[Eg-oversight-board] Fwd: Evergreen ByLaw Comments

Mon May 21 15:17:00 EDT 2018

Darn my poor reflexes!

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 Mon, May 21, 2018 at 3:10 PM, Mike Rylander <miker at equinoxinitiative.org>
wrote:

> Terran, you just didn't step back when we were all lined up. ;)
> --
> | Mike Rylander
> | President
> | Equinox Open Library Initiative
> | phone:  1-877-OPEN-ILS (673-6457)
> | email:  miker at EquinoxInitiative.org
> | web:    http://EquinoxInitiative.org
>
> On Mon, May 21, 2018 at 1:30 PM Terran McCanna <
> tmccanna at georgialibraries.org> wrote:
>
> > Heh, I'm actually on the standing committee and I'm not sure how I got on
> it.
>
>
>
> > 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 Mon, May 21, 2018 at 1:27 PM, scott.thomas at sparkpa.org <
> scott.thomas at sparkpa.org> wrote:
>
> >> Hi Mike,
> >>     I appreciate your explanations. Regarding the Release Manager, this
> makes perfect sense. However, since the annual conference is an extremely
> important component of the Evergreen experience and, if all goes well, a
> revenue generator, I think the Board’s role should be mentioned in the
> By-Laws. Maybe it is as simple as having the Board, at the meeting that
> takes place during the conference, certify the committee membership for the
> new cycle. It would then be in the minutes. I recently became aware of the
> standing committee, but even after a year on the EOB, I wasn’t sure where
> they came from and how they fit in with the local folks.
>
>
>
> >> Scott
>
>
>
>
>
> >> From: Mike Rylander [mailto:miker at equinoxinitiative.org]
> >> Sent: Monday, May 21, 2018 11:43 AM
> >> To: scott.thomas at sparkpa.org
> >> Cc: Boyer, Jason A <JBoyer at library.in.gov>;
> eg-oversight-board at list.evergreen-ils.org
> >> Subject: Re: [Eg-oversight-board] Fwd: Evergreen ByLaw Comments
>
>
>
> >> Hi Scott,
>
>
>
> >> The EOB is not involved in the selection of the release manager, quite
> by design.  The EOB has always explicitly been a support organization for
> the community at large, and does not attempt to direct technical issues or
> create an official road map.
>
>
>
> >> The release managers are less "appointed or elected" than they are
> volunteers with specific skills and stated technical goals for an upcoming
> release.  One can think of the release manager as the "first among equals"
> within the development community, for one release -- they're the point
> person that has volunteered to "care the most" about the technical details
> of an upcoming release.  This is a technical (development) position, and
> does not decide what features will be developed by the rest of the
> community, excepting on technical grounds.
>
>
>
> >> The EOB (and, by extension, an eventual Board of Directors of a future
> Evergreen corporation) is an elected (and therefore political)
> organization, and it was explicitly decided early on that it should not
> attempt to "own" the community or the software, but to support them both.
> This is also why the copyright for Evergreen code rests with the individual
> contributors (or, in some cases, their employees) rather than with a
> central body -- the code is truly open, and cannot be owned by one body, or
> in the worst case hidden away, without the consent of every single
> contributor.
>
>
>
> >> There are two separate conference committees, the standing committee
> that has the same membership year to year (though folks do come and go),
> and the local committee.  The standing committee is just a self-selecting
> volunteer effort, though Grace Dunbar did put a lot of work into creating
> some continuity documentation and structure in the several years she was
> involved.  The local committee is usually made up of individuals from the
> host organization and, sometimes, other community members that are in the
> general vicinity of the upcoming conference.
>
>
>
> >> Does that help?
>
>
>
> >> Thanks,
>
>
>
>
> >> --
> >> | Mike Rylander
> >> | President
> >> | Equinox Open Library Initiative
> >> | phone:  1-877-OPEN-ILS (673-6457)
> >> | email:  miker at EquinoxInitiative.org
> >> | web:    http://EquinoxInitiative.org
>
>
>
>
>
> >> On Mon, May 21, 2018 at 8:36 AM scott.thomas at sparkpa.org <
> scott.thomas at sparkpa.org> wrote:
>
> >> There have been so many emails around… I apologize if these have come up
> before.
>
>
>
> >> 1.       Today I was trying to figure out how the Release Manager is
> appointed or elected and could find nothing in the EOB Rules of Governance.
> Am I just missing it? Given the importance of this position, should it
> somehow be addressed in the new Bylaws?
>
> >> 2.       Even though I am involved with it now, I am still mystified as
> to how the Conference Committee is formed. Should we add something to the
> By-Laws stating that it is the Board’s responsibility to appoint a
> Conference Committee annually?
>
>
> >> Scott
>
>
>
>
>
> >> From: eg-oversight-board [mailto:
> eg-oversight-board-bounces at list.evergreen-ils.org] On Behalf Of Boyer,
> Jason A
> >> Sent: Friday, May 11, 2018 3:46 PM
> >> To: Mike Rylander <miker at equinoxinitiative.org>;
> eg-oversight-board at list.evergreen-ils.org
> >> Subject: Re: [Eg-oversight-board] Fwd: Evergreen ByLaw Comments
>
>
>
> >> I definitely like adding more electronic options and would also like to
> see the indemnification clause changed to reflect an initial assumption of
> good faith. If we keep the Exec Committee language I'd like the size bumped
> to at least 3 but I don't have particularly strong feelings about that.
>
>
>
> >> Jason
>
>
>
> >> --
>
> >> Jason Boyer
>
> >> MIS Supervisor
>
> >> Indiana State Library
>
> >> http://library.in.gov/
>
>
>
> >> From: eg-oversight-board [mailto:
> eg-oversight-board-bounces at list.evergreen-ils.org] On Behalf Of Mike
> Rylander
> >> Sent: Friday, May 04, 2018 11:40 AM
> >> To: eg-oversight-board at list.evergreen-ils.org
> >> Subject: [Eg-oversight-board] Fwd: Evergreen ByLaw Comments
>
>
>
> >> **** This is an EXTERNAL email. Exercise caution. DO NOT open
> attachments or click links from unknown senders or unexpected email. ****
>
> >> ________________________________
>
> >> All,
>
>
>
> >> As promised, here is the initial response from MOBIUS' lawyers to
> Karen's direct comments and suggestions.
>
>
>
> >> I said before that the suggestions were mostly rejected, but that isn't
> quite right.  The lawyers are starting from an adversarial position, which
> is understandable given their stated past experience, as opposed Karen's
> suggestions starting from a more amicable default.  As a practical matter,
> I take Karen's suggestions as an aim to streamline and simplify
> communication and action in the common case, whereas the MOBIUS' lawyer's
> apply more structure up front in an attempt to protect against "activist
> directors" (their words in one case).  The question before us is which do
> we want to enshrine in our by-laws -- my interpretation of the choice could
> be summed up as: do we value efficiency and assumption of good-faith over
> prescribed defenses against internal strife?
>
>
>
> >> I can be convinced in either direction, but I tend towards the former by
> default.
>
>
>
> >> To be clear on my position, I believe that most of Karen's suggestions
> (particularly on practical matters such as the use of email for certain
> functions) do not weaken any overall protections we have, and just avoid
> overhead given the way our community works.  The biggest issue surrounds
> indemnity, which we can discuss in more detail, but the example I provided
> works to limit the issues raised below by restricting indemnity to only
> litigation that arrises from the fact that a director was, in fact, a
> director.  Anyway, I would appreciate all input you care to provide.
> Thoughts?
>
>
>
> >> Thanks again, everyone!
>
>
>
> >> --
> >> | Mike Rylander
> >> | President
> >> | Equinox Open Library Initiative
> >> | phone:  1-877-OPEN-ILS (673-6457)
> >> | email:  miker at EquinoxInitiative.org
> >> | web:    http://EquinoxInitiative.org
>
>
>
> >> ---------- Forwarded message ---------
> >> From: Donna Bacon <donna at mobiusconsortium.org>
> >> Date: Thu, May 3, 2018 at 9:13 AM
> >> Subject: Evergreen ByLaw Comments
> >> To: Mike Rylander <miker at equinoxinitiative.org>
>
>
>
> >> Mike,
>
> >> See the comments below from our attorneys.
>
> >> Most of these comments relate to the committees permitted under the
> bylaws.  While it is standard to contemplate such committees being formed
> in the corporate documents, as a practical matter, entities of this size
> actually forming sub-committees is rare and it is much more common for the
> whole board to oversee the operations.  Please see our comments in red
> below.
>
>
>
> >> 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.
>
>
>
> >> Generally speaking we do not recommend email as sufficient for unanimous
> written consent due to the record keeping requirements for corporate
> entities.  How Evergreen has described its decision-making process is that
> the board will make a decision, likely via internet chat and without a
> formal meeting, and then document that decision in a resolution that is
> circulated and signed by all of the board members.  That final, signed
> resolution then goes into the corporate record book.  This avoids questions
> as to the final language that was approved, makes it easier to ensure all
> signatures are obtained, and is a best practice for the
> statutorily-required record keeping.
>
> >> 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.
>
>
>
> >> Does Evergreen want to change this?  Note, as written the board has
> discretion over whether to even form an executive committee and which
> powers to give it.  There are carve-outs explicitly listed for certain
> actions the board cannot designate.  As written, this gives flexibility to
> the board on whether to create the committee and whether to give it very
> limited or very broad powers.
>
> >> 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.
>
>
>
> >> Does Evergreen want to change this?  Note, as written the board has
> discretion over whether to even form the financial committee.  To keep
> controls on the committee, its powers are limited to exceed or change the
> budget, which is left in control of the board.  This is fairly standard.
>
> >> Section 4:5 Meetings of Committees.
>
> >> You may want to amend this to permit the use email for notice.
>
>
>
> >> We generally do not permit email for required statutory notices as the
> Missouri statutes do not specify the effective date for electronic notice
> absent proving the email was received.  If there is a dispute between the
> corporation and a board member, this can be difficult.  With mail, the
> statutes specify the effective date based on the mailing without requiring
> proof of receipt.  Moreover, any regular meetings of the committee do not
> require notice; notice only applies if there is a special meeting outside
> of the normal schedule.  As most decisions will likely be made outside of
> official meetings, those will be evidenced by a resolution signed by all
> members and waiving the notice requirements.
>
> >> 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.
>
>
>
> >> There is no such restriction as to the president and treasurer being the
> same individual under Missouri law, and therefore we do not add such a
> limitation in the bylaws.  The authority of the president and treasurer are
> controlled by the board, which is how the bylaws address this issue.  If
> you want to add additional restrictions, let us know.
>
> >> 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.
>
>
>
> >> The term of the directors must be specified in the bylaws or articles
> under Missouri law.  We typically specify the term in the bylaws rather
> than the articles as the bylaws are easier to amend.  The 1 year term of
> directors was requested by Evergreen.  As the officers are all currently
> board members, which is typical, we want the terms of directors and
> officers to match, otherwise an individual’s term as an officer may not be
> over even if their term as director is complete.  It can be changed in the
> future by amending the bylaws.
>
> >> Section 6:2 Fiscal Year
>
> >> I would let the board fix the fiscal year, with it initially as the
> calendar year.
>
>
>
> >> The fiscal year is most commonly listed in the bylaws.  While not a
> statutory requirement, many banks and other institutions prefer it be
> listed in the bylaws.  The fiscal year as initially established is the
> calendar year.  If the board wants to change it, we can amend the bylaws.
> If Evergreen wants to remove it from the bylaws, we can add it to the
> consent resolution.  However, any change to the fiscal year would still
> need to be approved in a resolution of the board signed by all members.
>
> >> Section 6:9 Executive Director
>
> >> I would beef up this section to anticipate the possibility of other
> employees.
>
>
>
> >> This section is intentionally left vague as the board does not
> anticipate hiring any employees, but does plan to retain an outside company
> to handle its operations.  We do not recommend having two companies or
> individuals designated to the same “executive director” position.  The
> board can hire other contractors (or employees) to perform any number of
> functions, but we would not recommend vesting more than one person/entity
> with the title “executive director”.
>
> >> 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.
>
>
>
> >> The bylaws also note that the directors can inspect corporate records in
> accordance with applicable law.  We have the limitation regarding
> connection in the documents as we have seen litigation tactics from
> activist directors who are in opposition to the corporation use their
> inspection rights offensively in the litigation to cause the corporation to
> waste time and money.  For the most part, directors do not use the formal
> process specified in the bylaws to request information if the relationship
> is healthy (they just email the appropriate person and such information is
> provided).
>
> >> 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.
>
> >> This limitation is standard in most bylaws.  The limitation protects the
> corporation from a director seeking to take advantage of the
> indemnification section by invoking it to fund litigation adverse to the
> corporation’s interest.  We have seen indemnification sections invoked by
> directors that use the section to fund the director’s own litigation
> against the corporation.  If the majority approval is not obtained, the
> indemnification section will still apply if the director obtains a court
> order enforcing the section, so the board cannot override the
> indemnification provided in the bylaws.
>
>
>
> >> --
>
> >> Donna Bacon
>
> >> Executive Director
>
> >> MOBIUS
>
> >> 111 E Broadway, Ste 220
>
> >> Columbia, MO 65203
>
> >> 573.268.1845
>
>
> >> _______________________________________________
> >> eg-oversight-board mailing list
> >> eg-oversight-board at list.evergreen-ils.org
> >> http://list.evergreen-ils.org/cgi-bin/mailman/listinfo/eg-
> oversight-board
>
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