2.14 Expulsion of Congregations or Individuals

2.14 Expulsion of Congregations or Individuals

from Membership in the Synod

Preamble

2.14.1 Termination of membership in the Synod is a serious matter involving both

the doctrine and life of those to whom it has been granted. Such action should only be taken as a final step when it is clear that those who are being

terminated after previous futile admonition have acted contrary to the confession laid down in Constitution Art. II or the conditions of membership laid down in Constitution Art. VI or have persisted in offensive conduct ( Constitution Art. XIII 1). For this reason the Synod establishes procedures for such action including the identification of those who are responsible for ecclesiastical supervision of its members. Such supervision includes not only suspension or termination of membership but also advice, counsel, encouragement, and, whe n necessary, admonition regarding teaching and/or practice. Furthermore, the procedures that may lead to termination of membership also provide for the protection of members by including provisions for challenging the decisions of ecclesiastical supervisors in these matters as well as provisions for restoration of membership that has been suspended or terminated.

(a) Although the Constitution (see Art. VI 3 and Art. XII 7– 8) deals with the “life” of ordained and commissioned ministers of the Synod and provides for dealing with “ungodly life” of ordained and commissioned ministers, this does not suggest that the Synod, including any district of the Synod, has the duty or even an opportunity to observe the activities in the life of an individual member of the Synod or has the means or authority to regulate, restrict, or control those activities. The only remedy available to the Synod in response to improper activities in the life of such a member of the Synod is, as is true with respect to violations of other conditions of membership or is otherwise appropriate under the Constitution or these Bylaws, and following the procedures set forth in these Bylaws, to take such action as may lead to termination of that membership and the attendant rights and privileges.

(b) The action to commence expulsion of a congregation or individual from membership in the Synod is the responsibility of the district president who has the responsibility for ecclesiastical supervision of such member, under the supervision of the President of the Synod (Const. Art. XI B 1 –3) . This Bylaw section 2.14, 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 the district presidents and the officers of the Synod (Bylaw section 2.15), 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

2.14.2 The definitions of terms used in this bylaw are as follows:

(a) Accused: The member named by the accuser as being in violation of Constitution Art. XIII and under the procedural ecclesiastical supervision of Bylaw sections 2.14– 2.17.

(b) Accuser: The person or congregation who accuses a member under the provisions of Constitution Art. XIII through the process of Bylaw sections 2.14– 2.17.

(c) Appeal Panel: Three district presidents selected according to these bylaws to determine whether the decision of a Hearing Panel should be reconsidered or reviewed.

(d) Conflict of interest : Representation of two opposing interests.

Carrying out the responsibility of ecclesiastical supervision does not give rise to conflict of interest.

(e) Ecclesiastical supervision: See Bylaw 1.2.1 (j).

(f) Face-to-face: A face-to-face meeting in person between the accuser and the accused in the manner described in Matthew 18:15. E -mail, regular mail, fax, or telephone call (or any combination thereof) does not satisfy this requirement. (Note: Failure to conduct a face -to-face meeting within 30 days or within such extension as may be established by the involved ecclesiastical supervisors shall result in dismissal if the fault lies with the accuser or movement to the next stage if the fault lies with the accused.)

(g) Facts: Substantiated information of an alleged accusation.

(h) Final Hearing Panel: Two district presidents, two lay reconcilers, and one ordained reconciler , assisted by a hearing facilitator, who , when the decision of the Hearing Panel is appealed , shall be selected according to these bylaws to give a final hearing.

(i) Formal proceedings: The proceedings that begin with the suspension of a member.

(j) Hearing facilitator: One selected by blind draw by the Secretary of the Synod as described in Bylaw 1.10.13.2, trained to serve as a facilitator for hearings before panels.

(k) Hearing Panel : Two district presidents , two lay reconciler s, and one ordained reconciler , assisted by a hearing facilitator, selected according to these bylaws to hear the matter and render a final decision unless appealed.

(l) Investigation committee: Any number of persons appointed by the ecclesiastical supervisor to investigate thoroughly to determine the facts in the matter prior to the determination whether or not to proceed.

(m) Own personal knowledge : A personal witness to the alleged violation— not secondhand or hearsay information.

(n) Panel decisions: The Hearing Panel and Final Hearing Panel shall issue decisions by majority vote of the panel. All panel members must be involved in all stages of the decision- making process, with the hearing facilitator serving as an advisor to the panel on the form but not the substance of the decision.

(o) Party to the matter: A “party to the matter” is the accused and the suspending ecclesiastical supervisor.

(p) Persons involved : “Persons involved” includes the accuser or whoever brings the matter to the attention of the ecclesiastical supervisor; also any parties to whom the matter is presented and who are required to thoroughly investigate whether the allegations can be substantiated, i.e., any ecclesiastical supervisor involved in the case, the accused, the Hearing Panel, the Final Hearing Panel, a witness or advisor, or any others involved in the matter.

(q) Publicity: Any information or action, whether written, oral, or visual, that brings a person, cause, or an alleged accusation to public

notice, including information that results in public notice, whether or not the person or persons delivering it gave approval to the bringing of the information to public notice.

(r) Reconciliation committee: A small committee appointed by the ecclesiastical supervisor (prior to the determination whether or not to proceed) to assist in reconciliation efforts if the matter warrants it.

(s) Shall: Retains its compulsory meaning in this bylaw section. Its use, however, in connection with time frame expectations may require exceptions at times upon good cause shown, to be allowed by the administrator of the process.

(t) Standard Operating Procedures Manual : A comprehensive procedures manual developed by the Commission on Constitutional Matters in consultation with the Secretary of the Synod and with the concurrence of the Council of Presidents to ensure uniformity and consistency in the implementation of this bylaw section.

(u) Statement of the matter : A written concise statement containing factual assertions involved in an accusation with a request for expulsion from membership.

(v) Time frame: Period of time allowed for carrying out a bylaw requirement, to be monitored by the administrator of the process, incidents of purposeful non-compliance to be reported to the President of the Synod.

(w) Witness: A person called to give testimony regarding facts to a matter before a Hearing Panel or Final Hearing Panel. A member of any reconciliation committee appointed by a district president or the President of the Synod shall not testify as a witness before a Hearing Panel or a Final Hearing Panel in the same matter or case.

Consultation

2.14.3 When a member congregation or individual member of the Synod is aware

of information which could lead to the expulsion of a member from the Synod under Article XIII of the Constitution, prior to any formal written complaint or accusation the member shall consult with his or her respective district president to seek advice and also so that it can be determined whether this is the appropriate bylaw procedur e (Bylaw section 2.14) or whether the matter falls under Bylaw sections 2.15, 2.16,

2.17, or 1.8; Bylaws 3.10.5.7.9 or 3.10.6.9.6 ; or dispute resolution under Bylaw section 1.10. In regard to this consultation:

(a) The district president shall inform the district president of the accused that a consultation is underway. He may also seek advice from the vice-presidents of his own district, from the district president of the accused, or from the President of the Synod. The district president may also ask an opinion of the Commission on Constitutional Matters (CCM) and/or the Commission on Theology and Church Relations (CTCR). The district president 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 district president may allow.

(b) The district president shall require the accuser to follow the correct bylaw provision under the circumstance, if any, and shall provide evangelical supervision, counsel, and care to the persons involved.

(c) If Bylaw section 2.14 applies, the district president 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 is to be protected as commanded in the Eighth Commandment.

(d) In consultation with the district president of the accused, the district president of the accuser may appoint a small committee to assist in reconciliation efforts. The goal throughout is always one of admonition and reconciliation, of repentance and forgi veness (even if the following proceedings result in expulsion from membership).

(e) The Synod’s requirement of previous admonition called for in

Article XIII of the Constitution commences at this stage if applicable.

(f) Within 45 days after all the requirements of the consultation provided in this bylaw (Bylaw 2.14.3) have been followed the accuser may bring the matter to the district president of the accused for action under the correct bylaw provision determined by the accuser’s district president (paragraph [b] above).

Commencing an Action

2.14.4 Under this bylaw (Bylaw section 2.14) the district president of the accused

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 district president 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 2.14.3). In commencing such action, the district president of the accused:

(a) Shall determine whether the Bylaw 2.14.3 provisions have been carried out and shall thoroughly investigate the matter (cf. Bylaw

4.4.6) 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.

(b) Shall proceed in the manner described in Matthew 18:15– 16 as the required 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 2.14.3 [d] above).

2.14.4.1 The district president shall make his determination whether or not to

suspend the member within 120 days after receipt of a formal written complaint or accusation, unless the district president requests, substantiates, and is granted an extension by the President of the Synod.

2.14.4.2 Before informing others of a determination not to suspend, if the matter

involves doctrine or practice and a formal written accusation, the district president may seek the counsel and concurrence of the President of the

Synod by conveying to him the accuser’s formal written accusation, the record of his investigation, and his preliminary determination . The President of the Synod shall respond within 60 days.

(a) Should the President of the Synod concur, the district president may include the concurrence in his determination, indicating that it precludes an appeal for action by the accuser to the President of the Synod.

(b) Should the President of the Synod not concur, he shall consult with the district president, who may revise his determination. He may request additional time to extend his investigation, which the President of the Synod may grant.

2.14.4.3 In the event the district president is disqualified because he has a conflict

of interest or is unable to act, the next qualified district officer shall function in his place. The President of the Synod, who is his ecclesiastical supervisor, shall determine any challenge to the eligibility of the district president to act that is not agreed to by the district president.

2.14.5 If the district president determines not to initiate formal proceedings, he

shall in writing so inform the accuser, any other district president involved, and the involved member, which shall terminate the matter, subject to the following:

(a) If a matter of doctrine or practice is involved, the accuser may, within 15 days after receipt of such notice, appeal for action by the President of the Synod (Constitution Art. XI B 1–3 ). The accuser shall so notify the district president, who shall within 15 days:

(1) notify the accused and any other district president involved that an appeal for action is underway; and

(2) forward the appeal for action, with the record of his investigation and determination and the accuser’s formal written accusation, to the President of the Synod.

(b) The President of the Synod shall, within 15 days of receipt of such appeal for action, consult with the district president.

(c) The President of the Synod may consult with the accuser, the accused, and others involved. He may appoint an investigative committee and / or ask an opinion of the CCM or CTCR, which opinion shall be followed. He shall consult with the vice -presidents of t he Synod.

(d) The President of the Synod may, in a matter of doctrine and practice, and within 120 days of receipt of notice, suspend the member as provided in Bylaw 2.14.6 and then, as the “suspending ecclesiastical supervisor,” carry out the formal proceedings of Bylaw 2.14.7 and following.

(e) If the determination is made not to initiate formal proceedings, the President of the Synod shall in writing so inform the accuser, any district president involved, and the involved member.

Commencing Formal Proceedings

2.14.6 If the district president or the President of the Synod, acting under Bylaw

2.14.5, concludes that the facts form a basis for expulsion of the member

under Article XIII of the Constitution, in commencing the formal proceedings he 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 his district president that there is a desire to have the matter heard and resolved.

2.14.6.1 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

2.14.7 If the request for hearing as granted in Bylaw 2.14.6 (c) is made, the

suspending ecclesiastical supervisor 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.

2.14.7.1 At the time that the request for hearing is made, the suspending

ecclesiastical supervisor 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, “previous futile admonition” (Constitution Art. XIII 1), as well as all of the provisions of Bylaws 2.14.3– 2.14.6.1.

2.14.7.2 A Hearing Panel consisting of two district presidents (excluding the

involved district president[s]) , two lay reconcilers, and one ordained reconciler, selected as follows, shall conduct the hearing:

(a) One district president shall be selected by the accused.

(b) One district president shall be selected by the suspending ecclesiastical supervisor (a district president may not choose himself).

(c) Two lay reconcilers and one ordained reconciler 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 chair the proceedings 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.

2.14.7.3 Upon receipt of a request for hearing, the Secretary of the Synod shall

promptly notify the accused and the suspending ecclesiastical supervisor

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 da ys, the Secretary of the Synod shall then make such selection within five days.

2.14.7.4 The Secretary of the Synod shall also promptly select two lay reconciler s

and one ordained reconciler to serve as the remaining three members of the Hearing Panel and a hearing facilitator to assist the panel.

2.14.7.5 When the Hearing Panel members and hearing facilitator have so been

chosen, they shall promptly be notified of their selection.

2.14.7.6 Within 15 days after the Hearing Panel is constituted, the hearing facilitator

shall, after conferring with the panel, the accused, and the suspending ecclesiastical supervisor, select a date and location within 45 days after the Hearing Panel was constituted for the panel to hear and consider the matter, unless there is unanimous consent by the panel members for a short delay beyond such 45 days for reasons the panel deems appropriate.

2.14.7.7 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, “previous futile admonition” ( Constitution Art. XIII), as well as all of the provisions of Bylaws 2.14.3– 2.14.6.1.

2.14.7.8 The following guidelines are applicable to the Hearing Panel and all

involved persons:

(a) Holy Scripture, the Lutheran Confessions, and the Constitution and Bylaws of the Synod shall govern the panel in all its actions.

(b) The hearing before the panel shall be private, attended only by the parties to the matter and the witnesses who can substantiate the facts relevant to the matter. The only exception is stated under paragraph

(h) below.

(c) The panel shall establish the procedure to be followed in the hearing and the relevancy of the evidence so that each party to the matter shall be given an opportunity fully to present its respective position.

(d) Any member of the Synod, officer of a congregation, or officer of any organization owned or controlled by the Synod shall, when called upon by the panel to do so, testify or produce records related to the matter.

(e) No party to the matter , nor the accuser, nor anyone on the party’s or accuser’s behalf, shall communicate either directly or indirectly with the panel or any member of the panel without the full knowledge of the other party to the matter.

(f) 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. However, at his discretion and 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 the members of the Synod (Constitution Art.

III 8, 9), the President of the Synod or the district president in

consultation with the President of the Synod, as the case may be, may properly advise or inform the involved congregation(s) an d/or the district or the Synod.

(g) Any party and/or parties to a matter shall have the right to request disqualification of a panel member or hearing facilitator. The standard for disqualification shall be actual partiality or the appearance thereof.

If that individual does not agree to the disqualification, the decision shall be made by a separate three -member panel of district presidents not involved in the case, selected as follows.

(1) Nine names shall be selected by blind draw by the Secretary of the Synod or his representative, to be mailed to each party with the opportunity to strike up to three of the names from the list, to be returned to the Secretary of the Synod within one week after receipt.

(2) No member of the panel shall be from the district in which the matter arose or any district of a party to the matter.

(3) In the event that additional names are needed, three names shall again be selected in the manner set forth above, which names shall be submitted to each party with the right to strike one name before returning the list to the Secretary of the Synod within one week.

(4) In the event that a panel member or hearing facilitator is disqualified, another individual shall be selected in the same manner as the disqualified member was selected.

(5) The Secretary of the Synod shall correct any problem with the list, using the blind draw process as necessary.

(h) Any party to the matter may seek, at its own personal expense, the assistance of individuals familiar with the issues involved in the matter. They may actively participate in research and the preparation of necessary documents. At the hearing, however, eac h party to the matter may have an adviso r present but must represent itself, with no public participation by the advisor.

(i) The panel shall determine the number of witnesses necessary for a full and complete understanding of the facts involved in the matter. It shall question persons involved and witnesses directly and may also permit the parties to the matter to do so.

(j) All panel records in which the panel has rendered a final decision shall be placed in the custody of Concordia Historical Institute. All such records shall be sealed and shall be opened only for good cause shown and only after a panel of three district pre sidents, selected by blind draw for that purpose by the Secretary of the Synod and audited by witnesses, has granted permission.

(k) If any part of the matter involves a specific question of doctrine or doctrinal application, each party to the matter shall have the right to an opinion from the Commission on Theology and Church Relations (CTCR). If it involves questions of constitution or bylaw interpretation, each party to the matter shall have a right to an interpretation from the Commission on Constitutional Matters (CCM).

(1) The request for an opinion must be made through the panel, which shall determine the wording of the question(s).

(2) The request for an opinion must be made within 30 days of the final formation of the panel. If a party to the matter does not request such an opinion within the designated time, such a request may still be made to the panel, which shall, at its discretion, determine whether the request shall be forwarded. The panel shall also have the right, at any time, to request an opinion from the CCM or the CTCR.

(3) Any opinion so requested shall be rendered within 30 days or such greater time as the panel may allow. The CCM and the CTCR shall have in place procedures for responding within this 30 -day time frame to such requests for opinions.

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

The panel must follow any opinion received from either the CCM or the CTCR.

(5) An individual member of the panel may, through the hearing facilitator, also request resource materials and personal assistance from the executive director of the CTCR or from a theologian recommended by the executive director, this to provide an opportunity to read about, discuss with a knowledgeable person, and better comprehend doctrina l matters associated with the suspension. The suspension case itself shall not be discussed.

2.14.7.9 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 suspending ecclesiastical supervisor , 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, the suspending ecclesiastical supervisor , or the President of the Synod (as provided in Bylaw 2.14.8).

(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

2.14.8 The decision of the Hearing Panel may be appealed by the accused (if an

active participant in the hearing before the Hearing Panel) , by the suspending ecclesiastical supervisor , 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 an appeal shall be submitted to the Secretary of the Synod with copies provided to the district president(s) of the accuser and the accused, the hearing facilitator 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 21 days after receipt of an appeal from the accused , the suspending ecclesiastical supervisor, 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 n ot 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 th e 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 mad e