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

Tue Jul 16 13:35:07 PDT 2013

Another interesting issue I see from Adrian's e-mail is that Section 7.1 
states that a nomination is valid only from an existing Member. I recall 
that we had nominations in the past from non Charter Members. So yes we 
need to clarify things as Steve suggested.

Best,
Angelos

On 07/16/2013 11:15 PM, Stephen Woodbridge wrote:
> As CFO of a private family corporation, I would strongly encourage the 
> board to take up the issues Adrian has raised. What should happen as a 
> result of this is:
>
> 1. the bylaws are modified with regards to how you want voting to go 
> forward. This could be stated that it will be per a process approved 
> by the majority of the board if you want that flexibility.
>
> 2. because the past voting did not follow the rules, you should also 
> have an amendment that the existing list of charter members approved 
> as is.
>
> The reason is that you have a responsibility to follow the rules and 
> if you don't clean this up then past errors can be unraveled by a 
> legal challenge, not that I think we would get one, but if we got a 
> huge endowment, it might be worth some lawyers effort.
>
> And like every PSC has to follow rules, so should the organization.
>
> Best,
>   -Steve
>
> On 7/16/2013 4:06 PM, Alex Mandel wrote:
>> On 07/16/2013 08:03 AM, Adrian Custer wrote:
>>> 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.
>>>
>>
>>
>> "affirmative vote of the members" seems ambiguous to me. It does not
>> state the voting method. Is the Board allowed to define the rules of
>> such a vote (maybe) or do those need to be detailed in the Bylaws
>> (probably).
>>
>> You are correct there is no limit set in the Bylaws, but is there
>> something that prevents limits?
>>
>> My interpretation of the current system is that the Board has determined
>> the vote to be a multi-vote system, with the nominees receiving the most
>> votes being ranked and then cut at the pre-determined number. The board
>> then determines that those above the cut off are the affirmative 
>> nominees.
>>
>> Switching methods means that each charter member needs to vote -1/0/+1
>> on every nominee. I can see from a practical standpoint why the board
>> might want to avoid this method (there are also some social discussion
>> around no one wanting to -1 a person). Does this also mean that minimum
>> required votes for an affirmative would be (Charter Members/2 +1)/2 ?
>> (144/2 +1)/2 = 36.5, so 37 +1 or greater for a nominee would pass.
>> (assuming only 50% of charter members vote), this number would slide up
>> if more people vote.
>>
>> Do the Bylaws need to be amended to clarify the voting method preferred
>> by OSGeo? I expect clarifying the rules to follow the tradition would
>> likely be popular, but should be voted on if required. Or we can switch
>> to the other interpretation of affirmation by majority of voters.
>>
>> Another way to interpret past votes is -1/0 are the same as not +1 for a
>> given nominee. The only error then in the past was that the number of
>> votes allowed per member = 10 (or quota of new members) and not the
>> number of nominees.
>>
>> I'm less cynical about all of this being an attempt to deprive people of
>> power, and more of a rule making misunderstanding. I'm not familiar with
>> what has to be in the bylaws vs what can just be determined by vote of
>> Board and Members adhoc (rule making based on bylaws).
>>
>> Thanks,
>> Alex
>>
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-- 
Angelos Tzotsos
Remote Sensing Laboratory
National Technical University of Athens
http://users.ntua.gr/tzotsos