Re: Resolution 2004-10-15.dbg.1: Non-meeting voting

David Graham writes ("Resolution 2004-10-15.dbg.1: Non-meeting voting"):
> I find 2001-11-26.iwj.1 has outlived its usefulness as a resolution. It's
> not completely clear and it can use an update. It requires both unanimous
> consent and a 50% quorum, which to me is contradictory.

(FI of anyone reading, 2001-11-26.iwj.1 is the email voting process.)

As I said in my reply to Bruce, I'm worried that there might be some
legal doubt about the validity of these email resolutions. To avoid
the possibility that a disgruntled board member might find themselves
wanting to overturn this weak point on our processes, I wrote into the
email voting resolution the veto which allows them to easily stop a
resolution they disapprove of.

I agree that an easier email voting system would be a very good idea.
I don't know much about the legal niceities of making it robust even
in the face of a serious disagreement.

I would be very happy to support a new non-meeting voting system if we
could come up with something that /everyone/ on the board will agree
to. For example, we could put something in the resolution itself that
says it is only effective if all of the current board members have
explicitly, since joining the board, indicated their agreement to the
offline voting system. That would probably hinder a dissenter later
claiming in court that those offline resolutions don't really count.

Also, it would have to be clear that no motion could pass that
wouldn't be valid if it had happened in a meeting, and that there
could be no two contradictory motions passed. With the 66%
by-laws quorum I think that means we need 66% participation, and to
avoid contradictory motions we need >50% approval.

> This resolution also requires unanimous consent of all board members
> should the membership sink below the legal minimum of 8 set out in the
> by-laws. I think it is necessary to keep some provision for business to be
> doable in that case, if only to appoint interim board members to get back
> to working strength.

That might be better done by actual meeting, surely ? That way there
would be less room for doubt and argument.

> I'd be happy to hear amendments and changes to this resolution.

Right. I think your resolution would be a step forward, if my
concerns above can be addressed.

Thanks,
Ian.

Ian Jackson writes:
> As I said in my reply to Bruce, I'm worried that there might be some
> legal doubt about the validity of these email resolutions.

Is there any chance of getting a legal opinion on the validity of email
meetings? I wouldn't mind being proven wrong about them.

> To avoid the possibility that a disgruntled board member might find
> themselves wanting to overturn this weak point on our processes...

There is another danger. If we went for a long period having only email
meetings and then, for example, found ourselves in bankruptcy court, the
court might decide that we had had no meetings at all. It might then
decide we were not acting as a corporation but as a group of individuals
and hold everyone involved in decision making since the last "legitimate"
meeting individually liable. I've heard of exactly this happening to
single-owner corporations whose owners didn't bother to hold their
meetings.
--
John Hasler

On Sat, Oct 16, 2004 at 06:58:46PM -0500, John Hasler wrote:
> Ian Jackson writes:
> > As I said in my reply to Bruce, I'm worried that there might be some
> > legal doubt about the validity of these email resolutions.
>
> Is there any chance of getting a legal opinion on the validity of email
> meetings? I wouldn't mind being proven wrong about them.

According to http://lists.spi-inc.org/pipermail/spi-bylaws/2004/000265.html:

> Actions may be taken without a meeting only if there is unanimous
> director consent. (This would appear to apply to e-mail voting.)

--
Taral <taral(at)taral(dot)net>
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I wrote:
> Is there any chance of getting a legal opinion on the validity of email
> meetings? I wouldn't mind being proven wrong about them.

Taral writes:
> According to http://lists.spi-inc.org/pipermail/spi-bylaws/2004/000265.html:

> Actions may be taken without a meeting only if there is unanimous
> director consent. (This would appear to apply to e-mail voting.)

I meant the opinion of an attorney as to whether email meetings would be
valid meetings under New York law. If the answer was yes we could consider
dropping IRC entirely.
--
John Hasler

On Sun, 17 Oct 2004, Ian Jackson wrote:
> David Graham writes ("Resolution 2004-10-15.dbg.1: Non-meeting voting"):
> > I find 2001-11-26.iwj.1 has outlived its usefulness as a resolution. It's
> > not completely clear and it can use an update. It requires both unanimous
> > consent and a 50% quorum, which to me is contradictory.
>
> (FI of anyone reading, 2001-11-26.iwj.1 is the email voting process.)
>
> As I said in my reply to Bruce, I'm worried that there might be some
> legal doubt about the validity of these email resolutions. To avoid
> the possibility that a disgruntled board member might find themselves
> wanting to overturn this weak point on our processes, I wrote into the
> email voting resolution the veto which allows them to easily stop a
> resolution they disapprove of.

Though we should ask Greg Pomerantz to be sure, my sense is that by
passing a resolution saying we accept these resolutions as binding, we are
bringing them into compliance.

I find the veto ineffective as my understanding is that it has been used
by board members to veto their own dismissal from the board, which is
extremely counterproductive.

> I agree that an easier email voting system would be a very good idea.
> I don't know much about the legal niceities of making it robust even
> in the face of a serious disagreement.
>
> I would be very happy to support a new non-meeting voting system if we
> could come up with something that /everyone/ on the board will agree
> to. For example, we could put something in the resolution itself that
> says it is only effective if all of the current board members have
> explicitly, since joining the board, indicated their agreement to the
> offline voting system. That would probably hinder a dissenter later
> claiming in court that those offline resolutions don't really count.

It's an interesting idea, but it'd be tremendously difficult to implement
and I'm not sure if it'd really help anyway. See my comments at the end
about this.

> Also, it would have to be clear that no motion could pass that
> wouldn't be valid if it had happened in a meeting, and that there
> could be no two contradictory motions passed. With the 66%
> by-laws quorum I think that means we need 66% participation, and to
> avoid contradictory motions we need >50% approval.

I can see requiring 2/3 participation to bring it into complaince with
board rules, though I think the >50% approval is more effective. One of
the effects of this is the habbit of some of abstaining to show that you
really are participating will have to be broken and issues will actually
need to be considered and voted on. Five abstentions would kill a
resolution in non-meeting voting under this resolution at our current
board size.

As it is, if we have 2/3 of the 9-member board attend a meeting, that is 6
members. 4 of them could pass a resolution. At the next meeting the 2
members who did not vote for the resolution and the 3 who did not show up
the previous time could overturn or pass a contradictory resolution even
if eveyone shows up.

Ironically the lower quorum requirement is more robust in that respect.

> > This resolution also requires unanimous consent of all board members
> > should the membership sink below the legal minimum of 8 set out in the
> > by-laws. I think it is necessary to keep some provision for business to be
> > doable in that case, if only to appoint interim board members to get back
> > to working strength.
>
> That might be better done by actual meeting, surely ? That way there
> would be less room for doubt and argument.

Doesn't that exactly contradict everything you've said about IRC meetings?

If 7 members vote unanimously - and they would have to, abstentions are
meaningless with this wording - to add an 8th board member, I don't think
it gets any clearer or leaves any room for doubt.

> > I'd be happy to hear amendments and changes to this resolution.
>
> Right. I think your resolution would be a step forward, if my
> concerns above can be addressed.

As I read it, your concerns are legality and quorum requirements.

I believe the very fact of adopting this resolution would negate both of
those concerns. It is not a meeting so our legal requirement of 2/3
meeting attendance[1] is moot, and the risk of it not being a valid
resolution is negated by the board stating in this resolution that it *is*
a valid resolution. If a future board would like to adjust its ability to
pass resolutions outside of meetings it is free to do so. As long as the
resolution is on the books it can be assumed that a majority of the board
supports it.

In the interests of transparency, though, I could see adding a clause
requiring all resolutions up for voting (meeting or non-meeting, really)
be made available to the membership, though this does not fall under your
stated concerns.

[1] Not participation, incidentally. If 9 people show up to a meeting and
only one person votes at all, in favour, a resolution could pass during a
meeting, and as such *9* different contradictory resoltuions could, in
theory, be passed. Though this scenario is unlikely, it or a less
exagerated versoin of it is possible.

---
David Graham, SPI Secretary
cdlu(at)spi-inc(dot)org D5F45889

On Sat, Oct 16, 2004 at 09:56:36PM -0500, John Hasler wrote:
> I wrote:
> > Is there any chance of getting a legal opinion on the validity of email
> > meetings? I wouldn't mind being proven wrong about them.
>
> Taral writes:
> > According to http://lists.spi-inc.org/pipermail/spi-bylaws/2004/000265.html:
>
> > Actions may be taken without a meeting only if there is unanimous
> > director consent. (This would appear to apply to e-mail voting.)
>
> I meant the opinion of an attorney as to whether email meetings would be
> valid meetings under New York law. If the answer was yes we could consider
> dropping IRC entirely.

I talked to Greg a few days ago who certainly didn't know off the top
of his head but said he would look into it. :)

Regards,
Mako

--
Benjamin Mako Hill
mako(at)debian(dot)org
http://mako.yukidoke.org/