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Posted to legal-discuss@apache.org by Patricia Shanahan <pa...@acm.org> on 2020/02/09 17:03:17 UTC
Conflict of Interest policy
Please see the board@ thread "Conflict of Interest proposal",
https://lists.apache.org/thread.html/r5ed65f1a447d7f14e49e9446a33b7ea70d7835f83ed982b717e39896%40%3Cboard.apache.org%3E
In that thread, I expressed concerns about some aspects of the suggested
policy. In accordance with the volunteer organization custom that the
squeaky wheel gets the work, I am now trying to drive the drafting of a
policy that is practical and suitable for ASF.
In my opinion at this point we should be documenting the
current/traditional policy, not trying to make major changes.
I have created a Wiki page for discussion and drafting,
https://cwiki.apache.org/confluence/display/ASFP/Conflict+of+Interest+policy+development
There are a few questions for which I would like input before putting up
a draft:
Who should be covered? For example, PMC chairs are also vice-presidents.
Should they be covered? If not, how to distinguish them from
vice-presidents that should be covered.
Historically, ASF has ignored personal investments in publicly traded
stock. Should we eliminate that completely as a financial interest, or
set some limit such as requiring reporting of stock in an ASF sponsor or
supplier that is more than 10% of an individual's investments?
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Re: Conflict of Interest policy
Posted by Greg Stein <gs...@gmail.com>.
Three things:
On Sun, Feb 9, 2020 at 11:04 AM Patricia Shanahan <pa...@acm.org> wrote:
> Please see the board@ thread "Conflict of Interest proposal",
>
> https://lists.apache.org/thread.html/r5ed65f1a447d7f14e49e9446a33b7ea70d7835f83ed982b717e39896%40%3Cboard.apache.org%3E
>...
> I have created a Wiki page for discussion and drafting,
>
> https://cwiki.apache.org/confluence/display/ASFP/Conflict+of+Interest+policy+development
legal-discuss@ is a public thread, with many non-Members on it who cannot
read either of the above.
>...
> Who should be covered? For example, PMC chairs are also vice-presidents.
> Should they be covered?
They can bind the Foundation to deals with third parties, so: yes. Just
call it "All Directors and Officers". The former are not strictly Officers,
and the latter includes non-VPs who are Officers (such as the Secretary,
and myself as InfraAdmin).
>...
> Historically, ASF has ignored personal investments in publicly traded
> stock. Should we eliminate that completely as a financial interest, or
> set some limit such as requiring reporting of stock in an ASF sponsor or
> supplier that is more than 10% of an individual's investments?
>
I suggest: absolutely not. My portfolio has 35 different stocks, bonds, and
funds (my wife likely has more). That mix changes weekly. Now, I could just
think "broad enough mix, that none will rise to significance individually",
or we just keep ignoring investments altogether (as we've done for 20
years).
As I suggested other-thread, I recommend employment/biz-relationship, and
percentage ownership are the two relevant measures, when discussing an
Officer's role in making a decision about some target entity. A conflict
arises when you are "beholden" to two interests: that of the ASF, and that
of the target. I suggest that the above two conditions create a beholden
status to the target.
Cheers,
-g
Re: Conflict of Interest policy
Posted by Shane Curcuru <as...@shanecurcuru.org>.
Thanks Patricia for picking this one up. And for the benefit of readers
of this publicly-archived legal-discuss@ thread, we've been reviewing a
draft COI policy that is based on the US IRS' form 1023 sample.
I think a key question to ask first (reflecting on other comments) is:
what kinds of activities do we at the ASF really need this kind of COI
policy to cover? In particular, do we need policy details mostly for
matters dealing with ASF finances, employment, or contracts, or do we
*also* need policies with respect to our project development(s)?
1) We clearly need to improve policies around our actual financial
operations: these both deal with making decisions about money, and
they're also what an outside observer would definitely expect a COI
policy to cover. That means our budgets, hiring practices, vendor
choice, and the like: where and how the ASF spends funds (or does
fundraising, perhaps).
2) What's not so clear - from our historical perspective - is how to
define something like a "COI" policy around our *project* activities -
like development, community, etc. issues around Apache projects or other
software related activities we pursue. Historically here we mainly rely
on people "wearing their volunteer hat", and our board -> PMC -> project
oversight mechanisms.
While the we've certainly addressed issues here occasionally in the past
- usually around employment relationships and influence over projects -
the ways we do this are unique to our community & consensus structures.
I'm not sure how to make something that starts from a traditional
non-profit COI perspective fit the "all decision roles act as
volunteers" model that we use in real life. Separately, history shows
that employment relationships are the key part here, not other financial
interests.
Does that make sense? In any case, I suggest we focus on part 1) above,
and in particular on roles at the ASF that have notable budgets or have
specifically delegated contract authority. To me, that means directors
and most non-PMC officers.
Patricia Shanahan wrote on 2020-2-9 1:44PM EST:
> The IRS sample policy uses the phrase "director, principal officer, or
> member of a committee with governing board delegated powers"
>
> Is it possible to translate that into ASF terms?
As above, I would look to directors and executive officers, plus any
other officers who either A) have a budget, or B) have contract signing
or budget-like powers explicitly authorized to them by the board.
While in theory we can ponder what contract signing authority the
average PMC VP has, in practice I don't see that as likely to be an
issue, at least not in terms that would apply to reporting COI
information or policies to the IRS.
--
- Shane
Director & Member
The Apache Software Foundation
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Re: Conflict of Interest policy
Posted by Patricia Shanahan <pa...@acm.org>.
The IRS sample policy uses the phrase "director, principal officer, or
member of a committee with governing board delegated powers"
Is it possible to translate that into ASF terms?
On 2/9/2020 9:03 AM, Patricia Shanahan wrote:
> Please see the board@ thread "Conflict of Interest proposal",
> https://lists.apache.org/thread.html/r5ed65f1a447d7f14e49e9446a33b7ea70d7835f83ed982b717e39896%40%3Cboard.apache.org%3E
>
>
> In that thread, I expressed concerns about some aspects of the suggested
> policy. In accordance with the volunteer organization custom that the
> squeaky wheel gets the work, I am now trying to drive the drafting of a
> policy that is practical and suitable for ASF.
>
> In my opinion at this point we should be documenting the
> current/traditional policy, not trying to make major changes.
>
> I have created a Wiki page for discussion and drafting,
> https://cwiki.apache.org/confluence/display/ASFP/Conflict+of+Interest+policy+development
>
>
> There are a few questions for which I would like input before putting up
> a draft:
>
> Who should be covered? For example, PMC chairs are also vice-presidents.
> Should they be covered? If not, how to distinguish them from
> vice-presidents that should be covered.
>
> Historically, ASF has ignored personal investments in publicly traded
> stock. Should we eliminate that completely as a financial interest, or
> set some limit such as requiring reporting of stock in an ASF sponsor or
> supplier that is more than 10% of an individual's investments?
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
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