[HCoop-Discuss] Bylaws revision - increasing size of board, etc.

[Nathan Kennedy]

Michael,
Thanks for taking the time to provide some feedback.  I only have a moment
to dash off a quick note while traveling, I will be back on about Jan 2 or
3.
> <SNIP>
>> Modifying Section 405 to read as follows:
>> Section 405. The board may revise the Corporation's policies or take any
>> action on behalf of the Corporation by majority vote of members present
>> at any board meeting. The Secretary is responsible for keeping and
>> publishing up-to-date editions of the Corporation's policies.
>
> Nathan,
>
> I'm on-board with most of these revisions, they seem sensible and well
> thought-out. I noticed the modification to section 405 wasn't mentioned
> in your summary, but it appears to formalize the policy that members
> don't have any say in events once elections are over. The board needs to
> be able to act without having its hands tied, but to cut regular members
> off from all decision-making does away with all but a token democracy.

The wording may need to be changed as this is my first attempt at
hammering out some changes to the bylaws.  We may or may not want to
separate out some logically separate bylaws revisions into separate
yes/no/abstain votes.

I did not mention that in my summary, rather I added it in as I was
working through the draft and hadn't gone back to add it in the summary.

My intent was, as you suppose, not to change the actual powers of the
board, but to clarify its role.  Specifically, while the bylaws did
reflect that the board has the power to set policies, it did not reflect
that the directors were empowered to act as agents (or appoint agents) for
the cooperative in official matters.  This is the legal role of directors
regardless, I just wanted to make this clear.

And also to make it clear that it is the individual responsibility of an
officer (namely the secretary, or right now, me) to compile and publish
the policies; e.g. these should not exist as some uncodified body of
unwritten or unknown rules, but should be transparent and centrally
available to the public.

> The way it's worded, the board might even be able to eliminate elections
> altogether.

This is not the case, because the board's powers are defined and limited
by the bylaws.  Perhaps this should be made more explicit in the bylaws,
but this is always the case.  Our most foundational document is our
articles of incorporation, which define the scope and limits of the
corporation's legal existence.  This is very broad, but nothing in the
bylaws, policies, or operation of the co-op can be legally done contrary
to those.  For instance, our articles limit income from nonmembers to at
most 15% of our total receipts.  Nothing in our bylaws or policies
declared by the board can legally change this.

Likewise, the bylaws, within the articles of incorporation, and the
general corporation laws of Pennsylvania, prescribe how our corporation
and its various officers may operate.  Together with the articles of
incorporation, these are the "organic laws" of HCoop, Inc.

If any director individually took it into his mind to act on his own in
contravention of the bylaws, then the other directors acting together
would have the power to stop him.  Likewise, if the board voted to do
something contrary to the bylaws, such as amend them without a membership
vote, expel a member other than for dues delinquency, or cancel an
election, then a dissenting director or ANY member of the co-op could
protest, and if ignored, sue the directors or the Corporation to enjoin or
reverse this action.

It was very important to me when crafting the bylaws to prevent any kinds
of "coups," whether by rogue members, directors, or outsiders.  That was
also part of my intent in adding the "waiting period."  I was also
considering language to forbid assignment of voting rights but I haven't
figured that one out quite yet.

> Therefore, I suggest a regular membership vote be required on all
> significant policy changes. What constitutes "significant" is debatable,
> but I would think items like modifying the policy, appointment/dismissal
> of sysadmins or hiring/firing of paid sysadmins, whether or not to grow
> and how fast or have tiered membership levels would qualify.

I think you are proposing moving away from the
delegated/republican/representative democracy model towards a
direct-democracy or consensus-based model.

I'm not against this more involved model where it works, I'm just not
convinced this is good to enshrine too heavily in our type of
organization.  As you point out trying to make a fine line between
operational decisions that do not require "member approval" and those
policy decisions that do, invites "squeaky" members to challenge every
single action that the board takes on the basis that it should be put to
member vote.

Also, as has been obvious, the great majority of members do not WANT to be
deeply involved with decision-making.  That's why we have a board that is
supposed to be popularly elected to do this extra work.  It is not clear
that results that are better and more in accordance with the membership's
wishes will result, if more decisions are ratified by some small, noisier
segment of the membership that has the time and interest to weigh in on
them.

Right now, the general membership already has the exclusive power to elect
boardmembers, make ANY changes to the bylaws at any time, and expel
members or remove directors.  Since the bylaws are our organic law, that
includes the power to override any policy of the board should the
membership deem it odious enough to take this action and meet the
requisite supermajority.  The same goes with removing boardmembers.

Also although not addressed in the bylaws, decisions like mergers require
membership ratification by statute.

That said, we may want to add to the bylaws that ratification is required
such major decisions as employment decisions, contracting substantial debt
(if we can define this one well), or sales of substantial assets (e.g. to
accomplish de facto mergers).

Hopefully we can hammer that out, and if necessary, separate this from the
stuff related to increasing the size of the board, which I do think is
important.

-ntk