[Eg-oversight-board] Fwd: new evergreen bylawys ( was Re: Mobius transition and press)
scott.thomas at sparkpa.org
scott.thomas at sparkpa.org
Thu May 3 08:33:12 EDT 2018
I approve of sending the changes outlined in Mike's email to the MOBIUS attorneys.
Scott
________________________________
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 10:02:27 PM
To: Garry Collum
Cc: eg-oversight-board
Subject: Re: [Eg-oversight-board] Fwd: new evergreen bylawys ( was Re: Mobius transition and press)
>> 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. <<
I agree. Since we have a 9 person board, we certainly have enough people for the Treasurer to not overlap with any other officer role, at least in years where multiple people aren't leaving the board before their terms are complete.
Terran McCanna
PINES Program Manager
Georgia Public Library Service
1800 Century Place, Suite 150
Atlanta, GA 30345
404-235-7138
tmccanna at georgialibraries.org<mailto:tmccanna at georgialibraries.org>
On Wed, May 2, 2018 at 1:41 PM, Garry Collum <Garry.Collum at kentonlibrary.org<mailto: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<mailto:eg-oversight-board-bounces at list.evergreen-ils.org>> on behalf of Terran McCanna <tmccanna at georgialibraries.org<mailto: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 <https://maps.google.com/?q=1800+Century+Place,+Suite+150++%0D%0AAtlanta,+GA+30345&entry=gmail&source=g>
Atlanta, GA 30345
404-235-7138
tmccanna at georgialibraries.org<mailto:tmccanna at georgialibraries.org>
On Wed, May 2, 2018 at 10:24 AM, Mike Rylander <mrylander at gmail.com<mailto: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<mailto: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<mailto: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<mailto:eg-oversight-board-bounces at list.evergreen-ils.org>] on behalf of Timothy Spindler [tspindler at cwmars.org<mailto: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=https%3a%2f%2flh5.googleusercontent.com%2fC1fNrKOLEXFs-jfAIXQIMqbKqVBCJrBceOenfgotAcJE6XtZ2ZeeTYFkyfir63-HfzjX6q5zhBQWiO5RZk2tYnWzJ1_rjAADAH4nCmiuhNJuoG8HZLq7MBW-pAU4R9ScKcCybdVO&c=E,1,xxHPbjE7jcDqSYEooxIW_OgSEfnUwXTCA6MwLXSca4lrJt2TIzm-lbp6EHUP26mq4RreIaNTMfXo3KLlGuslkvdMuGQlnlSaf_H-G3nafpV9DA,,&typo=1]<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<mailto: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<mailto: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<mailto:tspindler at cwmars.org>>
Cc: Mike Rylander <miker at equinoxinitiative.org<mailto:miker at equinoxinitiative.org>>, Amy Terlaga <terlaga at biblio.org<mailto:terlaga at biblio.org>>, evergreen at sfconservancy.org<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fsfconservancy.org%2fsupporter%2f&c=E,1,N1ifCj1Flzs_gC0kacwHydFRG4W7N7zVIPOzQd4dVnUs0nruYU7WYgpoUv7uounMShnDFBBbGXCMczhoYAk2BIo2U4k6UdTgpL0k_2-4pS-hYxDAm-cXhMap&typo=1> [1]
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