Board declares 8 CCM opinions 'of no effect'

By David L. Mahsman

The Synod’s Board of Directors has taken issue with eight opinions rendered by the Commission on Constitutional Matters (CCM) and declared them to be “of no effect.”

Five of the opinions define limits to the Board’s authority; three deal with “ecclesiastical supervision.” The Board Nov. 21 said that “for the sake of the Synod and its best interests,” it “cannot agree with or accept” the opinions, rendered between June 2002 and September 2003.

In two separate but similar resolutions, the Board said that the eight opinions “exceed the service function of the CCM provided in Bylaw 3.905d.” That bylaw says the CCM shall “interpret the Synod’s Constitution, Bylaws, and resolutions.”

The same bylaw also states that “an opinion rendered by the commission shall be binding on the question decided unless and until it is overruled by a synodical convention.”

Synod President Gerald Kieschnick took note of that provision in a Nov. 25 statement to “Reporter,” the Synod’s newspaper. He also emphasized the exception in a bylaw that gives the Board authority, in business and legal matters, “to call up for review, criticism, modification, or revocation any action or policy of a program board, commission, or council, except opinions of the Commission on Constitutional Matters.”

“According to the Bylaws of the LCMS, opinions of the Commission on Constitutional Matters must be followed in the Synod,” Kieschnick said.

He noted that the Synod’s Constitution gives the president the duty to see that officers, including the Board of Directors, act in accord with the Constitution, “to admonish all who in any way depart from it, and, if such admonition is not heeded, to report such cases to the Synod.”

“Accordingly, I will be working with the Board of Directors and the Commission on Constitutional Matters in an effort to resolve the apparent conflict between these two important groups of synodical leaders,” Kieschnick said. “I respectfully request the prayers of the Synod in this matter and pledge to keep the Synod informed regarding this endeavor.”

Dr. Thomas Kuchta told “Reporter” that the Board had to take the action it did — despite the cited bylaw provisions — to protect congregations from individual legal liability. Kuchta is the Synod’s interim chief administrative officer, as well as its vice president- finance/treasurer.

“If the Board of Directors does not protect the Synod’s status as a corporation under Missouri law, its members — chiefly congregations — would be open to individual liability were the Synod or any part of it to be sued in court,” Kuchta said. “And to protect its corporate status, the Board has to act as a corporate board is expected to act under Missouri law.

“If the Board had done nothing about these CCM opinions, which purport to limit the Board’s authority in a way that is not consistent with Missouri law, the Board could weaken the contention that we are operating as a corporation,” Kuchta continued.

Kuchta cited Bylaw 3.183, which says the Board “shall have the powers and duties accorded to it by the Articles of Incorporation, Constitution, Bylaws, and resolutions of the Synod, and the laws of the State of Missouri.” Missouri law, he said, “clearly gives the Board authority to overrule any decisions that deal with secular issues.”

“The Board’s overall goal is to protect the corporate shield so that the Synod’s congregations aren’t exposed to liability that would put their individual assets at risk,” Kuchta said.

He said his comments apply specifically to the Board resolution that deals with the five opinions regarding board authority, but he added that the second resolution, on the three “ecclesiastical supervision” opinions, also has liability as its concern.

Those three opinions say that Synod membership cannot be terminated for an action taken with the knowledge and approval of a member’s ecclesiastical supervisor. If a member is exempted on such grounds for “gross, grievous crimes or other wrongdoing,” the result could be “significant legal liability,” the Board says.

The other five opinions regard the Board’s authority to direct how funds are allocated by the Board for Higher Education/Concordia University System; to direct the use of budgeted funds by the Board for Communication Services (BCS); to restrict the use of donor-designated funds by the Synod president; to reverse a Synod convention’s delegation of authority to the BCS for Synod-owned radio station KFUO; and to otherwise direct the programs of the BCS, including “Reporter.”

The BCS at its Nov. 20-21 meeting, which ran concurrently with the directors’ meeting, “thoroughly discussed” KFUO and the CCM opinion that said the Board of Directors may not reverse a Synod convention’s delegation of authority, said BCS Executive Director Tom Lapacka. The directors voted earlier this year to assume direct control of KFUO from the BCS, which had been given responsibility for the station by the 1986 convention.

“There are several issues that play a role in making KFUO a more effective medium for outreach. None of these are easy,” Lapacka said. He said the BCS deferred any action based on the CCM opinion until next month.

Neither of the two Board of Directors resolutions was adopted unanimously. On the second of the two, four directors asked that their negative votes be recorded. The four are Dr. Betty Duda, Dr. Jean Garton, Oscar Hanson and Dr. Edwin A. Trapp Jr.

Synod Secretary Raymond Hartwig told the Board that he did not participate in the decision on the two resolutions because he is a member of the CCM as well as of the Board of Directors.

The Board’s meeting was in Miami, Fla., site of this year’s LCEF Fall Leadership Conference.

December 2003

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