Proposal to dissolve the Community Oversight Committee

[porwig]

This thread is for discussing the Proposed governance change: dissolving the Community Oversight Committee blog.

[bpsullivan]

That's great and is a step closer to a more unified governance structure.

I think it would be a good step to also designate a standing nominating committee to report to the OSM board. It could be a composition of some OSM members or some non-members or both, but I think that is wiser than letting nominations be handled by a committee of the whole.

[brian]

I will repeat my object to this clause

3. REMOVAL AND NUMBER OF DIRECTORS.
The Board will have as many Directors as it determines necessary, such number not to be less than three. Any or all of the Directors may be removed with or without cause by a vote of the Directors or according to Article IV.

I have always objected to the "without cause" aspect of this clause since the day it was introduced

[bpsullivan]

Just looked at the bylaws of two nonprofits I serve as a director. One is a Delaware corporation and one is a Maryland corporation, so they may not be relevant analogues to OSM, which I think is under the laws of New York. Anyway, both of them have similar provisions for removal of directors. The meeting has to be called for that specific purpose (you can't include other business); the vote has to succeed by the same percentage required to elect the director in the first place; indemnifications of a director removed without cause continue (so if it's really for cause, that's some incentive to state the cause).

[masterchief]

It's about time! How many years has it taken to make this happen? I will sleep well tonight.

[gsmeanspro]

Glad to see how OSM becomes more open. (y)

[infograf768]

What is the significance of this proposed change?

If OSM votes to accept this change to the OSM by-laws, then OSM will essentially become a self-governing body, with the authority to add and remove its members. This is the same type of authority that Joomla's other two leadership teams (the Production Leadership Team and the Community Leadership Team) have for their members.

The nature of OSM is quite different from the other Leadership Teams as it controls, among other aspects, the finances of the project.

Switzerland just voted for a control over the remuneration of the businesses leaders by the stakeholders of the companies and no more by their board only.

The Joomla! Project is evidently of a different nature and is not going to let all be decided by the "Community" at large as this concept is totally demagogic.

But I would feel much better, as the COC is now dissolved, if all Leadership Teams members had their saying in the adding and removing of the OSM board members.

This in no way means that I do not trust the present members of OSM board.
It would just add legitimity to OSM.

[masterchief]

But I would feel much better, as the COC is now dissolved, if all Leadership Teams members had their saying in the adding and removing of the OSM board members.

There is no reason what the LT can't have a say, but you don't get a vote unless you are on the board. But it's a circular argument - if you don't trust OSM to make a good decision, why does adding the LT make the decision any more trustworthy? Who then watches the watchmen? There's no guarantee that the PLT won't hijack the code for its own mysterious "Joomla Next" agenda (I'm sure some people do think that).

I think the threat of mutual anihilation is enough to keep everyone honest I'd like to keep my team's bid for budget allocation for this year at least thanks

[infograf768]

Adding the LT as voters for OSM board members was my thought.
I do not see any mutual anihilation into this.

Anyway, this is going back in history to our LT meeting in 2011 in San Jose, and I know we were only 2 to oppose.

So I guess this is only for the record...

[vdrover]

I actually object to the concept of dissolving the COC since OSM is not a body elected by a membership base to represent them. In effect, board members are elected by the existing board, which in my experience with non-profits is atypical.

Without this important membership pool from which to elect and re-elect officers, and with the loss of the COC, I feel that all official oversight and feedback will now be gone.

And certainly I have lots of faith in the existing board, but the COC (or electoral oversight by the "membership") should really only be needed in extreme cases that one cannot predict.

Thus, I feel the COC could have an important role if we ever did get someone (or some group) less trustworthy at the helm.

[masterchief]

Thus, I feel the COC could have an important role if we ever did get someone (or some group) less trustworthy at the helm.

But it's not foolproof because there's no way to ensure the CoC, who was self-elected anyway, would not go rouge. A bad CoC could, hypothetically, throw out and stack a good OSM board. But the PLT and CLT are also self elected leadership teams and they are capable of making inappropriate decisions.

Having said that, I'd have no problem with a Board of Review being set up (a fairly typical structure) which would look remarkably similar to the CoC, the only difference being they wouldn't elect the board. But I would go one step further and say the Board of Review's oversight extends not only to OSM, but also to the PLT and CLT and any working group for that matter. What's good for the goose is good for the gander.

[brian]

Makes sense Andrew

[vdrover]

I agree 100% Andrew and it seems like we currently have the opportunity to ratify the bylaws to include a Board of Review.

[masterchief]

I agree 100% Andrew and it seems like we currently have the opportunity to ratify the bylaws to include a Board of Review.

Well, suggesting and working out how the by-laws should change are two different things. After all, you'd want a community consultation process to establish the BoR rules wouldn't you?

Just dissolve the CoC (because they've basically all checked out anyway) and then work out what can happen next. If it was me, I'd be making it a research project for the next 6 months so this would not be something we can or should just "slip in" to the current change.

[vdrover]

As I said, that would leave us no oversight mechanism (good or bad) until the next bylaw change, which might take years.

I think it's better to delay now until a substitute mechanism for oversight can be added at the same time.

[masterchief]

As I said, that would leave us no oversight mechanism (good or bad) until the next bylaw change, which might take years.

The problem is that the CoC is dissolving itself - you have to try and convince them to stop if you want that to happen. There's not actually anything OSM, PLT or CLT can do about it.

[vdrover]

They can delay changing the bylaws, no?

[masterchief]

They can delay changing the bylaws, no?

You'd have to talk to them.

[vdrover]

Well that's what I thought was the point of this thread. OSM is planning on making bylaw changes that affect governance and oversight and is in no way impacted by the self-dissolving of the CoC (which has been ongoing for ages with no apparent detriment to the project).

As such, I propose time to replace CoC oversight with a more appropriate mechanism for oversight as described in brief above.

[masterchief]

Well that's what I thought was the point of this thread. OSM is planning on making bylaw changes that affect governance and oversight and is in no way impacted by the self-dissolving of the CoC (which has been ongoing for ages with no apparent detriment to the project).

The CoC is the only body that can change Article IV. The Board can change any other part of the bylaws. The impact is all about the CoC removing itself from Article IV. As a consequence, OSM is proposing to make slight adjustments to account for that "forced" change. So the feedback is really about the adjustments as a consequence of the CoC changing Article IV - the feedback is not about whether the CoC should change Article IV - that is happening because that is what the CoC has decided to do.

As such, I propose time to replace CoC oversight with a more appropriate mechanism for oversight as described in brief above.

So, yes, the Board could discuss this but it won't stop the CoC changing Article IV and requiring minor adjustments to the bylaws as a consequence. One way or the other, the bylaws will need to be amended once the CoC enacts the legal change to the current bylaws. In other words, OSM may not have time to talk about replacing the function of the CoC, if that's what they want, before the CoC amends Article IV. It's a chicken and egg situation.

That's if I understand everything correctly (I've not been party to all the legal discussion so I may have some of that wrong).

[tresan]

Very happy to see the COC dissolve it self - it has no place in an open source oganization like ours.

I do not understand why the PLT or CLT should have any say what so ever in the election of OSM members - perhaps i think the concept has to do with a selfunstanding as the PLT/CLT being something more than it is?

The CLT and PLT is in my view no higher than the OSM - and i think most of our community agrees.

In the Governance working group there have been talks about adding a 4th leadership team based on the JUG's or similar to include the community and add even more of a democratic chatacter - and i think if any there only place you could add some sort of oversight would be to a democratic board or team like that.

[infograf768]

But I would go one step further and say the Board of Review's oversight extends not only to OSM, but also to the PLT and CLT and any working group for that matter.

Although I went as far as suggesting for PLT and CLT to be part of electing the OSM board members, I would be satisfied with this solution (for those who don't know, I am not any more part of any of these LT) if this Board of Review is composed by all members of the Leadership Teams. This is the only stable structure we have who do represent real responsibilities in the project.

Well that's what I thought was the point of this thread. OSM is planning on making bylaw changes that affect governance and oversight and is in no way impacted by the self-dissolving of the CoC (which has been ongoing for ages with no apparent detriment to the project).

The CoC is the only body that can change Article IV. The Board can change any other part of the bylaws. The impact is all about the CoC removing itself from Article IV. As a consequence, OSM is proposing to make slight adjustments to account for that "forced" change. So the feedback is really about the adjustments as a consequence of the CoC changing Article IV - the feedback is not about whether the CoC should change Article IV - that is happening because that is what the CoC has decided to do.

As such, I propose time to replace CoC oversight with a more appropriate mechanism for oversight as described in brief above.

So, yes, the Board could discuss this but it won't stop the CoC changing Article IV and requiring minor adjustments to the bylaws as a consequence. One way or the other, the bylaws will need to be amended once the CoC enacts the legal change to the current bylaws. In other words, OSM may not have time to talk about replacing the function of the CoC, if that's what they want, before the CoC amends Article IV. It's a chicken and egg situation.

That's if I understand everything correctly (I've not been party to all the legal discussion so I may have some of that wrong).

If what you say is true (and I do not doubt it is, although the legalese, and specifically the US ones are very foreign to me), we get in a weird situation where the project depends on OSM board to decide by itself if it accepts to be oversighted/reviewed, and by whom, whatever the term used.

[vdrover]

If what you say is true (and I do not doubt it is, although the legalese, and specifically the US ones are very foreign to me), we get in a weird situation where the project depends on OSM board to decide by itself if it accepts to be oversighted/reviewed, and by whom, whatever the term used.

I share this concern, which is why I think it is a good time to not only dissolve the COC but to replace it with an additional board as Ronni and Andrew have suggested.

Regarding how much time we may or may not have to get this accomplished, I believe this is the relevant copy from the By Laws:

The responsibilities and powers of the [Community Oversight] Committee are to appoint and remove Members of the Board of Directors of Open Source Matters, Inc.; and to approve amendments to this Article of the By-Laws.

Based on this, I don't think the COC have the legal right to enter amendments at all (only to approve), meaning that the OSM board must submit the amendments, including changes to Article 4 of the By Laws.

Finally, the way I read Article 4, you could make a reasonable argument that the COC cannot vote to dissolve itself, since doing so is in all practical considerations a vote to remove themselves (all of them at once) from the Coc, which is prohibited:

A Committee member may not vote on a motion concerning his or her own election to or removal from the Committee.

There is of course some wiggle space in this last point, but I don't see any solid reason that would prevent a delay in the proposed By Law change so that an alternate means of oversight could be found (by the Governance Working Group, for example).

[masterchief]

Vic, it's already been mentioned that the CoC and OSM have sought legal advice. I think if you want to counter that advice you'll have to dip into your own pockets to pay for it.

[vdrover]

I don't think that's true Andrew [that have to personally incur legal costs], but I am willing to have my lawyer look it over certainly. I just don't think it needs to come to that.

Here's the only information I have about the legal consultation:

That process included consulting with an attorney experienced in such matters who could draft the necessary changes to the OSM by-laws.

This is consistent with OSM submitting amendment changes and the COC voting in them (for Article 4).

To reiterate, I don't see anything in the By Laws that would prevent a short delay to find a replacement oversight structure.

[JacquesR]

hi

Here are a few facts about the events, and my personal thoughts.

I share my thoughts as Open Source Matters (OSM) board member, and as a Joomla! volunteer, but I do not claim to speak on behalf of OSM.

On the 20th of December 2012, Sam Moffatt informed the board, on behalf of the Community Oversight Committee (COC), that they agreed to start the process of dissolving the COC. (this was not a surprise since there's been talks about this happening many times before)

They would get legal advice on Article IV, and revert to us with and updated set of by-laws.

The board was asked to indicate its support (or not) for this step, and a majority of the board indicated their support, and none against.
(this was a "straw-poll" and not a formal Motion)

Due to the holiday season there would be some delay in getting the revisions done.

On the 19th of February 2013, Sam informed the board that the COC passed a unanimous vote for the revisions that Paul mentioned in his blogpost.

In terms of process, OSM was requested to vote on the revisions.

This brings us to the blogpost that was shared, and the intention of the board to vote on these revisions at our next board meeting.

For me section IV of our Statutes are clear: The special structure, that is called the Community Oversight Committee, has always had power over it's own existence, and only the COC could amend/change that section.
http://opensourcematters.org/policies/by-laws.html

The responsibilities and powers of the Committee are to appoint and remove Members of the Board of Directors of Open Source Matters, Inc.; and to approve amendments to this Article of the By-Laws.

Section VII is also clear:

The By-Laws may be adopted, amended or repealed by the Board at any time, except that Article IV may only be amended as described in Article IV.

@ Victor: I'm not sure what the purpose would be for you to get additional legal advice? On who's behalf and for what purpose?

There's nothing that's happening now that is (in my opinion) not specifically allowed by our Statutes.

The decision by the COC was made by trusted individuals in our community that obviously felt comfortable that the board would not abuse this change.

An argument could be made about a hypothetical rogue future board, but should such a possibility have to put a stop to the current changes? The exact hypothetical arguments could have been made about the COC (operating under our current Statutes), or the LT teams as Andrew pointed out.

Regarding the question of oversight:

As a not-for-profit we are bound by the normal laws and regulations that govern non-profits, and although OSM legally owns the assets, the Joomla project cannot function without the volunteers who serve in the various parts of the organization, so the different parts of the organization need each other.

My personal view is however that our current structure does not make sense.
(and I've expressed that view at previous Summits)

Instead of some new oversight body, I'd much rather prefer us to re-structure the organization so that there's a newly constituted board, that has as it's board members the representatives of all the Joomla committees/teams/working-groups.

There could be provision to guarantee a seat or seats for each team, so that the board, as final decision making body, is truly representative of the whole organization, and each part of the organization has equal responsibility, input and oversight.

Such a change is perhaps still something that would need some time to discuss (again), so it's unlikely that there could be any immediate drastic change in structure.

@ JM: I know that you were against such restructuring, but in my opinion that's still the fairest system with the best safe-guards.

An alternate option could be having members. (I'll do a bit more reading on that over the weekend)

I agree with those who feel that the board (in the long-term) should be subject to oversight or control by the community or structure(s) of the community, but I'm not convinced that the proposed "Board of Review" would be the right answer. Who would that new structure be accountable to and how would it be constituted?
(and what prevents that structure from going rogue?)

The Governance working group is mentioned. I'm aware that Paul intended forming such a group after the Joomla! World Conference (and I requested to be part of it), but I'm not aware that it's active, and the group has not provided any updates yet to the Leadership team or to the board, so I would be interested to learn what options are being looked at.

Perhaps a way to move forward, while addressing concerns, is for the OSM board to approve the by-law changes, while at the same time setting a deadline for ourselves to review voting/representation with the intention of finding a long-term solution that's got wide support.

PS: Even though we may not all agree, I'm very happy that community members do have interest in changes affecting OSM and the Joomla project.

[tresan]

My reference to the working group was based on the session on the JWC with the intent of creation such working group and the debate that sprung off - as i recall you took part also

I hope to see Paul formalizing it soon so we can get on to debate different concepts of adding a 4th board based in a more direct democratic fashion

[vdrover]

Hi Jacques. I wasn't suggesting any legal consultation, I was just responding to Andrews comment regarding that issue (read above).

I agree, there is nothing in the By Laws that prevents OSM from introducing the amendment. Nor do I think there is anything in the By Laws that would force the vote at the next board meeting or push the vote back to a later date.

I also agree that there may always be trust issues with the various leadership groups, and I welcome an open discussion on that topic. However, I think right now a few folks in here have addressed the issue of accountability for the LT that controls the finances and primary assets (trademark) of the project as these are clearly of high value.

Until we can get a broader restructure in place — a topic Paul has talked about at some Joomla events IIRC — an interim board for oversight is in my opinion warranted and justified within the normal confines of a NFP organization.

Thanks to all for a very healthy discussion so far!

[nightshiftc]

Pardon me if this sounds a bit paranoid, but while I am happy to see the CoC go for unrelated reasons, I think a self-appointing board leaves a lot of room for impropriety (for lack of a better word).

RE: CoC, I am glad to see them go precisely because most of them were members of LTs which get approval from OSM for finances. That seems like a sorely obvious conflict of interest. In that same regard, allowing the LTs to vote on OSM member's would introduce the same conflict of interest.

Not at all suggesting any of this has happened, but it can.

I agree with Andrew, a BoR would be a good start to mitigate self appointment. I would, however, add that the member's of this board should not be part of OSM or LTs - and as Andrew said, this BoR should apply to both OSM and LTs.

[JacquesR]

@ Ronni, thanks for clarifying.

@ Victor & Christina:
I'm not familiar with a Board of Review. Please help me understand more about this suggestion that Andrew and others have also made:
- How will it differ from the COC?
- How will people get appointed/elected and/ore removed from it?
- What would be its legal status?
- What will be it's functions/powers?
- Are there examples of US non-profits (with a legal structure), that's got such a board in place?

From quick Google'ing I mostly find statutory or industry bodies that I cannot relate to.

Victor speaks of an interim board of oversight. My understanding is that the COC was meant to be just that. An interim measure at the birth of the new organization. Are we not moving back to square one now if we again put something interim in place that sounds like what we already have/had?

Without knowing more details about the suggested Board of Review, I'm not sure I like the idea. If, as suggested, it should not have leadership members on it, then would we have a top structure who can direct the board and the project leadership, but who's members have no leadership responsibilities, and have no fiduciary responsibilities?

Would it not be much better (in my head anyway), to have a bottom-up approach, where a new board is responsible to those structures below it who (via Directors on the board, or via Members of the organization) have the control over the board?

(I share my thoughts as Open Source Matters (OSM) board member, and as a Joomla! volunteer, but I do not claim to speak on behalf of OSM)