Are these "majority consent agreements" even valid?

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Are these "majority consent agreements" even valid?

Anthony DiPierro
On 5/1/07, Anthony <[hidden email]> wrote:

> On 5/1/07, Ray Saintonge <[hidden email]> 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.
>
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

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Re: Are these "majority consent agreements" even valid?

Florence Devouard-3
Anthony wrote:

> On 5/1/07, Anthony <[hidden email]> wrote:
>> On 5/1/07, Ray Saintonge <[hidden email]> 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


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Re: Are these "majority consent agreements" even valid?

Anthony DiPierro
On 5/1/07, Florence Devouard <[hidden email]> wrote:

> Anthony wrote:
> > On 5/1/07, Anthony <[hidden email]> wrote:
> >> On 5/1/07, Ray Saintonge <[hidden email]> 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
>

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Re: Are these "majority consent agreements" even valid?

Anthony DiPierro
On 5/1/07, Anthony <[hidden email]> wrote:

> 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 again, maybe it does matter.  I apparently just reinvented the
concept of the [[disappearing quorum]].  If it takes 4 members to make
a quorum, and 3 members vote yes, then if the fourth person votes
"yes", the measure passes.  If the fourth person votes "no", the
measure passes.  If the fourth person votes "present", the measure
passes.  However, if the fourth person gets disconnected, one could
argue that there is no quorum, and the measure fails.  Fun stuff, and
a reason that the WMF might want to redefine what constitutes a
quorum.

Anthony

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Re: Are these "majority consent agreements" even valid?

Florence Devouard-3
Anthony wrote:

> On 5/1/07, Anthony <[hidden email]> wrote:
>> 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 again, maybe it does matter.  I apparently just reinvented the
> concept of the [[disappearing quorum]].  If it takes 4 members to make
> a quorum, and 3 members vote yes, then if the fourth person votes
> "yes", the measure passes.  If the fourth person votes "no", the
> measure passes.  If the fourth person votes "present", the measure
> passes.  However, if the fourth person gets disconnected, one could
> argue that there is no quorum, and the measure fails.  Fun stuff, and
> a reason that the WMF might want to redefine what constitutes a
> quorum.
>
> Anthony

Actually, though we never went so far to that at board level, we explore
d a lot this notion at the spcom. We had chosen a system relying on a
quorum based on presence, rather that a quorum based on total
membership. With security level of a minimum of presence if my memory is
good.
This led us to constant recalculation of what the quorum was at each
meeting, which was not very helpful.

Our quorum is fixed and based on total members. So 4 people.


ant


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Re: Are these "majority consent agreements" even valid?

Ray Saintonge
In reply to this post by Anthony DiPierro
Anthony wrote:

>On 5/1/07, Anthony <[hidden email]> wrote:
>  
>
>>On 5/1/07, Ray Saintonge <[hidden email]> 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.
>>    
>>
>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.
>
I don't read that into it.  It seems that it outlines a default
situation for a company that has not paid attention to this.  When inly
two of seven directors live in the jurisdiction and one of those two is
frequently on the road travelling, your reading of the provision would
lead to an absurdity where having proper meetings would be virtually
impossible without great expense.  The travelling involves more than
just travelling across the state line from Georgia.  Such expense would
be even more rediculous if the rule were applied to committees.

>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.
>
"Proper" and "legal" are not synonymous.  I think it's sufficient to
require that such a consent be a majority of all directors as distinct
from a majority of only those present at a meeting.

Ec


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Re: Are these "majority consent agreements" even valid?

Anthony DiPierro
On 5/1/07, Ray Saintonge <[hidden email]> wrote:

> Anthony wrote:
>
> >On 5/1/07, Anthony <[hidden email]> wrote:
> >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.
> >
> I don't read that into it.  It seems that it outlines a default
> situation for a company that has not paid attention to this.

This is possible, I can't say for sure on that.

> When inly
> two of seven directors live in the jurisdiction and one of those two is
> frequently on the road travelling, your reading of the provision would
> lead to an absurdity where having proper meetings would be virtually
> impossible without great expense.  The travelling involves more than
> just travelling across the state line from Georgia.  Such expense would
> be even more rediculous if the rule were applied to committees.
>
Florida law explicitly allows for meetings to be held using "any means
of communication by which all directors participating may
simultaneously hear each other during the meeting".  Conference calls
are certainly not ruled out.  IRC could be contested, I suppose, but
the difference between IRC and a conference call is much less material
than the difference between a majority consent agreement and a
properly conducted board meeting.

Moreover, expense is not an excuse for not following the law.  If
Florida law required face-to-face meetings (which it doesn't), then
the WMF could either have directors who live closer to each other or
could incorporate in a different state.

> >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.
> >
> "Proper" and "legal" are not synonymous.  I think it's sufficient to
> require that such a consent be a majority of all directors as distinct
> from a majority of only those present at a meeting.
>
Yes, I intentionally used the term "proper" and not "legal", because
I'm certainly not suggesting that the board engaged in illegal
activities.  On the other hand, if a board member who opposed one of
the resolutions wanted to raise a fuss, there would be an opening for
them to attack - to claim that the resolution was never properly
passed in the first place.  So long as everyone on the board stays
non-litigious, the foundation isn't required to initiate legal
proceedings, and the foundation isn't forced into bankruptcy,
everything could continue to be fine.

Overall the foundation seems to be run very casually for one with such
valuable intangible assets.  The non-standard governance of the
foundation is both one of its strong points and one of its weak
points.

Anthony

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