” is described in 1969 Res. 5-23. The resolution states: “The term regular call as used in our Synod has always meant a call extended in conformity with the procedures adopted by the Synod as set forth in the Handbook” (p. 120). Const. Art. VI 1 and 2 would also apply to the questions as asked. Const. Art. VI 1 refers back to the confessional statement of the Constitution and requires acceptance of that statement as a condition of membership. Const. Art. VI 2 requires congregations and individual members to reject all mixing of doctrine and practice with those who teach differently. There is to be doctrinal agreement between the congregation and the pastor serving it. This precludes an individual who is a member of a church body not in altar and pulpit fellowship with the LCMS from being called or serving a member congregation.
Regarding Bylaw 2.5.2: Bylaw 2.5.2 currently reads: Congregations that are members of the Synod, as well as association schools, agencies, auxiliaries, and recognized service organizations shall call and be served only by (1) ordained ministers who have been admitted to their respective ministries in accordance with the rules and regulations set forth in these Bylaws and have there by become members of the Synod; (2) candidates for the pastoral ministry who have satisfied the qualifications and requirements for assignment of first calls by the Council of Presidents acting as the Board of Assignments; or (3) ordained ministers who are members in good standing of church bodies that have been formally recognized to be in altar and pulpit fellowship with the Synod when agreements for such calls are in place. A bylaw requiring congregations to call and be served only by ordained members and teachers who are on the roster of the Synod was first adopted by the 1969 convention partially in response to 1969 Ov. 5-05, which referenced pastors who had resigned from the Synod but still wished to continue to serve the congregation which had called them (Workbook, p. 229).
In part, the preamble to the resolution, 1969 Res. 5-23, “To Reiterate in Bylaws that Member Congregations Must Be Served by Members of the Synod,” states (Proceedings, pp. 119–20): One of the very purposes of synodical fellowship is to provide guidance and help in the exercise of congregation’s right to call a pastor, and one of the very reasons why a synod exists is to set standards for the parish pastorate so that the individual congregation may be assured that the man whom it calls is qualified to serve as its parish pastor (Charter, Art. II b; Const., Art. III 3). To this end The Lutheran Church—Missouri Synod establishes procedures for determining whether men meet the standards. One of the advantages which a congregation receives when it joins the Synod is the protection against pastors who do not meet such standards. … In order that there may be no misunderstanding or misinterpretation of the condition that the membership of congregations in the Synod requires of a congregation that all pastors, as also all teachers, who are called to and who serve the congregations of the Synod must have been admitted to the ministry of the Synod in accordance with the procedures provided by the Synod for certification, recommendation, ordination, or commissioning of such pastors or called teachers, this committee deems it advisable to reiterate the basic constitutional requirements in clear and unmistakable words also in the Bylaws: The convention adopted Bylaw 4.02, below (printed in the 1969 Handbook as 4.01; Proceedings, pp. 119–20): 4.02 Eligible Pastors and Teachers a. Congregations which are members of the Synod, in conformity with Article III, 3 of the Constitution of the Synod, shall call and be served only by pastors and called teachers who have been admitted to these respective ministries in accordance with the rules and regulations set forth in the synodical Handbook and have there by become members of the Synod. b. Congregations which violate this requirement and persist in such violation shall after due admonition forfeit their membership in the Synod. While the Bylaws were renumbered in the following year, and the term teachers was eventually changed to commissioned ministers, this bylaw remained essentially unchanged until the 2001 convention of the Synod. During this intervening period, the status of women who were graduates of colleges of the Synod and were teaching in the schools of the congregations of the Synod changed, so that they were allowed to become members of the Synod and be placed on the roster of the Synod. In addition, the use of teachers who were not trained in the institutions of the Synod and therefore not eligible for membership in the Synod greatly increased in the day schools of the congregations of the Synod, which placed them in violation of this bylaw. The result was that 2001 Res. 7-12, “To Separate Calling and Service of Clergy from Other Church Workers” (Proceedings, p. 168), changed the bylaw to read: 2.45 Calling Ministers of Religion a. Congregations shall seek the advice of the respective District President when calling ordained or commissioned ministers.b. Congregations that are members of the Synod shall call and be served only by ordained ministers who have been admitted to their ministries in accordance with the rules and regulations set forth in these Bylaws and have there by become members of the Synod. c. Congregations that are members of the Synod shall call only commissioned ministers who have been admitted to their ministries in accordance with the rules and regulations set forth in these Bylaws and have there by become members of the Synod. d. Congregations that violate these requirements and persist in such violation shall, after due admonition, forfeit their membership in the Synod. This change demonstrates that the terms call and be served by are not to be regarded as synonyms. In today’s practice many others are serving congregations by leading worship without a call. Emeritus pastors regularly serve as vacancy pastors, at times for congregations not in the process of calling, or regularly simply serve in vacant congregations every Sunday, often for periods of a year or more, which might include offering the Sacraments and conducting weddings and funerals. Ordained ministers on candidate status also are eligible to serve in the same way. Students from the seminaries of the Synod lead worship in congregations that have no pastor. Vicars on occasion are the only one serving congregations with their supervising pastor called by and serving a neighboring congregation. While these other instances of serving reflect a wide variety, what is consistent is that those serving are either ordained members of the Synod, or students authorized by a seminary of the Synod and under the supervision of an ordained member of the Synod. Question 1:
Is a congregation in violation of Const. Art. VI 3 and Bylaw 2.5.2 if it has as its worship leader a pastor, not called by the congregation, who is Lutheran and has promised to teach completely in line with LCMS teaching but is on neither the roster of the Synod nor that of a church body in altar and pulpit fellowship with the Synod?
Opinion: In its response, the commission understands the term worship leader as used in this question to mean the individual performing the role of the pastor in the public worship of the congregation, proclaiming the Word and/or administering the Sacraments. A pastor who is not a member of the Synod or of a church body with which the Synod is in altar and pulpit fellowship is ineligible either to be called by a congregation or to serve a congregation by leading worship. For a congregation to so call or be served would be a violation of the conditions of membership under Const. Art. VI 3. Bylaw 2.5.2 requires congregations to “call and be served only by” individuals listed in the three following categories (i.e., ordained ministers on the roster of the Synod; candidates certified for initial placement, for example, by successful completion of colloquy; and ordained ministers in good standing on the roster of church bodies in altar and pulpit fellowship with the Synod), the word “only” highlighting the exclusive nature of this requirement. A congregation may not call an excluded individual. The words “and be served by” indicate that a congregation also may not be served by an excluded individual in a pastoral capacity (such as by his leading worship), even if it does not call him (cf. Op. 20-2957). By calling or being served by an excluded individual, the congre-
gation puts its membership in the Synod in jeopardy (Bylaw 2.5.4; Const. Art. VI 3; XIII 1). Question 2:
Does a district president have the authority to authorize a pastor who is a member of a church body with which the LCMS is not in altar and pulpit fellowship to proclaim the Word and administer the Sacraments on a regular basis to a congregation of the Synod?
Opinion: No. A district president does not have the authority to ignore the Constitution and Bylaws of the Synod but rather needs to admonish a congregation that insists on calling or being served by a pastor who is a member of a church body not in pulpit and altar fellowship with the Synod that by doing so the congregation puts its membership in the Synod in jeopardy (Bylaw 2.5.4; Const. Art. VI 3; XIII 1).
Advisors in Restriction, Removal from Office, Etc. (23-3011) Minutes of June 8–11, 2023 By an email of June 6, a member of the Synod, an ordained minister, requested opinions on the following questions, which he prefaced with the following statement: CCM Opinion 12-2660 states the following: “An over arching principle in the Constitution and Bylaws of the Synod, as well as in the [Standard Operating Procedure Manuals (SOPM)] for both the dispute resolution process and the process of expulsion from membership in the Synod, is one of due process, fairness, and impartiality. Thus, all hearings and all investigations must be conducted in a fair and equitable manner.” The following questions pertain to the “due process, fairness, and impartiality” of the LCMS Bylaws and other official documents when addressing the issue of obtaining and providing advice and counsel in the adjudication process when an individual member of Synod faces potential removal from office or is placed on restricted or suspended status by a district president. In its reply, the commission notes the following context, which is necessary to understanding the opinions that follow: The commission, as interpreter of the Constitution, Bylaws, and resolutions of the Synod, can only interpret the term advisor with regard to such advisors as are identified explicitly in the Bylaws, for example in Bylaws 2.14.7.8 (h), 1.10.7.4 (a), etc. It does not in the following responses deal with other individuals from whom parties may informally seek advice, except in response to Questions 6 and 8, in which the “advisors” in question are not those described in the Bylaws. With regard to questions of “due process, fairness, and impartiality,” raised at several points below, the commission responds that the Constitution of the Synod and procedures set forth in the Bylaws (and attendant Standard Operating Procedures Manuals) establish the parameters for “due process, fairness and impartiality.” The conduct of an ecclesiastical supervisor within such processes and generally, as he carries out his duties under Constitution Article XII 7–8, is expected to be consistent with the constitutional purposes of his office, namely as described in Const. Art. III 8–9. His conduct is subject to review by mechanisms included in these processes and by the President of the Synod. Question 1:
Bylaw 2.14.7.8 (h) indicates that the accused is permitted to make use of an advisor in the adjudication process for expulsion from membership in the Synod. Bylaw 1.10.7.4 (a) and Bylaw 1.10.18.1 (e) also permit an advisor in dispute resolution cases. Is the use of an advisor also permitted under Bylaw 2.13.2 when an individual member of Synod is placed on restricted status? If it is prohibited, how do the bylaws ensure due process, fairness, and impartiality?
Opinion: There is a significant difference in the purpose of Bylaw sections 2.14, 2.17, and 1.10. Bylaw section 1.10 is for resolving disputes among members of the Synod. It may lead to the formation of a formal panel, which will hear the case and render a binding decision. Both parties in the dispute, if they so choose, are allowed to select an advisor of their choice, who will assist in the formal proceedings subject to the applicable bylaws. Bylaw sections 2.14 and 2.17 deal with the process for removal of a member of the Synod from membership in the Synod. These sections conclude with formal proceedings, as the result of which a hearing panel will render a binding decision. Both parties in the process, if they so choose, are allowed to select an advisor of their choice, who will assist in the preparation for the formal hearing and at the formal hearing operate subject to the applicable bylaws. The purpose of Bylaw 2.13.2 is to facilitate the ability of a district president to exercise proper ecclesiastical supervision by conducting an investigation when he becomes aware of substantive information that could lead to the expulsion of a member from the Synod under Article XIII or the removal of a member of the Synod from a called position by a congregation. An individual on restricted status is eligible to continue in his current call and any other position currently held in the Synod at the time he was placed on restricted status. He may not accept a call to any other position of service in the Synod. While in certain cases restricted status can be extended, restricted status is intended to last for no more than one year with either the situation being resolved and restricted status removed, or the member suspended which leads to an expulsion process described in Bylaw section 2.14 or 2.17. An individual on restricted status may petition the Council of Presidents for removal of restricted status as described in Bylaws 2.13.3–2.13.3.2. In the event that the petition to remove restricted status fails, the member simply continues on restricted status and the investigation by the district president continues. Bylaws 2.13.3–2.13.3.2 make no provision for an advisor in the process, since in essence the question is whether or not the district president should proceed in determining the facts of the case in order to enable him to conclude the process either with a lifting of the restricted status or suspension of the member. The role of the advisor comes at the time the formal proceedings begin under Bylaw section 2.14 or 2.17. At this point an advisor is available to each party, intended to assist both parties in the presenting of their cases before the hearing panel. The only formal proceeding involved in Bylaws 2.13.2–2.13.3.2, dealing with restricted status, is the hearing of a petition for removal of such status (Bylaw 2.13.3.2). The attendance at that hearing is fixed by Bylaw 2.13.3.2 (e) and, in notable contrast to procedures under Bylaw sections 1.10, 2.14, and 2.17, does not allow for attendance of an advisor to either party. Question 2:
If the answer to Question 1 is “yes,” in what way(s) is this advisor different from the spiritual care that is mandated in Bylaw 2.13.2.4 and Bylaw 2.13.4.3 (b)?
Opinion: Bylaws 2.13.2.4 and 2.13.4.3 (b) require the district president to “minister to [a restricted or suspended] member either directly or through others, concern himself with the spiritual well-being of [the] member, and continue efforts to resolve those matters which led to the imposition of [restricted or suspended] status.” This activity is the responsibility of the district president and originates from his office. The advisors provided for in the procedures of Bylaw sections 1.10, 2.14, and 2.17 are selected by the respective parties, subject to those Bylaws and Standard Operating Procedures Manuals. There is no formal advisor provided in the 2.13.2 or 2.13.3 process. This does not preclude the restricted or suspended member from seeking advice from other sources of his or her own choosing. Question 3:
Is the individual member of Synod who is placed on restricted status free to choose her or his advisor in the same manner that is permitted under Bylaw 1.10.7.4 (a), Bylaw 1.10.18.1 (e), and Bylaw 2.14.7.8 (h)? If not, how do the bylaws ensure due process, fairness, and impartiality?
Opinion: There is no advisor provided in the 2.13.2 or 2.13.3 process. Question 4:
Must any advisor to an individual member of the Synod who is on restricted status be appointed by the applicable district president or approved by the district president? If “yes,” how does this ensure due process, fairness, and impartiality?
Opinion: There is no advisor provided in the 2.13.2 or 2.13.3 process. Question 5:
May a district president prevent an individual member of Synod from serving as an advisor to another individual member of Synod by exercising ecclesiastical discipline against her or him? If “‘yes,” how does this ensure due process, fairness, and impartiality?
Opinion: There is no advisor provided in the 2.13.2 or 2.13.3 process. Should the case of an individual who had been placed on restricted status proceed to a Bylaw section 2.14 or 2.17 process, the member, who is now on suspended status, may choose anyone as an advisor in accordance with the Bylaws and the controlling Standard Operating Procedures Manual. Any such advisor, if a member of the Synod, remains even in his or her conduct as an advisor under the ecclesiastical supervision of his or her district president. It is conceivable that a member of the Synod in serving as an advisor could act in such a way that he or she would put his or her own membership in the Synod in jeopardy. It was unclear to the commission if this question is also intended to be in relation to the advisor referenced in the following question. If so, see the response to Question 6. Question 6:
The February 2020 edition of the Circuit Visitors’ Manual states the following concerning the choice for an advisor when a pastor might be facing possible removal from office by a congregation’s voters assembly: “The district president is encouraged to appoint a pastoral adviser [sic] for the pastor to assist him in examining the charges and preparing biblical responses to charges” (5 a, p. 275). “The pastor is encouraged to have an advisor with him during this meeting to assist him in preparing his biblical responses to charges. This advisor is to be appointed by the district president” (7 g, p. 275). Assuming that the CCM reviews and approves this manual, how does this procedure constitute due process, fairness, and impartiality (especially if the district president himself has placed the individual member of Synod on restrictive status or suspended status)?
material” produced by “boards, commissions, or other subordinate groups of the Synod.” The commission understands this question to be a question of the scope of this bylaw generally, and also specifically to CPH. In order to answer this question, there are two items which need to be addressed. First, whether CPH is a “board[], commission[], or other subordinate group[] of the Synod,” and, second, what is the scope of “study documents and exploratory material.”
Opinion: The section of the Circuit Visitors’ Manual quoted in the question is a portion of a larger section of that same manual that addresses the role of the district president when there is a conflict between a congregation and its pastor that has degenerated to the point where the congregation is considering terminating the pastor’s divine call. As described in Art. III 9 of the LCMS Constitution, the district president is responsible for the well-being both of the congregation and the pastor and to help both through these difficult times.
With respect to the first inquiry, CPH is included within the definition of an “agency” and specifically within that of a “synodwide corporate entity” under Bylaws 1.2.1 (a) and (w), either of which would fall under the definition of a “subordinate group” of the Synod. The board of directors of CPH is, moreover, also a board of the Synod (Bylaw 3.2.2), and the board determines, “unless otherwise instructed by the Synod,” “what is to be published by the corporation” (Bylaw 3.6.3 [c]). CPH does, therefore, fall within this broad category, most naturally by its board being one “of the Synod.”
In carrying out this responsibility for both, the document included in the Circuit Visitors’ Manual encourages the district president to appoint a pastoral advisor for the pastor as well as to consider appointing an advisor for the congregation. The appointment of an advisor in these instances is not addressed in the Bylaws.
With respect to the second inquiry, the category of “study documents and exploratory material” (Bylaw 1.9.1.1 [b]) is not without limitation. Since this term is not defined within the Bylaws, we must look to the natural meaning of the term and the context in which it is used. The most natural import of this term is that it is intended for a limited purpose. Indeed, the notice that is required under Bylaw 1.9.1.1 (b) for such materials includes that the material “is being released for study and discussion purposes.”
The Constitution and Bylaws of the Synod do not require the pastor or congregation to accept the advisor appointed by the district or prohibit their seeking advice from other sources. It is nonetheless conceivable and consistent with a district president’s office that he might advise against having a certain individual serve as an advisor out of concern that it would not prove helpful in resolving the matter at hand. Question 7:
In the LCMS adjudication process, do the same rights and privileges afforded to ordained ministers of religion in the LCMS Bylaws, SOPM, and other documents apply also to commissioned ministers of religion? If not, how does this ensure due process, fairness, and impartiality?
Opinion: The processes described in the Bylaws and Standard Operating Procedures Manuals apply to all members of the Synod. Question 8:
May a district president prevent an individual member of Synod from serving as an advisor to another individual member of Synod in the procedures of a congregation when potential removal of the called worker from office is at stake? If yes, how does this ensure due process, fairness, and impartiality?
Opinion: See answer to Question 6.
Scope of Bylaw 1.9.1.1 (b) concerning Concordia Publishing House (23-3010) Minutes of June 8–11, 2023 At the request of the Board of Directors of Concordia Publishing House (CPH), clarification was sought on the relationship between Bylaw 1.9.1.1 (b) and Bylaw 3.6.3 (d). Question 1:
Is CPH considered a “board[], commission[], or other subordinate group[] of the Synod” pursuant to Bylaw 1.9.1.1 (b) which may produce study documents and exploratory material, which if properly marked, may be published without first being submitted to the doctrinal review process?
Opinion: Bylaw 1.9.1.1 (b) provides an exception to the normal doctrinal review process for “study documents and exploratory
Could any board, commission, or other subordinate group produce material for study on any topic? Could, for instance, the Commission on Constitutional Matters produce study materials on exegetical or doctrinal topics? By no means. There must be a nexus between the Synod’s charge of the board, commission, or other subordinate group and the study materials it is producing. In the previous example, the Commission on Constitutional Matters is not charged under the Constitution and Bylaws with matters of exegesis or doctrine; therefore, it would not be appropriate for the commission to be producing such study materials outside of its purview. Any such materials would not aid the commission in the carrying out of its duties; instead, the production and publication of such would be more of a usurpation of responsibilities assigned to others under the Constitution and Bylaws. The commission finds that the scope of “study documents and exploratory material” conceived of as being produced, possibly without doctrinal review, by a given “board[], commission[], or other subordinate group[] of the Synod,” is limited by the specific charge given to the particular entity in the Constitution and Bylaws of the Synod. Materials that would not be in keeping with the charge of a particular “board[], commission[], or other subordinate group[] of the Synod” are not hereby authorized to be produced and published by that group. (Of course, where CPH is not itself generating a work but “supply[ing] publishing and distribution services for the agencies of the Synod as required,” Bylaw 3.6.3 [a], the applicable limitation on the scope of “study documents and explanatory material” is determined by the charge of the entity generating the document. The generating entity also bears the burden of satisfying the applicable requirements of doctrinal review.) This understanding of Bylaw 1.9.1.1 (b) comports with the history of that bylaw and historical practice. As originally enacted in 1971, the provision that has become Bylaw 1.9.1.1 (b) read: “The right to produce study documents and exploratory material plainly designated as such and published by boards, commissions, or other subordinate groups of the Synod is
recognized. When such material is to be issued publicly, it shall be subject to doctrinal review.” It is clear from this language that study materials were meant to be used by a particular board, commission, or other subordinate group (which use could include dissemination to a sphere of competent discussion partners in a study process of limited scope); not publicly. And if such materials were to be used by a particular board, commission, or other subordinate group, it naturally follows that such materials would be related to the charge of that board, commission, or other subordinate group. A key aspect of this system is discernment. A particular board, commission, or other subordinate group and its “sphere” as described above is competent to review and evaluate critically those items which fall within its purview. This discernment is also a key aspect of the related concept of dissenting from doctrinal positions of the Synod, where in objections are first raised “within the fellowship of peers (that is, with those who are competent to evaluate the issue critically)” (Bylaw 1.8.2) and then to the Commission on Theology and Church Relations. It would be nonsensical for a group to produce study material unrelated to its charge but to be used only by that group. Instead, these materials serve essentially as “penultimate” documents intended to result in a clearer or more correct public presentation of doctrine or practice in subsequent documents or efforts. Given this context, it is not surprising that the bulk of the study documents historically have originated with the Commission on Theology and Church Relations (Bylaw 3.9.5), which has explicit charges in this regard (Bylaws 1.6.2 [b][1–2], 1.8.2, 3.9.5, and 3.9.5.2–3.9.5.2.1). In 2007, the language of Bylaw 1.9.1.1 (b) was changed by deleting the final sentence of the original language (as included above) and inserting the provisions related to the required notice that exists in the current version of the Bylaw. The commission finds that the 2007 change did not fundamentally change the scope or purpose of “study documents and explanatory materials.” It changed the potential scope of distribution of such materials by removing the restriction on public issue of such items prior to doctrinal review. It did so while continuing to satisfy the concern that such documents be shared with discernment and not be understood as reliably teaching the doctrine of the Synod by requiring them to feature prominently the noted caution (Bylaw 1.9.1.1 [b]). Since CPH’s edition of Albrecht Peters’ Commentary on Luther’s Small Catechism (2009–13; hereafter, Commentary) was cited as an example in the materials provided to the commission related to this question, the commission finds it necessary to briefly discuss historical materials with doctrinal content (that is, falling under Bylaw 1.9.1.1 [a]; cf. Bylaw 3.6.3 [d]). Unlike materials that have not been published yet or materials of which the author is still living and able to make changes, these historical materials are not malleable. Yet, these texts may contain positions on doctrine that are not in alignment with Synod’s positions. The Bylaws do not provide an exception to doctrinal review for these materials, unless their distribution is contemplated strictly within the parameters of “study documents or exploratory materials” described above; their “historical” nature does not of itself render them such. The commission notes that the doctrinal review of these “historical materials” may require a more nuanced approach by the Commission on Doctrinal Review. One possibility for approval of such documents that are, on a whole, profitable for use, with discernment, in the Synod would be for the originating body to identify and include clearly in prefatory or other accompanying published material, to the satisfaction of the Commission on Doctrinal Review, statements
identifying doctrinal errors or statements that are “inadequate, misleading, ambiguous, or lacking in doctrinal clarity” (Bylaw 1.9.2 [f]) in the historical texts. “Positions deviating from the doctrinal resolutions of the Synod” shall be “clearly identified as such” (Bylaw 1.9.2 [g]). It may be a more difficult path to follow, but the path cannot be avoided as the Bylaws require such review. While the Commentary preface included the statement that the content had not been doctrinally reviewed, its being a study document, it also included such statements, which may—given the apparent intended audience of the work—satisfy any concerns about doctrinal statements included in the historical text itself (which obviously cannot simply be adjusted away). With respect to CPH specifically, it is a “board[], commission[], or other subordinate group[]” under Bylaw 1.9.1.1 (b) and is therefore able to produce study materials. But as with any other board, commission or subordinate group, the study materials it can produce are those that relate to matters that fall within its purview. CPH’s purpose is “to proclaim the Gospel of our Lord Jesus Christ.” (Bylaw 3.6.3). It does this “by developing, producing, marketing, and distributing” certain materials (ibid., emphasis added). Study materials produced by CPH, with no other originating board, commission, or other subordinate group, would be limited to study and exploration of development, production, marketing, and distribution. This sphere of responsibility would be very unlikely to generate a study document in the sense contemplated here. Bylaw 3.6.3 (d) requires that any of those materials CPH publishes that are of a religious or theological nature must be “approved through the Synod’s prescribed procedure for doctrinal review before publication.” (The interplay of Bylaws 3.6.3 [d] and 1.9.1.1 [b] will be discussed in the below opinion.) This restriction makes sense in that if CPH were to publish materials that were not doctrinally sound, it would undermine its purpose of proclaiming the Gospel of Jesus Christ. Question 2:
Assuming that CPH is such a subordinate group of the Synod, does Bylaw 3.6.3 (d) which states “All materials of a religious or theological nature shall be approved through the Synod’s prescribed procedure for doctrinal review before publication” prevent CPH from publishing material pursuant to Bylaw 1.9.1.1 (b)?
Opinion: The commission understands this to be a question of the interplay of Bylaw 3.6.3 (d) (which requires doctrinal review before CPH can publish) and Bylaw 1.9.1.1 (b) (which, as discussed above, allows for publishing in certain situations without going through doctrinal review). The commission finds that Bylaw 3.6.3 (d) requires CPH to comply with the doctrinal review requirements of Bylaw section 1.9 with respect to “all materials of a religious or theological nature.” Where CPH, within the “nexus” described in Question 1, satisfies the requirement of doctrinal review by way of the mechanism described in Bylaw 1.9.1.1 (b), it has there by satisfied the requirement of Bylaw 3.6.3 (d). The commission notes, in closing, that bylaws dealing with doctrinal review and dissent, given changes in the structure of the Synod and in the free exchange of information, may be due for comprehensive review and revision.
Doctrinal Review Challenge of Exempted Items (23-3014) Minutes of July 27–August 3, 2023 On July 28, 2023, the Secretary of the Synod asked the commission for an opinion on the following question, which the commission ad-dressed while the Secretary was attending to convention business: Question:
Noting Op. 17-2869, does Bylaw 1.9.1 (and Bylaw 3.9.3) permit material exempted from original doctrinal review under Bylaw 1.9.1.1 (g) or (b) to have its doctrinal review certification appealed, following publication, under the procedure of Bylaw 3.9.3.2.2?
Opinion: Op. 17-2869 does not have as its subject matter the exceptions noted in Bylaw 1.9.1.1 (b) or (g), but does put forth the general position that all matters can have their doctrinal statements reviewed: “The primary responsibility for doctrinal supervision and review lies with the President of the Synod” (1.9.2 [a]) and he exercises this responsibility for doctrinal review of all materials and publications of Synod and its agencies or auxiliaries either through those reviewers appointed under Bylaw 1.9.2 (a) or through those stipulated separately in 1.9.1.1 (c–f). The exceptions noted in Bylaw 1.9.1.1 (b) or (g) are not subject to doctrinal review and are therefore not doctrinally certified. The first requirement of Bylaw 3.9.3.2.2 is that the publication challenged be doctrinally certified. Without the publication being first doctrinally certified, the challenge procedure outlined in Bylaw 3.9.3.2.2 is not available. Therefore, any questions concerning the doctrinal content of those matters under Bylaw 1.9.1.1 (b) and (g) would normally be referred to the President of the Synod.
Proposed Amendments to Convention Resolutions (23-3012, cont.) Minutes of July 27–August 3, 2023 The commission reviewed several proposed amendments to resolutions published in the First Edition of Today’s Business, upon request either of their submitters or of floor committees to which they had been recommended. (H) Proposed Substitute for Res. 7-03, “To Work Toward Resolution with Concordia University Texas” In its review of Substitute Resolution 7-03 (2023 Today’s Business, 3:395) the Commission on Constitutional Matters notes that while agencies and corporate Synod are eligible for the dispute resolution process, such a dispute cannot involve the interpretation and of the Constitution and Bylaws, since the Synod in convention has assigned this responsibility to the Commission on Constitutional Matters. As stated in Op. 23-3006: Question 6:
Assuming a university of the Synod and its board of regents are eligible parties to the dispute resolution process set forth in Synod Bylaw section 1.10, does the dispute resolution process apply to a dispute between the Synod (or its President or Board of Directors) and a board of regents regarding that board of regents unilaterally amending or modifying its governance documents, and regarding whether the action of the board of regents is within the authority granted to it under the Constitution and Bylaws of the Synod?
Opinion: Essentially, no. The fundamental material question of whether a Synod university has the authority to unilaterally change its governance from that prescribed
in the Constitution, Bylaws, and resolutions of the Synod, since such a question pertains fundamentally not to the presenting fact situation but to the interpretation and meaning of the Constitution, Bylaws, and resolutions of the Synod, is outside of the authority of the dispute resolution process to arbitrate or adjudicate, as stated in the Bylaws. Authority to interpret the Constitution, Bylaws, and resolutions of the Synod is specifically given by the Bylaws only to the Synod’s Commission on Constitutional Matters (Bylaw 3.9.2.2). Any dispute resolution process is subject in all its aspects to “Holy Scripture, the Lutheran Confessions, and the Constitution and Bylaws of the Synod” (Bylaw 1.10.18). As to the Constitution and Bylaws of the Synod, opinions of this commission are finally dispositive of any questions as to their interpretation that arise during a dispute resolution process (Bylaw 1.10.18 [h], [h][1]). While the question of whether a board of regents has the authority described is thus finally resolved by this commission’s interpretation of the Constitution and Bylaws in the negative, this is not to foreclose the applicability of the dispute resolution process to disagreements or disputes, related to or arising out of this action, as may apply to the board of regents as a whole or to individual regents as “members of congregations of the Synod elected or appointed to positions with … an agency of the Synod” (Bylaw 1.10.2 [5]). Any proposal to submit a dispute regarding matters of governance either to the Synod’s dispute resolution process or an external mediator is out of order. The commission notes, as it did in Op. 23-3006, that the Synod’s dispute resolution process could be available to the various individuals involved in the dispute should they desire to seek personal reconciliation, and is the exclusive remedy (Bylaw 1.10.1.1): 1.10.1.1 The Holy Scriptures (1 Cor. 6:1–7) urge Christians to settle their differences by laying them before the “members of the brotherhood.” Therefore, the Synod in the spirit of 1 Corinthians 6 calls upon all parties to a disagreement, accusation, controversy, or disciplinary action to rely exclusively and fully on the Synod’s system of reconciliation and conflict resolution. The use of the Synod’s conflict resolution procedures shall be the exclusive and final remedy for those who are in dispute. Fitness for ministry and other theological matters must be determined within the church. Parties to disputes are urged, in matters of a doctrinal nature, to follow the procedures as outlined in Bylaw section 1.8. The parties here would be required to use the 1.10 dispute resolution process, which includes both the formal component and the informal component. If the parties desire to use a mediator in that informal process, they would be required to use a Synod reconciler (Bylaw 1.10.5) rather than an external mediator. Any use of an external process or mediator is precluded by Bylaw section 1.10.
Specific Ministry Pastor Supervision of Commissioned Ministers (23-3017) Minutes of March 15–16, 2024 By an email of September 27, a district president requested an opinion on the following questions regarding the permissibility of supervision of commissioned ministers by a specific ministry pastor (SMP). Consonant with Bylaw 3.9.2.2 (b), the commission requested, received, and reviewed input from the Council of Presidents and members of the Pastoral Formation Committee. Having concluded
the extensive discussion begun in its December meeting, the commission offers the following background and responds to the series of questions as follows: Background: Interpretation of Bylaw 2.13.1 (a) The questions asked arise out of Council of Presidents Policy Manual 14.2.3’s assertion (dated April 2018) that the “supervision of commissioned ministers, other roster ed workers, a school, etc.” by an SMP is precluded by Bylaw 2.13.1 (a)’s prohibition of the SMP “[being] placed or called into ecclesiastical roles that exercise pastoral oversight outside the context of his call.” The commission must first address the meaning of Bylaw 2.13.1 (a), namely, to determine if the language “outside the context of his call” necessarily prohibits the specification of an SMP’s call as involving supervision of some other called worker, such as a commissioned minister. The “Background” for 2007 Resolution 5-01B slightly elucidates “outside the location of his call,” the original language of the noted bylaw, adding (Proceedings, 135) the clarifying language “i.e., in the church-at-large,” along with the four subordinate examples that came to be included as the prohibitions of Bylaw 2.13.1 (b)(1–4). It further speaks of the SMP’s “jurisdictional” limitations being on the basis of “theological education [] formed within the context of [an SMP’s] specific ministry and [that] does not represent the breadth and depth of theology and ecclesiology that forms a basis for pastoral oversight beyond the local level.” (In the related bylaw language, 2010 Res. 7-05 replaced location with context, with the sole stated purpose of preventing the misinterpretation of Bylaw 2.13.1 [a] to mean that an SMP cannot receive a call to a new position of service, even though he has been trained for such and certified for such as determined by his district president.) The prohibition of Bylaw 2.13.1 (a) does not, therefore, address the SMP’s exercise of pastoral oversight within his parish, as may be assigned to him in the role described in his call documents (e.g., sole pastor, staff pastor). Rather, it addresses and prohibits his undertaking ecclesiastical roles exercising pastoral oversight in the church-at-large, such as (but not limited to) those listed in Bylaw 2.13.1 (b)(1–4). Granting that this is far from the only consideration in whether an SMP may properly be placed into such a role (see further below), Bylaw 2.13.1 (a) does not itself, therefore, prohibit an SMP’s specific context and call from being defined to include supervision of another called worker of the same parish, such as a commissioned minister. This understanding of Bylaw 2.13.1 (a) is consistent with the Synod’s designation of the SMP as pastor and even in some circumstances as sole pastor of his parish. The bylaw limits the SMP’s jurisdiction to the scope defined by his present call (see 2007 Res. 5-01B, “Background,” Proceedings, 133–34) but does not make him less a pastor within the scope of that call. (This is not, however, to deny that his service as pastor remains, throughout his service as an SMP, subject to the additional supervision of a general ministry pastor.) Considering specifically a sole-pastor SMP, while such SMP remains under the supervision of another ordained minister (not SMP) who serves outside his parish, such SMP and not that supervisor (whose call is elsewhere) is the pastor of his parish. The sole-pastor SMP (as opposed to being one in a staff-pastor position) exercises the fullness of the pastoral office in that congregation (including preaching the Gospel, administering the Sacraments and the authority of spiritual judgment, Walther’s Ministry Thesis V). Any auxiliary offices in the parish necessarily serve under his pastoral oversight, as from his office as the pastor of the congregation all others originate as helpers to it (Walther’s Ministry Thesis VIII).
He serves, in turn, under the ecclesiastical supervision of his district president (as does any pastor who is a member of the Synod), as well as under the additional supervision1 of a non-SMP pastor. The authority, however, of his office as pastor loci is not diminished by Bylaw 2.13.1 (a); diminished only is his jurisdiction outside the scope defined by his call (in this case, outside his parish).
Background: SMP Formation, Specific Ministry Context, and the Role of District Presidents At the same time, the theological education of an SMP is formed for a specific ministry context: “[The SMP] is eligible to serve only in that specific ministry context for which he has been trained and may not be offered or accept a call for ministry for which he has not been certified as determined by his district president” (Bylaw 2.13.1). The SMP program consists—by design, as an exceptional route—of training and formation that lacks the depth and breadth of preparation afforded by the M.Div. track: “Emerging needs and economic pressures often make it impossible to call a pastor who has received a broad and thorough theological education to every congregation or mission station where, nevertheless, people need to hear the Gospel” (2007 Res. 5-01B, “Background,” Proceedings, 133). The SMP curriculum focuses on “basic competencies” for Word and Sacrament ministry, with seminars and local mentorship touching on aspects of the particular context (perhaps including “basic mission planter training, edge gathering, and advanced mission planter training”) (id., 134). Upon certification, call, and ordination, “the student is placed on the pastoral roster of the Synod as a ‘specific ministry pastor.’ He now may preach and administer the Sacraments under supervision in a specific locality.” He subsequently must complete the educational program to “continue development of the foundational competencies necessary for serving as a specific ministry pastor” (id., 135). Specific ministry pastors are “pastors certified for calls into specific ministry contexts, who serve under the supervision not only of the district president but also of a designated general ministry pastor. As such, they are eligible for calls into a similar specific ministry context, where they continue under the supervision of a general ministry pastor” (id., 135). While the specific kind of ministry or context may vary in some duties and responsibilities from situation to situation, what does not change is that the SMP remains under the supervision of a pastor who is not SMP. This supervision is essential to the ongoing service of SMPs in whatever context and continues as long as the SMP is in service or roster ed, unless he continues his education and reaches “a level appropriate to general ministry pastor” and, as a result of an examination, has his status changed (ibid.). In view of the fact that “an SMP pastor has been certified and ordained to serve in a specific kind of ministry” (emphasis added), the implementing resolution looked for “opportunity” for such a pastor “subsequently to be prepared to serve the church more broadly,” noting that this further necessary preparation would require “a combination of further academic preparation, accumulated pastoral experience, and examination (id., 134).” In view of the limited training and formation of SMPs, 2013 Res. 5-04B resolved “that district presidents not approve specific ministry sites which could reasonably be expected to support a general pastor or sites where a minister of religion–commissioned could fulfill the duties” (Proceedings, 140). This restriction, still in effect, underscores and circumscribes the authority and responsibility of district presidents to limit the calling or service of SMPs to ministry contexts for which their training adequately prepares them and for which there is no option of a more fully trained minister. The convention adopted this resolution citing the prior report of the SMP task force, as follows: “Special circumstances (e.g., small parishes which cannot afford a pastor) exist. Flexibility is vital as the church fulfills her vocational calling to preach the Gospel to everyone everywhere. While the church cannot maintain her theological integrity, fidelity, and courage in these bewitching times unless she has an overall well-trained and doctrinally steeped ministerium, special circumstances warrant less-trained pastors so the means of grace can be delivered by a called and ordained pastor. Therefore the task force recommends the retention of the SMP program for special circumstances” (id., 139–40). The SMP program remains an exceptional path to the exercise of the pastoral office and not the ordinary one. To ignore this distinction is to violate the very provisions by which the SMP program was conceived and for which it was established. Clearly, the training ordinarily provided for an SMP does not prepare him adequately for every type of parish call, even for every one that exercises pastoral oversight only within the parish context. As Bylaw 2.13.1 and the fifth resolved of 2013 Res. 5-04B make clear, “the respective district president remains responsible for determining the appropriateness of the specific ministry” (id., 139), a responsibility that must be undertaken with deliberate care and wise judgment about the content and adequacy of SMP training for the responsibility and authority to be exercised within a particular call to a particular parish. (The Council of Presidents as such [or as the Board of Assignments, Bylaw 3.10.1.3] may also have a role with respect to the definition of such contexts, at least initially, as these men are “placed by the Council of Presidents into a specific Word and Sacrament ministry context” [Bylaw 2.13.1].) Finally, while the question fundamentally turns on the interpretation of Bylaw 2.13.1, the SMP program is set forth by 2007 Res. 5-01B, and it is also incumbent on the commission to weigh the significance of this resolution (and others) relative to the question at hand. To the commission, the training of an SMP as described in the enabling and subsequent resolutions and in the SMP Policy Manual (2021) of Concordia Seminary, which the commission examined, does not appear to contemplate service at the head of a parish staff including a school or professional church worker auxiliary offices (commissioned ministers). That the preparation of a typical SMP2 is less in some respects than that of a commissioned minister is reflected by the prohibition of 2013 Res. 5-04B. A careful judgment is required of the district president as to a particular ministry context (call, parish) and to some extent to a particular man, whether the service of an SMP in a given capacity is appropriate. This judgment is unique to every case, and is not the purview of the commission, but of the district president. The commission offers that the SMP program has been addressed in some fashion by each convention since its adoption in 2007 and that, as it continues to account for an increasing proportion of ordained ministers in the Synod—which, in local areas, has become significant—elements of its implementation continue to present challenging unc lari ties and require district presidents to exercise significant judgment with little clear and concrete guidance. Such is the genesis of these questions and of this opinion, which had to be rendered on some very fine historical distinctions of few bylaw words. This is perhaps itself a call for the convention to assess and clarify yet again.
Question 1:
Is there any circumstance under Bylaw 2.13.1 in which an SMP might have supervisory authority over a commissioned worker?
Opinion: Yes, in limited circumstances. The commission must first clarify the sense of “supervisory authority” in the question. Whether an SMP can exercise “employment” supervision, generally, over others employed by his parish is a matter of the congregation’s self-governance (Constitution Article VII), into which the commission does not intrude. The commission specifically addresses pastoral oversight,3 that being the sense in which the holder (sole or senior pastor of the congregation) of the Office of the Holy Ministry in that place oversees the doctrine, practice, and life of those occupying any auxiliary offices in the congregation, a consequence of their offices assisting and being responsible to the Office of the Holy Ministry he bears (cf. Walther’s Ministry Thesis VIII). As explained above, Bylaw 2.13.1’s main paragraph limits the development of an SMP to a “specific Word and Sacrament ministry context” for which the training, which lacks necessarily the breadth and depth of general pastoral formation, in the judgment of the district president, can be expected adequately to prepare him. His subsequent calls are limited to ones for which the district president can certify his limited training as preparing him. Bylaw 2.13.1 (a), as explained above, does not address the pastoral authority of an SMP within his context (call, parish) and therefore does not itself preclude his role being defined to include supervision of, for example, a commissioned minister within his parish. This does not diminish the responsibility of the district president to approve the training and calling of SMPs to only those specific ministry contexts for which the training is adequate and for which more fully prepared options are not available (2013 Res. 5-04B). While the commission cannot foreclose the possibility (e.g., with regard to an SMP who also served capably as a commissioned teacher/principal) that a particular SMP could be equipped to exercise pastoral oversight, within his parish, over a commissioned auxiliary minister, it does not find this ordinarily to be the case—a position supported by, for example, 2013 Res. 5-04B’s assertion that SMPs not be used where a commissioned minister could fulfill the duties. Ultimately, however, this lies within the determination by the district president that the specific ministry context (call, parish), involving as it does whatever supervisory capacities with regard to auxiliary offices present in the context, is one for which the necessarily limited training of an SMP adequately prepares him. Question 2:
For example, if a large congregation with a staff of senior pastor, SMP, a director of Christian education, a full day school staff, and a director of parish music experiences a vacancy in the senior pastor position, what would be the appropriate relationship between the SMP and the commissioned workers?
Question 3:
If the answers to the above questions indicate that there is never a circumstance that an SMP might have supervisory authority over a commissioned worker, would that obligate congregations in the scenario envisioned above to engage a vacancy pastor in order to maintain proper supervisory authority over not only the SMP, but also all commissioned workers involved?
Opinion (regarding Questions 2 and 3): Relationships inherent to the SMP’s current call would be unchanged. As to relationships requiring adjustment due to the senior pastor vacancy, it is the parish’s determination—with the benefit of the advice, counsel, and ecclesiastical supervision of the respective district president and within the commitments it has made as a member of the Synod—how pastoral oversight will be provided for in the vacancy. (It should be noted that an assistant or associate pastor remaining in the parish does not always serve as the senior during a vacancy, even where he is a general pastor.) If the district president cannot certify that the SMP is adequately trained to take on oversight of the congregation’s auxiliary offices (or otherwise, to carry out the role of the senior pastor), the congregation will need to obtain the service of a different vacancy pastor who is so equipped. The SMP “is eligible to serve only in that specific ministry context for which he is trained” and may not serve outside that context (call, parish) without the certification of his district president (Bylaw 2.13.1).
Endnotes 1. 2007 Res. 5-01B and the bylaws it introduced appear to have used the terms supervision and oversight without reference to the definitions of Bylaw 1.2.1. Supervision here does not appear to be either “to have authority over, to direct actions, to control activities” (the definition of supervision, Bylaw 1.2.1 [u])—because the SMP and neither the supervising general pastor nor the district president is pastor within the scope of the SMP’s call call—or, in the case of the supervision general pastor, the fullness of the ecclesiastical supervision assigned to the district president (Bylaw 1.2.1 [i]). The Council of Presidents continues to define, in practical terms, the sense of the general pastor’s supervisory work. This terminology is referred to the Commission on Handbook for potential clarification. 2. Some particular SMPs, of course, already possess certification as a commissioned minister. While the particular SMP may there by have the training expected of a commissioned minister and ought not by virtue of additional SMP training be excluded from commissioned ministry roles, it should not be presumed that this combination constitutes adequate preparation for pastoral supervision of commissioned ministry in a congregation. 3. See note 1 above regarding the use of oversight in a sense likely far more general than that of Bylaw 1.2.1 (p).
Lutheran Church Extension Fund Articles of Incorporation and Bylaw Review (23-3024) Minutes of March 15–16, 2024 In its review of a proposed amendment to the Lutheran Church Extension Fund (LCEF) Articles of Incorporation (Op. 23-3015, minutes of September 6, 2023), the commission had noted a number of additional items potentially requiring attention and indicated that it would undertake a full review of the LCEF bylaws and consult with LCEF regarding some of them, in particular, the requirement of Synod Bylaw 3.6.1.3 (a) that “a minimum of one-third of the voting members of every governing board [of a synodwide corporate entity] shall be elected by the Synod in convention.” The commission now undertakes that review. In addition to the bylaw items identified in the commission’s previous review (Op. 233015, September 6, 2023, these reproduced here for convenience), the commission notes the following, marked as “(new)”: Articles of Incorporation (new) ARTICLE SEVENTH: “subject to the Constitution and Bylaws” should read “subject to the Constitution, Bylaws, and resolutions.” (Bylaw 3.6.1.8 [b]) ARTICLE EIGHTH: members-at-large are limited to three successive terms, while in the corresponding bylaw (Article I, Section 1 [c]), there is no qualification on the limit of three terms. This is inconsistent. Presumably, the bylaws should
be brought into line with the articles (see below). ARTICLE EIGHTH: the commission notes that the “rounding down” of the number of additional members appointed by the Synod Board of Directors is not inherent in controlling Synod Bylaw 3.6.4.2.1; however, the commission notes this aspect of the LCEF articles as “semi-original” (dating to the implementation of the 1979 structure in 1981 LCEF articles) and does not find it, therefore, to require modification. Bylaws Article I, Section 1 (c): see above under ARTICLE EIGHTH: “three terms” should read “three successive terms” (new). Article I, Section 2: while not inconsistent with the Constitution and Bylaws of the Synod, a reference to “written or telegraph notice” of a special meeting may be worthy of update.
Article II, Section 1: Synod Bylaw 3.6.1.3 (a) provides that a minimum of one-third of the voting members of the governing board of a synodwide corporate entity shall be elected by the Synod in convention. Thus, with three voting members elected by the convention, LCEF’s board may contain no more than six appointed voting members; it presently has eight. Bylaw 3.6.1.3 (a) was (as Bylaw 3.192, reading “A minimum of approximately one-third” until 2004) introduced by 1998 Res. 8-02B, for “implementation following the 2001 convention” (Proceedings, 166). A review of LCEF Bylaws in the commission’s files noted a modification by the LCEF membership in November of 1999, containing provisions adopting the present makeup of the LCEF board “beginning with the installation of officers elected at the convention of the [Synod] occurring in the year 2001.” The language adopted by LCEF designated three members to be elected by the Synod in convention, as newly required by 1998 Bylaw 3.490, but did not reduce the total size of the board to bring the ratio into alignment with Bylaw 3.192 (present-day Bylaw 3.6.1.3 [a]) or with the comment under which the 1998 change to Bylaw 3.490 was adopted, which indicated that the change was to “establish[] that a minimum of approximately [n.b., the Bylaw no longer allows approximation] one-third of the voting board members are elected by the Synod in convention” (1998 Res. 8-03B, Proceedings, 167). (Perhaps the ratio of 3/11 was felt to be “approximately” 1/3 at the time, although documentation of this conclusion has not been identified.) Nonetheless, this reflects the identification of a long-standing but apparent conflict between the Bylaws of the Synod and those of LCEF, which needs to be corrected.
Article II, Section 3: Here it is provided that no director may be re-elected after serving four consecutive terms; Synod Bylaw 3.6.4.3, however, does not read “consecutive” or “successive,” but limits directors of LCEF to four terms total.
Article II, Section 4: It would be appropriate to include the requirement of Synod Bylaw 1.5.3, that the board of directors meet at least quarterly (new). Article II, Section 6 (f): perhaps “including the District Vice-Presidents” is intended here? Article VI, final sentence: “to ascertain that” should read (cf. Bylaw 3.6.1.7 [a]) “for it to review and approve that.” Synod Bylaw 1.5.2 requires implementation of the Synod’s conflict of interest policy. While explicit mention in these gov-erning documents is not required, the commission wishes to ensure this is implemented (new). The commission thanks LCEF for submitting its articles and bylaws for review and looks forward to reviewing a draft of changes developed pursuant to this review. Foremost among issues identified is the requirement of Synod Bylaw 3.6.1.3 (a), that a minimum of one-third of the voting members of the governing board of LCEF be elected by the Synod in convention. The commission understands consultation to be underway between LCEF and the Secretary as to how LCEF’s governing documents and organization can be brought into compliance with this requirement.
District Convention Advisory Delegate Poll and 2023 Res. 9-08A (24-3025) Minutes of March 15–16, 2024 By an email of February 13, an ordained minister serving a district of the Synod requested an opinion on the following matter (as it was revised and extended by the Secretary for clarity). Consonant with Bylaw 3.9.2.2 (b), the commission requested input from district presidents, district boards of directors, and the Praesidium of the Synod.
Background: A district of the Synod in 2022 adopted a resolution directing the district to provide for a non-binding advisory vote of nonvoting advisory delegates prior to votes taken at 2025 and subsequent district conventions. (This has been, in one form or another, a practice of long or short standing in a number of districts.) The 2023 Synod convention, meanwhile, adopted Res. 9-08A, “To Strengthen Nonvoting Advisory Delegate Participation at Conventions,” which reads in relevant part: “Recent efforts have included polling advisory delegates prior to delegate voting, but in addition to violating the established rules of order (Robert’s Rules of Order, Newly Revised [12th ed.] 45:72), such polling reduces the advice and counsel given to a single word—either ‘Yes’ or ‘No.’ The counsel these advisors can bring is much more nuanced and valuable than merely a single word” (emphasis added). Question:
Taking into consideration 2023 Res. 9-08A and Bylaw 4.2.1 (f), “The president of the district shall conduct the sessions according to accepted parliamentary rules […],” is it consistent with the Constitution, Bylaws, and resolutions of the Synod for a district convention to conduct a non-binding advisory vote of nonvoting advisory delegates prior to votes of voting delegates?
Opinion: 2023 Res. 9-08A has, in response to a number of overtures suggesting broader use of the non-binding advisory vote (Ov. 9-20–25), considered the question of strengthening nonvoting advisory delegate participation at conventions and recommended other means instead, raising concerns regarding rules of order and that advisory delegates’ advice not be reduced to a simple yes or no. The resolution did not, however, prohibit the practice. Furthermore, the commission observes that Bylaws 3.1.9 (i)(3) and 4.2.1 (f) do not prescribe Robert’s Rules of Order, Newly Revised (RONR) or any other parliamentary manual in such a way as to prevent the alteration of its rules by a Synod or district convention adopting special (or “standing,” RONR 2:24, 59:27–37) rules (id., 2:16n5, 2:22). Both Synod and district conventions thus frequently alter the basic provisions of Robert’s (or whatever other parliamentary manual might be used), in a manner fully in accord with “accepted parliamentary rules” (id., 2:14–24).
Therefore, while the Synod in convention has recommended otherwise—and these recommendations should be taken under serious advisement by districts in ordering their conventions—it is not prohibited by the Constitution, Bylaws, and resolutions of the Synod for a district to conduct the contemplated non-binding advisory vote, provided its convention has adopted a special rule providing for such.
Lutheran Church Extension Fund Canada Corporation (23-3005A) Minutes of August 9–10, 2024 This opinion is potentially relevant to discussions of corporate form requirements. However, due to its length and nature as a line-byline review, it is not incorporated here except for the following. See minutes. Broader observations and recommendation: 1981 Res. 5-07 was proposed by the Board of Directors in response to a commission opinion (Ag. 1433, minutes of July 25–26, 1980; see also minutes of October 24–25, 1980; January 30–31, 1980; February 19, 1981; and April 24–25, 1981) regarding separate incorporation of a district church extension fund, the essence of which was that absent a bylaw or resolution prohibition of districts separately incorporating their church extension operations—notwithstanding a Board for Church Extension policy to the contrary—districts could incorporate their church extension funds “for the same reason for which at least in part the Synod [had], namely, to protect the assets of the fund.” 1981 Res. 5-07 was adopted to address the concern that the approach of this opinion (Ag. 1433) would result in unregulated incorporation of sub agencies by agencies of the Synod in general. It seems that—adoption of the resolution and two subsequent (2004 Res. 4-11 and 2016 Res. 9-02A), partial revisions notwithstanding—a state of “uncertainty, possibly contradictions, conflicts, complexities, and definite lack of clarity” (1981 Res. 5-07, first whereas) remains regarding the requirements for subsidiary corporations. The commission respectfully suggests that the Board of Directors undertake again, as in 1981, to clarify the requirements necessary to protect the Synod’s interests at the incorporation or revision of corporate documents of Synod’s agencies and sub agencies, taking into account not only the remaining-in-force aspects of 1981 Res. 5-07 and 2016 Res. 9-02A, but also, generally, the requirements of Bylaw section 1.5, many of which have proven problematic for specific types of corporate instruments (for example, foreign mission corporations) in ways that are both difficult to adjust and outside the very narrow ability of the board to grant exceptions (see Bylaw 1.5.3.6). Such a project could take into account legal opinions as to the effectiveness or sufficiency of controls in place and, where conditions do not permit the obvious mechanism to be implemented as required, provide a framework within which the board could grant studied exceptions to individual corporations or classes of corporations, providing the Synod with effectively the same necessary assurances by different means. This would be a worthy project if for no other reason than that the last, partial attempt to address these issues will be a decade old by 2026 and that it leaves us to rely in part on a standard that will be 45 years old, which itself is not documented in the Bylaws. The proliferation of sub agencies and their worldwide projection, as well as decades of change in corporate law provide further urgent motivation. The commission also found, in researching the history of corporate formation among Synod sub agencies since 1981 forits opinion in the instant matter, many other weighty reasons for this undertaking. Were the fruit of such an effort to be adopted by the 2026 or some future convention, a review and revision of governing documents under clear standards and with rational and justifiable exceptions could then—finally—be undertaken, and a clear and useful standard could be established for decades to come. This would be helpful to the Synod and her agencies, and their continued, well-governed service for and on behalf of their member congregations. The commission requests that the Secretary highlight this matter for the attention of the Synod’s Board of Directors.
Lutheran Church Extension Fund Canada Corporation (23-3005B) Minutes of September 23, 2024 This opinion is potentially relevant to discussions of corporate form requirements. However, due to its length and nature as a line-byline review, it is not incorporated here. See minutes.
Concordia Plan Services Property Casualty Insurance Program (24-3043) Minutes of February 3, 2025 By an email of December 3, the president and CEO of Concordia Plan Services (CPS) forwarded a request for opinion on a proposal, shared with the Board of Directors in November, to develop an alternative risk management solution, involving creation of a single-parent captive1 insurance company to serve Synod agencies (CPS has administered the insurance program for such for some years, but without a captive) and, for the first time, member congregations and schools. The captive could offer property, liability, automobile, and worker’s compensation coverages; other coverages would be offered through a fully-insured carrier. CPS would enter into arrangements for program administration, a fronting carrier, reinsurance, etc. The proposal is in response to urgent needs of congregations and schools facing dramatically increasing premiums or even serious problems with placement of insurance (impacting also the work of the Lutheran Church Extension Fund); it is projected to offer lower, or at least stabilized, premiums and more accessible placement not only for these but also for participating Synod agencies.
be a new activity for the Synod, although convention material2 and board minutes3 show that this is not the Synod’s first look at assisting congregations with their property casualty insurance needs. Nonetheless, its constitutionality must be assessed. Simply put, in the absence of a specific convention directive (Bylaws 1.3.3; 1.4.1, 1.4.5), have the congregations asked the Synod to support them in this fashion, for the conduct of their ministries (Bylaw 1.1.1)? A. Necessity of Constitutional Review In order for the contemplated activity to be constitutional, it must flow from the objectives of the Synod stated in Constitution Article III. A surface reading of this article in isolation reveals no obvious reference to provision of property casualty insurance to member congregations or other related organizations, or even to a related class of services.4 The Synod’s constitutional framework authorizes officers “[to] assume only such rights as have been expressly conferred upon them by the Synod” (Constitution Article XI A 1). With regard to this limited grant, the Synod “at all times has the right to call its officers to account” (Const. Art. XI A 2). The right to pursue activities beyond the Synod’s stated objectives is, obviously, not expressly conferred. The Synod has accepted, as will be seen, that there is a limited category of activities not explicitly present among but constructively identified as within the Synod’s explicitly stated objectives. The expansion of work into such areas is, however, fraught with constitutional peril for the officers and agencies undertaking it (not to mention the risk of investment of a presumably significant portion of necessarily limited resources in an activity a convention could later summarily determine not to be within its charge to the Synod and its agencies). If undertaken, expansion of such work must be undertaken with due care. B. Contextual and Historical Understanding of Const. Art. III in General
Is provision of property casualty coverage, as described, within the constitutional purposes of the Synod and, therefore, an activity for which an agency (Bylaw 1.2.1 [a]) may be formed in a manner consistent with the Constitution, Bylaws, and resolutions of the Synod? (It is understood that formation of such an incorporated agency requires, at least under BOD Policy 6.12 and underlying resolutions, the approval of the Synod Board of Directors.)
Under the broad reasons of the Preamble (one of which is “our Lord’s will that the diversities of gifts should be for the common profit,” 1 Cor. 12:4–31) and the confession of Art. II, Const. Art. III states the objects of the Synod (or Synodical Union). These are augmented or made more concrete (as touching on material, financial, and civil aspects) by the explanatory language of Bylaw 1.1.1, which summarizes the Synod’s purpose as being “organized to work in support of and on behalf of congregations to assist them in carrying out their ministries. ...” Article II of Synod’s Articles of Incorporation (AOI) reinforces the view that the Synod (or its authorized agencies) may provide some business and property services not explicit in Const. Art. III. Objectives included there are “(b) To assist in the establishment of Evangelical Lutheran congregations and preaching stations”; “(c) To assist, advise, and protect member congregations …”; “(f) To provide assistance and resources to the congregations [and] schools … for the dissemination of the Christian Gospel”; and “(g) To establish and conduct all such enterprises and endeavors and to exercise such further power as may be necessary or expedient to carry out the objectives stated in the Constitution.” The Synod has incorporated not only to provide aid and counsel narrowly focused along the particular, ecclesial lines described in Const. Art. III but, in part, to assist its member congregations in the areas of business and property, so as to support generally their practical existence and work.
Opinion: Provision of (or facilitation of the placement of) property casualty insurance for member congregations, schools, and perhaps recognized service organizations through a captive would
While Const. Art. III is certainly central to the fundamental definition of Synod’s purposes, a completely rigid, isolated, surface reading of the article is thus not con textually tenable.
CPS requested an appearance before the commission to answer any questions and to provide further explanation. This was deferred until the commission could review the material and ultimately determined not to be necessary. The commission has distilled two essential questions out of the memorandum provided by CPS as follows: Question 1:
Neither is such a reading historically tenable. It may be observed that the Art. III objectives (other than the 10th) are more ecclesial in emphasis; they lack obvious reference to the accustomed, concrete efforts of the Synod to assist congregations and other entities with financial or other services. This is most notable and relevant, as congregational property matters are involved here, with regard to the work of church extension—an activity in which the Synod has been formally, substantially, and nationally involved since 1902,5 even well before the modern statement of the Constitution in German and then in English (1917–20). The work of church extension must be constructively identified within Article III, as will shortly be demonstrated, with relevance to the presently contemplated activity. C. The “Constructive” Constitutionality of Church Extension Work Prior to the 1979 revision, the Synod’s second constitutional objective was “The joint extension of the Kingdom of God,” “joint” being added in 1924. This, compared with the post-1979 text, provided more explicitly fertile constitutional ground for the work of church extension. 1979 Res. 2-03, which amended the objective, however, lists as rationale that “the objectives … should reflect the mission of congregations organized to strengthen one another for service”; “should affirm the Synod’s role as an organization designed to serve congregations as God uses them to extend His kingdom”; “should include the Synod’s program of social ministry and its program of care for its full-time workers”6; and “should be stated in terms of action that reflect the urgency of the call to be in mission.” The 1979 change in language in the second objective must be understood in light of the stated rationale, resulting in an ultimate meaning closer to the broader, pre-1979 language than would first appear. (That is, a completely rigid, isolated, surface reading of Art. III is not historically tenable.) The language appears to be intended to be a more detailed, rather than narrower, statement of the same idea, emphasizing with precision the efficient means (bold witness) that brings about the “joint extension of the kingdom of God.” “Strengthen[ing] congregations” in this may involve support distantly ancillary to the central activity of “bold witness by word and deed,” extending—at least in the case of church extension work—to materially aiding the congregation’s (or school’s) possession, retention, and actual use of a building in which regularly to carry this out.7 The financial and administrative work of church extension (i.e., principally, building and maintaining properties for member congregations, schools, and recognized service organizations), as performed by the Lutheran Church Extension Fund and a few remaining district funds, is thus comprehended, albeit not obviously or explicitly, in the Synod’s second constitutional objective, along with the rest of a limited class of generally “strengthening” activities contemplated in Art. of Inc. II, as noted above, but not explicitly enumerated in Const. Art. III. The Synod is to “strengthen congregations … in giving bold witness by word and deed” (Const. Art. III 2) by serving “as an organization designed to serve congregations as God uses them to extend His kingdom” and as a vehicle of “congregations organized to strengthen one another for service” (1979 Res. 2-03) and thus to support materially as well as spiritually “the joint extension of the Kingdom of God” (pre-1979 Const. Art. III 2). The “constructive” constitutionality of church extension work by a Synod agency, as thus understood, is supported by a long history of acceptance and the convention’s repeated confirmation of this
impression by adoption of bylaws explicitly delimiting the scope of work of the relevant entity, principally Bylaws 3.6.4–3.6.4.4.2 and 3.6.1–9. D. Application to the Provision of Property Casualty Insurance to Synod Congregations and Schools The commission has identified that the “strengthening congregations … in giving bold witness” language of Const. Art. III 2 is historically and con textually open to the possibility of including implicit, constructively constitutional activities. (The commission considered and discarded many other theories of constitutionality related to the presently contemplated activity, some of which were suggested by the petitioner, involving objectives 4, 5, 6, 9,8 and 10.9) The contemplated activity is considered with respect to this class of “generally ‘strengthening’ activities” within which the work of church extension falls. Like church extension, this activity could “strengthen congregations” in their central activity of “bold witness by word and deed” by materially aiding the congregation’s (or school’s) possession, retention, and actual use of a building in which regularly to carry this out. The commission thus finds that the proposed activity falls within this same permitted domain, though it lacks church extension’s historical track record of acceptance by the convention and relevant adopted bylaws. E. Responsibility for Regulating and Assigning Activities Not Explicitly Assigned by Bylaw or Resolution The fact that an activity—even one explicitly or constructively called for by the Synod’s objectives—is perceived by someone to be helpful to congregations is not license for any agency to engage in it unilaterally. “All agencies that serve the Synod at the national or district level in a specific area of ministry shall administer their assigned areas of responsibility as provided or authorized by the Constitution and applicable bylaws or as assigned by the respective convention” (Bylaw 1.4.5). While business affairs explicitly delegated by adoption of bylaws or other convention action to specific agencies are merely overseen by the Synod Board of Directors, areas not so delegated remain within the native authority of said board as “the legal representative and custodian of all the property of [the Synod],” exercising “supervision over all property and business affairs” (Const. Art. XI E 2). “[The board] shall be authorized to take on behalf of the Synod any action related to such business and legal affairs which has not been expressly delegated by the Constitution, Bylaws, and resolutions of the Synod to other officers or agencies of the Synod” (Bylaw 3.3.4.4). With regard to activities for which the convention has not assigned the responsibility, it thus falls to the Board of Directors to regulate, between conventions, what new activities may be entered into and—should it so authorize—to whom this new activity should be assigned. The board’s authority to enter into or to authorize entry into a new area of business is not arbitrary, but relies on a finding that the activity is within the constitutional objectives of the Synod and that such entry or authorization is consistent with the board’s fiduciary duty not only to corporate Synod but, more importantly, to the members of the Synod. It needs to do so cognizant, as noted in (A) above, that it is getting itself and potentially another agency or agencies “out ahead of the convention,” an act that necessarily involves evaluation of a complex business case (perhaps as evidenced by the long history, documented in the first three footnotes above, of similar attempts not having been realized or having endured) and requires exercise of great care. Synod in convention, should it find a decision unwise, could later reverse it, possibly at great expense. It is nonetheless a possibility—within the domain of constitutional activities—with which the Board of Directors has been entrusted. Question 2:
Is provision of property casualty coverage as described an activity within the Bylaw charge of CPS, or can it be assigned to CPS by the Synod Board of Directors in a manner consistent with the Constitution, Bylaws, and resolutions of the Synod?
Opinion: Bylaws 3.7.1.1–2 describe the Bylaw charge of CPS in two parts. Under the first, it is assigned to be trust manager for the trusts of the Concordia Plans. Under the second, it is assigned responsibility for “managing other ancillary programs, including various supplemental insurance and administration services programs and the Support Program.” CPS has suggested that the proposed service (and associated sub agency) would fall under this “ancillary program” provision. The commission notes that this pursuit, however, is not ancillary to worker benefits, which is the natural domain (Bylaw 3.7.1.1) of CPS, to which such program would naturally be expected to be “ancillary” (“providing necessary support to the primary activities or operation of an organization, institution, industry, or system,” Oxford Languages; “aiding; auxiliary; attendant upon; subordinate; a proceeding attendant upon or which aids another proceeding considered as principal,” Black’s Law Dictionary). A Medicare supplement program, for example, might be understood naturally to fall within the scope of such ancillary services for an organization primarily charged with worker benefits; a property casualty insurance program—dealing with property rather than with workers—less naturally so. The commission finds the proposed activity—while within the scope of “constructively constitutional” activities possible for Synod to engage in—not to be within the predefined, Bylaw scope of any existing agency or entity. In considering whether or how this activity might be assigned to CPS or an agency there of, the commission first addresses a series of general possibilities for how such an activity could come to be undertaken (while neither expressing any judgment about the practicality or advisability of any given approach, nor claiming this list to be exhaustive): The Synod in convention, as “the legislative assembly that ultimately legislates policy, program, and financial direction to carry on the Synod’s work on behalf of and in support of the member congregations” (Bylaw 1.4.1) could: • amend bylaws to assign the activity to an existing or new (Bylaw 3.6.1.1) synodwide corporate entity; or
- direct or request the initiation of, or formation of an agency for, this activity by corporate Synod.
The Synod Board of Directors, which possesses the authority to enter into and to delegate to an agency of Synod constitutionally permissible business, property, and legal endeavors not delegated by the Constitution and Bylaws to others (Const. Art. XI E 2; Bylaws 1.4.4, 3.3.4.4; AOI II [g] and V), could: • within the auspices of corporate Synod, initiate the activity; or
- follow the process described in Bylaw 3.6.1.1 (and requirements of Bylaws 3.6.1–3.6.1.9) for formation of a synodwide corporate entity for this purpose, concurrently developing and proposing to the subsequent convention appropriate bylaws for its governance; or
- cause or authorize to be formed a new agency that is not a synodwide corporate entity (Bylaw 1.2.1 [a], subject to the elements of 1981 Res. 5-09 withstanding 2016 Res. 9-02A) to further this objective. This agency could be under the auspices of corporate Synod or of a parent agency whose bylaw purpose is sufficiently broad to accept it.
Specifically, can the Synod Board of Directors authorize CPS to establish a sub agency to undertake this activity? As noted prior, this activity is not natively within the charge of CPS, which relates to worker benefit plans. However, neither is the activity assigned to any other agency of Synod. It remains to the Board of Directors— should it find, in its general management of the business and legal affairs of the Synod, that this activity would be appropriate for the Synod to undertake—either to carry it out, or to delegate it to a suitable existing or new agency. Bylaws constrain the operating domain of synodwide corporate entities more closely than they do those of other agencies. Bylaw 3.6.1 provides that synodwide corporate entities have “purpose, function, and assigned areas of responsibility … set forth in [the Synod] Bylaws” (emphasis added). CPS, importantly, is not a synodwide corporate entity but the manager of the synodwide trust entities known as the Concordia Plans. It relies on Bylaw 3.6.1.5 for appointment of its chief executive but not otherwise on Bylaw 3.6.1, treating of synodwide corporate entities. It thus falls under the bylaw treating of assignment of responsibility to agencies in general, Bylaw 1.4.5, which reads, “All agencies that serve the Synod at the national or district level in a specific area of ministry shall administer their assigned area of responsibility as provided or authorized by the Constitution and applicable bylaws or as assigned by the respective convention.” CPS’s area of native responsibility is assigned by Bylaws 3.7.1.1–2, the latter indicating an openness to certain “other ancillary programs, including various supplemental insurance and administration services programs.” As the commission noted earlier, it does not understand this activity to fall under that provision. However, as an agency (and not a synodwide corporate entity), CPS may receive areas of work not only as provided in the Constitution and Bylaws but also as authorized by these documents (Bylaw 1.4.5). As noted earlier, the commission understands the proposed activity to be within the scope of activities possible for Synod to engage in, but not to be within the predefined, Bylaw scope of any existing agency or entity. The Constitution and Bylaws of the Synod (Const. Art. XI E 2; Bylaws 1.4.4, 3.3.4.4) authorize the Board of Directors of the Synod to delegate this work to an agency. The commission finds no reason to conclude that the Board of Directors would not be able to delegate it, rather than to an agency of corporate Synod, to an agency of CPS.10 Should this route be pursued, the commission requests for its prior review and approval, under Bylaw 3.9.2.2.3, the new or amended governing documents of any agency undertaking the contemplated activity so that it can concretely carry out its responsibility to review such for consistency with the Constitution, Bylaws, and resolutions of the Synod. As explained above, these documents would need to be accompanied by the resolution of the Synod Board of Directors determining that this activity is to be entered into on behalf of the Synod and assigning it to the given (proposed) agency (sub agency). Apart from clarifying direction of the convention itself, which is itself subject to constitutional limits, only with this authorization by the Synod Board of Directors can the commission finally approve initiation of this activity and creation of any related corporate form as constitutionally permissible. Concluding remarks and recommendations: Concordia Plan Services’ Articles of Incorporation list as the “principal purpose and function the administration of the pension, retirement, health, and other employee benefit plans (here in after, the ‘Plans’) established by the Synod in accordance with the terms of such Plans.” The control by CPS of an activity outside this principal purpose and function will presumably necessitate changes to these governing documents, as well. (Compare Articles of Incorporation of the CPS Ancillary Program Agency, as reviewed in Op. 15-2773.) The commission suggests, asking that this opinion be shared with the Board of Directors, that if the board determines to undertake this activity and to assign it to CPS or a sub agency there of, it would be best for the Synod Bylaw description of the work of CPS to be amended by the next convention to include this new activity, even if already entered into. Review of proposed bylaws would be welcomed concomitant with that of the other documents governing the activity and potential sub agency.
Endnotes 1. The idea of a captive (whether itself a single-parent agency of the Synod or participation in a group) serving Synod and certain of its agencies was explored 2006–8 by the Board of Directors (Minutes, Aug. 25–26 and Nov. 16–17, 2006 [see docket of latter, exhibit IC-11]; May 16–18, 2007; Feb. 14–16, Nov. 20–21, 2008). In the last of these, the Treasurer noted that a risk-sharing concept would be pursued as an alternative. 2. 1959 Res. 16-11 declined an overture suggesting mutual property insurance covering “churches, schools, parsonages, etc.,” possibly in connection with “an existing organization, such as the A.A.L.,” such arrangements having “been found impracticable in past experience and been judged unwise by competent men in the insurance field.” 1971 Res. 4-11, “To Decline Study of Fire and Casualty Insurance Program,” dismissed the proposal of Ov. 4-85 to study developing a “synodwide” fire and casualty insurance program, serving “all congregational, college, district, and synodical buildings,” on the grounds that this was “impractical for administrative and financial reasons.” Both declinations are based on contemporary business evaluations and not on constitutional grounds. 3. Aug. 29–30, 1980, BOD minutes (#308) evidence a suggestion by the Executive Planning Group to “establish a property insurance company to provide fire and casualty insurance to congregations at reduced rates” in the decade of the 1980s. This was suggested under the Synod’s “servant relationship to the congregations of the Synod,” in which it could, at least in the area of “Program Administration, Finance, and Support Services,” “offer additional support services, including the centralization of certain services, without centralizing any ecclesiastical powers.” May 25–27, 1983, BOD minutes (#616) show adoption of a resolution (exhibit H-9), coordinated with an amendment to policy treating the Synodical Insurance Program: Whereas, For many years the Synod has utilized its purchasing power to provide blanket insurance coverages for all institutional properties at a great savings; and Whereas, It is evident from numerous inquiries that the servant role of the Synod should be utilized to assist congregations in need of protection to secure it at the lowest possible dollar cost; and Whereas, The potential of expanding such programs to include congregations has been under study for several years; and Whereas, The Board of Directors empowered the Synod’s Treasurer to work toward offering congregations a program of insurance coverages to protect property and human resources, utilizing the mass purchasing power of the Synod while at the same time preserving the decision-making authority of each entity and relating the costs to the specific risks involved; therefore be it
Resolved, That the Board of Directors adopt the Concordia Risk Pooling Fund Agreement, as an amplification of its Policy Statement on Synodical Insurance; and be it further Resolved, That publicity regarding this new opportunity be shared with all congregations of the Synod for their information and decision (see attachment). Exhibit H-9 indicates that, so far as the program’s coverage of congregations is concerned, the Synod would be responsible “to monitor the program, to be sure that it runs as well as is intended, and to make and renew relationships periodically with the commercial insurance companies based upon performance and cost factors. In addition, experience credits or other payments which reflect a decrease in the cost of insurance because of the mass purchasing and the risk pooling, including through the substantial deductible which is inherent in the program, will be utilized through the Synod, as authorized in the agreement among the congregations.” The Synod consulted with Nordstrom Risk Management (Los Angeles, Calif.) and agreed with the Great American Insurance Company (Cincinnati, Ohio) and later Preferred Risk (Des Moines, Iowa, later known as Guide One) to offer the insurance. The form of congregational agreement is included in the docket. The Treasurer reported at the BOD meeting of Feb. 22–24, 1984 (#149), “Approximately 350 congregations are covered in the Concordia Risk Pooling Fund, which is being revamped and for which a new carrier will be engaged as of April 1. Because of certain weaknesses in marketing, the program has met the objective of obtaining lower insurance cost for congregations but has not met the objective of having congregations in a plan which will benefit the church at large. Districts are participating well in the directors and officers liability insurance program which has been provided. Certain resolutions of the Board of Directors, as well as other entities involved, will be needed in order to clearly state the particulars regarding the coverage provided.” Minutes of May 23–25, 1984 (#222), indicate that “A number of Districts have joined the Synod in its insurance program and more will be doing so as their policies expire. The program has been redirected to provide better marketing and involvement of local agents, and will hopefully result in greater penetration and service throughout the Districts. Presently, nearly 400 congregations have participated in the former program. Some difficulties with regard to the directors and officers liability risk insurance are being resolved. Only one entity is not now sharing in the cost of providing this coverage.” Minutes of Aug. 22–24, 1984, note (#294), “In the area of insurance matters, it was noted that a mailing is planned to all congregations, identifying the new congregational insurance program through Preferred Risk [became Guide One in 1999] of Des Moines. The new program does not allow as much flexibility in setting premiums as was possible under the old plan of pooling a $100,000 deductible against which first dollar losses, subject to a cap, were paid. Nevertheless, it should attract more congregations since there will be more personal contact by agents in the field.” Minutes of Dec. 4–6, 1985, indicate the program as still active (#682). In 2003, LCMS ended its remaining relationship with Lutheran Trust (a.k.a. Church Asset Management), the St. Charles, Mo., broker that had ultimately facilitated the program. 4. With respect to the property and operations of Synod agencies, administration of the Synod’s “insurance plan” for Synod agencies may be understood to lodge under Articles of Incorporation II g, whereby corporate Synod is authorized “to establish and conduct all such enterprises and endeavors and to exercise such further power as may be necessary or expedient to carry out the objectives stated in the Constitution” and the Board of Directors’ authority and responsibility as “custodian of all the property of the [Synod]” (Const. Art. XI E 2). 5. Suelflow, “Church Extension Commission,” in Survey Commission Report on District—Synod Relations, 1962. 6. The 4th and 10th objectives were added at this time. 7. With regard to church extension work, at the time of adoption of the “modern” Article III in 1979, the Lutheran Church Extension Fund had just been incorporated in 1978. The convention presumably did not intend to adopt changes to invalidate constitutionally this long-standing and recently-incorporated activity. 8. Present objectives 2 and 9 appear to root in a common, very general objective of the pre-1917, German constitution (Chapter IV 3: “Common protection and extension of the church”). The latter objective 9 has been understood most often to relate to duties and rights of pastors and congregations vis-à-vis one another and the Synod (1975 Res. 9-07; 1977 Res. 5-01; 2001 Res. 2-03A; 2010 Res. 5-01A; “Opinion on Dissenting Groups and Activities,” CCM Minutes, Oct. 30–31, 1969 [ref. Op. 03-2328, Minutes, Apr. 29, 2003; Op. 05-2443, Oct. 16–18, 2005; Op. 11-2589, Sept. 3–4, 2011]; CCM Ag. 1879; Minutes, Dec. 14, 1989; Ag. 1901, Aug. 30, 1990; Ag. 2115 [with regard to RSOs], Aug. 24, 1998; Op. 02-2280, Oct. 2, 2022; Op. 02-2309, Jan. 20–21, 2003; Op. 03-2338 [incl. A and C], Dec. 13, 2003; Op. 09-2570, Jan. 23–24, 2010; Op. 10-2581, Sept. 7, 2010; Op. 13-2669, May 16–17, 2013; Op. 22-2980, May 2, 2022; Standard Operating Procedures Manuals for dispute resolution and expulsion), once with reference to procedural rights within the Synod under worker benefit plans (1967 Res. 4-46). It presumably also extends but does not seem explicitly to have been applied in interpretation to the Synod’s efforts (e.g., Bylaw 1.2.1 [f][2] to “retain” on behalf of itself and its membership “all authority and autonomy allowed a church under the laws and Constitution of the United States and the State of Missouri.” Whether and to what extent the protection and rights describe have to do with congregational property or its enjoyment, other than in a free exercise sense, the commission does not here opine. 9. Although this activity is proposed by Concordia Plan Services, the constitutional basis for its core work of administering the Concordia Plans is clear (Const. Art. III 10) but, just as clearly, inapplicable to the instant question. The commission notes that work related to worker benefit plans was carried out before the 1979 addition of the relevant (10th) objective. 10. While Bylaws 3.7.1.1–2 do not provide for this function, neither do they exclude delegation of new functions to CPS or its subordinate agency by the Synod Board of Directors. Further, there is some analogy to the assignment of this function, even if not exact, in the “administration services” conceived under Bylaw 3.7.1.2 and the Board of Directors’ general authority to establish limits for CPS’ administration of plans on behalf of the Synod (Bylaw 3.7.1.4).
Member of the Synod as “Journalist” (24-3040) Minutes of March 21–22, 2025 A district president of the Synod, by an email of Nov. 18, requested an opinion on the following: Question:
Does a roster ed minister of the Synod who regards him/herself a journalist relinquish the responsibilities outlined in the Bylaws and Constitution relative to Matthew 18?
Opinion: That the “roster ed minister” (individual member of the Synod) “regards him/herself as a journalist” has no bearing on the member’s responsibilities under the Constitution and Bylaws of the Synod. The Bylaws of the Synod mention duties of members relative to Matthew 18 in Bylaws 1.10.1–1.10.1.6, in other passages dealing with disputes among Synod members and entities, and in Bylaw sections 2.14–17, dealing with suspension and expulsion from the Synod. Certain of the provisions apply to those who have entered (perhaps under obligation) into specific processes (cf. Op. 042401). Clearly, a member invoking, for example, Bylaw section 2.14 to seek suspension and expulsion of another member must follow the procedures there identified, including those involving Matthew 18, regardless of external factors such as one’s journalistic pursuits. The general preface to Bylaw section 1.10, comprising Bylaws 1.10.1–1.10.1.6, describes the expectations the congregations have adopted for the Synod’s members “when[ever] disputes, disagreements, or offenses arise among members of the body of Christ” (Bylaw 1.10.1), which reach members who have not intentionally entered into a Bylaw section 1.10 process. It is the commission’s presumption that it is primarily with regard to these generally applicable provisions that the question is put, as no specific process is mentioned as underway or incipient. Members of the Synod are expected to seek reconciliation of the erring: “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. …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” (Bylaw 1.10.1.2). The Synod’s expectation is that its members will seek to restore the erring, but do so gently and within the offices and procedures the Synod has set forth for this purpose and following the scriptural admonition it has noted in its bylaws. This expectation, too, applies to members, regardless of external factors such as one’s journalistic pursuits. The responsibilities outlined in the Bylaws and Constitution relative to Matthew 18 apply to members of the Synod, regardless of one’s vocation. In Op. 04-2401, the commission has noted that “there is no constitutional provision that allows any person, group, board, commission or other entity to assume the responsibility of ecclesiastical supervision in the Synod that has been given to the President of the Synod under Article XI B or the District President under article XII 7. This includes the formal or official constitutional responsibility to admonish or reprove members of the Synod. No one is to interfere in the work of another.” The commission has further noted, in the same opinion, that “if and when a pastor or any individual or group does not assume the constitutional responsibility for ecclesiastical supervision in the Synod,” there is nothing to “prohibit any Christian from rebuking a Christian brother so long as biblical” (Matthew 18) “and confessional” (Large Catechism, Eighth Commandment) “principles are followed.” Elsewhere, in Op. 05-2422, the commission has said that “members of the Synod walk together according to the covenants that they have mutually agreed upon by such membership, as delineated in the Synod’s Constitution, Bylaws, and resolutions. One of those covenants is provided in Bylaw 2.14.3 (c), which details how members of the Synod have agreed to respond, ‘even if the alleged violation of Article XIII of the Constitution is considered to be “public.” In such case Matthew 18:15 is still followed.’” Also in Op. 05-2422, the commission reasoned that “if a false doctrine or practice is public, a pastor is not prevented (while observing principles of Christian love) from informing his own congregation(s) regarding true doctrine or practice when there is danger that the flock will be harmed by the falsehood.” “However, he may not assume this responsibility for other congregations that are not under his care or for the general public.” While the “responsibilities outlined in the Bylaws and Constitution relative to Matthew 18” apply to Synod members, no matter their other vocations or avocations, how those responsibilities apply to particular communications or situations depends on the particulars of the given case.
The commission thanks the district president for the question, and if further insight is sought, would encourage him to consult the Commission on Theology and Church Relations document “Public Rebuke of Public Sin: Considerations in Light of the Large Catechism Explanation of the Eighth Commandment” (May 2006).
Pastoral Formation Committee and Existing Routes (24-3039) Minutes of March 21–22, 2025 A congregation of the Synod, by an email of Nov. 11, requested an opinion on the following questions. Consistent with Bylaw 3.9.2.2 (b), written input was solicited from the boards of regents of seminaries and universities of the Synod, as well as from the members of the Pastoral Formation Committee.
Background: The Pastoral Formation Committee (PFC) was created by 2016 Resolution 6-01 to foster collaboration between the seminaries, following the report of the 2013 Res. 5-14A Task Force, which “recognized ‘the need to provide for greater coordination and collaboration between our two seminaries’” and “recommended ‘that there be an entity ensuring that the seminaries do coordinate and collaborate with respect to these various programs’” (2016 R64, Workbook, p. 279). The Handbook provisions governing the PFC appear in Bylaws 3.10.4–3.10.4.7. In addition to fostering collaboration, the PFC is assigned one specific power: it “shall” recommend any new routes leading to ordination for approval by resolution of the Synod (Bylaw 3.10.4.1). The PFC also is directed to “review, assess, coordinate, support and make suggestions for improvement of all existing non colloquy routes leading to ordination in the Synod, including seminary and pre-seminary education programs” (Bylaw 3.10.4.3). Other PFC responsibilities are outlined in Bylaws 3.10.4 and 3.10.4.4–5. The 2023 Synod convention resolved “That the seminaries, in consultation with the Pastoral Formation Committee, retain responsibility for the academic, admissions, and financial parameters for each approved non-residential route to ordination in the Synod” (2023 Resolution 6-03A). The Bylaws governing the seminary board of regents are found at 3.10.5–3.10.5.5. Particularly relevant to this opinion is Bylaw 3.10.5: “Each seminary of the Synod, with its president and faculty, shall be governed by a board of regents, subject to general policies set by the Synod.” Question 1:
If a seminary board of regents wishes to modify the academic, admissions, or financial parameters, or the means or place of instruction, for any existing approved non-residential, non colloquy route to ordination in the Synod of such seminary, and such action would otherwise comply with any applicable Synod Bylaw, Constitution, or resolution requirements or restrictions on the authority of such board (e.g., the third resolved in 2023 Res. 6-03A), do the provisions of Bylaws 3.10.4–3.10.4.7 require such board to obtain the authorization or consent of the PFC before the board takes such action?
Opinion: As further background specific to this question, the Bylaws concerning the PFC need to be read in conjunction with the Bylaws governing seminaries as “general policies set by the Synod” (Bylaw 3.10.5). As such, a seminary board of regents must
comply with obligations imposed on the seminaries by applicable PFC bylaws. Bylaws 3.10.4.1–2 are limited to “new routes to ordination.” As the question does not involve “new routes to ordination,” Bylaws 3.10.4.1–2 are not applicable. (Nonetheless, the commission notes that the PFC could raise an objection to a modification of an existing route so extensive that it could be construed as effectively “new,” in which case these provisions might be found to be applicable.) This leads to Bylaw 3.10.4.3 to determine if said bylaw applies. Bylaw 3.10.4.3 states: “The committee shall review, assess, coordinate, support and make suggestions for improvement of all existing non colloquy routes leading to ordination in the Synod, including seminary and pre-seminary education programs.” Because the question refers to “seminary” and “existing non colloquy routes leading to ordination,” Bylaw 3.10.4.3 is applicable; the question remains to what degree Bylaw 3.10.4.3 is applicable to the question at hand. The question before us refers to consent and authorization. For consent and authorization to be a duty and responsibility of the PFC and a requirement to be satisfied by a seminary board of regents such a requirement would need to be laid out either explicitly or implicitly as a prerequisite to fulfilling or complying with either the Synod’s Constitution or Bylaws. Nothing in Bylaw 3.10.4.3 rises to that standard. Having answered that, as to the question asked, the seminary would not need to receive consent and authorization from the PFC, it should be noted that the change or changes referred to do need to be submitted to the PFC in order for the PFC to perform its duty to “review, assess, coordinate, support and make suggestions for improvement to” the seminary’s proposed plan. Question 2:
If a Concordia University System institution board of regents wishes to modify the academic, admissions, or financial parameters, or the means or place of instruction, for any existing pre-seminary education program of such institution, and such action would otherwise comply with any applicable Synod Bylaw, Constitution, or resolution requirements or restrictions on the authority of such board (e.g., Bylaw 3.6.6.1), do the provisions of Bylaws 3.10.4– 3.10.4.7 require such board to obtain the authorization or consent of the PFC before the board takes such action?
Opinion: Bylaw 3.10.4.3 renders pre-seminary education programs within the scope of the PFC’s review, assessment, coordination, support, and suggestion of improvements. This work of the PFC is to be accommodated by Synod universities offering pre-seminary programs, which, like the seminaries, are not required to obtain PFC consent or authorization for such modifications.
Lutheran Church Extension Fund Real Estate Solutions (24-3042) Minutes of April 7, 2025 By an email of Dec. 2, the President and CEO of the Lutheran Church Extension Fund (LCEF) forwarded a request for opinion on a series of questions: Background: LCEF is considering being involved in some level of real estate development work in concert with property owned by one or more LCMS-related entities that would qualify as eligible borrowers of LCEF under LCMS bylaws and related resolutions. Such development work, as it relates to this question, would include third-party investors and developers that may be for-profit entities. Per LCEF, LCEF would not be making significant capital contributions to the project. The LCMS-related entity would retain some yet-to-be-determined ownership or control over some of the property for ministry purposes post-development. Other portions of the property could be used for other purposes, including housing or commercial use. Question 1:
Is such LCEF development work consistent with Synod Bylaws 3.6.4 and 3.6.4.4.1?
Opinion: The question here boils down to whether development activity that includes some ministry-specific purposes and other, non-ministry purposes falls within LCEF’s charge under Bylaw 3.6.4, which provides that LCEF “is operated ... to further the objectives and duties of the church extension fund by providing financial resources and related services for ministry, witness, and outreach” within the Synod and in limited circumstances beyond the Synod. The answer to this question will depend on the specific development project being presented; a blanket answer that all are permitted or all are not permitted is not possible. The answer for a specific project involves looking at two factors—the who and the what. As to the who, LCEF is permitted to provide financial resources and related services within the Synod, to and within partner churches that are in altar and pulpit fellowship with the Synod and, upon the recommendation of the President, to certain Lutheran entities formed and operating outside of the United States (which are not understood to be at issue here). If the recipient of the financial resources is a professional church worker, a congregation in the Synod, or an agency of Synod, then the resources would be “within the Synod” and this factor would be satisfied (as it would be if the entity is, or is within, a partner church with which the Synod is in altar and pulpit fellowship, subject to Board of Directors approval). However, if, as the background from LCEF suggests, the recipient of the financial resources is, directly or indirectly, a subsidiary of, or a joint venture with, persons and/or entities that are not professional church workers, congregations in the Synod, or agencies of the Synod, then the recipient would not be “within” the Synod (similarly, with a partner church). In such cases, providing financial resources would be beyond LCEF’s authority. As to the what, the development would need to “further the objectives and duties of the church extension fund” (Bylaw 3.6.4). The “purpose, function, and assigned areas of responsibility” of a synodwide corporate entity are “set forth in [the Synod] Bylaws” (Bylaw 3.6.1, see opinion to Question 2, Op. 24-3043, minutes of Feb. 3, 2025), and the entity operates within such limitations (Bylaw 3.6.1.6). With regard to LCEF, the bylaws specify that it provides “financial resources and related services for ministry, witness, and outreach” (Bylaw 3.6.4). It does so by providing “financing and services for the acquisition of sites, for the construction of facilities, for the purchase of buildings and equipment, for operating expenses, for professional church worker education, for the residential housing needs of professional church workers, for promoting strategic ministry planning and assisting in capital campaigns; and for other purposes approved by its governing board and the Synod Board of Directors, which purposes shall be consistent with the ministry and mission of the Synod” (Bylaw 3.6.4.4.1). The commission understands that the specifically enumerated activities and any “other purposes approved by its governing board and the Synod Board of
Directors”—as these relate to property development—must be to develop facilities for “ministry, witness, and outreach,” consistent with the general statement of purpose in Bylaw 3.6.4 (see also Op. 24-3043, Background, Part C, “The ‘Constructive’ Constitutionality of Church Extension Work”). Admitting that ministry property may have incidental commercial use (for example, a parking lot rented to a neighboring office building during the week, or retired school facilities leased to Head Start), the commission finds such a situation to be clearly distinguishable from investment or activity for the purpose of significant commercial development, even if it in some sense is intended to support or facilitate space for ministry. In such development, where the commercial aspect is not merely incidental to ministry but substantial and significant, the benefit to “ministry, witness, and outreach” of LCEF assets or activity in support of this aspect would be derivative, not direct. As such, this is not development contemplated in the bylaw-assigned work of church extension. Question 2:
In connection there with, various special purpose entities (“SPEs”) may be created or utilized to accommodate the various ownership and management interests of LCEF, the LCMS-related entity, and third-party investors and property developers. If LCEF is the sole or partial member of an SPE that functions in an ownership or investment role as opposed to a development role, does that SPE need to meet all the requirements of an “agency” under LCMS bylaws, resolutions and CCM opinions?
Question 3:
If LCEF either directly or through an SPE of which it is a member has a partial membership interest (more likely a minority interest) in an SPE that has the primary development role of a project (a “Development SPE”), does that Development SPE need to meet all the requirements of an “agency” under LCMS bylaws, resolutions and CCM opinions considering that other third-party stakeholders will also have an interest in that Development SPE?
Opinion: For purposes of answering these questions, we assume that the hypothetical development project is one that satisfies the requirements set forth in our opinion on Question 1 above. Regardless of what the ownership structure ultimately looks like, as set forth in our Op. 23-3005A (see minutes of August 9–10, 2024, item 44), the new entity here would be, as an agency of LCEF and/ or the LCMS-related entity, an agency of the Synod. This is true regardless of how many levels there are between LCEF and/or the LCMS-related entity and the ultimate property-owning entity. Starting with the entity that LCEF and/or the LCMS-related entity are directly members of, that entity would be an agency of an agency, which makes it an agency of the Synod as well. Were that entity a member of another entity, then that entity would likewise be an agency of the Synod. This would continue down throughout the ownership chain until it terminated with the property-owning entity, which would also be an agency of the Synod. Since all the entities would be agencies of the Synod, the requirements related to agencies generally would apply to all of the entities in such a development. While not directly asked, it is important to note that one of the requirements of an agency that is created by another agency is that the creating agency must be the sole member of the new agency (see 1981 Res. 5-07). All of the background provided by LCEFand even the questions asked all assume that there would be structures that involve ownership by LCEF and/or the LCMS-related entity, on the one hand, and third parties (whether developers or investors), on the other hand. Regardless of the level of the various ownership interests, or the rights associated with the interests, the fact of having an entity that is not wholly owned by an agency of the Synod would not be permissible.
2023 Res. 7-04B Review of Higher Education Governance Documents (23-3023) Minutes of September 12–13, 2025 The commission received an assignment in 2023 Res. 7-04B, “To Revise Bylaws to Revisit and Renew Relationship of Colleges and Universities with the Synod,” part C, “To Clarify Relationship of the Synod’s Board of Directors to the Concordia University Boards of Regents,” to provide input to the Board of Directors of the Synod on “the governing documents and governance practices of all higher education institutions of the Synod,” with “all boards of regents and boards of associated foundations [being] directed to correct any identified noncompliance with the Synod Constitution, Bylaws, and resolutions.” The commission requested documents in a memorandum of December 8, 2023, making some follow-up requests. It commenced its review of the documents at its March 2024 meeting with the first documents received, determining to hold all the reviews for collective release. It concluded its review of the last institution’s documents at this meeting and now releases its reviews for all the universities and seminaries of the Synod. In its reviews it has noted areas where institution governing documents are not in harmony with the Constitution, Bylaws, and resolutions of the Synod, in some places, due to the changes effected in the Synod Bylaws by 2023 Res. 7-04B, but in many places, with regard also to prior Synod Bylaws. It is important to note that the commission is charged to identify such disharmonies, not to improve generally upon the governing documents of the institutions (although it sometimes offers what are intended to be helpful suggestions). In this work, the commission must often consider where an omission from agency articles or bylaws of a detail that is not explicitly required to be included in such documents (by, for example, Bylaw 1.5.3.6) constitutes such a disharmony. To give one specific instance, the commission has found, and indicates in these reviews, that agency articles and bylaws, where they state or assume from corporation law generally an ability of the board to amend the articles or bylaws, need to include explicitly the requirement that such amendments be reviewed and approved in advance by this commission, as required by Synod Bylaw 3.9.2.2.3 (a). As the Board of Directors considers changes to Bylaw section 1.5, containing requirements for governing documents and practices of Synod agencies, the explicit requirement of inclusion of this explicit provision in agency governing documents may warrant inclusion. Generally, the commission has noted certain provisions included in agency documents that, apart from inclusion of material from the Synod Bylaws, could prove misleading in isolation. It has not, however, generally scrutinized the governing documents for places where contradictory default inferences from laws of relevant jurisdictions or arguments from silence made otherwise might cloud a Synod procedure for, for example, removal of directors (Bylaw 1.5.7) or limitations on real property or borrowing authority, etc. The commission has likewise not fully attended to the implications of board policy for the agencies, which is generally beyond its scope of work. The commission considers the determination of
what language needs to be included in the documents to grant the Synod necessary comfort as to the binding nature of particular aspects of Synod governance on the institutions to be a matter for consideration by the Board of Directors more than by this body. The commission, because the nature of its work is to detect disharmony, tends to produce negative documents indicating facets that require correction. Staff of the Office of the Secretary is preparing an accompanying document with the intention of providing positive guidance, more useful for a university or seminary considering development of new provisions or policies and seeking suggestions as to what should be included. Once the review of this document by the Office of the Secretary and this commission is complete, the Office of the Secretary intends to release it as an item complementary to the following opinions. The opinions that follow are named after the respective institutions but receive the agenda item number assigned to the general review project, Ag. 23-3023. The commission notes to the Board of Directors all the following reviews and will provide to the Board of Directors not only its opinions but all documents reviewed. In the following, the commission notes also that it has not attempted to correct all instances of references to Synod Bylaws rendered incorrect simply due to renumbering as a result of 2023 Res. 7-04B or other changes. For reports on individual institutions’ governing documents, relevant to Report R5, see noted minutes.
Director of Family Life Ministry Authorization (25-3072) Minutes of December 2, 2025 By an email of September 21, augmented by submission of further documents on September 22, the chairman of the Concordia University System (CUS) Board of Directors (BOD) requested an opinion of the commission on the following question, related to the CUS BOD’s motion, taken September 19, to wit: [Resolved,] To approve the minor curricular changes to the Director of Family Life Ministry (DFLM) Program and authorize it to be offered at the Master’s level at Concordia Nebraska and Concordia Wisconsin under Bylaw 3.6.6.1 (b), contingent upon review by the Commission for Constitutional Matters. The commission was also provided with a document entitled, “White paper in support of changes to colloquy requirements for commissioned status of Commissioned Family Life Ministers in The Lutheran Church—Missouri Synod,” as was provided to the CUS BOD, and a number of other backup documents. At the suggestion of the Secretary, the question was worded thus: Question:
Does the CUS BOD possess the authority under Bylaw 3.6.6.1 (b) (as opposed to the authority reserved to the convention under Bylaw 3.6.6.1 [g]) to authorize implementation of a commissioned minister preparation program previously offered at the bachelor’s level at one Concordia campus in the form of a master’s level program including substantially equivalent subject matter at the same or a different Concordia university?
Opinion: On the recommendation of the Board for Higher Education (BHE)/CUS, 2004 Res. 5-04A authorized the Director of
Family Life Ministry (DFLM) as a type of commissioned minister and authorized BHE/CUS, presumably under 2004 Bylaw 3.8.3.4 (c), to “review and approve new programs” in this area under its broad assignment to “have overall responsibility to provide for the education of commissioned ministers” (2004 Bylaw 3.8.3.1). The resolution described the program thus: The family life program is multi-disciplinary, emphasizing theology, sociology, law, economics, and scripturally sound psychology. The family life graduate will possess the theological, academic, and practical training needed for providing specialized services to families in a variety of situations and settings. Students preparing for the position of Director of Family Life Ministry will participate in a program of study that conforms to the requirements established by the Concordia University System for admitting, monitoring, and placing church-vocations students. The requirements for the study of theology are the same as for Lutheran teacher and director of Christian education students. Family life ministry programs on Concordia University System campuses will maintain required academic standards so that graduates will also be eligible for professional li censure. Today, CUS is charged: • on the one hand, to “review and approve new implementations of and discontinuance, whether actual or constructive, of programs of study leading to professional church work in the interest of the institution(s) and the Synod” (Bylaw 3.6.6.1 [b]), to maintain standards for such programs (Bylaw 3.6.6.4 and its sub paragraph [c]), and to conduct visitation and possible disaffirmation of such programs (Bylaw 3.6.6.4.1 and its sub paragraph [d]), and
- on the other, to “receive, revise, and recommend to conventions of the Synod for approval any proposals for creating, essentially revising, or renaming programs of study and certification for commissioned ministry” (Bylaw 3.6.6.1 [g]).
The question before the commission is whether the authorization of DFLM programs as indicated falls under the former provision, thus requiring only CUS approval, or the latter, instead requiring approval of the convention. The CUS resolution does not create or rename a program of study and certification for commissioned ministry, so as to create or rename a new category of commissioned ministry, to be added to the list presented today in Bylaw 2.6.1.1. Such would clearly require action of the convention, pursuant to a recommendation from CUS as described in Bylaw 3.6.6.1 (g). This leaves the question of whether the resolution amounts to “new implementation[s]” (Bylaw 3.6.6.1 [b], delegated to CUS) or an essential revision (Bylaw 3.6.6.1 [g], requiring convention action) of an existing program of study and certification for commissioned ministry/leading to professional church work (namely the DFLM program). The former, within the realm of CUS BOD to approve, would be an implementation by a new Concordia university or in an incidentally different outward form of the essence of an existing program among those listed in Bylaw 2.6.1.1. The latter, requiring convention approval, would be a revision of the “intrinsic, fundamental nature” or of “an indispensable element” (Collins Dictionary) of an existing church work program to have a fundamentally different requirement with regard to some presently indispensable element. In the former case, a graduate’s formation by a “new implementation” would be readily recognized as “equivalent” in
terms of subject matter expertise and ministerial formation to that of a graduate of one of the other implementations; in the latter, the formation of a graduate of an “essentially revised” program might not be. While the relative evaluation of curricula belongs to CUS and not to this commission, the commission observes that the language of “minor curricular changes” and “including substantially equivalent subject matter” seems consistent with the sort of “new implementation” of an existing program described in Bylaw 3.6.6.1 (b) and, therefore, within the authority of CUS BOD to authorize. The commission notes, however, that the provided white paper indicates “all roster ed, commissioned workers in the LCMS take core theology classes that include the study of Old Testament, New Testament, doctrine and confessions of the LCMS, methods in religious education, and the role of the church professional. A DFLM takes these classes as well.” However, as might be expected, the master’s level program descriptions provided do not include this coursework. The commission thus understands the master’s program to be incomplete, as to certification, in itself, requiring the “core theology class” requirements to be satisfied through a prior undergraduate church work program or some other means. It has been clarified for the commission that, while the master’s degree is not inclusive of the theology requirements, a track for completion of said requirements would be provided and required for those seeking certification, either via classes at the respective Concordia or through CUEnet (whether by certification or colloquy). This was likened to the “modularity” of the education major and Lutheran Teacher Diploma pathway at a number of Concordia universities. Considered within this context, this nuance does not alter the commission’s conclusion, stated above.
Presidential Appointment following Invalid Circuit Election (26-3074) Minutes of February 6–7, 2026 The Secretary of the Synod posed a question as follows: Question:
A circuit conducted timely elections for pastoral and lay delegate and alternates to the Synod convention, correct in all respects except that the alternate lay delegate was elected from the same congregation as, and subsequent to, the alternate pastoral delegate. The alternate lay delegate was, therefore, not certified by the district secretary. After the bylaw certification deadline, the lay delegate was rendered unable to attend the convention. Does the defective election of an alternate lay delegate preserve the ability of the district president to appoint a replacement lay delegate for the circuit under Bylaw 3.1.2.1 (m)?
Background: Op. 10-2580, 13-2675, and 19-2906 do not definitively answer this question. Op. 10-2580 notes that “Bylaw 3.1.2.1 (j) allows appointment by a district president in some instances of defective elections. However, in each of those prior instances considered by the CCM where that right was recognized, an election was held in a timely manner, but was defective in some other respect.” Op. 10-2580 seems to refer to Ag. 1851 (Dec. 3, 1998), in which the commission commended appointment of replacements by the district president in a situation where delegates and alternates had been elected “timely” but outside the forum and by a procedure other than that specified in the bylaws. At the same time, Op. 19-2906 speaks of “due election” and Op. 13-2675 states that “Where no proper election has occurred, no vacancy exists [to be filled by presidential appointment].” Opinion: The commission finds that Bylaw 3.1.2.1 (m), which authorizes presidential appointment, presumes the prerequisites of both a delegate and an alternate election. Sub paragraph (l), adopted in 2023 Res. 9-05A, emphasizes that a circuit can, before the deadline, remedy an earlier failure to elect a delegate or alternate. A circuit that has not elected both a delegate and alternate by the bylaw deadline does not, in accord with Op. 13-2675 and longstanding practice, have recourse to presidential appointment. The commission finds that an election invalid at the time of election and not certified by the district secretary does not constitute an election of a delegate or alternate. The remedy for a failure to elect is to complete the failed election in another forum prior to the deadline (Bylaw 3.1.2.1 [l]). If the circuit has not before the deadline validly elected both a delegate and alternate in the category (pastoral/lay) where the vacancy occurs, recourse to presidential appointment is not available.
LCEF Board of Directors, District Membership Limitation (26-3076) Minutes of February 6–7, 2026 The Secretary of the Synod posed the following question on February 5: Background: The Board of Directors of The Lutheran Church Extension Fund—Missouri Synod (LCEF) is a governing board of the Synod (Bylaw 3.2.2), the membership of which is stated in Bylaw 3.6.4.3, which reads as follows, the number of directors being left to specification in the bylaws of LCEF: 3.6.4.3 The board of directors for the Lutheran Church Extension Fund—Missouri Synod shall consist of such number of directors as are specified in the bylaws of The Lutheran Church Extension Fund—Missouri Synod. All voting members of the board of directors of the Lutheran Church Extension Fund—Missouri Synod shall serve a maximum of four three-year terms. 1. Three directors shall be elected by the Synod in convention and shall include one ordained or commissioned minister and two laypersons. 2. The remaining voting directors shall be chosen by the members. 3. The representative designated by the Board of Directors of the Synod shall also be a nonvoting member of the board. LCEF Bylaw II 1 provides: “No more than two elected Directors can be from the same district of The Lutheran Church—Missouri Synod.” Presently, the board has midterm incumbents from seven districts. Three seats (and possibly four, if Bylaw 3.6.4.3 [1] is amended to admit four convention-elected directors as approved in Op. 24-3050A) are up for election by the 2026 convention. Two of those seats are held by lay incumbents having districts in common with two of the seven midterm incumbents, meaning that, under the LCEF bylaw, no further members can be admitted from those two districts (presuming the incumbents are reelected). There is the potential that electing another member from one of those two districts in the ordained/commissioned seat (which is elected prior) could either preclude the reelection of an incumbent in one of the lay seats or produce a situation where the LCEF bylaw stricture is violated.
The commission has dealt prior with agency bylaws placing additional geographical limitations on the membership of a partially elected, partially appointed board, in Op. 16-2800A finding: The requirement that the two laypersons elected by the Synod be resident freeholders of (i.e., with residence in and having freehold title to property within) Seward County, Nebraska, cannot be imposed on the Synod convention by the university’s bylaws and, as stated, are invalid. The requirement of the former CUNE bylaws was simply that two of the laypersons (including those elected by Synod and district and appointed by the board) be resident freeholders of Seward County. The Synod’s choice of its two elected laypersons cannot be so restricted. Should, following a Synod convention, the board be in a position of lacking two resident freeholders of Seward County, Nebraska—if this is, in fact, a legal requirement that must be retained—it is the board’s responsibility to meet this requirement, not the Synod’s, and the board may satisfy this requirement by its ability to appoint members. This opinion, narrowly construed, was later codified in Bylaw 3.10.6.2 [2]: 3.10.6.2 The board of regents of each college and university shall consist of no more than 18 members, all voting. … 2. One ordained minister, one commissioned minister, and two laypersons shall be elected by the geographical district in which the institution is located. If any board is required by its governing documents to include one or more persons holding residence or church membership in a specific locality, the institution is responsible for ensuring (including by appointment, if necessary) that individual(s) meeting such requirements are included among those persons serving on such board, and no such geographic restriction shall apply to Synod-elected regents. … Question 1:
Is the requirement of LCEF Bylaw II 1 binding on the convention as it elects members of the LCEF Board of Directors, precluding election of members such that their election would result in more than the maximum number allowed under the bylaw to be from a given district, or is the requirement not binding on the convention and required to be dealt with by the LCEF membership?
Opinion 1: Were the limitation to be stated in Synod Bylaws as well as in those of LCEF, there would be no question as to the applicability of the limitation to the directors to be elected by the convention. The requirement, however, is stated only in the LCEF Bylaws. The situation is distinguishable in two important regards from the case dealt with in Op.
16-2800A and in Bylaw 3.10.6.2 [2]: First, the LCEF requirement is one not required by local statute and not purely geographical, but one dealing with district representational balance. It thus may serve not some local jurisdictional requirement but the Synod’s own interests (although not codified in its own Bylaws). Second, the LCEF bylaws, as bylaws of a synodwide corporate entity, are subject to the unique process of Bylaw 3.6.1.7 (while the provision in question was adopted, to be clear, prior to the adoption of Bylaw 3.6.1.7). Nonetheless, Synod Bylaws regarding synodwide corporate entities (first adopted in 1998 Res. 8-03B, then newly requiring all the entities to have board members elected by the Synod in convention) provide as follows (emphases added): 3.6.1.3 Each synodwide corporate entity shall have a governing board. (a) A minimum of one-third of the voting members of every governing board shall be elected by the Synod in convention as described in these Bylaws. (b) The names of the individual members of each of these governing boards shall be reported annually in an official periodical of the Synod. Further, Synod’s bylaw regarding LCEF’s board of directors (adjusted, along with those of other entities, in 1998 to include the convention-elected directors) states: 3.6.4.3 The board of directors for the Lutheran Church Extension Fund—Missouri Synod shall consist of such number of directors as are specified in the bylaws of The Lutheran Church Extension Fund—Missouri Synod. All voting members of the board of directors of the Lutheran Church Extension Fund—Missouri Synod shall serve a maximum of four three-year terms. 1. Three directors shall be elected by the Synod in convention and shall include one ordained or commissioned minister and two laypersons. 2. The remaining voting directors shall be chosen by the members. 3. The representative designated by the Board of Directors of the Synod shall also be a nonvoting member of the board. The commission finds that Bylaw 3.6.1.3 (a)—which states that election is “as described in these Bylaws”—requires that all limiting factors regarding the election of members to a synodwide corporate entity governing board by the Synod convention must be stated in the Bylaws of the Synod. Bylaw 3.6.4.3 makes reference to the bylaws of LCEF only with regard to the total number of directors on the board and not to any further requirements placed on the election of directors by the convention. The commission therefore finds, consistent with the general line of reasoning of Op. 16-2800A (quoted above), that for the requirement (namely, that no more than two directors be elected from any one district) to be binding on the Synod in convention, it must be recorded in the Bylaws of the Synod—which it is not. If the convention’s choices are to be limited, it must have adopted that limitation. The convention can be asked to add the language to the Synod Bylaws, perhaps to Bylaw 3.6.4.3, and if it does so, the provision would be operative from the time of adoption. Question 2:
If the requirement is not binding on the Synod convention and the convention elects directors such that more than the allowed number, in total, are from a given district, what is to become of any appointed (that is, elected by the LCEF membership, not by the Synod convention) member(s) from such a district?
The commission finds that LCEF Bylaw II 1, Opinion 2: that “no more than two elected Directors can be from the same district of The Lutheran Church—Missouri Synod,” is—to the extent that it limits the choice of the Synod in convention as to directors it elects—in conflict with Synod Bylaw 3.6.1.3 and therefore inoperative for those directors only; the constitution and bylaws provide no basis to render it inoperative for the appointed directors. This determination controls and supersedes. The commission observes that corporate law will have to be consulted regarding the impact of this effective change in the bylaws of LCEF on the service of midterm directors whose district membership and that of those elected by the Synod in convention might conflict with the rule. The commission further observes that a slight change in the wording of LCEF’s bylaw—if the desire is to accommodate the convention’s current freedom while preventing conflict with current terms of existing directors—might be helpful: “No directors can be elected by the membership from any district already providing at least two elected directors.”
Completeness of Record in Bylaw 2.14.4.2 (a) Concurrence (25-3070) Minutes of February 6–7, 2026 A pastor of the Synod requested the commission’s opinion on the following three questions, occasioned by the determination of a district president not to suspend on the basis of a formal written accusation, filed under Bylaw section 2.14, in a matter of doctrine and practice. The President of the Synod had concurred in the determination of the district president not to suspend, as provided for in Bylaw 2.14.4.2 (a). In accordance with Bylaw 3.9.2.2 (b), input was requested from the President of the Synod and the district presidents of the accuser and the accused. In accordance with the principles of the Standard Operating Procedures Manual (SOPM) for said bylaw section, and out of an abundance of caution for the possibility of resuming formal process, background material provided was restated for the commission in a case-non specific manner. Question 1:
Does the concurrence of the President of the Synod under Bylaw 2.14.4.2 (a) eliminate the accuser’s right to appeal for action if the President did not receive or did not review the full written charges and the record of the district president’s investigation, as required by Bylaw 2.14.4.2?
Opinion: Bylaw 2.14.4.2 sets forth a procedure by which a district president can, in a matter of doctrine and practice and where there is a formal written accusation, obtain the advance concurrence of the President of the Synod in his decision not to suspend an accused member, so as to preclude a subsequent appeal (to the President of the Synod) for action by the accuser (Bylaws 2.14.4.2 [a], 2.14.5 [a]). Where the responsible district president has determined not to suspend, the district president has determined either that cause does not exist or that admonition has proven not futile, rendering suspension inappropriate (Constitution Article XIII 1). The mechanism of Bylaw 2.14.4.2 allows him—when he has reached such a preliminary determination—to request the President’s concurrence, potentially rendering it final and not subject to appeal as to the present allegations and facts and finally concluding the process initiated by the submission of the formal written accusation. The mechanism was developed “to help district and Synod presidents to speak ‘with one voice’ in potentially contested declinations to suspend” (April 7, 2017, Memorandum of the Secretary to the Board of Directors, describing bylaw changes presented for approval as a result of the 2016 Res. 12-14 Council of Presidents consultation process).
The constitutional right and duty to “promote and maintain unity of doctrine and practice in all the districts of the Synod” upon which the appeal for action is founded is the President’s (Const. Art. XI B 3; Op. 16-2791; 2016 Res. 12-14) and not the accuser’s. Where the President has concurred in a district president’s decision not to suspend, he has finally exercised, with regard to the matter at hand, his right and duty to intervene in the matter to “promote and maintain unity of doctrine and practice in all the districts of the Synod.” The concurrence mechanism of Bylaw 2.14.4.2 does not in essence prevent a matter from coming before the President of the Synod for review; it simply advances the President’s review of, and potential concurrence in dismissal of, a matter that might otherwise subsequently come before him as an appeal for action. Prerequisite to obtaining such concurrence, the district president is to “convey [] to [the President of the Synod] the accuser’s formal written accusation, the record of [the district president’s] investigation, and [the district president’s] preliminary determination” (Bylaw 2.14.4.2). It is the clear expectation of the bylaw that these items be conveyed fully, and to this the district president is duty bound (see also clear standards for what is to be included in the “record of the investigation,” SOPM for Bylaw section 2.14, December 2023, Flow Chart Detail, Step 2.3, pp. 31–32). It must be said, at least in passing, that a district president’s withholding of required information from the President to obtain a concurrence and frustrate a potentially valid appeal for action would be a “violat[ion] … of the requirements or procedures” as described in Bylaw 2.14.10.2, with potential for the consequences there also described. It must also be said that the President must be aware he is granting a concurrence for him to have been said to have done so. Bylaw 2.14.4.2 requires certain materials to be presented to the President within the framework of a formal request for concurrence in a matter involving doctrine and practice and a formal, written accusation. Clearly, if the President is not aware he is granting such concurrence (for example, if a district president in a conversation describes a situation without providing a formal, written accusation, and the President casually indicates approval of the district president’s approach or conclusions), no such concurrence is granted. As the question is presented, however, there is no question of whether the President understood that he would be granting, and did grant, a concurrence upon materials presented to him that at least facially met the requirements of Bylaw 2.14.4.2. We now turn to the question at hand, which is of what options an accuser has if, after a concurrence has been delivered, he believes the “accuser’s formal, written accusation, the record of [the district president’s] investigation, and[/or] [the district president’s] determination” were not fully delivered to the President, or fully reviewed by him. We deal with the latter part first. The question in its second aspect asks whether a failure of the President to review the record in full invalidates the concurrence. This, the dignity of the President’s office presumes (see “Third” below) but the bylaws do not clearly require, or present a definite standard for review of such, or provide a finder of fact to reach such a determination. This being the case, the commission has no authority to set a standard or provide a finder of fact regarding this aspect, and it will therefore not be further considered in this opinion. Now to the first part, as to the full conveyance of the required material to the President. The President’s concurrence is a finally dispositive act as regards the facts presented in the formal, written accusation. Of it there is no means of review provided, and from
it there is no further appeal. It has the full effect of a presidential determination not to initiate formal proceedings upon an appeal for action, just delivered earlier in the process. Specifically, the Bylaws provide for no latter-day review of the adequacy of the material presented to the President that could void his concurrence and restore his ability to receive an appeal for action in the matter at hand. Bylaw section 2.14 in other places provides explicit opportunities for review of procedural adherence, as well as specific remedies. For processes that reach a panel (constituted only when a member has been suspended), the panel is empowered to consider compliance with the bylaw provisions; indeed, one of the sub-issues each panel decides is: “Was proper procedure followed by the ecclesiastical supervisor in suspending the member of the Synod (Const. Art. XIII 2; Bylaws 2.14.3–2.14.10.3)?” (id., Decision, p. 57). There is a procedure for objections to alleged noncompliance—when a matter is before a panel—that can result in corrective action and even a new panel (id., General Regulation V, p. 18). But the Bylaws of the Synod provide no authority—prior to an empanelment—to review the actions of ecclesiastical supervisors (other than that they so empower the President, Const. Art. XI B 1–2; Bylaw 3.3.1.1.1 [b, d]; 3.3.1.2 [b–c]) and grant no authority—not even to the President—to compel performance or to correct, outside established bylaw procedures and timelines, prior actions or failures to act. Here, the appeal for action and its attendant prior concurrence are themselves instances of established bylaw procedures allowing the President to intervene upon the performance of duties by the initial ecclesiastical supervisor; bylaws provide no further authority to—or means whereby any might—intervene upon the intervention, especially after the fact. When the President’s concurrence is officially requested under the provision in question, the President must determine, therefore, before he concurs, whether he is entirely satisfied with the adequacy of the record before him to allow his determination that there is no cause that the worker should be suspended, or further admonished under possibility of suspension, on the basis of the facts presented in the formal, written accusation. In case of any doubt in the President’s mind as to the completeness of the record before him that cannot be resolved by conference with the district president, he has the options either to not concur, which may prompt the district president to revise his determination or initiate further investigation, for which more time can be allotted, or to take no action, allowing the district president to proceed with his own determination (id., Step 2.5, p. 32). These options both preserve the potential for appeal for action to the President and for his subsequent independent investigation of the charges and his admonition and/or suspension of the accused (id., Step 2.6, p. 33). In summary, the commission finds: First: That a presidential concurrence once clearly given in response to a clear request under Bylaw 2.14.4.2 cannot be voided, so as to restore the possibility of appeal for action. The Bylaws provide no specific mechanism for an appeal for action to be revived following a presidential concurrence under Bylaw 2.14.4.2. “Expulsion shall be executed only after following such procedure as shall be set forth in the Bylaws of the Synod” (Const. Art. XIII 2). Where the bylaws and attendant SOPM do not themselves provide means of procedural correction, the ability to correct procedural errors is severely curtailed. Where a concurrence is requested, the onus is on the Synod President to ensure that any doubt about sufficiency of the material before him is resolved before he grants any such concurrence. Once he has concurred, a subsequent discovery of the incompleteness of the prerequisite material does not give him the right to withdraw or void his concurrence and proceed to take up the now-precluded appeal for action.
Second: That, the concurrence feature of Bylaw 2.14.4.2 having been added as “a mechanism to help district and Synod presidents to speak ‘with one voice’ in potentially contested declinations to suspend” (Secretary Memo), its purpose would be frustrated if such concurrence, once granted, did not terminate the matter at hand. The concurrence mechanism brings a matter, so far as it extends, before the ultimate sitting authority responsible for the doctrinal and practical unity of the Synod, namely the President, and gives him a stated window in which to act (or not) upon such facts as are presented to him. This preserves the right of the accused to timely process, while allowing the President either to “speak with one voice” together with a district president in dismissing a matter or— should he have any doubts about concurring—the right at the time to preserve the ability of an accuser to appeal for action.
Third: That the onus of “the supervision regarding the doctrine and the administration” and the responsibilities to “conscientiously use all the means at [the President’s] command to promote and maintain unity of doctrine and practice in all the districts of the Synod” (Const. Art. XI B 1–3) rests here, as elsewhere, on the President. These are duties he is expected to perform in good faith, upon which good faith the Synod ultimately relies. His concurrence concludes with finality the process initiated by the formal written accusation presented to him. The President is the ultimate determiner of whether the requirements of Bylaw 2.14.4.2, upon which his concurrence is contingent, have been carried out, and the time for him to make that determination—as regards the process for potential expulsion of the accused—is before he would grant concurrence in the disposition of that process. There is no mechanism provided in the Bylaws for independent or latter-day review of the sufficiency of materials provided to the President under Bylaw 2.14.4.2, much less, of the extent or quality of his review of those materials. The district president and President must be accountable for the conduct of their offices, but that is a matter outside the particular Bylaw section 2.14 process and with no impact on it. Question 2:
Does the complainant have the right to request and receive confirmation or evidence that the President of the Synod received and reviewed the full written charges and the record of the district president’s investigation, as required by Bylaw 2.14.4.2, prior to concurring under Bylaw 2.14.4.2 (a)?
Opinion: See above as to “and reviewed.” There is no standard or finder of fact for latter-day review of this aspect. As to “received,” neither the Bylaws of the Synod nor the relevant SOPM establish such a right. The concurrence of the President of the Synod under Bylaw 2.14.4.2 necessarily includes the implicit certification that, in the determination of the Synod’s ultimate ecclesiastical supervisory officer, the procedure stated has been followed in good faith, including the provision of all required materials. The President could explore doubts in this regard as part of his ecclesiastical supervision of the district presidents, but the complainant has no such independent right. The Bylaws do not preclude an accuser from inquiring of the accused’s district president whether the entire formal written statement of the matter was conveyed to the President, or of the President, whether such was received or how it was reviewed. At the same time, the Bylaws do not establish a right to a response.
Question 3:
If the required procedure of Bylaw 2.14.4.2 was not properly followed, does that procedural failure invalidate the President’s concurrence under Bylaw 2.14.4.2 (a), thus restoring the complainant’s right of appeal for action?
Opinion: With regard to the completeness of the record presented to the President or the adequacy of his review, the situation here presented, the question has been answered above. The President’s concurrence, once given in response to a clear request, is finally dispositive of the matter as presented in the formal, written accusation.
Reconsideration of Op. 24-3031, Adjunct Seminary Faculty (24-3031A) Minutes of February 6–7, 2026 By an email and memorandum of May 6, 2025, the presidents of Concordia Theological Seminary, Fort Wayne, and Concordia Seminary, St. Louis, requested that the commission reconsider its Opinion 24-3031, Adjunct Seminary Faculty, which can be found in the minutes of March 21–22, 2025. The commission accepted the request and solicited input, under Bylaw 3.9.2.2 (b), from the boards of regents and presidents of the seminaries and universities of the Synod, as well as from Concordia University System and the President of the Synod, some of which (and some members of which) responded with written materials. Two concerns are expressed in the request to reconsider Op. 243031: 1.
That Bylaw 3.10.5.5 (g) should be considered as applicable to full-time faculty only, not, as the opinion states, to all faculty (part-time and/or temporary included).
2. That the term “staff” used in Bylaw section 3.11 should not be considered, as the opinion states, as applicable to “faculty” (including part-time or temporary).
Opinion: As to the first concern, the request for reconsideration cites several bylaws in which the unqualified word faculty must be meant to refer only to full-time faculty, in some cases because only the full-time faculty vote and some action of the faculty is being referred to. The fact that they do not vote (or do not tend to receive sabbaticals), however, does not place the part-time faculty outside the faculty, as Bylaw 3.10.5.7 makes clear. In fact, Bylaw 3.10.5.7 must limit which faculty can vote precisely because the part-time and temporary faculty are faculty. The commission finds no reason in the bylaws cited to conclude that Bylaw 3.10.5.5 (g)’s use of the term faculty can, on the basis of the bylaw language, be determined to refer only to full-time faculty. While the commission recognizes that understanding the reference to “the appointment of faculty members” in Bylaw 3.10.5.5 (g) to apply beyond the full-time faculty runs counter to now-common practice, the commission stands by its interpretation of the bylaw as stated in the original opinion. The commission further restates that because the primary purpose of each seminary is to teach and train those going into the ministry, the involvement of the boards of regents in the appointment of all those carrying out that education would seem to be their “fulfilling of the mission of the seminary” (Bylaw 3.10.5.1). As to the second concern, the commission finds that the term “staff” is used in a wider sense in Bylaw section 3.11, as opposed to the narrower sense used in contradistinction to faculty in, for example,
Bylaw 1.5.1.1. In that bylaw, when staff is defined as excluding faculty, it is under the proviso that the distinction is “for the purposes of this bylaw only.” As used in Bylaw 3.11.1, the term encompasses employees of any and all Synod entities, including both faculty and staff of the Synod’s seminaries and universities. In the input received regarding the reconsideration, concern was expressed that the opinion could curtail the seminaries’ flexibility and agility to address emergent needs. Additionally, historical context was provided to support the current practice of appointing part time and/or temporary faculty without Board of Regents approval specific to particular appointments. The commission, however, notes that the Bylaws still provide flexibility with regard to the appointment of part-time faculty—as noted in the original opinion’s interpretation of Bylaw 3.10.5.5 (g) (emphasis added): The lack of a Bylaw-specified procedure for this type of faculty [appointment] does not abrogate the board’s involvement. Bylaw 3.10.5.7.2 requires that for all types of appointments, including those treated under sub paragraph (g), the seminary is to have “established policies and procedures, these to be put in place by the board of regents (Bylaw 3.10.5.5 [a]). With regard especially to these “other types of faculty appointments,” the board’s level of involvement in such procedures is left to the board to determine, so long as they ultimately approve of such appointments (Bylaw 3.10.5.5 [g]). The board could choose to undertake such appointments directly, or it could choose to permit the president to undertake such appointments subject to ultimate approval or ratification by the board. The board could also choose to delegate this task to a committee in accordance with Bylaw 1.5.3.3. These examples are not intended to exhaust all legitimate possibilities; so long as the choices of the board do not conflict with another express provision of the bylaws, it is free to accomplish its task of “approving” as it sees fit. Having not received input that leads the commission to a different conclusion about the meaning of relevant bylaws, after reconsideration, the commission finds no basis for revision of Op. 24-3031. All are thanked for submitting input. Commission on Constitutional Matters