[Osmf-talk] (v2.0, now with legal advice!) Possible AoA Amendment #2: Your boss can't force you to vote a certain way

[Craig Allan]

Responding to Rory:
I generally support the proposed changes, with some minor proposed 
changes listed far below.
I have placed the Rory and lawyer proposed changes in the context of the 
surrounding text hoping that members will read them in context and 
support them.

They will now read as follows:

---------------------------

Section 1.

    ...
    "subsidiary" has the meaning given in section 1159 of the Companies
    Act 2006; 
    "unconstrained power to vote" means, of any individual, that that
    individual is not legally bound (for example by contract or other
    legal act) to vote or not to vote in any particular way; and
    "writing" means the representation or reproduction of words, symbols
    or other information in a visible form by any method or combination
    of methods, whether sent or supplied in electronic form or otherwise.

--------------------------

Section 12.

    No person shall become a member or associate member of the
    Foundation unless they -


    (1) have completed an application in a form approved by the directors;
    (2) have paid the appropriate fee;
    (3) have not previously been expelled from the Foundation;
    (4) are not appealing a resolution to expel by the board; and
    (5) their membership account (if they have one) is not in arrears; and
    (6) have unconstrained power to vote.

13. The board may waive conditions (3) to (5) above.

------------------------

17. A person shall cease to be a member or an associate member (as the 
case may be) if:

(1) they die or cease to exist;
(2) they withdraw their membership (or associate membership) by giving 
the Foundation 7 days' notice in writing;
(3) their membership account is more than one year in arrears;
(4) the board resolves to expel them, subject to any successful appeal 
being made under these articles;
(5) they no longer have unconstrained power to vote.

Except that a person shall not cease to be a member of the Foundation if 
they are the last remaining member.

------------------------------

75. Subject to other provisions of the articles, all members and 
associate members shall have the right to vote at a general meeting 
provided that:


(1) they were a member or associate member (as the case may be) 
throughout the period of 90 days prior to the date on which the meeting 
is held; and
(2) their membership account was not in arrears 7 days prior to the date 
on which the general meeting is held; and
(3) they are a natural person; and
(4) they have unconstrained power to vote.

For the purpose of calculating time spans, a “day” is assumed to be a 
full calendar day in UTC, and the “date” is in UTC.

--------------------------------------

MORE SUGGESTIONS

In Section 1 I think it is sensible to include coercion as well as legal 
and illegal acts.  Something like "Vote for Rory or I won't love you any 
more" is coercion, but not an illegal act.

Proposed: "unconstrained power to vote" means, of any individual, that 
that individual is not (legally) bound (for example by coercion, 
contract or (other) legal act) to vote or not to vote in any particular way;

Section 12 (5) includes a "their " in the middle of the "they" clauses 
which is messy grammar, but probably not fatal to the wording.

Section 13 staying unchanged is important: The Board cannot condone or 
waive restrictions or sanctions on a member that is constrained in any way.

Section 17 should include an explicit  "or" after each of  lines (1) - 
(4) to preclude some smart lawyer interpreting it as as (1) _and _(2) 
_and _(3) _and _(4) _and _(5), thus effectively voiding the section.   
Coding teaches you rigorous logic like nothing else does.

Section 17(1) is a bit too metaphysical. "A person shall cease to be a 
member ... if ... they die or cease to exist"

A natural person is by definition dead if they do not exist. But, a 
company or legal entity can cease to exist.  As far as I can see there 
is nothing in our AoA or the Companies Act that precludes a legal entity 
becoming a voting member and/or a Board Member.

To explicitly bar entry of legal entities as members I'd like to see 
Section 12 read "No person shall become a member ... unless they - (7) 
are a natural person." Section 17(1) can then read: "(1) they die;"


regards

Craig Allan

OSM:cRaIgalLAn


On 2020/10/27 22:59, Rory McCann (OSMF Board) wrote:
> Hello OSMF members,
>
> To follow up from my email of 11th October 2020¹, and 26th October
> 2020², and based on advice from the OSMF's corporate counsel (lawyer),
> we have a new idea for how to word this change to OSMF's Articles of
> Association³ to prevent an OSMF member's employer from forcing a member
> to vote a certain way. Since the employer might not be an OSMF member,
> we can phrase it as “you can only be a member if you're free to vote”.
> We welcome your feedback.
> Compared to the last version, this is limited to legal/contractual 
> issues (e.g. employment), and it also ensures it applies to votes)
>
>
>
> Add to the end of §1 (definitions section):
>
>> "Unconstrained Power to Vote" means, of any individual, that that 
> individual is not legally bound (for example by contract or other 
> legal act) to vote or not to vote in any particular way.
>
> add to the end of §12 (_“No person shall become a member or associate 
> member of the Foundation unless they”_)
>
>> (6) have Unconstrained Power to Vote.
>
> add to the end of §17 (_“A person shall cease to be a member or an 
> associate member (as the case may be) if”_)
>
>> (5) they no longer have Unconstrained Power to Vote.
>
> add to the end of §75 (_“Subject to other provisions of the articles, 
> all members and associate members shall have the right to vote at a 
> general meeting provided that:”_)
>
>> (4) they have Unconstrained Power to Vote.
>
>
> This is currently just an idea. This may, or may not, be the final text.
> The board might not even propose this. Please provide feedback.
>
> You can reply to this email publicly to the osmf-talk@ list, or you can
> contact the boar privately (board at osmfoundation.org). Please state if
> you would like us to treat your email as confidential. Please feel able
> tell other OSMF members about this topic.
>
> Rory
>
>

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