[Foundation-l] Are these "majority consent agreements" even valid?

[Florence Devouard]

Anthony wrote:
> On 5/1/07, Anthony <wikilegal at inbox.org> wrote:
>> On 5/1/07, Ray Saintonge <saintonge at telus.net> wrote:
>>> "Did not vote" would be ambiguous.  The proper distinction should be
>>> between "abstain" and "absent".  "Absent" in particular states that the
>>> person was not there, and could not participate in the vote even if he
>>> wanted to.
>>>
>> That doesn't seem to be the case, though.  From the description
>> provided by Ant, this wasn't a resolution passed by vote during a
>> meeting, but rather it was an open-ended consent agreement.  There was
>> no "there" to be present or absent from.
>>
>> Consent agreements usually have to be unanimous, but apparently
>> Florida law allows for "majority consent agreements", a term which I
>> just made up and has zero Google hits.

Practically speaking, this resolution was listed as one of the issues to 
vote upon during an irc meeting. That meeting was attended by 4 board 
members. This is an important point, because it means the meeting was 
officially a board meeting since there was a quorum.

But one board member did not go vote during the meeting. Contrarywise to 
a face to face meeting, where we can do something like "raise your 
hands", we can not "force" someone to go put their signature on the 
board wiki during an irc meeting.

In this case, only 3 of the 4 people present voted at the board meeting.
The one who did not vote during the meeting voted a few days later.
Two absents from the meeting added their vote as well a few days later.
The last one did not vote.

Generally, we have two different types of resolutions.
The ones held during face to face board meetings are immediately 
considered "passed". Voting a resolution during a board meeting in real 
life is actually quite a pleasure. First because I am sure to get 
opinions of all people present. Second because we work together on the 
resolution until as many of us are happy with it. If you have a look at 
the latest resolutions passed during the Florida board meeting, you will 
see a vote from 6 board members and no vote from Jimbo. This is because 
Jimbo was not at the meeting, and we did not keep the vote open on the 
board wiki after the meeting.

The second type of resolution is the one dealt with online. This is much 
more complex, as discussions on mailing lists or irc does not make 
consensus writing easy. Many of the resolutions have to be dropped, 
because some start voting on it, whilst others are not happy and then 
vote against. Sometimes it is just a personal position, sometimes it is 
a legal issue being raised, which is raised *after* we started voting 
rather than before. I suppose some of you would think "yeah, so why was 
the issue not raised before then ?". Well, that is a good question. But 
not something on which I can easily act. Point is, if during the vote 
someone raise a legal issue, the resolution is dropped and we write a 
whole new one.

Most online-type resolutions are open to vote during a certain time. But 
basically all of them are mentionned on the agenda of at least one irc 
board meeting and all board members are informed of a board meeting by 
email. Often, I even copy the agenda on the email itself (so the fact a 
resolution is proposed for a vote is given). Other times, in particular 
when the resolution is drafted during the board meeting, the resolution 
is not mentionned in the agenda. However, the board members are always 
informed of the topics raised during the board meeting. So, normally, 
this should be sufficient to assure that board members have received 
written notice.

Since we very rarely have the full board at an irc meeting, the 
resolution often stays open even a few days after the irc meeting. Those 
missing have the time and opportunity to have a look at the resolution 
collectively drafted by those present at the meeting, and may vote 
according to their own position.

We currently have too many meetings. I am aware of this. However, this 
comes from the fact there are so many things to take care of right now, 
and comes from the fact working on internet automatically speed up 
things. Most people who contact us with a proposition want an answer 
*now*. I have succeeded to slow down the pace, most requests usually are
handled in the next 2 weeks if they are already prepared.
Also, I try to switch to a system where most meetings are on specific 
topics. For example, the main topic of this week meeting is "fundraising".
I foresee that a topic coming soon will be "elections" :-)

I checked the bylaws recently, and I realised a point I forgot entirely 
about. (my mistake).
http://wikimediafoundation.org/wiki/Bylaws#Section_4..09Meetings

It is this point

(d) Presumption of Assent.
A Trustee of the Foundation who is present at a meeting of the Board of 
Trustees at which action on any corporate matter is taken shall be 
presumed to have assented to the action taken, unless he votes against 
such action or abstains from voting in respect thereto because of an 
asserted conflict of interest.

I intend to enforce this point in the future.


> Looking at the Florida law, 617.0821  Action by directors without a meeting:
> 
> "Unless the articles of incorporation or the bylaws provide otherwise,
> action required or permitted by this act to be taken at a board of
> directors' meeting or committee meeting may be taken without a meeting
> if the action is taken by all members of the board or of the
> committee. The action must be evidenced by one or more written
> consents describing the action taken and signed by each director or
> committee member."
> 
> The way I interpret that, the bylaws can provide that such consent
> agreements are not allowed, but it can't provide for consent
> agreements by less than a unanimous vote.
> 
> So if you asked me for my not-a-lawyer opinion, this whole majority
> consent stuff isn't proper.  A non-unanimous decision has to be made
> at a meeting, with sufficient notice provided to all board members,
> unless such notice is waived in writing.
> 
> Anthony


I do think all resolutions have been proposed at least once during a 
meeting. So, the consent stuff is valid.

I would like to point out that "consent" procedure is a bit confusing. 
Usually, consent procedures are used during a real life board meeting, 
to automatically approve a resolution, without losing time to discuss 
it. For example, members may be provided in advance with a document to 
read, this document and the decisions associated  are added to the 
agenda of the meeting. The document and its decisons are not discussed 
during the meeting, but automatically approved if board members do not 
specifically "oppose". As such, the "consent" is meant to "earn time" in 
not dealing with obvious approvals.

Our resolution had a significantly different interest. It made it 
possible to simply have decisions taken, for it had become absolutely 
impossible to get votes from all board members. As long as we had to 
wait for everyone to vote, things were fully stuck. There are nearly no 
decisions with full voting right now.

In some organizations, there are procedures to "remove" inactive board 
members (who do not assist to meetings or do not vote), so as to avoid 
blocking the process. This is not our case. Well, it would actually be 
embarassing to have such a procedure as often, the "inactive" board 
member is Jimbo. But whilst Jimbo does not always assist meetings and 
frequently does not vote, no one could conclude that he is inactive. He 
is active, but differently.

However, the implication for me is that I have no incentive to make sure 
a resolution is indeed voted. If no one cares writing down a resolution, 
or if members do not vote, or if the quorum is not reach, then, no 
resolution. There is no action lever :-)

Well, this was the visit in the "inside of the beast" :-)

Anthere