Petition to preserve Assets

A Petition to Preserve and Protect a Congregation's Ownership and Control of Its Assets submitted by Calvary Lutheran Church, Edmonton, AB will not be

included in the 2009 ELCIC Convention Book of Reports ("BOR"). Bishop “Susan Johnson” and ELCIC National Church Council ("NCC") have refused to include the congregational petition in the BOR in spite of the time-honoured policy of previous ELCIC conventions.

This petition addresses the initiatives of the Eastern Synod and the B.C. Synod to gain control over

all congregational property including real estate.

Since the ELCIC National Convention is the highest authority in the church, the attached petition proposes an addition to the ELCIC Administrative Bylaws to prevent ELCIC Synods or the ELCIC NCC from assuming control of congregational property currently owned by individual congregations. The intention of this petition is to reduce the potential for protracted
acrimonious legal disputes over congregational

property between local congregations and the

ELCIC hierarchy, as is currently happening within the Anglican Church of Canada.

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Preserving congregationally owned assets

Petition to Preserve and Protect a Congregation’s Ownership and Control of Its Assets

Received from:

Calvary Evangelical Lutheran Church

10815 76 Ave

Edmonton Alberta

T6E 1M1

Motion:

That this Convention add the following section to the Administrative Bylaws –Evangelical Lutheran Church in Canada:

Part II Section 7. Except for the provisions of Article VI, Section 9 of the Constitution of this church, this church, including any Synod of this church, cannot take any action that transfers, encumbers or establishes any control over any asset (including real property) owned by a Congregation, except by the provisions of the Congregation’s Constitution.

Rationale:

One of the fundamental principles of Lutheranism in North America is that congregations own and control their assets without any encumbrances or control over these assets by regional or national expressions of the church. Recently both the Eastern Synod and BC Synod have attempted to gain control over assets currently owned and controlled by individual congregations.

Eastern Synod

At their 2006 convention, the Synod Council of the Eastern Synod proposed the following motion (emphasis added):

Each congregation shall include in its bylaws or constitution a provision that in the event of its disbanding or ceasing to exist or its membership having so diminished in numbers as to render it impossible or impractical for such congregation to function according to its bylaws or constitution or such congregation wishing to amalgamate or join with any body of persons whether incorporated or not or such congregation being desirous of withdrawing from or severing its ties with the Evangelical Lutheran church in Canadaor such congregation no longer adhering to the Confession of Faith of the Evangelical Lutheran Church in Canada then upon the occurrence of any one or more of the foregoing events, and notwithstanding anything to the contrary in the congregation’s constitution or by-laws, any and all property (including but not limited to real property) owned by that congregation, or owned or held by trustees on its behalf if the congregation is not incorporated, shall, prior to such event occurring, be transferred at a nominal consideration to the synod of which that congregation is a part and the officers of any incorporated congregation or the trustees of any unincorporated congregation shall do all things necessary to give effect to this provision. If the congregation has no officers or trustees who are capable of giving effect to the foregoing,the synod, through the synod council, shall, if necessary, appoint officers or trustees who shall take charge and control of the property of the said congregation and transfer ownership of the same to the synod.

ES 06-04 MSC that the proposed amendments for Article VI Section 10 and Section 11 be referred to Synod Council for further reflection and consideration.

Section 11 was not on the floor for debate but is included below for reference to the above motion.

Each congregation shall also include in its bylaws or constitution a provision that in the event it wishes to sell or otherwise dispose of, or encumber, or grant a lease of three year or more, or a series of leases extending in aggregate for three years or more, over any of its real property, it shall not be entitled to do so unless it has first obtained the prior written consent of the synod of which it is part, to the proposed transaction, which consent may be withheld by the synod acting in its absolute discretion. In the event that the synod grants its consent to the proposed transaction, it shall be entitled to impose such conditions thereon as it shall in its absolute discretion deem appropriate, including conditions as to the manner of dealing with any proceeds of the said transaction.

The apparent attempt by the Eastern Synod to gain control over all assets of any congregation wishing to amalgamate with another congregation or leave the ELCIC is unprecedented and is not consistent with the practice of Lutherans in North America.

Although Section 3 of Article VI specifically indicates that “Each congregation shall operate in accordance with its constitution, owning its property,…”, this provision has not limited the Eastern Synod from proposing that any attempt by a congregation to amalgamate with another congregation or leave the ELCIC would result in the Synod seizing all assets of the congregation including all real estate..

The Eastern Synod’s attempt to control all congregational property by imposing in Section 11 the right to control any rentals of the property and any loans secured by the property is not in violation of Section 3 Article VI of the Constitution, since the congregation still technically owns its property. Control of the assets, however, has been transferred from the Congregation to the Synod.

At the Eastern Synod Council Meeting of April 4, 2008, the Synod passed the following motion:

C.1 ESC 08-14 MSC that regarding ES 06-04 (“that the proposed amendments for Article VI Section 10 and Section 11 be referred to Synod Council for further reflection and consideration”), the proposed amendments for Art VI Section 10 and 11 be withdrawn.

(2008 Eastern Synod Convention Bulletin of Reports, Synod Council Reports – Page 5-8)

While the withdrawal of the Eastern Synod’s attempt to control congregational property is a positive development, without the proposed amendment to ELCIC Bylaws, the ELCIC or Synods could successfully attempt to reintroduce initiatives to gain control of property currently owned and controlled by congregations.

BC Synod

The BC Synod Council presented changes to its “Model Constitution and Bylaws 2008” for Synod congregations at the BC Synod Convention, April 17-20, 2008 (BC Synod Book of Reports Pages J23 – J41). Among the many significant proposed changes to the model congregational constitutions is the amendment of the following Section 7 to Bylaw 3 regarding all property owned by a congregation.

Section 7. Should this congregation desire to sever its relationship with the ELCIC, as provided in Bylaw 3, Section 6, the property owned by this congregation shall, prior to such event occurring, be transferred to the British Columbia Synod at a nominal consideration and the officers of this congregation shall do all things necessary to give effect to this provision. (BC Synod Book of Reports Page J28)

If this section is required to be included in all constitutions of B.C. congregations it may encourage them to leave the ELCIC prior to giving up control of their property. Benevolence resources for the ELCIC would likely be reduced since congregations that leave the ELCIC cease to provide benevolence gifts to the Synod and/or ELCIC. For those congregations who accept the revised Section 7, or do not carefully review the provisions of the new constitution prior to acceptance, the new constitution irrevocably transfers all congregational property to the control of the Synod.

Anglican Church of Canada

The proposal of the BC Synod is moving the Synod to a congregational property policy more consistent with the policy of the Anglican Church of Canada (“ACOC”), where all property is owned and controlled by the ACOC diocese (equivalent to a Lutheran synod). Even though individual lay members of the congregation may have paid for the entire cost of constructing the church including land, the diocese owns and controls all property of the congregation. Several Anglican congregations have attempted to leave the ACOC since they do not agree with same-sex blessings and other ACOC policies. ACOC dioceses have evicted several congregations from their church buildings and changed the locks on the doors. The result has been the beginning of several legal battles, between the ACOC and individual congregations over congregational assets.

The ACOC also has a completely different policy regarding contributions from individual congregations to the church hierarchy, compared to the current ELCIC policy. Since the ACOC congregational assets are the property of the ACOC diocese, the diocese can enforce the remittance of 25% of all congregational offerings to the ACOC diocese. At the present time, in the ELCIC, congregations independently determine the amount of funds to be sent to the relevant ELCIC Synod.

Although some in the ELCIC will view harmonization of policy with the ACOC as a worthy objective to enable a smoother merger process, at this point in time, the members of the ELCIC have not approved a merger between the two churches. If the ACOC does eventually take over the ELCIC, at least under the current congregational property policies congregations could refuse to join the ACOC and remain Lutheran with their assets. If either initiative of the Eastern Synod or B.C. Synod was passed and implemented in congregations, the congregation would have to leave the ELCIC without its assets. These proposed initiatives if passed, transfer power from congregations to the Synod hierarchy.

Change of control of congregational assets from individual congregations to Synods or the ELCIC is a significant departure from historic practice in the ELCIC. If the members of the ELCIC wish to support the continued control of congregational assets by congregations, passage of this motion is an appropriate action.