[PDB-gov] organizational documents

[Chris Caputo]

On Tue, 20 Oct 2015, Patrick Gilmore wrote:
> On Oct 20, 2015, at 10:42 PM, Steve Feldman <steven.feldman at cbsinteractive.com> wrote:
> > Having dabbled a bit in nonprofit governance in the past, here are my 
> > comments on the proposed Bylaws:
> >
> > 2.3.1: Can the definition and purpose of "Affiliate" be made more 
> > clear?  I think the purpose is to limit the number of votes to one per 
> > member organization, and to avoid conflicts of interest in section 
> > 6.3.  But it took me a few readings to get that far.  And it's not 
> > clear who exactly gets to vote on behalf of a member organization.
> 
> This is my fault, so I’ll try to answer it.
> 
> The wording was suggested by our lawyer, based on some language from the 
> LINX foundational documents. It is intentionally slightly vague, but 
> legally defensible.
> 
> The idea here is we do not want a company that owns 100 ASNs to have 100 
> votes. Most big companies have multiple ASes these days, and we are 
> trying to be a “one company, one vote” kinda membership org.
> 
> However, nothing is set in stone. If the assembled membership disagrees, 
> we can change it. We just don’t want to change it based on one company 
> with 5K ASes outvoting everyone else combined. Hopefully the reasons for 
> this are obvious.

Not sure about this being intentionally slightly vague.  :-)  If anyone 
has some clarifying language, please suggest it.  I'll also ask the lawyer 
for suggestions.

> > 2.14: This is described in more detail in section 6.3.  Perhaps add a 
> > reference here?
> 
> Good point. I think saying “by the process described in 6.3” or similar 
> might do, but let’s ask the lawyer.

I'll group these changes up in an email to the lawyer.  Am proposing 
change to section 2.14 as follows:

-Members of the Corporation may be removed by a vote of the Board.
+Members of the Corporation may be removed by a vote of the Board in
+accordance with the ‘Termination of Membership’ section of Article 6 of these Bylaws.

> > 3.2: This first says the number of Directors is set by Board 
> > resolution within a specified range, then says "The number of 
> > Directors may be changed from time to time by amendment to these 
> > Bylaws."  Should this say instead that the allowable range is changed 
> > by amendment?  Or is the intent to fix the number after the first 
> > Board resolution?
> 
> The idea here is that the 3 to 7 can be changed by amendment. We 
> intentionally did not fix the number of board members. If I run, and if 
> I am elected, I have no intention of fixing it permanently.
> 
> Obviously, the membership is welcome to disagree. :)

I see Steve's point and agree that adding "range" will add clarity.  
Suggesting:

 The Board shall consist of not less than 3 nor more than 7 Directors, the specific
-number to be set by resolution of the Board. The number of Directors may be changed from
+number to be set by resolution of the Board. The range of number of Directors may be changed from
 time to time by amendment to these Bylaws, provided that no decrease in the number shall have
 the effect of shortening the term of any incumbent Director.

> > 3.4.2: This section implies that there will be exactly five board 
> > seats at the first election, but that's not explicitly defined 
> > anywhere in the Bylaws.  It is in the Articles of Incorporation, but 
> > there's nothing preventing the number of seats from being changed 
> > before or at election time.
> 
> Another fair point.
> 
> The issues of dealing with bootstrapping. 
> 
> Not sure how to do it without explicitly calling out the number of 
> Directors of the initial Board. But again, that’s why we have a lawyer.

I think we'll be good with the following change:

 Director seats are numbered. Even numbered seats are open in even numbered
 years, and odd numbered seats in odd numbered years. Open seats may also be caused by
-vacancy. In the first election at the first annual meeting, the three highest vote count receivers
-assume the longest term seats and the two lowest vote receivers assume the shortest term seats.
+vacancy. In an election, the highest vote count receivers assume the longest term seats.
 Ties are decided by random means by the Secretary in the presence of the meeting attendees.

> > 6.3: Perhaps refer to the earlier definition of "Affiliate”?
> 
> Why? Member is defined, we are saying we can terminate a member. The 
> Affiliate thing just defines which companies are combined into a single 
> member.

I agree.

> > 7: As written, the Board could amend Article 7 to allow themselves to 
> > amend Article 6.  At minimum, require member voting to amend articles 
> > 6 and 7.  You might also want to consider whether or not to include 
> > other sections, as it's possible to invent other doomsday scenarios 
> > where a rogue Board majority could redefine the organization in ways 
> > the intended constituency might not appreciate.
> 
> I have a feeling a court would look very poorly upon a board which voted 
> to change Article 7 and then subsequently changed Article 6.
> 
> However, no need to risk such things. And Steve Scores Again! :)
> 
> Chris has suggested this wording elsewhere. (I hope he does not mind me 
> posting it here as I have not asked him.)

All good!

> - ARTICLE 7. AMENDMENTS Except for the terms of Articles 6 and 7, these 
>   Bylaws may be altered, amended or repealed and new Bylaws may be 
>   adopted by the vote of a majority of the number of Directors in office.  
>   The terms of Articles 6 and 7 may be altered, amended or repealed and 
>   new terms thereof may be adopted by the vote of a 2/3 majority of the 
>   members.
> 
> I am unclear if the board can add, for instance, Article 9 which says 
> Articles 6 & 7 are invalid, but my guess is this is fine. However, we do 
> have a person who has passed the bar and everything, so I suggest we ask 
> him. Is everyone OK with the new language before we bother the very 
> nice, and very generous lawyer?
> 
> > Overall, these do seem well-written, and I appreciate the effort being 
> > put into getting this off the ground.

Great feedback Steve and Patrick.  I'll forward this message to the lawyer 
for additional feedback.

Diff of changes is up at:

  https://www.caputo.com/pdb/20151020_PeeringDB_DRAFT_Bylaws_DIFF.html

New draft PDF:

  https://www.caputo.com/pdb/20151020_PeeringDB_DRAFT_Bylaws.pdf

Thanks,
Chris