Differing views: Southern Baptist leaders say they have a perfect way to tie convention entities to the denomination however, New Orleans Seminary trustees view the solution as a threat to historic Baptist polity
Differing views: Southern Baptist leaders say they have a perfect way to tie convention entities to the denomination however, New Orleans Seminary trustees view the solution as a threat to historic Baptist polity
For most people, it could be a single, uninspiring line in a news story –
to be read, shrugged over and forgotten with the turn of the page.
“The Southern Baptist Convention Executive Committee formally has requested
trustees of the New Orleans Baptist Theological Seminary to amend its charter
and make the convention the sole member of its corporation.”
Big deal, right?
Well … actually, yes.
When Executive Committee members voted almost unanimously last week to make
their request of the seminary, they were taking yet another step in a process
that has been underway for more than six years.
They also did so after almost two hours of discussion and presentations, including
a time of pointed questions.
They did so after receiving some 140 pages of background information related
to the issue.
And they did so with an undercurrent of emotion that became evident in the
choice of comments from time to time.
So, then, what is the deal?
In a nutshell, since 1997, Southern Baptist leaders have sought to tie convention
entities more closely to the denomination. Their motivation has been to ensure
that no entity could follow the lead of some state agencies and choose to leave
the control of the convention.
Their chosen tool for accomplishing this purpose is a legal structure in which
an entity alters its charter to make the convention the “sole member”
of the corporation.
Thus, the convention has ultimate – and specific – authority. Essentially,
as the structure is designed, the entity cannot leave without convention approval.
All convention entities have agreed to the “sole membership” structure
– except one.
After extensive study, trustees of New Orleans Seminary declined last fall
to adopt the sole membership framework, citing legal and Baptist polity concerns.
As expected, that has not set well with Executive Committee leaders seeking
to bring all convention entities under a common framework and ensure none may
stray.
Thus, last week, Executive Committee members listened to seminary and convention
leaders present their cases.
Then, they acted.
Seminary trustees now will revisit the sole membership issue during their April
meeting, where they may – or may not – choose to embrace it.
Understand? Not yet?
Perhaps the following can help.
How did it come to this?
The issue dates back to 1996, when the Southern Baptist Convention chose to
restructure. As part of that process, they eliminated some agencies and created
a new one – the Southern Baptist North American Mission Board.
With the opportunity to start an entity from scratch, attorneys were asked
to explore the best approach.
They latched onto sole membership. Under that structure, the corporation would
be formed with a single controlling member – the Southern Baptist Convention.
In the corporations charter, the rights of the member would be specified.
Primarily, they would guarantee the right of the member to own the corporation,
to elect its trustees and to ensure the entity could not arbitrarily act to
divorce itself from the convention.
The charter also would specify that operational control of the entity would
be left to the convention-elected trustees.
Convention leaders and messengers embraced the model.
Leaders then began to consider use of the model with other entities, especially
after several state colleges acted to leave the control of their state conventions.
Could not sole membership solve that problem?
On Sept. 5, 1997, SBC Executive Committee President Morris Chapman wrote all
entity heads, asking that they consider amending their charters to embrace the
sole membership model. By 2000, nine convention entities had embraced the model
and incorporated it into their charters.
That left only one.
From the beginning, New Orleans Seminary trustees had expressed concerns about
the sole membership model. Still, they undertook a study of the issue.
By 2001, as the sole remaining entity, the issue began to heat up behind the
scenes. There ensued a string of letters and meetings between seminary and Executive
Committee members. Legal opinions were sought, position papers prepared.
The vote came in the fall of 2003 – with seminary trustees under the impression
that whatever they decided would be accepted. They decided not to adopt sole
membership. At the same time, they pledged allegiance to the convention.
However, that decision was not accepted, as the action at last weeks
meeting clearly indicates.
What are the seminarys concerns?
To begin with, one must consider what is not a concern.
Everyone agrees – the Southern Baptist Convention owns the seminary. Seminary
trustee Chair Tommy French of Baton Rouge stressed that during a recent presentation
to seminary and Executive Committee members.
The issue essentially is how to define – and secure – such ownership
in a way consistent with Baptist polity.
Therein lies the rub.
In the course of its discussion and debate, seminary leaders have cited a number
of concerns with the sole membership structure. These include:
It could be used to allow the Executive Committee to step in and
exert control over the seminary.
As Southern Baptist structure now stands, the Executive Committee acts as an
advisory body to other entities, relating to them on a level playing field.
It does not act as the convention when the convention is not in session –
and cannot act as sole member in that time.
However, seminary leaders argue that a day may come when a future Executive
Committee could ask the convention for the right to act in that way. If that
would happen, a sort of “superboard” would be created. It would mean
the Executive Committee would have the ability to change an entitys charter
or dissolve it or whatever.
In other words, complete control would shift from the convention in session
to the much-smaller committee.
The effect of that should be frightening to leaders who led the conservative
resurgence of the convention, seminary President Chuck Kelley recently told
his trustees. “We are quenching the next conservative resurgence,”
he said.
Down the road, the Southern Baptist Convention will grow stale and in need
of another renewal, Kelley suggested. But at that time, sole membership could
be used by a small group of people to short-circuit such a renewal, he cautioned.
“There could be a perpetual hold on power in the convention that would
make reformation impossible,” Kelley said.
Louisiana law makes sole membership a problem.
Different states have different nonprofit laws – and that affects sole
membership. For instance, in many states, once the rights of the member and
the trustees are established, they can be changed only with the agreement of
both.
In Louisiana, that is not the case.
In Louisiana, the sole member is granted total control of an entity. It can
change the trustees rights whenever and however it pleases – arbitrarily.
Kelley acknowledged that no one has a problem with the Southern Baptist Convention
owning the seminary. However, many have expressed concern about handing over
“carte blanche” control, especially in light of the concern related
to the Executive Committee. (See above)
While Kelley has been quick to express trust in the current Executive Committee,
he also has expressed fear of the future and of a possible intrusion into the
operational control of the seminary. “So, the day might come when the Executive
Committee would say, We want to tell you how much tuition you need to
charge your students; we want to tell you how much you need to do this or that.
“Now, could that ever happen?”
Sole membership would result in “ascending liability”
for the convention.
For Kelley and other seminary leaders, the concept is simple – if the
convention has greater control, it has greater liability. Indeed, that is the
opinion of Richard Wolfe, perhaps the top corporate attorney in the state of
Louisiana.
Wolfe was hired by the seminary to look at the sole membership issue –
and he clearly expressed concern that the concept would open the liability door
wider for the convention. In other words, those suing the seminary would have
a greater chance of also suing the convention, arguing that since it has such
control of the school, it is liable as well. Such a scenario could put all convention
resources at risk.
Sole membership violates Baptist polity.
Herein lies the philosophical argument.
Kelley and others contend that sole membership represents a step away from
the historic concept of autonomy to a more centralized type of control in the
convention.
Kelley has acknowledged the step is small – but has added it is the direction
of the step he is concerned with most. It simply violates his understanding
of the convention granting “a high degree of organizational autonomy for
the entities but within the context of SBC-controlled parameters.”
As Kelley has written – “Each entity is responsible for its own ministry
but not for any other SBC ministry. There is no one person or board of trustees
in charge of everything for the convention, lest there be a temptation for one
person or board to control the agenda of the convention.”
In his view, sole membership threatens that structure.
What is the Executive Committees view?
Essentially, the officers of the Executive Committee have held the line that
sole membership is the most logical solution to the concerns about tying entities
to the convention – and is consistent with Baptist polity.
They also have argued that sole membership would offer a uniform system for
the convention to relate to entities.
They have responded to each of the seminarys concerns:
The committee is not exceeding its authority.
Committee officers have been quick to point out that current convention documents
prevent it from exercising the rights of member when the convention is not in
session.
In their view, that alleviates the fear of the committee exercising any kind
of “superboard” control.
“There is nothing in this proposal that gives the Executive Committee
one iota of control over this institution,” SBC Attorney Jim Guenther has
emphasized. “Not one iota.”
In addition, sole membership leaves the ultimate authority of the entities
where it belongs – at the convention level, Executive Committee leaders
say. In their view, there is no need to fear control residing there – now
or in the future.
Sole membership can work in Louisiana.
It is true that Louisiana law is somewhat different from other states, Executive
Committee leaders agree. However, they insist sole membership still is a viable
option.
Indeed, the only quirk identified by Guenther in his review was that Louisiana
law grants a member the authority over a corporations bylaws. Meanwhile,
the convention grants that responsibility to entity trustees, he noted.
In that case, the committee is prepared to use language that would ensure seminary
trustees retain control of the schools bylaws – as is the case for
other entities, he said.
Sole membership aids convention liability.
Herein lies an area of seemingly irreconcilable difference. While seminary
attorneys insist sole membership would increase convention liability, Guenther
equally is insistent that it would not.
For one thing, Louisiana law grants “statutory immunity” to members
of corporations as they carry out assigned duties, he noted. As things stand
now, that is not the case.
Also, by defining duties precisely, the convention would be able to show in
court where it is responsible and where it is not, Guenther noted. Thus, liability
can be defined.
To illustrate, Guenther recently cited a current case involving LifeWay Christian
Resources of the Southern Baptist Convention. The convention has been attached
to a lawsuit involving the agency and a local church as well.
The convention is able to point to governing documents to show it has no control
in regard to the church, Guenther noted. And with sole membership in place at
LifeWay, it will be able to point to where its control does – and does
not – lie, thus allowing it to be dismissed from the case, he said.
In essence, the convention is helping itself – and protecting its resources
– with sole membership, Guenther insisted. “This plan is, in part,
driven by prudent risk management, … prudent stewardship,” he insisted.
Sole membership affirms Baptist polity.
Again, there comes an area of fundamental disagreement.
Contrary to Kelleys view, Executive Committee leaders have taken a view
that Southern Baptists always have moved toward a centralized organization.
They also have argued that sole membership is not a question of polity anyway.
“Sole membership is a fundamentally legal solution to a fundamentally
legal problem,” Executive Committee Vice President David Hankins has written.
After outlining shifts and writings from Baptist history, Hankins concludes
in a position paper on the issue that sole membership represents absolutely
no danger. “The Southern Baptist Convention has always affirmed efficient
centralization; … it has always intended for its entities to be subject to
that centralization as it executes the will of the local churches through the
convention, and … sole membership is, in no way, a threat to historic Baptist
values,” he writes.
Others have affirmed as well – through sole membership, the convention
simply is seeking to secure the rights it already has and has a right to exercise.
“Our sole purpose is not to identify the rights of the SBC,” Executive
Committee President Morris Chapman has said. “We believe we do have rights.
… But the issue of sole membership has come up for one reason and that is
because the secular courts recognize this principle.”
What happened last week?
To understand last week, one must back up even one week further, when seminary
trustees met with Executive Committee officers in a called session in New Orleans.
Trustees and officers met together for about three hours. Trustees then gathered
for another five hours or more to discuss the situation. They heard from independent
counsel and from seminary history and theology professors as well.
By the end of the session, they decided to wait and see what happened at the
Executive Committee meeting – but not simply to wait.
They asked counsel to prepare a document outlining concerns about sole membership
as it relates to Louisiana law. They also asked counsel to prepare a charter
proposal that would securely tie the seminary to the convention – without
embracing the sole membership model.
Then, to conclude their session, trustees voted to dedicate a time each day
leading up to their April meeting to pray regarding the issue, to pray for one
another to have understanding, to pray for Executive Committee members and to
pray for Kelley. They then adjourned to the seminary chapel in order to close
their gathering in a time of prayer.
Meanwhile, last weeks sole membership focus at the Executive Committee
began and ended with assurances that the difference was between fellow Christians
and that the issues being discussed were not personal.
But it also was clear Executive Committee members were ready to settle the
matter. “Its an issue that wed just like to put to bed,”
committee Chair Gary Smith maintained.
Guenther began by presenting the sole membership case.
He reminded committee members that Louisiana law recognizes two characters
when it comes to corporate control – members and trustees (or directors).
Currently, New Orleans Seminary trustees play both roles – “and that
leaves no role for the Southern Baptist Convention to play,” Guenther noted.
Making the convention the member would secure its ability to exercise its traditional
rights and would provide a shield of protection when it is exercising those
rights, he said.
He said the convention proposal outlines nine rights that the convention holds
–
To determine the qualifications of trustees
To determine the term of office for trustees
To determine the number of trustees
To elect and remove trustees by vote of messengers
To “approve an amendment of the articles of incorporation
adopted by the board of trustees but to refrain from exercising any right to
unilaterally amend the articles”
To approve any merger, consolidation or dissolution or change in
the seminary state of incorporation
To approve sale, lease or disposition of seminary assets
To approve the establishment of any seminary subsidiary or the
acquisition of the same
To be free from any assessment or the levy of dues
“We believe the convention already has those rights,” Guenther said.
“Thus, we are asking the seminary to simply – but specifically –
declare and describe the rights of the convention, declare what they are –
they are these and there are no more and no less.”
The various rights are needed because of the many ways an entity can seek to
divorce itself from a controlling convention, such as through amending its charter
or starting a new corporation or a sale of its assets to another, Guenther said.
“There are several gates to the institutional corral that must be kept
locked, …” he emphasized.
“We believe the convention intends to preserve the seminary as one owned
and controlled by the convention. And we believe the convention wants to make
certain that the seminary is legally tied to the convention and that the seminary
could not at some time in the future declare its independence from the convention,
as has occurred in the state … arena.”
Guenther noted that even the independent counsel hired by the seminary noted
that the current charter legally leaves trustees accountable to the seminary
instead of the convention. He cautioned that having trustees who are not accountable
to the convention signals a possible problem.
“The articles (of incorporation) need to be fixed. …
“We believe the New Orleans board is already accountable to the convention,
but we agree … that any ambiguity which may exist on this point will be eradicated
if the seminary adopts the sole member plan,” Guenther noted. “Its
the ambiguity were trying to eliminate.”
Guenther defended the sole member plan in regards to liability as well, concluding
sole membership is the best model available for the convention and its entities.
“The SBC decided a long time ago that it means to own and control its
entities,” he explained. “Sole membership accomplishes that goal.
It fits our polity. It tracks the conventions constitution and bylaws
to a T. It improves our risk management.”
Kelley responded by outlining concerns on the part of the seminary and its
trustees. He also affirmed that the question of control and commitment to the
convention is not an issue.
“(There is) Absolute commitment that this is a reasonable problem for
Southern Baptists to concern themselves with – no question at all,”
Kelley said.
“(There is) Absolute commitment to the ownership of the Southern Baptist
Convention that we want maintained. … (But there is a) question. And this
is our responsibility assigned by the Southern Baptist Convention. We are not
asked to comment on whether or not (sole membership) is a good proposal for
every other entity. … Were asked to comment on whether or not it is
a good proposal for Southern Baptists at New Orleans Baptist Theological Seminary.
“Is it in the best interest of the Southern Baptist Convention for our
one particular entity?”
Kelley cited the two areas of concern – polity and legal issues. In discussing
polity concerns, he also expressed concern that the seminary has not been afforded
the opportunity to propose alternatives to the Executive Committee idea. He
reminded committee members their role is to advise, and they should be willing
to hear alternatives and to make the process a two-way street.
“We ought to see if there is something we can agree on together,”
Kelley emphasized.
Indeed, Kelley urged committee members to allow the seminary to finish the
process it began. He noted that seminary trustees already were beginning to
explore alternatives when they were asked not to do so by committee staff.
“We never intended for it to stay the way it is,” he said of the
seminarys charter. “Our goal has always been to do further protection
(for the convention). … Wed like an opportunity to work on that.”
Kelley assured committee members that if the convention asks the seminary to
adopt sole membership, it will do so.
However, he also reiterated the desire to seek alternatives. “But that
will take some time to let us work on that and that will take an openness on
the part of the Executive Committee to be willing to talk and dialogue,”
he added.
During ensuing discussion, Kelley, Guenther and others responded to questions.
At one point, Kelley again emphasized concern about the future and how others
could use sole membership to consolidate power within the Executive Committee.
“Nobody here is going to make that (kind of) recommendation, …”
he acknowledged. “But could that recommendation ever be made? …
“The concern is not about today. Its about tomorrow.”
However, Smith reminded persons that any such change would have to go through
the convention. Guenther added, “To express a fear of the messengers is
to express a fear of the ultimate authority in this denomination.”
The issue of the Executive Committee role continued to be discussed. At one
point, Kelley noted there always has been a fear of the committee becoming too
powerful in convention life, especially since it controls “the purse strings.”
When asked to clarify, he related how he felt the seminary was treated unfairly
by Baptist Press in its coverage of the 2003 decision not to embrace sole membership.
Such things result in uneasy feelings, Kelley maintained.
Only one committee member spoke in favor of giving the seminary more time to
deal with the issue. Other comments and questions focused on the issue of liability
and on the need to make sure seminary trustees cannot take the entity out of
the convention at any time.
Kelley assured committee members his board was not seeking “walkaway control”
or a loophole. “We dont have one now, and were not trying to
leave ourselves one in the future,” he said. “Were trying to
help Southern Baptists think carefully about their polity and the way things
have worked … in Southern Baptist life.”
At the same time, he warned that small changes can create big problems down
the road. He cited the case of the Baptist General Convention of Texas, where
he said small changes years ago have allowed current leaders to shut out a grassroots
conservative movement in the state.
Kelley also insisted there simply is no way the seminary would – or could
– leave the convention at this time. Trustees would not allow it, and the
school could not afford it, he said.
“So, what is the urgency that requires a response by June,” he asked.
“Thats what our trustees dont understand.”
However, Smith responded that the issue has been on the table for years now
– and the time has come to deal with it.
Committee members agreed – with only two persons voting against the motion
formally to request that seminary trustees adopt sole membership.
What happens now?
New Orleans Seminary trustees are scheduled to meet again in April. Following
last weeks vote, Kelley said he regretted that the Executive Committee
“was not patient enough to let an entity finish its work.”
He also said that while the committee request does not equal a request from
the convention, the seminary trustees certainly will revisit the sole membership
issue in April.
Smith responded that he is pleased Southern Baptists are still together and
are “in unanimous agreement that the Southern Baptist Convention owns this
entity.”
Still, the issue remains.
If seminary trustees embrace sole membership in April, the Executive Committee
will present the charter change to the 2004 convention in June for approval
by messengers. Approval there would bring all convention entities under the
sole membership model.
If seminary trustees decline again to embrace sole membership, it is likely
the Executive Committee will ask the convention to make a formal request to
the school. It is that request that Kelley has said the trustees will honor.
Meanwhile, the question of alternatives remains unsettled. So, too, do the
differences regarding the effect of sole membership on Baptist polity or on
the legal front.
The legal questions have yet to arise in court – but they will, and they
will be answered there sooner or later.
The polity questions will linger, however, but with all still agreeing on their
central importance.
Indeed, as Kelley has reminded his trustees – there is no “risk-free”
decision that is available.
And as Hankins has observed, the issue is important for a central reason –
“because ideas have consequences.”