Difference between revisions of "Talk:New Bylaws Project"

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[[User:Oso|Oso]]
 
[[User:Oso|Oso]]
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:My response to this:
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:Our mandate as proposed in the [http://lists.freegeek.org/pipermail/council/2005-June/001296.html council meeting]) was:
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:*''have the council select the board of directors. this allows community input and authority without having to change our articles of incorporation to become a membership-based organization. this will still leave the board with complete authority over the organization.''
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:*''(this will require that the bylaws be reworked. council membership will need to be clearly stated in those bylaws. this will require board approval of the redrafted bylaws.)''
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:*''the purpose of this board is to have legal and fiduciary responsibility for the organization.''
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:That was the general direction stated after a discussion in which no one objected to us proceding in this direction.
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:In order to accomplish this task we need ''at least'' to:
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:* define the council
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:* provide for council selection of the board
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:Now, we cannot create a standing resolution that contradicts whatever bylaws are in effect. We can fill in the details, but not contradict. If we want to contradict, we need to ammend the bylaws. Since the current bylaws do neither of the above, we must ammend the bylaws. (And of course, the outcome of that council meeting was to form the bylaws task force to do just that.)
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:The main purpose of rewriting our bylaws is ''not'' to have good example bylaws for other Free Geeks. It would be good if that were a byproduct of this process. But our main concern should be what this organization needs.
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:The obviously evolving strategy of the bylaws group is to introduce only changes that won't raise red flags to IRS types, and to supplement that with standing resolutions that are separate from the bylaws ("the bill of rights option"). This is based on Joe's advise as I understand it. So I don't see where we are ignoring his advise.
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:Down to the details. The potential "red flag" issues I see are:
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:#Fiduciary and legal responsibility for the organization
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:#Decision making process and terminology (putting formal consensus into the bylaws)
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:#Staff participation in the board
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:We could screw up on any one of those points so we need to be careful. But it seems clear that everyone understands the oversight nature of the board (see the excerpt from the council minutes above), which helps us with point 1.
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:The obvious strategy for point 2 is to find the right wording so that the bylaws don't disallow formal consensus, but don't really mention it either. In many cases we can avoid the issue by not specifying the decision making process at all, but I don't think it can be entirely left out without raising a red flag.
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:Point 3 is what we've talked least about and needs the most thought put into it. A typical nonprofit has an executive director that may be on the board (or may not be). At Free Geek the executive director function is replaced by the staff collective. How do we word this? I dunno, but two approaches I've heard people talk about:
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:* Define the staff in the bylaws themselves, define the staff in such a way that allows it to function as a traditional executive director, and include (implicately or explicately) some ability to be a part of the board. This probably would entail a "shall recuse themselves from" clause or two, so that we don't potentially have staff members acting on the board in their own interests.
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:* Leave the staff out of the bylaws, but ensure that we allow the board to contract to a staff collective. I don't understand how this option would affect the possibility for a staff person to me a member of the board.
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:I guess that those two thoughts are just here as a starting point.
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:One more thing about "boilerplate" language. There is not just set of "boilerplate". There are many, and we have options to choose from. The point is to (a) find where we want to change language, and (b) which language works best for us. We are fortunately not always stuck with a choice the current wording or "dangerous" language.
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: [[User:Rfs|RfS]] 09:18, 21 Jul 2005 (PDT)
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I wish we could just Amend the Bylaws (relevant sections only), making the neccessary structural changes. It is my understanding that is all that has to happen.
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:Article 8 - These Bylaws may be amended by a majority vote of the Board then in office at any regular or special meeting of the Board provided the notice given for such meeting indicates that such amendments will be considered.
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Done. End of process. No involvement of the tax man.
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When we get THE BOOK from DWT, you will see that that is how we changed the voting procedure in Article 3, Section 8 from what it was to consensus. And now, NO Board decisions can be made without consensus. That is solid legal stuff. Article 8's reference to majority vote is superceded by the amendment to Article 3, Section 8 Quorum and Voting.
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If we amend by substitution (essentially rewrite the entire document), where we are making issue of the new "completeness" of the document (and encouraging others to use it). We would really need to resubmit it at that point (again that's my understanding, perhaps I'm mistaken). If that's the case. The Tax man reviews and then it's out of our control. It's not just the review of the document, they just have a LOT of power and who knows where they will go. We have our 501(c)(3) status, everything we think may or may not happen is all a guess. We just don't know. Why put it at risk when it isn't absolutely neccesary. It's like asking the IRS "My tax forms are good please, audit me." Admirable? Maybe. Wise? Not really. To me, that Pandora's Box is a much more likely and much more dangerous a possibility than anything that would result from any future "out of control" Free Geek Board of Directors.
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:(Please sign your messages (use three or four tildes). Then we know who's talking without having to look at the history page.)
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:My understanding is that however we change the bylaws, changes have to be reported. I do await the book from DWT.
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:I still believe that the final bylaws are far more important than the method in which we change them.
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:[[User:Rfs|RfS]] 09:41, 22 Jul 2005 (PDT)

Latest revision as of 09:41, 22 July 2005

I just want to go on the record one more time to say a few things:

I still feel that completely changing the bylaws is a mistake. We should be amending them to suit our needs.

If the idea is to help other Free Geek's be more like us, I feel that we are doing them a great dis-service, that will cause them problems getting their 501(c)(3) status.

I felt that Joe (the lawyer) has urged caution on this direction and his advice is being ignored for the most part. That is not good either.

In my opinion, it would be better to leave the bylaws alone (or make at the most, some minor changes). We then create a document that is essentially a bill of rights, a list of amendments that makes the structural changes we want without involving the IRS. This can be consented to by us (as we already have concensus) and would be voted in as the second action of new Free Geek Bds. after electing themselves. In that document, you spell out all the stuff we want codified, but should just keep out of the "official" bylaws. I have NEVER heard an informed opinion that encourages trying to make these types of structural changes to non-profit bylaws. I have only heard the opinion I keep reiterating: Keep it simple boilerplate language to get the tax exempt status, amend as needed to make it fit the culture (which, BTW, is perfectly legal).

My fear is that in trying to make things perfect (as opposed to functional) we will open up a pandora's box of intrusion and inquiry by the IRS that will undo our status as a 501(c)(3).

Oso

My response to this:
Our mandate as proposed in the council meeting) was:
  • have the council select the board of directors. this allows community input and authority without having to change our articles of incorporation to become a membership-based organization. this will still leave the board with complete authority over the organization.
  • (this will require that the bylaws be reworked. council membership will need to be clearly stated in those bylaws. this will require board approval of the redrafted bylaws.)
  • the purpose of this board is to have legal and fiduciary responsibility for the organization.
That was the general direction stated after a discussion in which no one objected to us proceding in this direction.
In order to accomplish this task we need at least to:
  • define the council
  • provide for council selection of the board
Now, we cannot create a standing resolution that contradicts whatever bylaws are in effect. We can fill in the details, but not contradict. If we want to contradict, we need to ammend the bylaws. Since the current bylaws do neither of the above, we must ammend the bylaws. (And of course, the outcome of that council meeting was to form the bylaws task force to do just that.)
The main purpose of rewriting our bylaws is not to have good example bylaws for other Free Geeks. It would be good if that were a byproduct of this process. But our main concern should be what this organization needs.
The obviously evolving strategy of the bylaws group is to introduce only changes that won't raise red flags to IRS types, and to supplement that with standing resolutions that are separate from the bylaws ("the bill of rights option"). This is based on Joe's advise as I understand it. So I don't see where we are ignoring his advise.
Down to the details. The potential "red flag" issues I see are:
  1. Fiduciary and legal responsibility for the organization
  2. Decision making process and terminology (putting formal consensus into the bylaws)
  3. Staff participation in the board
We could screw up on any one of those points so we need to be careful. But it seems clear that everyone understands the oversight nature of the board (see the excerpt from the council minutes above), which helps us with point 1.
The obvious strategy for point 2 is to find the right wording so that the bylaws don't disallow formal consensus, but don't really mention it either. In many cases we can avoid the issue by not specifying the decision making process at all, but I don't think it can be entirely left out without raising a red flag.
Point 3 is what we've talked least about and needs the most thought put into it. A typical nonprofit has an executive director that may be on the board (or may not be). At Free Geek the executive director function is replaced by the staff collective. How do we word this? I dunno, but two approaches I've heard people talk about:
  • Define the staff in the bylaws themselves, define the staff in such a way that allows it to function as a traditional executive director, and include (implicately or explicately) some ability to be a part of the board. This probably would entail a "shall recuse themselves from" clause or two, so that we don't potentially have staff members acting on the board in their own interests.
  • Leave the staff out of the bylaws, but ensure that we allow the board to contract to a staff collective. I don't understand how this option would affect the possibility for a staff person to me a member of the board.
I guess that those two thoughts are just here as a starting point.
One more thing about "boilerplate" language. There is not just set of "boilerplate". There are many, and we have options to choose from. The point is to (a) find where we want to change language, and (b) which language works best for us. We are fortunately not always stuck with a choice the current wording or "dangerous" language.
RfS 09:18, 21 Jul 2005 (PDT)



I wish we could just Amend the Bylaws (relevant sections only), making the neccessary structural changes. It is my understanding that is all that has to happen.

Article 8 - These Bylaws may be amended by a majority vote of the Board then in office at any regular or special meeting of the Board provided the notice given for such meeting indicates that such amendments will be considered.

Done. End of process. No involvement of the tax man.

When we get THE BOOK from DWT, you will see that that is how we changed the voting procedure in Article 3, Section 8 from what it was to consensus. And now, NO Board decisions can be made without consensus. That is solid legal stuff. Article 8's reference to majority vote is superceded by the amendment to Article 3, Section 8 Quorum and Voting.

If we amend by substitution (essentially rewrite the entire document), where we are making issue of the new "completeness" of the document (and encouraging others to use it). We would really need to resubmit it at that point (again that's my understanding, perhaps I'm mistaken). If that's the case. The Tax man reviews and then it's out of our control. It's not just the review of the document, they just have a LOT of power and who knows where they will go. We have our 501(c)(3) status, everything we think may or may not happen is all a guess. We just don't know. Why put it at risk when it isn't absolutely neccesary. It's like asking the IRS "My tax forms are good please, audit me." Admirable? Maybe. Wise? Not really. To me, that Pandora's Box is a much more likely and much more dangerous a possibility than anything that would result from any future "out of control" Free Geek Board of Directors.

(Please sign your messages (use three or four tildes). Then we know who's talking without having to look at the history page.)
My understanding is that however we change the bylaws, changes have to be reported. I do await the book from DWT.
I still believe that the final bylaws are far more important than the method in which we change them.
RfS 09:41, 22 Jul 2005 (PDT)