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	November 29, 2003 .................... LCMSNews -- No. 140

	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 resolutions were adopted during an evening session that had
not been scheduled in advance of the Board's meeting, but that was held
at the same time as a Lutheran Church Extension Fund (LCEF) awards
program. Neither Kieschnick nor First Vice President Daniel Preus were
present at the Board's evening session.

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

	****************************************

	If you have questions or comments about this LCMSNews release,
contact Joe Isenhower Jr. at joe.isenhower@lcms.org or (314) 996-1231,
or Paula Schlueter Ross at paula.ross@lcms.org or (314) 996-1230.

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