[OSGeo-Board] Bylaws posted

[Rich Steele]

Frank Warmerdam wrote:

> Well, while I might dispute that you cannot have meaningful dialogue
> over IRC, there isn't any disputing Delaware law, so that settles
that.

I'm not saying you can't either.  That is the legislature's position
(and upheld by the Delaware courts).  
 
> So this means for our "+1" votes on the board mailing list to
constitute
> a binding action of the board we would need to have everyone agree?
But
> that then (as long as the motion tabled was well expressed) these
would
> be valid actions?  I can see this being hard to achieve on a nine
person
> board.

Yes, this is exactly what I'm saying.  A written or electronic consent
(as opposed to a vote taken at a validly noticed and conducted meeting
(where all persons can hear each other)), must be unanimous to be
effective.  This is required by Section 141(f) of the Delaware code (and
other state laws).  The theory, again, is that directors are required to
actively participate and engage in discussion before voting at meetings
and their written consent is only permissible where the decision of the
board is so clear that every member of the board consents.  A recent
case in Delaware reaffirmed this principle.  See the discussion at pp.
3-4 here:
http://corporate-law.widener.edu/documents/opinions/278n-234.pdf

Usually this isn't a problem in corporations because day-to-day
management of the corporation's affairs is delegated to management.  But
OSGeo it seems will have a much more "hands on" approach by the board,
so this requirement will need to be managed.  Unanimity is good -- it
indicates a consensus and absence of controversy.  If something isn't
unanimous, perhaps it should be discussed at a meeting?  That, at least,
is what the law suggests.  

> > 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).
> 
> Hmm.  I hadn't been thinking of the web or incubation committees as
> being the same as project steering committees.
> 
> There is a very strong desire for project steering committees to have
a
> great deal of independence and the ability to "rule" themselves as
long
> as they report back to the board and appropriately enforce proper
> legal procedures with regard to code submissions and such.
> 
> Other committees, such as the web committee, incubation committee,
> fund raising and so forth I see as being directly subject to the board
> and that the board should be free to interfere with them as it sees
fit.

Remember that since the board can terminate a PSC at any time, the board
inherently has the right to interfere as it sees fit (under the threat
of the nuclear option).  But the open understanding is that the board
does not micromanage a software project PSC -- it merely empowers, and
lets the project PSCs rule themselves (within the limits you describe).
Other PSCs, for things like webcom, conferencecom, etc., can have
different understandings.  I think you can also handle this in the
authorizing resolution by stating certain expectations and requirements
of that committee.
  
> I'm ok with PSC chairs being responsible for reporting back to the
> board.  If we also call them officers that is ok in my mind, though I
> am not clear on what all the implications are.  From my reading of the
> bylaws, it seems that "officer" does not carry any special powers
though
> an officer is clearly serving as determined by the board.   Do
officers
> have some implicit powers?

Officers have whatever authority is granted to them by the board, which
can and should be limited by resolution or bylaw.
 
> > 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 agreeing that the board would have to accept the chair/officer
before
> they are official.   This is somewhat like how the governor general is
> selected.  In theory he/she is selected by the queen but in practice
the
> prime minister selects the GG and then the decision is confirmed by
the
> queen barring some very unusual reason not to do so.

OK.  I think this works fine.
 
> > 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).
> 
> Well, I guess my point is that PSC's should be free to draft their
> own rules on term.  In the case of the MapServer TSC the chair remains
> until changed by a TSC motion.  Also, members are members till removed
> by a TSC motion.

We can do it that way as well, except I would expect that the PSC chair
that is appointed by the Board could only be changed by the Board.
Again, the Board would have to pay attention to the feelings of the PSC
members, but ultimately the decision would have to be the Board's.

>  > 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.
> 
> Well, I think even the power to remove or alter the members of a PSC
> is not needed.  Clearly we do have to retain the right to terminate
> the PSC - essentially acknowledging that the board feels the PSC is
> not functioning properly as a part of the foundation.  We could always
> establish a new PSC by a motion if we just felt the PSC needed
reforming.
> Or we could just leave it disbanded (likely to reform outside the
> foundation).  Disbanding (project disavowal) is the "stick" used to
> encourage PSCs to operate in a reasonable way within the foundation
but
> it is clearly (from both sides) an option of last resort.

I agree that the nuclear option of PSC termination, practically
speaking, means the Board conceivably could impose conditions on a PSC
to avoid termination.  So I am agreeing with you.
 

Thanks,

Rich