A Gordian Knot of bylaws – How could a Synod President remove a District President?

Alexander_cuts_the_Gordian_KnotThe Gordian Knot is an interesting tale.  Alexander the Great’s solution is also interesting.  The LCMS Handbook lays out a Gordian Knot called Dispute Resolution (which produced the results of Dr. Becker’s being viewed as an orthodox Lutheran not needing a formal hearing).  Now there are calls for the President of the Synod to do something with regards to the District President over Dr. Becker.  Enter Bylaws again, another Gordian knot.  Here are the bylaws…

2.15  Expulsion of a District President or Officer

 from Membership in the Synod

 2.15.1     The action to commence expulsion of a district president or an officer of the Synod from membership in the Synod is the sole responsibility of the President of the Synod, who has the responsibility for ecclesiastical supervision of such member (Constitution Art. XI A and B 1). This Bylaw section 2.15, among others, provides the procedures to carry out Article XIII of the Constitution, “Expulsion from the Synod.” However, it does not provide the procedure for the expulsion of a congregation or individual member of the Synod (Bylaw section 2.14), the President of the Synod (Bylaw section 2.16), or individual members in cases involving sexual misconduct or criminal behavior (Bylaw section 2.17).

Definition of Terms

2.15.2     For a definition of terms used in this bylaw, see Bylaw 2.14.2.

Consultation

2.15.3     When a member congregation or individual member of the Synod is aware of information which could lead to the expulsion of a district president or an officer of the Synod from the Synod’s membership under Article XIII of the Constitution, prior to any formal written complaint or accusation the member shall consult with the member’s district president or with the President of the Synod if the member’s district president is the accused to seek advice and also so that it can be determined whether this is the appropriate bylaw procedure (Bylaw section 2.15) or whether the matter falls under Bylaw sections 2.14, 2.17, or 1.8, or dispute resolution under Bylaw section 1.10. In regard to this consultation:

(a) If and when the accuser’s district president (if the district president is not the one accused or if the accused is an officer of the Synod) is the one consulted, the district president shall consult with the President of the Synod. Whether the President of the Synod is the one consulted directly by the accuser or by the district president, the President of the Synod may consult with the vice-presidents of the Synod, with the district president of the accused (if an officer of the Synod), with the chairman of the Council of Presidents, or with the Commission on Theology and Church Relations (CTCR). The President of the Synod may also ask an opinion of the Commission on Constitutional Matters (CCM). The President of the Synod must follow any opinion received from either the CCM or the CTCR, which shall be rendered within 30 days or such additional time as the President of the Synod may allow.

(b) The district president or the President of the Synod shall require the accuser to follow the correct bylaw provision under the circumstance, and shall provide for evangelical supervision, counsel, and care to the persons involved.

(c) If this Bylaw section 2.15 applies, the district president or the President of the Synod shall ensure that the accuser has met face-to-face with the accused in the manner described in Matthew 18:15. Even if the alleged violation of Article XIII of the Constitution is considered to be “public,” this provision of Matthew 18:15 shall be followed. The reputation of all parties to the matter is to be protected as commanded in the Eighth Commandment.

(d) The district president of the accuser or the President of the Synod may appoint a small committee to assist in reconciliation efforts. The goal throughout is always one of admonition and reconciliation, of repentance and forgiveness (even if the following proceedings result in expulsion from membership).

(e) The requirement of the Synod of previous admonition called for in Article XIII of the Constitution commences at this stage if applicable.

(f) Only after all of the requirements of the consultation provided in this bylaw (Bylaw 2.15.3) have been followed may the accuser bring the matter to the President of the Synod for action under the correct bylaw provision determined by the accuser’s district president (paragraph [b] above).

Commencing an Action

2.15.4     Under this bylaw, the President of the Synod shall commence the following action when he becomes aware of information or allegations that could lead to expulsion of a member from the Synod under the provisions of Article XIII of the Constitution. The President of the Synod may become aware of such information by his own personal knowledge. Such information or allegations may also be conveyed to him in a formal written complaint or accusation made by a member of the Synod who has carried out the above provision (Bylaw 2.15.3). In commencing such action, the President of the Synod:

(a) Shall determine whether Bylaw 2.15.3 provisions have been carried out and shall thoroughly investigate the matter to determine whether the facts learned from his investigation form a basis for expulsion of the member under Article XIII of the Constitution. He may appoint a small investigation committee (cf. Bylaw 4.4.6). If the accused is a district president, the investigation shall include consultation with that president’s district board of directors and district vice-presidents. He may also consult with the circuit visitors of the given district.

(b) Shall proceed in the manner described in Matthew 18:15-16 as the requirement of “admonition” in Article XIII of the Constitution, if applicable, continues to be carried out.

(c) May, apart from the investigation, also appoint a small committee to assist in reconciliation efforts (see Bylaw 2.15.3 [d] above).

2.15.4.1  In the event the President of the Synod is disqualified because he has a conflict of interest or is unable to act, the chairman of the Council of Presidents or the next qualified officer of the Council of Presidents shall function in his place in carrying out any of the following bylaw provisions. The majority vote of the district presidents of the Council of Presidents, excluding the involved district presidents, shall determine any challenge to the eligibility of the President of the Synod to act which is not agreed to by the President of the Synod.

Referral Panel

2.15.5     In the determination of whether or not to initiate formal proceedings, the President of the Synod may form a Referral Panel consisting of three district presidents.

(a) This panel shall be formed by blind draw, shall not include the district president that is a party to the matter or the district president of an accused officer or the district president of the accuser.

(b) The blind draw shall be administered by the chairman of the Council of Presidents audited by witnesses.

2.15.5.1  After reviewing the accusation and the results of the investigation, the Referral Panel shall make the determination whether or not to initiate formal proceedings.

2.15.5.2  Whether made by the President of the Synod or the Referral Panel, if the determination is not to initiate formal proceedings, the President of the Synod shall in writing so inform the accuser, any other district president involved, and the involved member, which shall terminate the matter.

2.15.5.3  If the President of the Synod fails to act within 60 days after receipt of the formal written complaint or accusation, the accuser may present a formal written request to the President of the Synod for the forming of the Referral Panel, which request the President of the Synod must grant. If the provisions set forth in Bylaw 2.15.4 have not been carried out, the Referral Panel shall carry out these provisions in the process of making its determination whether or not to initiate formal proceedings.

Commencing Formal Proceedings

2.15.6     If the President of the Synod or the Referral Panel concludes that the facts form a basis for expulsion of the member under Article XIII of the Constitution, the President of the Synod in commencing the formal proceedings shall

(a) provide to the member a written notification of the member’s suspended status under Bylaw 2.13.4;

(b) provide to the member a written statement of the matter which sets forth the facts and states that he is requesting expulsion of the member from the Synod in accord with Article XIII of the Constitution; and

(c) provide to the member a written notification that the member has 15 days from the date of receipt of the statement of the matter to advise the President of the Synod that there is a desire to have the matter heard and resolved.

2.15.6.1  Failure by the member to file such written request for hearing and resolution within the 15-day period shall be deemed to be consent to expulsion from membership in the Synod.

Hearing Panel

2.15.7     If the request for hearing as granted in Bylaw 2.15.6 (c) is made, the President of the Synod shall inform the Secretary of the Synod who shall initiate the formation of a Hearing Panel, such formation to be accomplished within 30 days of the request in accordance with the provisions in this bylaw.

2.15.7.1  At the time that the request for hearing is made, the President of the Synod shall forward to the Secretary of the Synod the statement of the matter and a written memorandum describing the manner in which there was compliance with the guidelines provided in Matthew 18:15–16 and “previous futile admonition” (Constitution Art. XIII), as well as all of the provisions of Bylaws 2.15.3-2.15.6.1.

2.15.7.2  A Hearing Panel consisting of two district presidents (excluding the involved district president[s]) and one reconciler who is a layperson, selected as follows, shall conduct the hearing:

(a) One district president shall be selected by the accused (a district president, if he is the accused, may not choose himself).

(b) One district president shall be selected by the President of the Synod.

(c) One reconciler who is a layperson shall be chosen by blind draw from the Synod’s roster of reconcilers, with the blind draw administered by the Secretary of the Synod and audited by witnesses.

(d) Each Hearing Panel shall be assisted by a nonvoting hearing facilitator selected according to Bylaw 2.14.2 (j).

(e) No two members of the panel nor the hearing facilitator shall be from the same district.

(f) The hearing facilitator shall administrate the hearing and may draw upon persons and resources that he/she deems necessary for conducting a hearing in a fair and equitable manner.

(g) The hearing facilitator shall serve as an advisor to the panel on the form but not the substance of the decision.

(h) If a Referral Panel was formed, the three district presidents that served in that capacity are not eligible to serve on a Hearing Panel.

2.15.7.3  Upon receipt of a request for hearing, the Secretary of the Synod shall promptly notify the accused and the President of the Synod of their respective right to choose one Hearing Panel member and direct that the identity of their selection be transmitted to the Secretary of the Synod within 15 days from the date of such notice. If either party declines to make a selection within 15 days, the Secretary of the Synod shall then make such selection within 5 days.

2.15.7.4  The Secretary of the Synod shall also promptly select a lay reconciler to serve as a third member of the Hearing Panel and a hearing facilitator to assist the panel.

2.15.7.5  When the Hearing Panel members and hearing facilitator have so been chosen, they shall be promptly notified of their selection.

2.15.7.6  Within 15 days after the Hearing Panel is constituted, the hearing facilitator shall, after conferring with the panel, the accused, and the President of the Synod, select a date and location within 45 days after the panel was constituted for the panel to hear and consider the matter.

2.15.7.7  The Secretary of the Synod shall forward to the Hearing Panel the statement of the matter together with the written memorandum describing the manner in which there was compliance with the guidelines provided in Matthew 18:15–16 and “previous futile admonition” (Constitution Art. XIII), as well as all of the provisions of Bylaws 2.15.3-2.15.6.1.

2.15.7.8  The Hearing Panel and all parties to the matter shall follow the guidelines as set forth in Bylaw 2.14.7.8 with the exception of paragraph (g) and instead shall follow this guideline in its place:

(g) While the matter is still undecided or while an appeal is contemplated or pending, publicity shall not be given to the issues in the matter by any of the persons involved during any part of the procedures outlined in this bylaw with one exception. Due to the fact that this bylaw procedure deals with a district president or an officer of the Synod, which necessarily means that the case will most likely have a high public exposure, as the ecclesiastical supervisor the President of the Synod, at his discretion, may carry out his duties to properly advise the Synod as the needs dictate in order to “promote and maintain unity of doctrine and practice” (Constitution Art. XI B 3) and in order to provide counsel, care, and protection for all of the members of the Synod (Constitution Art. III 8, 9).

2.15.7.9  Upon completion of the hearing, the Hearing Panel shall deliberate and then issue its written decision within 30 days.

(a) Copies of the decision shall be mailed to the accused, the district president who imposed the suspension, the accuser and his/her district president, the Secretary of the Synod, and the President of the Synod.

(b) The decision of the Hearing Panel shall be subject to appeal by the accused or the President of the Synod.

(c) The President of the Synod may request an opinion from the Commission on Constitutional Matters (CCM) or the Commission on Theology and Church Relations (CTCR).

(1) Any opinion so requested shall be rendered within 30 days or such greater time as the panel may allow.

(2) When an opinion has been requested, time limitations will not apply until the parties to the matter have received the opinion.

(3) CCM and CTCR opinions must be followed if the matter is appealed.

(d) If not appealed, the decision of the Hearing Panel shall be regarded as final and shall

(1) be binding upon the parties to the matter and not be subject to further appeal;

(2) have no precedential value;

(3) be carried out by the district president or the President of the Synod; and

(4) be publicized as deemed appropriate under the circumstances by the district president or the President of the Synod.

 Appeal Panel

2.15.8     The decision of the Hearing Panel may be appealed by the accused (if an active participant in the hearing before the Hearing Panel) or by the President of the Synod if a question of doctrine or practice is involved (Constitution Art. XI B 1-3) within 15 days after receiving the decision. Such request for a final hearing shall be submitted to the Secretary of the Synod with copies provided to the district president(s) of the accuser and the accused, the chairman of the Hearing Panel, the accuser, and the President of the Synod, and shall be accompanied by a written memorandum stating the basis for the request.

(a) Within 30 days after receipt of an appeal from the accused or the President of the Synod, an Appeal Panel shall be selected by the Secretary of the Synod. The Appeal Panel shall be made up of three district presidents who shall be trained for such service.

(1) One district president shall be selected by the accused, one by the ecclesiastical supervisor of the accused, and the third by the two Appeal Panel members so selected.

(2) If the two Appeal Panel members cannot agree on a third panel member, the Secretary of the Synod shall select the third member by blind draw from the remaining eligible district presidents.

(b) The members of the Appeal Panel shall be provided with copies of the official record of the case, including the Hearing Panel minutes, the written decision and all documentary evidence considered by the Hearing Panel, and the written memorandum stating the basis for the appeal. The panel shall make its decision solely on the basis of the materials received.

(c) The only decision to be made by the Appeal Panel shall be whether to approve reconsideration of the Hearing Panel decision. The panel shall not approve a request for a new hearing on the basis of newly discovered evidence unless such evidence was clearly not available to the Hearing Panel and was not the fault of the party requesting the reopening of the case, and unless it is clear that the absence of such evidence resulted in a gross miscarriage of justice.

(d) The standards of review that shall define the Appeal Panel’s considerations shall be limited to three basic areas:

(1) Factual findings: The Appeal Panel shall review factual findings of the Hearing Panel only to determine if they are supported by evidence. The Appeal Panel shall not ordinarily sit in judgment of the Hearing Panel’s conclusions regarding evidence, since the Hearing Panel was in the best position to judge factual issues. The Appeal Panel must be convinced that a mistake has been committed, that is, that the evidence is such that reasonable minds could not agree with the Hearing Panel’s decision.

(2) Conclusions on authority: The Appeal Panel may approve an appeal if the Hearing Panel was clearly outside its authority, e.g., a decision was made that the panel had no authority to make under the Constitution and Bylaws of the Synod, or a decision was made on an issue not related to the sole issue to be decided, or a decision was made on a theological question that the panel had no authority to make.

(3) Discretionary acts: The Appeal Panel may approve an appeal if there was a clear abuse of discretion impacting the decision of the Hearing Panel, resulting in a gross miscarriage of justice, or that involves an obvious and inappropriate bias or prejudice.

(e) If the Appeal Panel denies the request for reconsideration of the decision of the Hearing Panel and upholds the suspension of the ecclesiastical supervisor, the decision of the Hearing Panel shall be regarded as final and shall

(1) be binding upon the parties to the matter and not be subject to further appeal;

(2) have no precedential value;

(3) be carried out by the district president or the President of the Synod; and

(4) shall be publicized as deemed appropriate under the circumstances by the district president or the President of the Synod.

(f) If the Appeal Panel grants the request for reconsideration of the decision of the Hearing Panel, a Final Hearing Panel shall be selected by the Secretary of the Synod.

 Final Hearing Panel

2.15.9     Within 30 days after the receipt of the decision of the Appeal Panel granting the request for reconsideration of the decision of the Hearing Panel, a Final Hearing Panel shall be selected.

(a) The panel shall be constituted in the same prescribed manner as described in Bylaws 2.15.7.2-2.15.7.6, except that the two district presidents, the reconciler, the hearing facilitator that provided assistance to the Hearing Panel, and the involved district presidents are omitted from consideration for the Final Hearing Panel.

(b) The procedures for the final hearing shall be the same as prescribed in Bylaws 2.15.7.6 -2.15.7.8.

(c) The chairman of the Hearing Panel shall provide the Final Hearing Panel with a written statement of the matter and the Hearing Panel’s report, minutes, records, and proceedings.

2.15.9.1  Upon completion of the hearing of the Final Hearing Panel, the panel shall deliberate and then issue its written decision within 30 days, a copy of which shall be mailed to the accused, any involved district president, the accuser, the Secretary of the Synod, and the President of the Synod. The final decision of the Final Hearing Panel shall

(a) be binding upon the parties to the matter and not be subject to further appeal;

(b) have no precedential value;

(c) be carried out by the President of the Synod; and

(d) be publicized as deemed appropriate under the circumstances by the President of the Synod.

General Regulations

2.15.10   The President of the Synod shall take those steps necessary to assure that the spiritual needs of the respective members (accuser and accused) are attended to and shall continue efforts to resolve those matters which led to the commencement of the formal action against the accused member.

2.15.10.1  Since this matter involves individual membership, the calling or contracting body is encouraged to continue financial support, existing housing, and insurance of individual members until the final decision is rendered.

2.15.10.2  Any member participating in this bylaw procedure that violates any of the requirements or procedures in this bylaw or is persistent in false accusations is subject to the same disciplinary measures as set forth in Bylaw section 2.14 or this Bylaw section 2.15. Violations of the prohibition against publicity while a matter is still undecided or while an appeal is contemplated or pending (Bylaw 2.15.7.8 [g] above) by any of the persons involved are specifically included as violations subject to the same disciplinary measures set forth in this bylaw section or Bylaw section 2.14.

2.15.10.3  In consultation with the Secretary of the Synod and with the concurrence of the Council of Presidents, the Commission on Constitutional Matters shall amend as necessary the Standard Operating Procedures Manual that serves as a comprehensive procedures manual for the provisions set forth in Bylaw section 2.15.

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