BOD Turns "Blind-Eye" to Synod Procedures

There is much truth in the maxim, “There is none so blind as he who will not see.”  This saying may well apply to the so-called majority of the Synodical Board of Directors (BOD), who, in their reading of the Synodical Handbook concentrate upon certain bylaws and at the same time are seemingly blind—even willfully blind—to others which do not fit in with their goals for controlling the LCMS.

The BOD clearly recognizes the responsibility placed upon it in Bylaw 3.2.5, which empowers the Board to fill vacancies that occur in elective boards and commissions of the Synod during the course of a triennium, but at the same time appears to be unable, even unwilling, to observe the procedure mandated in sections b and c of the same bylaw.  The actions of the BOD at its August 19-20, 2005 meeting were an attempt to circumvent the procedure for filling vacancies adopted by the delegates to the 2004 convention of the Synod when they approved Resolution 7-14.  The proper procedure is clearly spelled out in Bylaw 3.2.5.b and c.  It calls for the Board to select from a list of three to five candidates proposed by a committee made up of the Chairman of the Committee for Nominations and two others members of that committee selected from the committee for this responsibility.

The minutes of the August meeting of the BOD provide documentation that the failure to follow the procedure mandated in the bylaw was not accidental, but rather, deliberate.  These minutes reveal that one of the members of the Board, “referencing the Handbook of the Synod and Robert’s Rules of Order, and materials provided upon request from a licensed parliamentarian, raised the issue of floor nominations when the Board fills vacancies according to Bylaw 3.5.2.  The member emphasized that parliamentary law regards floor nominations to be a basic right of membership that must be complied with also when a nominations committee is called for, even when past custom of an organization may argue otherwise.  After discussion and questions Chairman Kuhn announced that in the future he would call for floor nominations after the report from the Nominations Committee.”  (2005 BOD Minutes, Section 66)

The BOD has the responsibility for filling two vacancies, one created by the decision of a pastor elected to the board of directors of Concordia Publishing House at the 2004 synodical convention not to accept the position, and the other caused by the resignation of Mr. Ted Kober from membership on the BOD because of a perceived conflict of interest.  After the names of the nominees suggested by the Committee for nominations, the chair called for nominations from the floor in each instance.  In the voting to fill these two vacancies the BOD selected candidates who had been nominated from the floor but who had not been named by the Committee for Nominations as required by Bylaw 3.2.5 b and c. 

After the minutes of the August meeting of the BOD had appeared on the Synodical website, at least one pastor directed a series of questions to the Commission for Constitutional Matters, stating his concerns about the validity of the actions of the BOD in filling these vacancies in a manner contrary to the procedure mandated by Bylaw 3.2.5 b and c.

As a matter of courtesy the CCM forwarded these questions to both the BOD and the Synodical legal counsel.  At the September 13 meeting of the BOD, which was by conference call, the BOD was not yet ready to submit its response to the CCM and so  deferred action until its November meeting.  The CCM, however, decided that it was necessary to respond without delay to the questions that had been submitted “out of concern” according to its own minutes, “for the consequences of a delay.”  (2005 CCM Minutes). 

Opinions 05-2439, 05-2440, and 05-2442 are the CCM’s response to the concerns that had been raised by the questions that had been asked.

Question 1:  Did the LCMS Board of Directors act in violation of Bylaw 3.2.5 when it filled the vacancies on the CPH Board of Directors and on the LCMS Board of Directors with candidates who were nominated from the floor rather than with candidates from the list of candidates provided by the synodical nominating committee?

In its response the CCM refers to the first “whereas” of Resolution 7-14, which restructured the former Bylaw 3.63 b into the current Bylaw 3.2.5 and noted that, according to the Special Standing Rule # 7 of the 2004 convention, “The preface, preamble, rationale, and whereas sections shall be regarded as integral parts of resolutions and therefore subject to the same consideration and adoption as the main motion” (Today’s Business, p. 9).  According to the first “whereas” of Resolution 7-14 “the Board of Directors is required to fill vacancies of boards and commissions elected by the Synod from the list provided by the nominations committee,” and the CCM notes that “Bylaw 3.2.5 does not make provision for nominations from the floor.”  The end result of this opinion is that the actions of the Board in selecting electing individuals to such vacant positions, though their names had not appeared on the list of nominees but had been nominated from the floor of the board meeting,  are violations of Bylaw 3.2.5 and Resolution 7-14.

The second question presented to the CCM is a follow-up of the first.

Question 2:  If the LCMS Board of Directors acted in violation of Bylaw 3.2.5, should the election of Peter Cage to the CPH Board and Walter Brantz to the LCMS Board of Directors be declared null and void?

The CCM’s opinion pulls no punches when it responds, “Yes, 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.”   The CCM did not pull this answer out of thin air but cited two previous CCM opinions, one of June 1974 and the other from August 13, 1976.  The CCM then states the obvious conclusion, “Therefore, the positions in question remain vacant.”

The series of questions posed to the CCM are like the links in a chain.  The next query deals with how the BOD is obligated to act.

Question 3:  If the above elections are declared null and void, should the LCMS Board of Directors be required to fill the vacancies on these two boards with candidates provided by the nominations committee?

Once again the CCM concurs with the premise of the question and responds, “Yes.  Article XI A 1 of the Constitution of the Synod states, “The officers of the Synod must assume only such rights as have been expressly conferred upon them by the Synod, and in everything pertaining to their rights and the performance of their duties they are responsible to the Synod.”

This time, rather than referring to precedent the CCM bases its response on clear statements in the Synodical Handbook which the Board majority either failed to read or decided did not apply to them.  Bylaw 1.4.1 clearly states that “The delegate convention of the Synod is 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.  It reserves to itself the right to give direction to the officers and agencies of the Synod.  [emphasis added].  The CCM then notes that a corollary of this statement is that “all officers and agencies, unless otherwise exempted by the bylaws,” are accountable to the Synod and any decisions contrary to the Synod’s directives may be brought to the attention of the Synod in convention for appropriate action.

Not only does the CCM refer to Bylaw 1.4.1 but it further references Bylaw 1.4.3:  “Elected officers of the Synod and its agencies serve in accordance with duties assigned to them or otherwise authorized by the Constitution and appropriate bylaws.”  The appropriate procedure is clearly spelled out in Bylaw 3.2.5, and there is no provision for any alternate course of action, though the BOD majority attempted to find one.

Question 4:  Does the Board of Directors have the authority to flout the requirements of Bylaw 3.2.5 b and c on the basis of an appeal to Robert’s Rules of Order?  

The CCM”s response is a terse, “No.”  Though the CCM has discovered only two references to “accepted parliamentary procedure” in the Handbook, they do not provide adequate justification for the BOD’s action; in fact, “the Constitution, Bylaws, and resolutions of  the Synod supersede any “accepted parliamentary rules.” 

The next question in the chain reads:

Question 5:  If the Board does not have such authority, are any appointments made on such a basis valid and operative, or do the positions remain vacant until filled in accordance with the provisions of the Bylaws?

This question had already been answered by the CCM’s response to Question 2.  The significance of that answer is that the positions remain vacant until filled by  proper procedure. 

The final question in this series is poorly phrased and  in effect asks two questions:

Question 6:  Can the Commission on Constitutional Matters inform and direct the Board of Directors that is former actions are null and void?

The CCM, in issuing these opinions is thereby informing both the Synod and the Board of Directors of its response to the questions that had been posed, but, even though Bylaw 3.9.2.2 b states that “an opinion rendered by the commission shall be binding on the question decided unless and until it is overruled by a convention of the Synod,” the CCM has no power to implement its decisions. 

How will the BOD read these opinions?  What course will they follow in the light of these opinions?  One might hope that the BOD will simply recognize that its procedures were improper and act accordingly, but there is always the possibility that the board majority will decide, as they did to other CCM opinions during the past triennium, that they are “of no effect.”  Should the BOD follow that course, there will be a constitutional crisis, which will have the potential of bringing all the Synod’s activity to a halt and do untold damage to the work which the synod is seeking to do to bring the good news of Jesus to a world perishing in sin.  From this, good Lord, deliver us!