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

[Michael Gerlek]

I think all of the board members, past and present, would agree this is an
important issue to address. However, as a volunteer-run organization, we
rely on the community to help drive these sorts of processes forward. We
have a limited set of resources, and so only a limited subset of all the
important issues get addressed.


We have in the past tried to drum up interest in revising and updating our
bylaws, but to no avail. If any of you are interested, please let the
board know.

Also, there will be a board member election coming up right after the
charter member election. Please participate in the election, either
directly as a candidate or indirectly by supporting those candidates who
you think could best address these issues.

-mpg







-----Original Message-----
From: Stephen Woodbridge <woodbri at swoodbridge.com>
Date: Tuesday, July 16, 2013 2:15 PM
To: <discuss at lists.osgeo.org>
Subject: Re: [OSGeo-Discuss] The vote versus the bylaws [was: End the
vote!]

>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 applicant¹s 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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