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

[Anthony]

On 5/1/07, Florence Devouard <Anthere9 at yahoo.com> wrote:
> 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.
>
I assume proper notice had been given at least 10 days in advance to
all board members not present, then?

> 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.
>
You can't force them to do anything, but you can certainly request
that they respond to a vote.

chair>all in favor say aye
person 1>aye
chair>aye
person 3>aye
chair>all opposed say no
chair>person 4, are you there?

At that point either person 4 acknowledges his/her presence, and eir
vote is recorded as abstaining, or else there is no response, and you
have to assume the person lost their internet connection.  In the
latter case there is potential for dispute, I suppose, but since a
"majority of the Trustees present at a meeting at which a quorum is
present" voted in favor, it doesn't really matter, as per the bylaws
this "shall be the act of the Board of Trustees".  Then you get the
secretary to record it.  No need for signatures at all.

> In this case, only 3 of the 4 people present voted at the board meeting.

Then the vote passed 3-0 with 1 abstention.  A quorum of 4 was
present, and a majority of that quorum voted in favor of the
resolution.

> 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.

This is the part I've never heard of.  This is how a consent agreement
works, but it's not how a typical resolution works.  In a typical
resolution you have a fixed period to vote, and then you count the
votes and the resolution passes or fails.  You don't give people not
present at the meeting or those who were present but abstained a
chance to add their votes later.

Surely someone on the board is familiar with parliamentary procedure,
aren't they?

> 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.
>
In my experience consent agreements are generally used in lieu of
meetings.  This is especially common with for-profit corporations that
have one, two, or maybe three owner/directors, and don't feel like
going through a formal meeting to make decisions which can only be
made by the board.

> 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.
>
It seems this stems from a confusion of how a quorum works.  Per the
bylaws, "The act of the majority of the Trustees present at a meeting
at which a quorum is present shall be the act of the Board of
Trustees."  So if Jimbo isn't present at a meeting, he doesn't get a
vote.  If 5 members of a 7 member board are present at a meeting, only
3 votes are needed for a resolution to pass.

Of course, if you're going to utilize this fact, make sure you dot
your i's and cross your t's when it comes to making sure that a
meeting was properly scheduled and notice was properly given.

> 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
>