By David L. Mahsman
The Commission on Constitutional Matters (CCM) and representatives of the Synod’s Board of Directors Jan. 5 had what the CCM’s chairman termed an “open and frank discussion” related to recent Board actions.
Synod President Gerald Kieschnick arranged the meeting in response to what he has called “an apparent conflict between these two important groups of synodical leaders.” At its Nov. 19-22 meeting, the Board of Directors took issue with eight CCM opinions – five define limits to the Board’s authority, three deal with “ecclesiastical supervision” – and declared them to be “of no effect.”
“We met into the early afternoon. We had an open and frank discussion of their position,” said CCM Chairman Walter Tesch. He said no conclusions were reached.
“There was no conclusion that we could make,” Board of Directors Chairman Robert Kuhn told Reporter in a separate interview. “The meeting was called to talk, so that’s what we did.”
Kieschnick participated in the meeting but referred questions to Tesch and Kuhn, who he said were designated by participants to be spokesmen. Neither had much to say.
“We met, we had a good meeting, we were in a position to discuss our positions,” Kuhn said.
Representing the Board at the meeting with Kuhn were members Christian Preus, David Hawk, Ernest Garbe and Dr. Thomas Kuchta, who also is serving as the Synod’s interim chief administrative officer.
In its November resolutions, the Board said that the eight CCM 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.”
Following the Jan. 5 meeting, Tesch said that the CCM “has concluded that it will continue to do what the Synod has assigned to us in Bylaw 3.905.”
In a Dec. 17 e-mailed “Letter to Pastors,” Kieschnick included a section on the Board-CCM matter.
“While I obviously understand and fully support proper concern of the BOD [Board of Directors] for protecting the assets of the Synod and protecting the Synod from litigation, liability and vulnerability, I am also deeply concerned with the adoption by the BOD of resolutions that appear clearly to be in conflict with the Constitution and Bylaws of our Synod,” Kieschnick wrote. He cited three provisions:
- “The officers of the Synod must assume only such rights as have been expressly conferred upon them by the Synod” (Constitution Art. XI, A, 1).
- The Board of Directors “shall have the right to call up for review, criticism, modification, or revocation any action or policy of a program board, commission, or council, excerpt opinions of the Commission on Constitutional Matters” (Bylaw 3.183,d,2).
- “An opinion rendered by the Commission (CCM) shall be binding on the question decided unless and until it is overruled by a synodical convention …” (Bylaw 3.905d).
In December, Kuchta told Reporter that the Board had to take the action it did to protect congregations from individual legal liability. The Board addresses the matter at greater length in “Board Briefs II,” the second installment in an online “question-and-answer” feature the Board says is intended to “clear up … confusion and provide assurance to the members of our Synod.”
“Board Briefs II,” which was posted Jan. 8, can be accessed on the Web at www.lcms.org/?4157. In it, the Board acknowledges that declaring the eight CCM opinions “of no effect” is a “drastic action,” but says it is one that it had no choice but to take. It says that those opinions “prevent the Board from carrying out its responsibilities as required not only by the Synod’s Constitution, Bylaws, and resolutions but also by its Articles of Incorporation and not-for-profit corporation law of the State of Missouri.”
The Synod, says the Board, has placed itself under Missouri law and has agreed to function according to it in exchange for the benefits and protections it provides.
“The State of Missouri expects the Synod’s Board of Directors to function like a board of directors of a not-for-profit corporation,” says “Board Briefs.” “One of those specific expectations is that the authority of the Synod’s Board may not be limited by what the state considers a lesser entity in the organization (in this case, the CCM) unless that limitation is specifically provided for in the Synod’s Articles of Incorporation. At present, there is no such limitation.”
The Board says that its authority is limited in the Articles of Incorporation only by Synod conventions. “Although Article VII of the Articles provides for Bylaws to enable the Synod to carry out its objectives, the Articles do not specifically grant to any entity in the Synod other than a convention the right to exercise power over the Board,” it says. “Therefore, the Board, in order to obey the law and to protect the not-for-profit corporation status of the Synod, had no choice but to declare certain opinions of the CCM ‘of no effect.'”
“Board Briefs” says that the Board believes it is continuing to function according to the Synod’s Bylaws, but that there are “conflicts” in the Bylaws.
“The Bylaws require the Board of Directors to function according to the laws of the state. At the same time, the Bylaws undermine the authority of the Board by making CCM decisions an ultimate authority in business, property, and legal matters,” it says. “The Board has turned this problem over to the Commission on Structure for resolution by the 2004 convention.”