Legal Opinion Places LCMS President Under Board of Directors

By: Rev. Jack Cascione

Battle lines are now drawn in a struggle for financial and administrative control of the LCMS between the LCMS Board of Directors (BOD) versus Synodical President Gerald Kieschnick and the LCMS Council of District Presidents (COP).

The LCMS Districts continue to decrease the funds given to the Synod, and thereby wield more authority than the Synod.  The COP “candidate” and now President of the LCMS, is Gerald Kieschnick, the most incompetent administrator in Synodical history.  The LCMS Board of Directors is attempting to reclaim its constitutional authority to govern the Synod, its right to remove officers, and govern LCMS Districts and District Presidents.

If the BOD fails to reclaims its constitutional and financial authority, the LCMS could break up into a number of Districts.  This has been the direction of the Synod since the Bohlmann administration.

The LCMS Praesidium’s inability to address Dr. Waldo Werning’s public false doctrine about the Trinity is only one example that the checkbook and By-laws have more clout than the Bible in the Synod.

The Council of District Presidents (COP) will be meeting September 20-24^th, 2003 , and will respond with its own legal opinion.

Texas District President Jim Linderman responds a follows:

very carefully.  The implication in this document that a new direction will be followed in the governance of our Synod is a matter of utmost importance to all of us. I am sure that there will be requests for other legal opinions on the subject. The Council of Presidents will be meeting Saturday-Wednesday. If I find out anything that is more definitive, I will let you know. Peace and Joy in Christ”

http://www.lcms.org/bod/BODReportrefinancialandlegalmatters.pdf 

The COP is consumed with accumulating more power for itself while Werning openly rejects the definition of God in the Athanasian Creed.

There will be an intense effort by the COP to have the current members of the BOD voted out of office in 2004.

Three successive rulings by the Synod's Commission On Constitutional Matters (CCM) redefined the Office of the President in the LCMS and placed him above the LCMS Board of Directors.

In these three rulings, the CCM stated that the LCMS BOD had no authority to question President Gerald Kieschnick’s handling and publicity of the Benke case and his public attacks on LCMS Vice President Wallace Schulz.

2. "LCMSNews -- No. 37 July 12, 2002 , CCM ruling allows news about Benke: . . .'  The CCM has ruled, however, that the Board cannot restrict the ecclesiastical power of the Synod president or the bylaw-mandated duties of the Board for Communication Services.'"

3. Just two days later, on August 20, 2002 , the CCM issued its third ruling that virtually nullified the complaint by the Board of Directors and their numerous citations from the LCMS Handbook.

In ruling (02-2282) "Questions re President's Duty to Call up for Review" by issuing the following ruling: (http://www.lcms.org/ccm/02-2282.pdf) the CCM ruled that the LCMS President is free to publicize and speak about anything to the Synod ‘under extraordinary circumstances.’  The president decides what are or are not ‘extraordinary circumstances.’"

In response to: these rulings by the CCM; the $203 million long-term debt incurred by the Concordia University System to the Synod; and a decrease in funds from the LCMS Districts; the BOD:

A. hired the Bryan Cave Law Firm;

B. adopted resolutions stating that the CCM is only advisory to the BOD; and

C. issued a  “REPORT FOR RESPONDING TO FINANCIAL AND LEGAL MATTERS, September, 2003.”

entities in the corporation such as the CCM.  President Kieschnick had appointed most of the members of the CCM who ruled (above) that the LCMS President was not under the authority of the BOD.  The Cave legal opinion has reversed the CCM.

The August 13-16, 2003 minutes of the BOD (29 pages long) show that the BOD adopted a number of resolutions based on the Cave legal opinion including:

(a) Informing the Commission on Structure that CCM opinions are only advisory to the BOD;

(b) the authority to remove all officers with or without cause;

(c) the authority to prepare changes in the Articles of Incorporation regarding the indemnification of directors and officers; changes regarding Board of Directors’ authority that is consistent with Missouri Law; changes that clarify the convention’s authority over the Board of Directors for all matters of management and governance;

and changes in the Articles of Incorporation of Districts, seminaries, colleges, universities, and other synodical corporations that provides (1) that these agencies are subject to the Constitution and Bylaws of the Synod; (2) that all property goes to the Synod in the event of dissolution; and (3) that these agencies’ Articles of Incorporation can only be amended after approval by the Board of Directors of the Synod.

The BOD also noted in its “REPORT FOR RESPONDING TO FINANCIAL AND LEGAL MATTERS, September, 2003” that:

1. The LCMS Constitution gives the BOD authority to address the mounting LCMS debt.

2. The Lutheran Church—Missouri Synod, Inc. is a Missouri Corporation existing under the Missouri Non-Profit Corporation Act.  The Articles of Incorporation of the LCMS are stated on pages 138-39 of the 2001 Handbook.  The Articles of Incorporation is the primary legal governing document of the LCMS.  The corporate responsibilities, which are governed by Missouri Law, are given to the Board of Directors (Section 355.316.2 of the Missouri Statutes.)  However, in the LCMS, the Board of Directors is under the authority of the Convention.

3. Under Missouri Law, any provision in the Articles of Incorporation, Constitution, or Bylaws that is not consistent with Missouri Law would be considered null and void by civil statute [including CCM rulings].

4. Synod is “an extension of the congregations . . . acting through conventions” (Bylaw 1.05 c). Thus the “ultimate authority” of the Synod remains with the members acting in the synodical convention (Articles of Incorporation, IV) (Bylaw 3.01.)

5. The LCMS is a predominantly congregational organization, unlike hierarchical church bodies such as the Roman Catholic Church.  Many national church bodies own the congregations.  The LCMS Constitution provides that “membership of a congregation in the Synod gives the Synod no equity in the property of the congregation” (Article VII 2).  However, “Bylaw 3.51 i” states that Synod owns all property of the various agencies of the Synod, such as Districts, seminaries, colleges, universities, etc.

7. The Synod decides when and whether a District shall be formed, divided, realigned, or merged with another District (Bylaw 4.03 a). The Synod is not merely advisory to the Districts (Bylaw 4.07 a). The Constitution of the Synod is also the Constitution of each District, and the Bylaws of the Synod are also primarily the Bylaws of the District, although a District may adopt additional bylaws, regulations, and resolutions that are not in conflict with the Constitution and Bylaws of the Synod (Bylaw 4.07 b).  Thus the nature of Districts is very different from that of the separate synod wide corporations.

The BOD noted that in 2001 the Convention that the Synod has no equity in any LCMS congregation.  This resolution could be reversed in future Conventions or by a newly elected BOD.  By broadening the definition of its assets, the Synod could increase its ability to borrow funds instead of reducing its debt.

Congregations should be advised to check if their deeds make any mention of the LCMS in order to avoid attachment in the event of an LCMS fiscal crisis.