[OSGeo-Discuss] The vote versus the bylaws [was: End the vote!]

[Adrian Custer]

Hey Jeff,

The Board appears to be acting completely outside of its legal scope in 
this voting process.

Now, I don't particularly care. However, the foundation has legal 
responsibilities with regards to the laws of the State of Delaware to 
follow its own bylaws. Probably the bylaws need to be reformed to let 
the Board take on the powers that the board wants to run things as it 
sees fit. However for now, legally, the vote should follow the bylaws 
and not the rules invented by the Board of Directors outside of the bylaws.

My lengthy analysis is at the end of your response.


On 7/15/13 11:24 AM, Jeff McKenna wrote:
> Hi Adrian,
>
> At last week's Board meeting, Board members chose 30 as the number of
> Charter Members that will be added in this election process (minutes at
> http://wiki.osgeo.org/wiki/Board_Meeting_2013-07-11).

On what basis does the board grant itself the right to pick this magic 
number?

 >
 > Importantly though, I agree with you, this crop of nominations for
 > Charter Members is just outstanding, so spread out geographically, and
 > so full of passionate people.
 >
 > The CROs are working hard this year managing the election process,
 > working within the guidelines set by the Board;

Again, why is the board setting 'guidelines' when the bylaws set the rules?

 > however I agree, nothing
 > says that we cannot/should not/ improve this Charter Member process
 > for
 > the 2014 election.
 >
 > Arnulf has setup a page to collect everyone's ideas for changes in the
 > process: please do add your ideas at
 > http://wiki.osgeo.org/wiki/Category_talk:Elections
 >
 > I would also like to see Charter members be given more of a role in
 > the
 > organization.  For example, one could imagine the Charter members
 > voting
 > on future FOSS4G bids.  I'm very open to hearing your thoughts and
 > working with you closely to improve the process.
 >
 > As always, great email from you Adrian, I really appreciate it.
 >
 > -jeff





The bylaws are here:
   http://www.osgeo.org/content/foundation/incorporation/bylaws.html
and they state:


ARTICLE III Board of Directors

Section 3.1. Powers. The business and affairs of the corporation shall 
be managed by or under the direction of the Board of Directors, which 
may exercise all such powers of the corporation and do all such lawful 
acts and things as are not by statute or by the Certificate of 
Incorporation or by these Bylaws specifically reserved to the members.


where the last phrase: "... by these Bylaws specifically reserved to the 
members" suggests that if it is in the bylaws the Board can NOT control 
it. Since the Bylaws DO state the requirements for membership, the Board 
does not have the power to make the process up as it wants to. For the 
Board to get that power, the *charter members* would have to vote to 
change the bylaws, either to grant the Board the power it wants to take 
or to change the rules for the acceptance of new members.


The current rules for the admission of new members are:

ARTICLE VII Members

Section 7.1. Admission of Members. An initial group of up to forty-five 
(45) persons shall be admitted as the initial members of the corporation 
upon the affirmative vote of the Board of Directors of the corporation. 
Thereafter, to be eligible for membership, a person must be nominated by 
an existing member of the corporation pursuant to a written document in 
such form as shall be adopted by the Board of Directors from time to 
time. The nomination must be included in a notice to the members at 
least ten (10) days in advance of the meeting at which the members will 
vote on the applicant’s admission. Proposed members shall be admitted 
upon the affirmative vote of the members of the corporation. Emeritus 
members may be reinstated as members of the corporation by being 
nominated by an existing member, which nomination shall be considered in 
the same manner as an application for a new membership.


This tells us:
   1) persons must be *nominated*,
   2) nominations must be in *writing* (with email fine because it is "in
      such a form as shall be adopted by the Board of Directors from time
      to time"),
   3) nominations close 10 days before the "meeting as which members
      will vote",
   4) there is no need for a 'second'
   5) the 'vote' is considered by the bylaws to be in a 'meeting' (so
      that the rules for meetings, including quorum discussed next,
      apply),
   5) nominees are accepted "upon the affirmative vote of the members"
      which sounds like a nominee is accepted if they have more yes
      votes than no votes (if the vote has met quorum) quite independent
      of the number of other candidates.
   6) I do not see any limit to the number of new charter members
      allowed in any vote, that seems to have been invented later.


Since votes are during 'meetings,' the rules for 'meetings' apply:


ARTICLE VIII Meetings of Members

...

Section 8.3. Special Meetings. Special meetings of the members shall be 
held when directed by the Chair of the Board of Directors, or when 
requested in writing by not less than ten percent (10%) of all members 
entitled to vote at the meeting. The call for the meeting shall be 
issued by the Secretary, unless the Chairman, President, Board of 
Directors or members requesting the meeting shall designate another 
person to do so.

...

Section 8.8. Member Quorum. Except as otherwise required by law, by the 
Certificate of Incorporation or by these Bylaws, a majority of the 
members entitled to vote, represented in person or proxy, including 
through remote communication, shall constitute a quorum at a meeting of 
members.


As best I understand the bylaws, it appears that 'new charter members' 
are voted in as part of a 'special meeting'. That meeting can be called 
by the Chief Returning Officer (CR0) since he apparently has been 
'designated' by the Board to run the meeting. The vote then must be 
called with 10 days notice which works out nicely if the nominations are 
closed at the same time the vote is announced.


Therefore, I believe the bylaws of the OSGeo Foundation require that the 
vote:
   1) be announced with at least ten days notice
   2) proceed at least ten days after the close of nominations
   3) have to establish a quorum of 50% of current charter members + 1
      member,
   4) be a separate vote for each nominee,
   5) accept any nominee who receives more affirmations than negations.
In particular, I DO NOT SEE ANY LIMIT ON THE NUMBER OF NEW CHARTER 
MEMBERS ALLOWED TO BE ACCEPTED IN ANY VOTE.


At least that's what the rules say; but, as we all know and current 
governments demonstrate so effectively, the laws are only followed when 
convenient.

cheers,
   ~adrian



PS If my interpretation of these bylaws is right, unfortunately we have 
to live with all past votes having been run incorrectly.