Re: proposed replacement bylaws

FYI - I'm one of the "so-called-rogue" directors who got elected unopposed. =)

On 4 July 2016 at 17:52, David Graham <daviddbgraham(at)gmail(dot)com> wrote:
> This is a huge improvement, thanks Bdale.
>
> I have a number of comments as I read through it. I have not had a chance to
> read the whole thread yet so my apologies if some of these points have
> already been covered.
>
> Article 3, Section 8: Quorum
>
> "Members entitled to cast a majority of the total number of votes entitled
> to be cast thereat shall constitute a quorum at a meeting of members for the
> transaction of any business. "
>
> I don't like this phrasing; it is too convoluted. If the intent is to say

This is actually a typical and standard legal wording, common with
many other texts and bylaws of similar nature.
As unfortunate, as it reads.

Do note, this text was prepared by a professional law firm.

> that a Quorum is achieved when a majority of voters is present, then it
> should say that. But no member is entitled to cast a majority of votes, so
> looking for several members who are each entitled to cast a majority of
> votes as is implied is liable to cause future disagreements.
>
> Article 3, Section 9: Voting
>
> This should be a touch more specific. It currently reads: "All issues to be
> voted on shall be decided by a simple majority of those present at the
> meeting in which the vote takes place." but should read "All issues to be
> voted on shall be decided by a simple majority of [-those- +contributing
> members+] present at the meeting in which the vote takes place."
>

Why does it need to be more specific? Ideally we tried to minimize
unnecessary duplication / cross-referencing in the bylaws.

> Article 3: Section 8 and 9 together need to be more specific about the type
> of meeting at which these rules apply. It is clear, but implicit, that it is
> at a membership and not at a board meeting, but that should be explicit.
>

It is clearly under the right article and scope. And in general we
tried to make all voting/quorum rules homogeneous for any purpose.
Re-iterating same things over and over again, makes it harder to read
and comprehend, and reuse for e.g. committee meetings (of which we
currently have none).

> Article 4, Section 1, sub 2:
>
> Suggest minor edit:
> "Select all Officers for the organization and approve the members of any
> standing [+or special+] committee appointed by the President"
>

As far as I understand, this would be the first use of "special
committee" term. Do we need a second type of a committees? Especially
given that we currently use none =)

> Article 4, Section 2: Number
>
> This specifies the board at exactly 9 members, while current rules permit
> between 8 and 12 members and we stick to 9 by convention and because
> achieving our arcane quorum requirements is easier with a number divisible
> by 3. Do we wish to remove the flexibility we have in the size of the board?
> Philosophical question to be decided, but my suggestion would be to leave it
> a little bit more flexible.
>

This was intentional design goal, to make our bylaws match the current
practice and be clear about it.

It is intentional to use simple integers or fractions throughout for
the # of directors, director quorum, director majority, and director
term expiry. And having staggered, 3 year terms, of 9 directors in
total.

> Article 4, Section 3: Election and Term of Office
>
> Suggest some changes here to make a smoother transition:
>
> "Directors are elected by [-the plurality of-] a vote of Contributing
> members [+in a manner described by Board resolution and accepted by the
> Membership; no such system may change once a voting process is under way+].

I don't understand the proposed additional changes here.

> The Directors shall hold office for 3 year terms[+.+] [-The initial
> Directors shall be divided into three (3) equal groups, one-third (1/3) of
> them to serve for an initial term of one (1) year, one-third (1/3) to serve
> for an initial term of two (2) years, and one-third (1/3) to serve for an
> initial term of three (3) years.-] [+The Board shall, whenever possible, be
> divided into three (3) equal groups, in order for one-third (1/3) of the
> Board to be up for election at each annual election cycle. Board seats not
> vacant at the time of the adoption of these bylaws shall be counted from the
> time at which they were actually filled. The Board is responsible for
> ensuring that one-third annual parity is achieved.+]

Given that directors in general hold the office for 3 year terms &
that initial director terms are staggered - the staggered terms follow
perpetually. This has actually been the case already, and I don't
believe we actually require any further adjustments for a smoother
transition.

>
> Article 4, Section 4: Qualification for directors
>
> This changes our practices. Current practice is that you are a contributing
> member by virtue of being elected to the board. These new bylaws require you
> to already be a contributing member to serve on the board. It is important
> to decide which way we want to do this; my take is anyone who can seek and
> win an election to be a Board member should be eligible to be so, whether or
> not they were a contributing member at the start, but more to the point
> leaving the power of deciding who is a contributing member in the Board's
> hands could result in a Board disqualifying someone's membership in order to
> disqualify their board nomination, which at the very least must be expressly
> forbidden.
>

Actually I do not believe this changes our current practices. When I
wanted to nominate myself for Director role, I was asked to (a) join
as non-contributing member (b) apply for contributing membership (c)
become a contributing member - All of which was processed smoothly.
The contributing member guidelines are here:

http://www.spi-inc.org/membership/guidelines/

IMHO if one cannot qualify with above guidelines, one wouldn't stand a
chance to be elected by our contributing members =) unless everyone
involved (all members & directors) has gone totally mad.

> Article 4, Section 5: Removal
>
> IMO this should also require notice to the contributing membership, not only
> the Board.
>

I somehow thought all notices go out publicly to everyone anyway.

> Article 4, section 7: vacancies, subclause b contradicts Article 4, section
> 2 (as noted earlier)
> "(b) an increase in the authorized number of Directors by resolution of the
> Board; or"
>
> Article 4, Section 8: Meetings:
>
> Meetings of the Board may be held at any place as the Board may from time to
> time fix. ((The annual meeting of the Board shall be held at a date, time
> and place fixed by the Board. -- should the Annual Meeting not be an Annual
> General Meeting of the Membership rather than of the board?)) [+The Board
> must meet a minimum of four times per calendar year.+] Special meetings of

The point was to encode bare legal minimal in the bylaws, such that
board can operate as many or as little meetings. There can be
consecutive months that are slow (with no resolutions) or lack quorum,
thus encoding quaterly meetings into the bylaws seems unnecessary to
me.

> the Board shall be held whenever called by the President of the Board or any
> Director upon written demand of not less than [-three-] one-third [+of the+]

yeap a typpo.

> Directors of the Board. Meetings may be conducted by means of telephone or
> internet relay chat or video conference or similar communications equipment
> provided that all persons participating in the meeting can participate at
> the same time. Participation by such means shall constitute presence in
> person at a meeting.
>
>
> Article 4, Section 9: Notice of meetings
>
> I would suggest that we retain the practice of informing the contributing
> membership of board meetings and do so in the by-laws. I would therefore
> suggest the following paragraph be added:
>

All notices are public. Thus proposal is redundant?

> Contributing members must be offered a practical means to be informed of the
> date, time, and location of a Board meeting at the same time as the Members
> of the Board. Any contributing member may attend any Board meeting without
> participating unless the Board, by unanimous consent of all Board members
> present, decides that, for a stated reason, a meeting or a portion of a
> meeting must be held in camera. The names of all Board and contributing
> members present shall be recorded in the minutes of the meeting.
>
> Article 4, Section 10: Quorum
>
> Note that quorum is currently at 2/3 of board members and this changes it to
> 1/2+1. That's a philosophical question that we need to decide.
>

That was explicit design goal, as reaching said quorum is quite hard
with the wide time-zone differences we have and/or public holidays and
travelling the directors do.

> Article 4, Section 12: Action by the Board
>
> Any action required or permitted to be taken by the Board or any committee
> thereof may be taken without a meeting if all Directors of the Board or the
> committee consent in writing via email to the adoption of a resolution
> authorizing the action. A record of such action shall be maintained [+and
> provided to the contributing membership+].
>

All board actions are public anyway, aren't they?

> Article 4, Section 13 introduces the concept of "Independent Directors"
> without defining them.
>
>
> Article 5, Section 2: Election and Term of Office
>
> "The Officers of the organization shall be elected for a one year term at
> [+the first Board meeting following the Annual General Meeting of the
> membership+] [-the annual meeting of the Board-], and each shall continue in
> office until his or her successor shall have been elected and qualified, or
> until his or her death, resignation or removal."
>

No, I believe by law we must have annual board of directors meeting
(which is not the AGM), and elect the officers then.

> Article 6, Section 2, sub b:
>
> I do not believe a subcommittee of the Board should be authorised to modify
> the by-laws. I'll come back to that later as this is dealt with again in the
> bylaws.
>
> Article 8: Fiscal year
>
> I believe our fiscal year currently starts on July 1 rather than January 1.
> It should be modified to be consistent with existing practice.
>
> Article 11, Section 1: Amendments
>
> This has to be redesigned. The Board, or a committee designated by the
> Board, can and should revise and propose changes to the by-laws, but any
> such changes, in my opinion, must be put to and accepted by a supermajority
> of the contributing membership. Changes to by-laws should not be taken
> lightly and these by-laws already give the Board sufficient power to
> administer the organisation through regulation that changing the by-laws
> willy-nilly should never be necessary.
>
> At the very end, under the current by-laws the Board does not have the
> unilateral power to adopt the new by-laws. They must be accepted by, as I
> recall, 2/3 of the contributing membership.
>

I currently have very biased opinions to comment on these, given the
events that are unfolding in my country.

>
> David
>
>
> On Sat, Jul 2, 2016 at 9:43 AM, Bdale Garbee <bdale(at)gag(dot)com> wrote:
>>
>> For as long as I can remember (that means on the order of 12 years on the
>> board and 10 years as president of SPI), we have been aware that there
>> were problems with the existing bylaws of the organization.
>>
>> The problems with the current bylaws we really need to fix include:
>>
>> - the bylaws do not comprehend the idea of board meetings on IRC
>> - the rules the board voting by email are intractable
>> - there is a hard requirement to hold an annual general meeting on
>> the first day of July, which is rarely convenient due to national
>> holidays, etc
>> - in a number of places, the bylaws seem to contradict themselves
>>
>> At least once in history, we formed a committee to recommend changes,
>> but nothing useful ever came out of those activities. Some months ago,
>> I decided to try a different approach. I asked our friends at the
>> Software Freedom Law Center to draft a complete replacement for SPI's
>> bylaws, intended to be as simple and clear as possible, while capturing
>> our current operating practices in a legal and supportable fashion.
>>
>> At our in-person board meeting earlier this year, the board members
>> present worked with Mishi Choudhary from SFLC on the details, and for
>> some weeks we've had a draft set of bylaws that everyone on the board
>> seems to be comfortable with. I present them here for review and
>> discussion, after which I hope we can have a vote of the contributing
>> membership to adopt these as SPI's bylaws for the future.
>>
>> Regards,
>>
>> Bdale Garbee
>> SPI President
>>
>>
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>>
>
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--
Regards,

Dimitri.