Re: SPI Bylaws Amendment - Removal by Membership

I put forth this as an alternative to get us out of our current mess.

Proposal follows:

It is resolved that following be appended to the end of Article Seven of the
By-Laws of Software in the Public Interest, Inc.:

A director or officer may also be removed for any or no reason when
two-thirds of the contributing members support such an action under a vote
as established in article five. If the Secretary is the subject of the
vote, an independant inspector of election shall fulfill all duties normally
performed by the secretary under article five, for the purpose of this vote
only. The quorum for the vote shall be the same as for any other
contributing member vote.

I would like to reply to my own message and state that I offer this because
I believe it would be a better alternative to the other proposed amendment.
My hope is that the current problem can be solved at next week's meeting,
but my belief is that the below proposal will also help us avert this
problem in the future, even if the board currently can solve it without this
mechanism. Seconds are welcomed at this time.

Nonetheless, if the board does solve it next week, I would be happy to table
it for now while the house gets back in order.

I believe it is clean, simple, to the point, and a good solution.

-- John

On Wed, Dec 11, 2002 at 01:04:34PM -0600, John Goerzen wrote:
> I put forth this as an alternative to get us out of our current mess.
>
> Proposal follows:
>
> It is resolved that following be appended to the end of Article Seven of the
> By-Laws of Software in the Public Interest, Inc.:
>
> A director or officer may also be removed for any or no reason when
> two-thirds of the contributing members support such an action under a vote
> as established in article five. If the Secretary is the subject of the
> vote, an independant inspector of election shall fulfill all duties normally
> performed by the secretary under article five, for the purpose of this vote
> only. The quorum for the vote shall be the same as for any other
> contributing member vote.

On Wed, Dec 11, 2002 at 01:04:34PM -0600, John Goerzen wrote:
> I put forth this as an alternative to get us out of our current mess.
>
> Proposal follows:
>
> It is resolved that following be appended to the end of Article Seven of the
> By-Laws of Software in the Public Interest, Inc.:
>
> A director or officer may also be removed for any or no reason when
> two-thirds of the contributing members support such an action under a vote
> as established in article five. If the Secretary is the subject of the
> vote, an independant inspector of election shall fulfill all duties normally
> performed by the secretary under article five, for the purpose of this vote
> only. The quorum for the vote shall be the same as for any other
> contributing member vote.

How about adding that if a director or officer has missed three
consecutive board meetings, the threshold becoems one-half?

- Ted

On Wed, Dec 11, 2002 at 06:27:00PM -0500, Theodore Ts'o wrote:
> How about adding that if a director or officer has missed three
> consecutive board meetings, the threshold becoems one-half?

I would be amenable to that, though I personally don't want to draft it.
The recent discussion shows that there is some disagreement about just what
constitutes a board meeting, so I'd rather have someone more familiar with
that issue draft such an amendment. I wonder if the threshold should be a
little higher (last four meetings) or based on something else (half of the
meetings in the last six months)?

I might also throw out there something to consider for such a clause: do we
count both "absent" and "absent with regrets"? For instance, if someone
takes a three-month holiday out of the country for summer, and notifies the
secretary, they could be considered absent with regrets and not really
inactive. On the other hand, a mostly inactive person that wishes to hold
on to his seat could just be perpetually absent with regrets. I'm not sure
what the right answer to this is.

-- John

On Thu, Dec 12, 2002 at 08:21:53AM -0600, John Goerzen wrote:
> I would be amenable to that, though I personally don't want to draft it.
> The recent discussion shows that there is some disagreement about just what
> constitutes a board meeting, so I'd rather have someone more familiar with
> that issue draft such an amendment. I wonder if the threshold should be a
> little higher (last four meetings) or based on something else (half of the
> meetings in the last six months)?

Actually, what constitutes a board meeting is relatively well defined,
in Article four of the bylaws. The problem is that what's there
doesn't seem to match with the current practice, and appears to have
been modified by a board resolution which calls for regular monthly
meetings.

In contrast, the bylaws state that board meetings shall be held
quarterly, and "special meetings" can be called by the president or
two members of the board. So are the meetings called for board
resolution 2002-05-07.wta (regular meeting schedule) to be considered
"special meetings? Given the vote of 5-0-2, presumably this would
meet the test of being called for by the president or two members of
the board. However, the call for special meeting requires that notice
be given to all members not less than two weeks but not more than 30
days, and that the reasons for the meeting and the business to be
conducted should be stated.

If instead the regular meetings are to be considered normal meetings,
then that would imply that a mere board resolution is allowed to have
precedence over the bylaws, which very clearly state that regular
board meetings are to be held quarterly (and not "at least
quarterly").

So at the very least, it would seem to me that while monthly board
meetings (which I do believe is a very good thing), it's not at all
clear that the board resolution of 2002-05-07.wta was actually in
order. It would have been much better to have done that as a bylaws
admendment, rather than as a board resolution.

In the future, I believe the bylaws ought to be clarified concerning
this point, as well as explicitly spelling out what happens in case of
a failure to meet quorum, and where notifications are supposed to go.
A more preferable approach might be to remove most of the details
about the scheduling of board meetings from the bylaws entirely, and
let that all be encapsulated in a board resolution. This has the
advantage of granting more flexibility, which is probably a good thing
assuming a functioning board.

That being said, though, to handle the case where the board is not
functioning, we probably do need a minimum set of controls to make it
easy to fix things should this happen again.

> I might also throw out there something to consider for such a clause: do we
> count both "absent" and "absent with regrets"? For instance, if someone
> takes a three-month holiday out of the country for summer, and notifies the
> secretary, they could be considered absent with regrets and not really
> inactive. On the other hand, a mostly inactive person that wishes to hold
> on to his seat could just be perpetually absent with regrets. I'm not sure
> what the right answer to this is.

Yes, there are many ways that this could be done. One formulation
that had crossed my mind earlier was to say, "two consecutive absence
without prior notification", and "four consecutive absences with
regrets". I thought though that it might be too complicated, and I
figured that it wasn't necessary if removal was not automatic, but
further required a vote of the board and/or the contributing
membership.

Presumably, if a board member had adequte explanations for his
absences (such as summer holiday where a spouse had enforced a
cold-turkey abstinence from the Net, for example :-), presumably this
could be broadcast to the board or the general membership, and the
proposal to remove would either not be brought up at all, or the vote
to remove would fail. Hence, I decided the extra complication wasn't
necessary, and proposed instead "three conseuctive absences".

Thoughts, comments?

- Ted

On Thu, 12 Dec 2002, John Goerzen wrote:

> On Wed, Dec 11, 2002 at 06:27:00PM -0500, Theodore Ts'o wrote:
> > How about adding that if a director or officer has missed three
> > consecutive board meetings, the threshold becoems one-half?
>
> I would be amenable to that, though I personally don't want to draft it.
> The recent discussion shows that there is some disagreement about just what
> constitutes a board meeting, so I'd rather have someone more familiar with
> that issue draft such an amendment. I wonder if the threshold should be a
> little higher (last four meetings) or based on something else (half of the
> meetings in the last six months)?
>
> I might also throw out there something to consider for such a clause: do we
> count both "absent" and "absent with regrets"? For instance, if someone
> takes a three-month holiday out of the country for summer, and notifies the
> secretary, they could be considered absent with regrets and not really
> inactive. On the other hand, a mostly inactive person that wishes to hold
> on to his seat could just be perpetually absent with regrets. I'm not sure
> what the right answer to this is.

A simpler solution might be to say that if someone is "Absent with
regrets" they are "on leave" and, for all intents and purposes,
temporarily off the board, reducing the number of people who need to
attend for quorum to be met. Members who do not attend and do not send
notice of their absence in advance at two consecutive meetings are already
subject to removal (by a vote of the board) under:
http://www.spi-inc.org/corporate/resolutions/resolution-2001-09-17.br

Failing that, I think a motion should be put forward exempting the first
meeting to take place after the motion is passed from all quorum
requirements. The resolution should include an agenda and block the
meeting from ending until the agenda is completed. It's harsh, but it's
neither permanent nor unwarranted.

On the same lines, a meeting could be held that lasts for a week instead
of an hour, and as long as six board members meander in at some point
during that week, quorum is met.

SPI's by-laws state, in article 3:

"[...] Members have the right and responsibility of overseeing the board
members, officers, and committees and ensuring that they operate in
accordance with the goals and principles of the organization. All board
members, officers, and committees are ultimately responsible to the
membership, and should act in accordance with its wishes."

That not only allows but forces the membership to take action against a
board which won't or can't, not-withstanding the rest of the by-laws which
don't make that terribly easy.

As a side note, my opinion on the existence of quorum at all is that it
shouldn't exist. The board should be frequently elected (at least
annually) and any board members who attend a meeting can make a decision
together, provided the meeting was called with an agenda at least two
weeks in advance. There's nothing stopping a board member from being
re-elected, so as long as they're doing their job on the board they'll be
there indefinately, but delinquent, inactive, or disruptive board members
won't be long for the board.

Board members who cannot attend should have an opportunity to vote during
those two weeks, by mail, and anyone who neither votes nor attends the
issues is assumed not to see the issue as important. If they disagree with
the outcome, then it is up to them to have shown up to the meeting or
voted during the vote.

As long as the board members are elected, whether by member projects
sending representatives (which I personally think is the best option
because it allows each project a say on the governance of its parent), or
by the membership electing a board at the annual meeting or in some other
manner, this quorum-less method can work. If the board never changes, then
yes, a consolidation or seizure of power can take place.

David Graham
cdlu(at)pkl(dot)net

On Thu, 2002-12-12 at 08:21, John Goerzen wrote:
> I would be amenable to that, though I personally don't want to draft it.
> The recent discussion shows that there is some disagreement about just what
> constitutes a board meeting, so I'd rather have someone more familiar with
> that issue draft such an amendment. I wonder if the threshold should be a
> little higher (last four meetings) or based on something else (half of the
> meetings in the last six months)?

I'm not necessarily against this, but I want to raise a point here. I
think that we may be going overboard with the reorganizational efforts
being proposed here. I mean, just because a car has run out of gas
doesn't mean you should redesign the car so that it can run without it.
It's much easier to get more gas and then drive the use the car as it is
intended to be used.

If that analogy isn't clear, I'm saying that this inactivity problem is
temporary and doesn't warrant extensive and hurried redrafting of the
corporate by-laws. Primarily we just need to get the inactive board
members to volentarily resign so that quorum can be reached. This
approach is straigtforward and doesn't raise any procedural red-flags.

> I might also throw out there something to consider for such a clause: do we
> count both "absent" and "absent with regrets"? For instance, if someone
> takes a three-month holiday out of the country for summer, and notifies the
> secretary, they could be considered absent with regrets and not really
> inactive. On the other hand, a mostly inactive person that wishes to hold
> on to his seat could just be perpetually absent with regrets. I'm not sure
> what the right answer to this is.

An errant board member can be dismissed "by trial" under the current
by-laws. With an active board that should probably be sufficient.

--
_____________________________________________________________________
Ean Schuessler ean(at)brainfood(dot)com
Chief Technology Officer 214-720-0700 x 315
Brainfood, Inc. http://www.brainfood.com

On Thu, Dec 12, 2002 at 04:04:55PM -0600, Ean Schuessler wrote:
> If that analogy isn't clear, I'm saying that this inactivity problem is
> temporary and doesn't warrant extensive and hurried redrafting of the
> corporate by-laws. Primarily we just need to get the inactive board
> members to volentarily resign so that quorum can be reached. This
> approach is straigtforward and doesn't raise any procedural red-flags.

I agree in general. I think that the membership should be able to recall
board members regardless of the current situation -- this is at least
implicit in the by-laws, but like many other things, vague.

Still, I am not overly optimistic that the inactive members are going to go
ahead and resign now. They have had ample time to do so but have not. We
can hope that this will happen, but make plans in case it does not.

> An errant board member can be dismissed "by trial" under the current
> by-laws. With an active board that should probably be sufficient.

To clarify: by trial of the rest of the board. Yes, with an active board,
it probably would be. Unfortunately, we don't have one. I think it would
be best to make sure that the bylaws are fixed so that we can avoid ending
up in this situation again in the future. Though I do feel that amending
the bylaws is not something that should be done lightly or without due
deliberation.

Consider this too: what if five of the board members were hit by a bus
crossing the street to Usenix. The board will be totally unable to meet
quorum, and have no way out under the current bylaws. We definately need to
get some procedures in place for replacing an "unavailable" board member at
some point.

-- John

So, are there any inactive board members that just entirely refuse to resign?
It's not anything bad, no loss of status or letting down the community, to
decide to give it a rest for a while or even to go on to something else in your
life permanently.

On the other hand, blocking the organization through retaining a position that
you are not able to fulfill does hurt the organization and the community.

Perhaps we just need to politely ask some members to turn their seats over
to others for now.

Thanks

Bruce