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2026 Convention Workbook 166

OFFICER, BOARD, AND COMMISSION REPORTS

proceeding under the dispute resolution process or, if appropriate, taking action in secular court?

Opinion: Bylaw 3.3.1.1.1 assigns ecclesiastical supervision of all officers of the Synod and its agencies to the President of the Synod. Bylaw 3.3.1.1.1 (c) gives the President the responsibility and authority to exercise ecclesiastical supervision over the doctrine taught and practiced at the universities of the Synod.

Bylaw 3.3.1.2 assigns to the President of the Synod oversight of

all the agencies of the Synod to ensure that these agencies are act - ing in accordance with the Constitution, Bylaws, and resolutions of the Synod. Specifically in regard to the educational institutions of the Synod, the President is charged to officially visit or cause to be visited all these institutions to exercise oversight over their administration relative to adhering to the Constitution, Bylaws, and Resolutions of the Synod (Bylaw 3.3.1.2 [a]).

If the President of the Synod determines there is a violation of the

Constitution, Bylaws, and resolutions of the Synod, he may call up

for review any such action and request that this action be altered or reversed. If the matter is not resolved, the President of the Synod shall refer the matter, as he deems appropriate to the issues and party/parties to the matter involved, to the Synod Board of Directors, the Commission on Constitutional Matters, or to a convention of the Synod. He is also required to report to the Synod those who are not acting in accordance with the Constitution, Bylaws, and Resolutions of the Synod (Bylaw 3.3.1.2 [c]).

The unauthorized separation of a university of the Synod (which is included in property of the Synod) from the Synod inherently involves a legal and property matter properly to be referred by the President (Bylaw 3.3.1.2 [c][2]) to the Board of Directors as the legal representative and custodian of the property of the Synod (Const. Art. XI E 2), which then carries out its constitutional authority in the interest of the Synod. Any conflict or uncertainty in determining the authorities of the officers and agencies of the Synod in this respect is to be resolved as set forth in Articles of Incorporation, Article V . Referral by the President of the legal and property matters involved to the Board of Directors does not exclude the President’s authority otherwise to exercise, or see to the exercise of, ecclesiastical supervision (Bylaw 1.2.1 [j]) or detract from “the President’s constitutional duty to report to the Synod those who do not act in accordance with the Constitution and do not heed his admonition, as prescribed in Const. Art. XI B 2” (Bylaw 3.3.1.2 [c][3]).

The commission has treated the approach that most naturally, in its opinion, followed from the question, but notes that its answer is not to exclude other processes possible under the Bylaws, including the process under Bylaw 1.5.7.1 or other dispute resolution processes (Bylaw section 1.10) among eligible parties involved in the matter.

Questions regarding Concordia Publishing House

Bylaws (23-3004)

Minutes of April 28–29, 2023 A member of the Synod has submitted a request for an opinion regarding Bylaws 3.6.3, 1.2.1 (a), and 1.9 consisting of a series of six questions with many subpoints listed for each question. To address these subpoints would require the commission to make broad, theoretical determinations in hypothetical matters, some of which are not clearly or specifically addressed by the Bylaws. The commis - sion, therefore, will limit its answers to the six primary questions asked.

laws of the Synod” (Bylaw 1.10.18), would be binding on the par - ties.

Question 8: Can a university of the Synod and its Board of Regents avoid the dispute resolution process set forth in Synod Bylaw 1.10 by taking unilateral action purporting to separate the university from the Synod (cf. Synod Bylaw 1.10.2)?

Opinion:

No. “No person, congregation, or agency [emphasis added] to whom or to which the provisions of this dispute resolution process are applicable because of their membership in the Synod may render this procedure inapplicable by terminating that mem - bership during the course of the dispute resolution process” (Bylaw 1.10.2).

Question 9:

What is the nature and scope of a board of regents’ fiduciary duties to the Synod as stated in Synod Bylaw 3.10.6.4 (i)(1)? Are these fiduciary duties solely secular duties or do these fiduciary duties also encompass operating and managing the institution as a fiduciary and an agent of the Synod in a manner consistent with Constitution and Bylaws of the Synod, including without limitation Article II and Article III of the Constitution?

Opinion:

The term fiduciary is a commonly used legal term of art.

Black’ s Law Dictionary (11th Ed.) offers two definitions, both of which inform the use of the term to describe the duties regents owe to the ecclesial Synod. A fiduciary is: “1. Someone who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, loyalty, due care, and disclosure. 2. Someone who must exercise a high standard of care in managing another’s money or property.” The commission finds that these common definitions are included within but may not exhaust the sense of “fiduciary duty” that may be inferred from the immediate context of Bylaw 3.10.6.4 (i)(1). More specifically, the context in Bylaws 3.10.6, 3.10.6.1, and 3.10.6.4 provides, without exhausting the full scope of said “fiduciary duties to the Synod,” some particular aspects of the responsibilities regents owe the Synod in governing the respective institution in a manner that is faithful to the confession of the Synod (Const.

Art. II) and fulfills its objectives (Const. Art. III; Bylaw 3.10.6.1).

The fiduciary duties expected of regents are thus not purely secular but involve the comprehensive stewardship of the institution in the ecclesial interest of the Synod, which has put them in place to govern. Governing the institution as a “fiduciary” or “agent of the [ecclesiastical] Synod, in which ownership is primarily vested” (Bylaw 3.10.6.4 [i][1]) and, indeed, as a “governing board[] of the Synod” (Bylaw 3.2.2), they owe duties of “good faith, loyalty, due care, and disclosure” and a “high standard of care” to maintain the institution in faithfulness to the Synod’s confession (Const. Art. II); in fruitfulness with regard to the accomplishment of the Synod’s objectives (Const. Art. III and relevant bylaws, resolutions, and policies, as such pertain to the operation of a Synod university); and consistent in every respect with the governance model the Synod has set forth to assure the institution operates in its ecclesial interests (see above, “Universities as Agencies of the Synod” and Opinion to Question 4).

Question 10:

If a board of regents of a university of the Synod fails to carry out or breaches its fiduciary duties to the Synod as required in Synod Bylaw 3.10.6.4 (i)

(1), who or what body, within the Synod, has the authority and responsibility to take action to address and correct the breach of fiduciary duty, including