[OSGeo-Board] Bylaws posted

[Rich Steele]

On Monday, February 20, 2006 6:35 PM, Frank Warmerdam wrote:

> In section 8.9 you have language about members being allowed to vote
by
> "text conferencing" by approved by the board, and to the satisfaction
of
> the secretary.  Is there a reason this could not also be applied in
4.4
> on electronic meetings of the board?  It sees to only support
telephone
> but not text conference (ie. IRC).  While we might not choose to do so
> for the time being, I would like us to have the option of holding a
real
> meeting of the board by IRC.

The Delaware Corporations Code does not permit a board meeting to be
held exclusively by IRC (but shareholder meetings are ok).  See Section
141(i) of the code, which requires that, for whatever communications
medium is used, "all persons participating in the meeting can hear each
other."  The rationale is that because a board of directors acts
collectively and is generally charged with fiduciary obligations to
manage a corporation's business and affairs, meetings of the board
should facilitate contemporaneous and meaningful dialogue that isn't
possible over IRC.  

http://www.delcode.state.de.us/title8/c001/sc04/index.htm

Of course, you may have a conference call concurrently with IRC.
Delaware law also permits a board to take action by unanimous written or
electronic consent.  Thus, a "virtual meeting" could be held on IRC, and
then a separate unanimous written consent could be submitted by each
director via email.  Note that this only works if all actions taken by
the board are unanimous.

 
> In section 3.8 on committees it talks about committees having the
> power and authority of the board as limited by the authorizing
resolution.
> Does this apply to basically all committees created by the board?
Such as
> the Web Committee created at the last meeting, and the Incubation
> Committee
> we are likely to designate at the next meeting?  Does this mean we
ought
> to
> be very careful about the scope of powers assigned to committees in
their
> authorizing resolutions?
> 
> When I first read section 3.8 I assume it was dealing with
subcommittees
> of the board, like the audit or compensation committees they might
have
> in a big corporation.

You are correct in your first reading.  Section 3.8 refers to committees
of the board, which are generally constituted to take official actions
of the board where constant full board participation isn't practical
(i.e., compensation committees of big companies).  I wouldn't expect
there to be many board committees constituted by OSGeo's board, at least
not initially.  Committees like the web committee, incubation committee
and the soon-to-be-constituted MapServer PSC are Project Steering
Committees formed under Article VI (Section 6.1).

> I see 3.8 also requires such committees to have at least one director.
I
> note that the web committee does not have any directors.  Is that an
> issue?

Per the above, this is really an issue under Section 6.1.  But that also
requires an officer or a director.  For example, all heads of Apache
PSCs are VPs (officers) of the corporation.  We could certainly dispense
with this requirement, but I think the requirement promotes a "bigger
picture" viewpoint of the PSC chair.
 
> In section 6.1, when you talk about a director of officer chairing the
> committee I am assuming this boils down to the PSC selecting a chair
and
> his role becoming official when he is accepted by the board, right?
That
> essentially the chair will be promoted to be an officer of the
foundation
> though not necessary a member.

Since this is a top down structure, I think it would be unusual for the
members of the PSC to select the PSC chair.  What if the board
disagrees?  I think the reality is that the board would have to take the
views of the PSC members into account when selecting a chair, and could
even hold an informal poll or election, but I would think the board
should have the final say as a matter of proper governance.  

> I'm not sure I see the point of 6.3.  Why should the term of a PSC
member
> be one year?  In fact, I don't think the board ought to have any
mentioned
> role in selecting PSC members other than authorizing the initial slate
> of members when the PSC is formed.   That and the requirement that the
> board accept the chair.

The term does not have to be one year.  But that is the term for board
members and officers, so it was added here as well as a default.  The
term could be indefinite until removal, if that is what you are asking,
and that may make more sense for PSC members (or at least for certain
PSCs like software project PSCs).  In terms of what the board's role is,
I think I would add to your two enumerated powers the (rarely if ever
used) powers to remove members of a PSC, or to terminate the PSC
altogether.

> Would there be any harm in not including ARTICLE VI at all for now,
and
> adding
> it later when we have ironed out how we want PSC's to work?  In the
> meantime
> the board can address PSC's in an adhoc manner with them having no
special
> status?

That might be possible, but we wouldn't want to do this for very long.
And as part of this process it should be understood that the "ad hoc
PSC" members have no official foundation role until formalized, and that
the board can terminate the "ad hoc PSC" in its discretion.  Otherwise
you have these nebulous, undefined bodies potentially doing things in
the corporation's name but without any official imprimatur or means of
control.
 
> In section 8.8 a majority of members are required to form quorum at an
> annual meeting (or other special meeting of the members).  I'm
concerned
> that it could be hard to reach this quorum sometimes.  At the very
least
> this would mean we would have to beat the bushes for proxies in
advance
> of annual meetings.  Would it be highly irregular to have a lower than
50%
> quorum?  I suppose it does raise the risk of a "takeover" of the
> foundation
> by a faction.

I have seen quorum requirements as low as 1/3, but our membership
shouldn't be that substantial such that participating in a meeting
either in person, electronically or by proxy would be difficult.  I
think that when we have reached the point where we are really having to
beat the bushes for proxies or attendance, then we have admitted too
many members and/or failed to limit membership to those persons who
truly have the "do-acracy" gene required to make OSGeo a success.  Also,
remember that unlike board meetings, member meetings may be held
electronically.  And thus a quorum includes those participating
electronically (A quorum is "a majority of the members entitled to vote,
represented in person or proxy, __including through remote
communication__").

Thanks,

Rich