[Eg-oversight-board] Fwd: new evergreen bylawys ( was Re: Mobius transition and press)
Mike Rylander
mrylander at gmail.com
Wed May 2 17:49:50 EDT 2018
Thanks, everyone, for the comments.
Just to keep this moving, I present here an edited copy of most of Karen's
feedback that I think incorporates our further wishes. This isn't a "vote"
per se, but if I can get some +1s from the majority of the board, and any
other thoughts, of course, I think we should send changes through to
MOBIUS' attorneys. Is this coming Monday at noon enough time for input
before we push a set of changes along? Just speak up for more time.
Thanks!
-----------
Section 3:15 Actions By Board Without A Meeting
Under the draft bylaws all decisions must be taken in a meeting, or
otherwise the only mechanism is by unanimous written consent. The bylaws
are silent as to whether email constitutes proper written consent. We would
like to make this looser so that a majority of the board can vote by email
without a meeting.
Section 4:2 The Finance Committee.
This says that any major change in the budget must be approved by the
Board. This is vague and is silent as to materiality. It may be better to
give the committee a little bit of clear flexibility in case you do form a
finance committee. Is the following agreeable: board approval is required
for a 10% or greater change in total budget, or un-budgeted expenditures of
$5,000 or more. I think the "10% of budget" part matches the current
conference committee guidelines.
Section 4:5 Meetings of Committees.
We want to amend this to permit the use email for notice.
Section 5:1 Officers.
The bylaws don't permit the President and Vice Chairman to be the same
person, which is I'm sure consistent with state law, but some states
require that the president and treasurer not be the same person, so that
there is some level of fiscal controls. We want to add that separation
between Treasurer and President.
Section 6:2 Fiscal Year
We want to let the board fix the fiscal year, with it initially as the
calendar year.
Section 6:9 Executive Director
We would like to expand this section for the potential hire of more than
just and ED. Along the lines of, "[...] or other employees as the Board
deems necessary to accomplish the mission of the corporation."
I would beef up this section to anticipate the possibility of other
employees.
Section 6:11 Books and Records
We would like to delete "(c) demonstrate a direct connection between the
purpose for inspection and the requested records." We don't understand why
a Director should have to explain why they want to see the records. It
seems like an unnecessary bar - Directors should be engaged with the
corporation.
Section 6:12 Indemnification and Liability of Directors and Officers
We would like to adjust the indemnity such that good faith is presumed
rather than assigned by the consent of the board. For reference, here is
the indemnity section of another by-laws document that illustrates the
desired effect:
------
(a) Authority to indemnify. Except as otherwise provided in this Article,
the Organization may indemnify an individual who is a party
to a proceeding (whether threatened, pending, or completed action, suit, or
proceeding, and whether civil, criminal, administrative,
arbitrative, or investigative, and whether formal or informal, collectively
referred to as an “Action”) because he or she is or was a
trustee against liability to pay a judgment, settlement, penalty, fine
(including the obligation to pay an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses, including counsel fees,
incurred with respect to the Action if:
(i) Such individual conducted himself or herself in good faith; and
(ii) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity as trustee
of the Organization, that such conduct was in the best interests of the
Organization;
(B) In all other cases, that such conduct was at least not opposed to
the best interests of the Organization; and
(C) In the case of any criminal Action, that theindividual had no
reasonable cause to believe such conduct was unlawful.
A trustee’s conduct with respect to an employee benefit plan for a purpose
he or she believed in good faith to be in the interests of the participants
in and beneficiaries of the plan is conduct that satisfies the requirement
of subparagraphs (i) and (ii) of this paragraph (a). Further, the
termination of the Action by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the trustee did not meet the standard of conduct
described in this Section. The Organization may not indemnify a trustee
under this Section in connection with an Action by or in the right of the
Organization, except for reasonable expenses, including counsel fees,
incurred in connection with the Action if it is determined that the trustee
has meet the relevant standard of conduct under this Section, or in
connection with any other Action with respect to conduct for which the
trustee was adjudged liable on the basis that a personal benefit was
improperly received by him or her, whether or not involving action in his
or her official capacity as a trustee of the Organization.
-------
Throughout, we wish to make the bylaws gender neutral (rather than his or
hers, he or she etc)
(Thanks again for reading this far!)
--
Mike Rylander
| President
| Equinox Open Library Initiative
| phone: 1-877-OPEN-ILS (673-6457)
| email: miker at equinoxinitiative.org
| web: http://equinoxinitiative.org
On Wed, May 2, 2018 at 1:41 PM Garry Collum <Garry.Collum at kentonlibrary.org>
wrote:
> +1 to Mike's and Terran's comments.
>
>
> Concerning 5.1 Officers, I do agree that this is a question for MOBIUS
> lawyers. But I do believe that the director and treasurer should be two
> different people.
> ------------------------------
> *From:* eg-oversight-board <
> eg-oversight-board-bounces at list.evergreen-ils.org> on behalf of Terran
> McCanna <tmccanna at georgialibraries.org>
> *Sent:* Wednesday, May 2, 2018 2:20:50 PM
> *To:* Mike Rylander
> *Cc:* eg-oversight-board
> *Subject:* Re: [Eg-oversight-board] Fwd: new evergreen bylawys ( was Re:
> Mobius transition and press)
>
> +1 to Mike's comments
>
> I thought the one-year term comment was in regards to director terms as
> well, but I'm agreement that one year for officers is good.
>
> Terran McCanna
> PINES Program Manager
> Georgia Public Library Service
> 1800 Century Place, Suite 150
> Atlanta, GA 30345
> 404-235-7138
> tmccanna at georgialibraries.org
>
>
> On Wed, May 2, 2018 at 10:24 AM, Mike Rylander <mrylander at gmail.com>
> wrote:
>
> Hi all,
>
> Holly, regarding the officer terms, I believe she's referring to the
> Chair, Vice Chair, etc rather than general Directors. Assuming so, I'm in
> favor of keeping those terms at one year.
>
> Some thoughts on her other notes:
>
> Section 3:15 Actions By Board Without A Meeting -- Suggested that email be
> acceptable for voting
>
> I agree! Is it permitted under Missouri law?
>
> Section 4:1 The Executive Committee. -- Exec committee would be very
> strong
>
> I'm fine with the strength of the language, as there's no requirement to
> create such a committee, and it would have to be by majority consent.
>
> Section 4:2 The Finance Committee. -- Suggested clarity
>
> How about board approval for 10% change in total budget, or un-budgeted
> $5k expenditures? I think that matches the current conference committee
> guidelines, no?
>
> Section 4:5 Meetings of Committees. -- Allow email for notice
>
> I agree!
>
> Section 5:1 Officers.
>
> I think this is simply a question for the MOBIUS lawyers.
>
> Section 6:2 Fiscal Year -- Let board set.
>
> Sure, doesn't seem like it could hurt.
>
> Section 6:9 Executive Director -- more employees?
>
> I agree. "[...] or other employees as the Board deems necessary to
> accomplish the mission of the corporation." Or similar?
>
> Section 6:11 Books and Records -- inspection requirement
>
> I agree with this, and it goes against both our tradition of open finances
> and (in my opinion) the spirit of our mission.
>
> Section 6:12 Indemnification and Liability of Directors and Officers --
> good faith determination
>
> I generally agree with what Karen is saying here. For reference, here is
> the relevant, equivalent section from the Equinox by-laws:
>
> (a) Authority to indemnify. Except as otherwise provided in this
> Article, the Organization may indemnify an individual who is a party
> to a proceeding (whether threatened, pending, or completed action,
> suit, or proceeding, and whether civil, criminal, administrative,
> arbitrative, or investigative, and whether formal or informal,
> collectively referred to as an “Action”) because he or she is or was a
> trustee against liability to pay a judgment, settlement, penalty, fine
> (including the obligation to pay an excise tax assessed with respect to
> an employee benefit plan), or reasonable expenses, including counsel
> fees, incurred with respect to the Action if:
>
> (i) Such individual conducted himself or herself in good
> faith; and
> (ii) Such individual reasonably believed:
> (A) In the case of conduct in his or her official
> capacity as trustee of the Organization, that
> such conduct was in the best interests of the
> Organization;
> (B) In all other cases, that such conduct was at least
> not opposed to the best interests of the
> Organization; and
> (C) In the case of any criminal Action, that the
> individual had no reasonable cause to believe
> such conduct was unlawful.
>
> A trustee’s conduct with respect to an employee benefit plan for a
> purpose he or she believed in good faith to be in the interests of the
> participants in and beneficiaries of the plan is conduct that satisfies
> the requirement of subparagraphs (i) and (ii) of this paragraph (a).
> Further, the termination of the Action by judgment, order, settlement,
> or conviction, or upon a plea of nolo contendere or its equivalent is not,
> of itself, determinative that the trustee did not meet the standard of
> conduct described in this Section. The Organization may not indemnify
> a trustee under this Section in connection with an Action by or in the
> right of the Organization, except for reasonable expenses, including
> counsel fees, incurred in connection with the Action if it is determined
> that the trustee has meet the relevant standard of conduct under this
> Section, or in connection with any other Action with respect to conduct
> for which the trustee was adjudged liable on the basis that a personal
> benefit was improperly received by him or her, whether or not
> involving action in his or her official capacity as a trustee of the
> Organization.
>
> -----
>
> Is something like this, with the assumption of good faith, permissable in
> Missouri?
>
> And, last but not least, I agree with, "[t]hroughout, consider making the
> bylaws gender neutral (rather than his or hers, he or she etc)."
>
> --
> Mike Rylander
> | President
> | Equinox Open Library Initiative
> | phone: 1-877-OPEN-ILS (673-6457)
> | email: miker at equinoxinitiative.org
> | web: http://equinoxinitiative.org
>
>
> On Wed, May 2, 2018 at 9:24 AM Holly Brennan <haderhold at ci.homer.ak.us>
> wrote:
>
> It sounds like Karen is commenting on an older version of the bylaws?
> Reference to one-year term limits, etc.... ?
>
> Could you share the latest version of the bylaws? I'm not confident I have
> them. Thanks!
>
> -Holly
>
>
> ------------------------------
> *From:* eg-oversight-board [
> eg-oversight-board-bounces at list.evergreen-ils.org] on behalf of Timothy
> Spindler [tspindler at cwmars.org]
> *Sent:* Wednesday, May 2, 2018 5:10 AM
> *To:* Oversight Board
> *Subject:* [Eg-oversight-board] Fwd: new evergreen bylawys ( was Re:
> Mobius transition and press)
>
> Here are comments on the bylaws from Karen at the SFC.
>
>
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.cwmars.org&c=E,1,vWpCapbnoy84BrpvoLt-r4IjEWp3EDLskFwNPo5K1FS2hTnP863UZPFWAZplZJQy0FFtIO_36gDbEThvI52AEuOAfqI1aclaWeCF7YysbA,,&typo=1>
>
> Tim Spindler | Executive Director | CW MARS
>
> tspindler at cwmars.org | 508-755-3323 x120
>
> http://www.cwmars.org
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.cwmars.org%2f&c=E,1,gmpzhuHy9KPCgW3FMH931YfVffMS_DybAmqpzfN4aHTSFovmqMdVAZYb3p1vJx3_Uah6GirgqtbBVSnz_hbX1CmEQ-cdGrcElTqlw5wpjal1WXM,&typo=1>
>
>
>
> ---------- Forwarded message ----------
> From: *Karen M. Sandler* <karen at sfconservancy.org>
> Date: Mon, Apr 30, 2018 at 10:35 PM
> Subject: new evergreen bylawys ( was Re: Mobius transition and press)
> To: Timothy Spindler <tspindler at cwmars.org>
> Cc: Mike Rylander <miker at equinoxinitiative.org>, Amy Terlaga <
> terlaga at biblio.org>, evergreen at sfconservancy.org
>
>
> As promised, here are my comments on the draft bylaws. As you know I'm a
> lawyer but I am only admitted to practice in NY, so this would all be
> subject to legal advice in Missouri. I hope you're all having a great
> conference!
>
> Section 3:15 Actions By Board Without A Meeting
>
> Under the draft bylaws all decisions must be taken in a meeting, or
> otherwise the only mechanism is by unanimous written consent. The bylaws
> are silent as to whether email constitutes proper written consent. You may
> want to make this looser so that a majority of the board can vote by email
> without a meeting. This has been a major pain point for other orgs I've
> worked with.
>
> Section 4:1 The Executive Committee.
>
> The executive committee section is very strong, which is ok if you're
> careful (the board can appoint a committee of only 2 people to do almost
> everything the board does). So I wanted to flag that.
>
> Section 4:2 The Finance Committee.
>
> This says that any major change in the budget must be approved by the
> Board. This is vague and is silent as to materiality. It may be better to
> give the committee a little bit of clear flexibility in case you do form a
> finance committee.
>
> Section 4:5 Meetings of Committees.
>
> You may want to amend this to permit the use email for notice.
>
> Section 5:1 Officers.
>
> The bylaws don't permit the President and Vice Chairman to be the same
> person, which is I'm sure consistent with state law, but some states
> require that the president and treasurer not be the same person, so that
> there is some level of fiscal controls. You might want to consider adding
> that in this case.
>
> Section 5:2 Appointment and Term of Office
>
> There's a 1 year term limit on officership. You might want to leave those
> limits up to the board if Missouri law permits. While you do one year terms
> now, that might not be convenient in the future for some reason, and then
> you'd have to amend the bylaws.
>
> Section 6:2 Fiscal Year
>
> I would let the board fix the fiscal year, with it initially as the
> calendar year.
>
> Section 6:9 Executive Director
>
> I would beef up this section to anticipate the possibility of other
> employees.
>
> Section 6:11 Books and Records
> D. Inspection Procedure
>
> I would consider deleting "(c) demonstrate a direct connection between the
> purpose for
> inspection and the requested records." I don't understand why a Director
> should have to explain why they want to see the records. It seems like an
> unnecessary bar - I think Directors should be engaged with the org.
>
> Section 6:12 Indemnification and Liability of Directors and Officers
> D.
> A majority of the board determines whether a Director was acting in good
> faith, etc. in order for the indemnity kicks in. If we're at the point
> where this section is invoked, something has gone very wrong. Does it make
> sense that the majority of the board are the ones to decide if the standard
> is met? I could imagine situations that are very muddy. At least consider
> putting in a limit on the discretion of the board in that case.
>
> Throughout, consider making the bylaws gender neutral (rather than his or
> hers, he or she etc)
>
> karen
>
> On 2018-04-26 2:54 pm, Timothy Spindler wrote:
>
> Karen,
>
> Attached are the latest version of the by-laws for the new
> organization. We have been going back and forth a little bit to get
> some things clarified. We can use our conference number for a call at
> 4:15 tomorrow if that works for Amy and Mike.
>
> 1-877-445-0942 (access code 5452514)
>
> [2]
>
> Tim Spindler | Executive Director | CW MARS
>
> tspindler at cwmars.org | 508-755-3323 x120
>
> http://www.cwmars.org
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.cwmars.org&c=E,1,e65c-yXkYLqavXbND9VKqG9tB4lqo02jyMOd_eJqKlKy07J8aLW6BciczJ6oLkL_Oh6lxqKLwL2ZNvqEDcP84Lynw1rJxVv1u9I1SMohwYoh7iu1ygrAGthrtw,,&typo=1>
> [3]
>
> On Thu, Apr 26, 2018 at 2:35 PM, Karen M. Sandler
> <karen at sfconservancy.org> wrote:
>
> Great, and thanks for filling us in!
>
> It looks like 4:15pm tomorrow afternoon would be ideal for us,
> though we can make other times if you prefer.
>
> If you'd like to send me the organizational docs in advance I'd be
> happy to look at them - I've organized many free and open source
> software related foundations over the years, and also reworked
> multiple org's bylaws. We've got good insight into the IRS review
> process for orgs that are involved in this field, which is very
> exacting (and unlike other subject areas) and are happy to lend that
> expertise to you now!
>
> karen
>
> On 2018-04-26 8:35 am, Timothy Spindler wrote:
> Karen,
>
> I apologize for not keeping you in the loop on where we are. We
> have
> had a few hiccups but Amy and I were talking and thought a
> conference
> call might be good. I believe we are all on the east coast so would
> everyone be available this afternoon or tomorrow afternoon?
>
> Mike Rylander will be the new chair of the EOB so I am including
> him.
>
> We decided to form our own non-profit which would own the assets and
> then contract with MOBIUS for services. The MOBIUS attorney had
> some
> issues setting up an agreement with something that was not a formal
> legal entity (Evergreen Project) and we had considered this as one
> of
> our options anyway. In any case, we are in the process of firming
> up
> the by-laws for the Evergreen Corporation to create the corporation
> and then apply to the IRS for non-profit status. I would expect us
> to have the corporation created in the next few weeks but of course
> the non-profit status would take longer. We will still have a
> formal
> contract between the Evergreen Corporation and MOBIUS.
>
> Thanks for you help and support of this.
>
> Tim Spindler | EOB Chair
> 508-755-3721 x120
>
> [2]
>
> Tim Spindler | Executive Director | CW MARS
>
> tspindler at cwmars.org | 508-755-3323 x120
>
> http://www.cwmars.org
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.cwmars.org&c=E,1,OWY-Vu0TBFFc2DsW0OhYmQdMOrUQKBMs-VKp6d2KpGEVM1RpfrgKU7W9gfcB_2FjrlY7Ab9RJENZTbV7EkCK1VJsNRz-MQs4kM1fIX6Webwz&typo=1>
> [3]
>
> On Wed, Apr 25, 2018 at 9:24 PM, Karen M. Sandler
> <karen at sfconservancy.org> wrote:
>
> Hi EOB,
>
> We've been busy supporting Amy, Kathy and Mobius with conference
> organizing. (Amy can fill you in on all of the stuff we've been
> doing over the past few months.) But, as we approach the conference
> next week, I wanted to check in with you about the proposal to
> transition the project out of Conservancy and to Mobius.
>
> As you may recall from where we left it, Conservancy is waiting to
> hear that you've signed an agreement with them. Also, as far as we
> know, you haven't formally terminated the relationship with
> Conservancy and named Mobius (or anyone else) as a successor. And
> as a result we haven't presented a grant agreement to Mobius and
> made sure they can accept those terms. Until all of that is done,
> the transition details cannot begin.
>
> I know we agreed that all press around the transition would be joint
> and handled carefully, so I wanted to see if you needed anything
> from us to help the process. As we offered when last discussed it,
> we're happy to help negotiate an agreement for Evergreen with
> Mobius, and bring our expertise to help make sure that the next
> phase of the Evergreen project has the best chance to succeed.
> We've not received follow-up on that, so we're unsure of the status
> of everything.
>
> Are there any thoughts on timing for publicly talking about the
> transition?
>
> If you are just planning to deal with all of this in a few months
> after the conference, there's no need to discuss this now, of
> course. However, it's important that we continue as we agreed to
> carefully coordinate press together between Conservancy, the EOB,
> and Mobius. As we said the during the call some months ago with Amy
> and Tim, we're prepared to put in all of the work on the agreements
> and other paperwork in time for the conference (and can still do it
> even now) if you so desire. But unless you instruct us to do that
> work immediately over the next few days and are ready to put in the
> time to have a few go-arounds with Mobius, it won't be feasible to
> announce the transition at the conference.
>
> In any case, hope you all have a great conference! (As always, I so
> wish I could see first person all of the details that we helped put
> in place!)
>
> karen
>
> Karen M. Sandler
> Executive Director, Software Freedom Conservancy
> __________
> Become a Supporter today! http://sfconservancy.org/supporter/
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> [1]
> [1]
>
> Links:
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