[Osmf-talk] clarification of the AoA amendment on board committees

Edward Bainton bainton.ete at gmail.com
Sun Dec 6 21:28:07 UTC 2020


 > I think the AoA amendment neither hurts nor is necessary to do what the
board wants to do.
+1 from me. Fine, strictly the committees can only be composed of directors
currently, but those directors can delegate to whomever they like, so it's
a bit of a dead letter.

> ...in particular if the requirement for a board member to chair a
committee was dropped.
In principle I can't see why that would be an issue, but the decisions of
the committee would still have to be referred to the directors for formal
acceptance. The reason is that a company is legally a person, but a person
like an infant that is unable to do anything for itself. So a company can
act only through its directors. Another analogy would be the government in
a republic: ministers of state (=directors) are the only people who can act
for the state, taking their authority from the sovereign body (the
electorate; =the OSMF membership) that invests them with it. Of course, a
minister can delegate to civil servants (=member-only committees), but
that's no more than a delegation of the authority invested in her by the
sovereign body, and whenever she likes she can step in and exercise her
authority personally.

It would be worth considering whether members on a committee may be
shadow directors (a regulated position) while acting on the committee. It
would seem more likely that they are if (as proposed) there is no board
member on the committee, and the committee is referenced in the AoA - see s.
251 (1)
<https://www.legislation.gov.uk/ukpga/2006/46/part/10/chapter/9/crossheading/meaning-of-director-and-shadow-director>
.

For the future I think it would be good for all members to have a primer on
company law, since a lot of the heat here seems to come from differing
understandings of how a company works, and the role of the AoA and the
directors in that. I agree with whoever said the normal thing would not be
to put the things currently under discussion into the AoA, but in some more
flexible arrangement. That arrangement could still be subject to members'
approval.

[A minor aside on Simon Poole's point
"[committees are] typically for areas of activities that are not part of
normal business or which or obvious reasons can't be delegated to the
executives. Though sometimes it might appear so :-), you can't really have
the CEO determining their own salary"
My understanding is that, absent other provisions in the AoA, this is
exactly what has to happen, for the reasons in my second paragraph above:
ultimately, only directors can act for the company, including agreeing
their own remuneration. See ss. 175 (3) and 177 of the Companies Act
<https://www.legislation.gov.uk/ukpga/2006/46/part/10/chapter/2/crossheading/the-general-duties>
for statutory authorisation of these conflicts of interest. Directors may
be expected to defer to the committee, but cannot be forced to do so unless
this is written into the AoA or required by resolution of the membership.
Even then, legally speaking it is they who act for the company, albeit
mandated to act in a certain way.]

On Sun, 6 Dec 2020 at 21:16, Christoph Hormann via osmf-talk <
osmf-talk at openstreetmap.org> wrote:

> 6 Dec 2020 22:42:26 Simon Poole <simon at poole.ch>:
>
> > Interesting enough while this point seems to have caused a lot
> > of uproar, my 2nd point that the board needs to reframe the
> > OSMF mission statement if it wants to restrict membership as
> > proposed, essentially nobody has commented on that, more
> > important point, leading me to believe that essentially nobody
> > actually read the diary entry and the comments are just based
> > on hearsay.
>
> I read it but refrained from commenting at this time because
>
>
> * as you say there is no harm investigating this (which is what the
> resolution calls for).
> * the matter as you also said goes much deeper - touching the fundamental
> goals and limits of the organization and the process how these are
> codified (the mission statement right now is just a simple statement of
> intent that the board can change any time they want). This is not
> something that can be discussed in sufficient depth just now before the
> AGM.
>
> --
> Christoph Hormann
> https://www.imagico.de/
>
> _______________________________________________
> osmf-talk mailing list
> osmf-talk at openstreetmap.org
> https://lists.openstreetmap.org/listinfo/osmf-talk
>
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