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<p>MOBIUS has an Executive Committee for our Board which is
comprised of the President, Past President, and
Vice-President/President-Elect. The EC makes the majority of day
to day decisions and who I generally, as the Director, have
discussions with about membership business or brainstorm with. We
have 13 members on our Board and there are many decisions that we
make that do not require a vote from the whole Board. This just
makes us more efficient at operating our organization.</p>
<p>I would not think that the Evergreen Board would need an
Executive Committee since you do not have membership or staff.
Most of your discussion and decisions need to be discussed by the
whole Board. <br>
</p>
<p>Donna<br>
</p>
<br>
<div class="moz-cite-prefix">On 5/8/2018 12:11 PM, Terran McCanna
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:CALh4dLA7=DkTQPSDnthdxN9gv1UmwQTXRkmLvtaUE+XjejfP6Q@mail.gmail.com">
<div dir="ltr">
<div>+1 to Ron's comments.<br>
<br>
I'm unsure how the Executive Committee's decision-making
responsibilities would differ from the overall Board's
decision-making responsibilities. Can the Executive Committee
consist of the entire board?<br>
<br>
</div>
As for indemnity, hopefully it will never come to that, but it
makes sense to me that a majority of the board would be required
to determine that a director did not act in good faith.<br>
<div><br>
<br>
</div>
</div>
<div class="gmail_extra"><br clear="all">
<div>
<div class="gmail_signature" data-smartmail="gmail_signature">
<div dir="ltr">Terran McCanna <br>
PINES Program Manager <br>
Georgia Public Library Service <br>
1800 Century Place, Suite 150 <br>
Atlanta, GA 30345 <br>
404-235-7138 <br>
<a href="mailto:tmccanna@georgialibraries.org"
target="_blank" moz-do-not-send="true">tmccanna@georgialibraries.org</a>
<br>
<br>
</div>
</div>
</div>
<br>
<div class="gmail_quote">On Mon, May 7, 2018 at 12:03 PM,
Gagnon, Ron <span dir="ltr"><<a
href="mailto:gagnon@noblenet.org" target="_blank"
moz-do-not-send="true">gagnon@noblenet.org</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div dir="ltr">
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<div>
<div>
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<div>
<div>Mike,<br>
</div>
Sorry to be late in responding...<br>
<br>
</div>
We at NOBLE use email votes (sparingly) and
they can be effective and leave a good audit
trail. I would support that capability for
Evergreen.<br>
<br>
</div>
As to the Executive Committee, I would have
concerns about that -- can it be larger than two
for a minimum?<br>
<br>
</div>
For budget, I would go along with your suggestion
of 10%.<br>
<br>
</div>
Email for notice is good.<br>
<br>
</div>
President and Treasurer should be different persons.<br>
<br>
</div>
Thanks!<br>
<br>
</div>
Ron<br>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On Fri, May 4, 2018 at 11:40 AM,
Mike Rylander <span dir="ltr"><<a
href="mailto:miker@equinoxinitiative.org"
target="_blank" moz-do-not-send="true">miker@equinoxinitiative.org</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div dir="ltr">All,
<div><br>
</div>
<div>As promised, here is the initial response from
MOBIUS' lawyers to Karen's direct comments and
suggestions.</div>
<div><br>
</div>
<div>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?</div>
<div><br>
</div>
I can be convinced in either direction, but I tend
towards the former by default.
<div><br>
</div>
<div>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?
<div><br>
<div>Thanks again, everyone!</div>
<div><br>
</div>
<div>
<div>
<div dir="ltr"
class="m_3182426618930827149m_580109734089555604gmail_signature"
data-smartmail="gmail_signature">--<br>
| Mike Rylander<br>
| President<br>
| Equinox Open Library Initiative<br>
| phone: 1-877-OPEN-ILS (673-6457)<br>
| email: <a class="moz-txt-link-abbreviated" href="mailto:miker@EquinoxInitiative.org">miker@EquinoxInitiative.org</a><br>
| web: <a
href="http://EquinoxInitiative.org"
target="_blank" moz-do-not-send="true">http://EquinoxInitiative.org</a></div>
</div>
<br>
<br>
<div class="gmail_quote">
<div dir="ltr">---------- Forwarded message
---------<br>
From: Donna Bacon <<a
href="mailto:donna@mobiusconsortium.org"
target="_blank" moz-do-not-send="true">donna@mobiusconsortium.org</a>><br>
Date: Thu, May 3, 2018 at 9:13 AM<br>
Subject: Evergreen ByLaw Comments<br>
To: Mike Rylander <<a
href="mailto:miker@equinoxinitiative.org"
target="_blank" moz-do-not-send="true">miker@equinoxinitiative.org</a>><br>
</div>
<br>
<br>
<div text="#000000" bgcolor="#FFFFFF">
<p>Mike,</p>
<p>See the comments below from our
attorneys.<br>
<span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d">
</span></p>
<p><span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d">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 </span><span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#c0504d">red</span><span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d">
below.</span> </p>
<p class="MsoNormal"> </p>
<p class="MsoNormal">Section 3:15 Actions
By Board Without A Meeting<br>
<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 4:1 The Executive Committee.<br>
<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 4:2 The Finance Committee.<br>
<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 4:5 Meetings of Committees.<br>
<br>
You may want to amend this to permit the
use email for notice.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 5:1 Officers.<br>
<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 5:2 Appointment and Term of
Office<br>
<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 6:2 Fiscal Year<br>
<br>
I would let the board fix the fiscal
year, with it initially as the calendar
year.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><br>
<br>
Section 6:9 Executive Director<br>
<br>
I would beef up this section to
anticipate the possibility of other
employees.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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”.</span><br>
<br>
Section 6:11 Books and Records<br>
D. Inspection Procedure<br>
<br>
I would consider deleting "(c)
demonstrate a direct connection between
the purpose for<br>
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.</p>
<p class="MsoNormal"> </p>
<p class="MsoNormal"><span
style="color:#c0504d">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).</span><br>
<br>
Section 6:12 Indemnification and
Liability of Directors and Officers<br>
D.<br>
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.<br>
<br>
<span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d"></span></p>
<p class="MsoNormal"><span
style="color:#c0504d">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.</span><span
class="m_3182426618930827149HOEnZb"><font
color="#888888"><span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d"></span></font></span></p>
<span class="m_3182426618930827149HOEnZb"><font
color="#888888">
<p class="MsoNormal"><span
style="font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1f497d"> </span></p>
<pre class="m_3182426618930827149m_580109734089555604m_-6124097201823154717moz-signature" cols="72">--
Donna Bacon
Executive Director
MOBIUS
111 E Broadway, Ste 220
Columbia, MO 65203
573.268.1845</pre>
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<br clear="all">
<br>
-- <br>
<div class="m_3182426618930827149gmail_signature"
data-smartmail="gmail_signature">
<div dir="ltr">
<div>
<div>
<div>
<div>Ronald A. Gagnon<br>
</div>
Executive Director<br>
</div>
North Of Boston Library Exchange (NOBLE)<br>
</div>
Danvers, Massachusetts 01923<br>
978-777-8844<br>
</div>
<a href="http://www.noblenet.org" target="_blank"
moz-do-not-send="true">www.noblenet.org</a><br>
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<pre class="moz-signature" cols="72">--
Donna Bacon
Executive Director
MOBIUS
111 E Broadway, Ste 220
Columbia, MO 65203
573.268.1845</pre>
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