[Eg-oversight-board] Fwd: new evergreen bylawys ( was Re: Mobius transition and press)

Thu May 3 09:34:07 EDT 2018

+1

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 Thu, May 3, 2018, 7:33 AM scott.thomas at sparkpa.org <
scott.thomas at sparkpa.org> wrote:

> 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
>
>
> 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
> <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
>
>
> 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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