Questions and answers for 2019 bylaws revision vote

What is this vote proposing that SPI do?

If the members approve this vote, SPI's current bylaws will be amended and restated in full - that is, replaced - by the draft bylaws proposed in this PDF.

Additionally, the proposed replacement bylaws make reference to a new membership guidelines document. The resolution which called this vote also granted the board's approval to this initial version of the membership guidelines document, conditional on the members' approval of the new bylaws. Therefore, if the members approve the new bylaws, that version of the membership guidelines document will also become effective.

What are bylaws?

Bylaws define the governance structure of a corporation, including not-for-profit corporations like SPI. They define the composition and selection procedures of the board of directors, the rights of members, meeting procedures and notice requirements, and similar matters.

Are bylaws the whole story of how SPI is governed?

No. SPI also has a certificate of incorporation, which defines certain extremely essential aspects of SPI like its corporate purpose, and provisions required for our tax-exempt public charity status with the United States Internal Revenue Service. In case of conflict between this and the bylaws, the certificate of incorporation prevails.

We are also governed by applicable laws, including United States federal law and New York state law. Of course, these take priority over any contradictory provisions in SPI's documents, but many of the governance specifics in New York's Not-for-Profit Corporation Law explicitly defer to corporate documents like bylaws where those address the topic in question.

Many of SPI's policies and decisions are specified by other means which can be changed more easily than the core documents, such as resolutions of the board of directors, or the proposed new membership guidelines document. SPI's certificate of incorporation and bylaws will prevail over these to the extent of any conflicts.

This vote is not proposing a change to SPI's certificate of incorporation or to any pre-existing SPI resolutions.

Why are SPI's existing bylaws inadequate?

The current document was last substantially changed in 1999, when SPI and its associated projects were very different and when much less was known about how to run an organization like SPI. The bylaws SPI has would be a better fit for a more traditional nonprofit.

SPI leadership has done its best to juggle the demands of the current bylaws with the practical realities of running an Internet-centric organization with hundreds of members around the world, and where everyone involved is acting as a volunteer in their spare time.

But several problems exist, a few of which are:

• The bylaws do not comprehend the idea of board meetings on IRC.
• The rules for email voting are intractable, and in any case are superseded by applicable law.
• The annual meeting is specified to occur on July 1, which is rarely convenient due to national holidays in the US and Canada.
• In a number of places, the bylaws seem to contradict themselves.
• The board election rules make it hard to maintain an evenly staggered election cycle for the board.

How do the new bylaws change SPI's governance?

The board is primarily trying to update the bylaws to match actual practice, not to govern SPI differently.

The problems noted in the above answer are all fixed in the new bylaws.

While the board encourages you to read the full document before voting, the most noteworthy changes from the current document are summarized below.

Board election cycle

Under the current bylaws, anyone who wins a seat in the annual SPI board election automatically receives a three-year term. This has often led to unbalanced board election cycles, where anywhere from zero to six director seats have been up for election at a time. This is awkward for continuity and planning.

Under the new bylaws, each annual SPI board election would always have an even one third of the board up for election to a full three-year term. If SPI directors vacate their seats which would not otherwise be up for election in the following cycle, their seat would only be put up for election for the remaining one or two years of their three-year term.

As is currently the case, the SPI board would still be able to appoint interim directors to temporarily fill vacant director seats until the next annual board election. However, if they win an election to retain their seat, the duration of their elected term will be determined as above and could be anywhere from 1 to 3 years.

Membership guidelines

SPI's current guidelines for membership are split haphazardly over the bylaws, the website, and unwritten practice. The new bylaws now consolidate most of this into a separate membership guidelines document, while keeping the most important bits in the bylaws and keeping the bylaws primary over that document.

Due to concerns expressed in past member feedback about the risk of a future rogue board, the members will have at least 30 days' notice to react to any change to the guidelines document that reduces their rights or increases their responsibilities, before the change takes effect.

Bylaws amendments

Under SPI's current bylaws, any bylaws amendment requires the approval of 2/3 of SPI's voting (i.e. contributing) membership. This is a common threshold in more typical nonprofits where the entire membership routinely assembles in person each year for the annual meeting, but doesn't work for SPI's paradigm where members rarely pay attention except during controversies.

The board wants to fix this so that the bylaws can be more easily amended in the future, but at the same time, the board respects the members' role as SPI's ultimate decisionmakers and does not want to remove their power to amend the bylaws or to reject the board's proposals.

Accordingly, the new bylaws allow either the board or the membership to initiate most bylaws amendments. In the case of a board-initiated amendment, the members have 30 days to object after being notified of the board's approval. If 10% of the contributing members object, then the contributing members will be asked to vote on whether to reject the amendment. The amendment will take effect if the members do not reject it in this vote, or if no objection is received from 10% of contributing members.

NY law requires the approval of 2/3 of SPI's voting membership where the members want to propose changes to certain rules for the transaction of business by directors. The new draft conforms to the law but tries to confine this high threshold to roughly the cases where the law requires it. The same topics can be addressed by a board-initiated amendment without running up against this legal constraint.

Committee flexibility

The old bylaws rigidly specified certain committee structures that don't meet SPI's operational needs. The new bylaws drop this overspecificity.

Only individual members

Currently, SPI's bylaws allow organizations to be members, but SPI only allows individual members in practice. The new bylaws conform to current practice in this regard by allowing only individuals to become members.

Note that associated projects, as such, are not SPI members, even though the active members of SPI associated projects can individually become SPI members on that basis. This change does not affect the status of associated projects or their relationship with SPI.

Why haven't the bylaws been fixed sooner?

Attempts were made as early as 2003, when SPI struck a bylaws committee to examine the issue. Those early attempts were trying to patch the existing document without starting fresh. The current document is so badly matched to SPI's needs that it was hard to draft a clearly satisfactory revision, let alone one that passed legal review and would pass the required member vote.

What has changed since the earlier attempts that allows us to proceed?

In 2016, SPI's then-President Bdale Garbee worked with SPI's lawyers at the Software Freedom Law Center to draft an entirely new bylaws document that conforms to our modern realities, rather than modifying the current document.

2016? This is 2019. What has happened since then?

Bdale proposed his draft to spi-general for discussion, which led to the first of three great rounds of member feedback.

Current SPI board member Jimmy Kaplowitz presented two subsequent revisions to the membership, in November 2016 and February 2017. Each round improved the text and addressed member concerns.

Since February 2017, the board has made further improvements primarily in the interest of clarity and simplicity, and importantly, has gone through legal review with the Software Freedom Law Center to make sure that the draft the members will vote on conforms to the law.

More specifically, what has changed in the proposal since the February 2017 draft?

The board aimed to retain provisions which were meant to address member feedback and concerns from prior drafts, so the document should be the same as the February 2017 draft in spirit and in most of the particulars.

While the board encourages you to read the full document before voting, the most noteworthy changes from the February 2017 draft are summarized below.

Clarity and safety

After consultation with SPI legal counsel, certain aspects of the proposed wording seemed confusing or risky. These have been clarified as follows:

• We no longer use ambiguous language like "deem" to determine whether directors qualify as contributing members.
• The provision in the bylaw amendment procedure for the board to make an emergency amendment before consulting members was dropped as more confusing than useful.
• Instead of citing a section of NY law about the mechanics of staggering ("classifying") the terms of SPI's board of directors, simply include the relevant language inline in the bylaws.
• Additional wording clarifications touching less important language.

Membership guidelines

SPI's current guidelines for membership are split haphazardly over the bylaws, the website, and unwritten practice. The new bylaws now consolidate most of this into a separate membership guidelines document, while keeping the most important bits in the bylaws and keeping the bylaws primary over that document.

Due to concerns expressed in past member feedback about the risk of a future rogue board, the members will have at least 30 days' notice to react to any change to the guidelines document that reduces their rights or increases their responsibilities, before the change takes effect.

Bylaws amendments

• As noted above, the board is no longer proposing a way for it to rush through amendments on an emergency basis, in the interest of a simpler document.
• NY law requires the approval of two thirds of SPI's voting membership where the members want to propose changes to certain rules for the transaction of business by directors. The new draft conforms to the law but tries to confine this high threshold to roughly the cases where the law requires it. The same topics can be addressed by a board-initiated amendment without running up against this legal constraint.

Would the approval of the membership guidelines document change SPI's current practices?

No. The parts of the document which would be immediately operative match current practices.

In addition, the membership guidelines document does provide some information about the board's future intent to develop a Code of Conduct for SPI, and describes the circumstances under which violations of that can lead to expulsion from SPI. However the board intends to consult with the members before adopting any such document. This work is mostly unrelated to the bylaws overhaul, but the proper place to document it is in this newly created membership guidelines document.

Why are the new bylaws in PDF?

Due to the workflow of SPI's lawyers, the various drafts were revised and iterated on using OpenDocument format and LibreOffice. Therefore the convenient export format is PDF. If the new bylaws approved, SPI will undertake the reformatting work to update the Markdown copy integrated into our website.

Where should I send any other questions about this change?

If you want your question and ensuing discussion to be public, please email spi-general@lists.spi-inc.org.

If you want your question and ensuing discussion to be private among SPI contributing members, please email spi-private@lists.spi-inc.org.

Otherwise, please email the SPI board of directors at board@spi-inc.org.