By What Authority Was Extra Legal Counsel Retained?

By James C. Rogers

When I learned from the August 11-16 minutes of the Synod’s Board of Directors (BOD) that the Executive Committee of the Board had retained the services of the St. Louis-based Bryan Cave law firm, I wondered why, since the Synod has access to the capable general legal counsel of Pranschke and Holderle.

When I learned that the price tag for this outside legal opinion was $42,000 and counting, I wondered how that expense could be justified, especially in light of the BOD’s own statement  that the LCMS “is currently facing certain financial challenges” (Board of Directors Report for Responding to Financial and Legal Matters, September, 2003).

A Case of Litigation?   

Then I checked the BOD Policy Manual concerning the authority of the Executive Committee to make this unprecedented and expensive decision. The Policy Manual states that general counsel is to be appointed by the Board of Directors, and that special counsel is to be selected by the general counsel for each case of litigation (5.8.1.1,2,3).

So on September 16 I e-mailed the Secretary of the Synod, Dr. Raymond Hartwig, saying, “The Policy Manual seems to authorize the Board and/or the Executive Committee to engage special counsel in cases of litigation. Was there in fact some litigation that led the Executive Committee to engage the Bryan Cave law firm rather than using Synod's general counsel?”

Secretary Hartwig replied to me on September 17, “Regarding special legal counsel, I probably shouldn't comment. You may wish to direct your questions to the Board of Directors.” 

On September 19 I wrote a letter to BOD Chairman, Dr. Robert Kuhn, stating, “The Policy Manual seems to authorize the Board and/or the Executive Committee to engage special counsel in cases of litigation. Was there in fact some litigation that led the Executive Committee to recently engage the Bryan Cave law firm rather than using Synod's general counsel?”

On October 1, Synod’s former Chief Administrative Officer, Brad Hewitt, wrote to me, saying “Chairman Kuhn asked that I respond to your inquiry regarding the circumstances involved in retaining the Bryan Cave law firm. Specifically, to answer your question, there is not currently nor has there been any litigation that caused the Board to retain this special counsel.

“Regarding our Board policy, the Board of Directors has the power and duty to hire all legal council (both general and special). The sections of the policy you referred to in your letter must be taken in context with the rest of the policy manual. The limitations in that section refer to the Executive Committee being able to take action between board meetings and not to limit the board itself. If you have additional questions, please contact, Tom Kuchta, who will fill in as Interim Administrative Officer of Synod effective October 13, 2003.”

Was There an Emergency?

On October 8 I e-mailed Mr. Kuchta (with a copy going to Chairman Kuhn): “I have one question. Since this [decision to retain outside legal counsel] was a decision made in a meeting of the Executive Committee, what ‘emergency’ made such an Executive Committee decision necessary? According to BOD Policy Manual 2.8.2. the Executive Committee may act on behalf of the Board ‘in times of emergency between board meetings and in all matters delegated to it by specific action or by policy of the Board, including responsible legal action.’” I concluded, “I understand the Board did not delegate this decision to the Executive Committee. Was there an emergency? If not, is there some policy of the Board that gave the Executive Committee this authority?”

Mr. Kuchta replied to my inquiry via e-mail that same day (with a copy going to Chairman Kuhn), saying, “I believe your question should be answered by the Executive Committee Chairman, Robert Kuhn.” So I e-mailed Chairman Kuhn, asking him to respond. 

On October 16 Chairman Kuhn wrote to me, “No, there was no emergency, but time is always of the essence. In reference to the matter of policy, please see again the letter from Mr. Hewitt.”

 Two Conclusions

Through much tribulation I was able to ascertain two things:

1. There was no case of litigation that gave the Executive Committee the authority to retain the services of an outside law firm.

2. There was no emergency that gave the Executive Committee the authority to make the decision between meetings of the full Board of Directors. 

 Rev. James C. Rogers is Pastor of Lord of Life Lutheran Church, Chesterfield, MO.

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