From d63a6ebc3b143934ec30fb01bbd2d1eef14079fb 2012-02-07 22:13:34 From: Tony Sebro Date: 2012-02-07 22:13:34 Subject: [PATCH] --- diff --git a/Conflicts/conflict-of-interest-policy.tex b/Conflicts/conflict-of-interest-policy.tex new file mode 100644 index 0000000000000000000000000000000000000000..059dd64076c3457ab25cba17994c715182de84c5 --- /dev/null +++ b/Conflicts/conflict-of-interest-policy.tex @@ -0,0 +1,331 @@ +%% LyX 2.0.1 created this file. For more info, see http://www.lyx.org/. +%% Do not edit unless you really know what you are doing. +\documentclass[english]{article} +\usepackage[T1]{fontenc} +\usepackage[latin9]{inputenc} +\usepackage{babel} +\begin{document} + +\title{Software Freedom Conservancy Conflict of Interest Policy} + +\maketitle + +\section{Purpose} + +The purpose of this conflict of interest policy (``Policy'') is +to protect the Software Freedom Conservancy (``Conservancy'') and +its member Projects when Conservancy is contemplating entering into +a transaction or arrangement that might benefit the private interest +of a Director, Officer or Staff Member of Conservancy or a Representative +of a Project Leadership Committee (``PLC''), or might result in +a possible excess benefit transaction. This Policy is intended to +supplement but not replace any applicable state and federal laws governing +conflict of interest applicable to nonprofit and charitable organizations. + + +\section{Conservancy Directors, Officers and Staff} + +Directors, Officers and Staff Members of Conservancy (``Conservancy +Interested Persons'') each have a duty to protect Conservancy and +its Member Projects from violating state and federal laws - and to +avoid any appearance of impropriety. Conservancy Interested Persons +serve the public interest and are to have a clear understanding of +Conservancy's charitable mission. All decisions made by Conservancy +Interested Persons are to be made solely on the basis of a desire +to promote the best interests of Conservancy and the public good. + + +\subsection{Defining a Conflict of Interest for a Conservancy Interested Person} + +In general, Conservancy Interested Persons should avoid making decisions +on matters where their personal interests are at odds with the Conservancy's +interests. In particular, the following scenarios are to be identified +as conflicts of interest: +\begin{itemize} +\item A Conservancy Interested Person (or a family member of same) is a +party to a contract, or involved in a transaction with Conservancy +for goods or services. +\item A Conservancy Interested Person (or a family member of same) is a +director, officer, agent, partner, associate, employee, trustee, personal +representative, receiver, guardian, custodian, legal representative +or in some other way has a fiduciary duty to an entity involved in +a transaction with Conservancy. +\item A Conservancy Interested Person (or a family member of same) is engaged +in some capacity or has a material financial interest in a business +or enterprise that competes with Conservancy or a Conservancy Project. +\item A Conservancy Interested Person (or a family member of same) has a +material financial interest in or fiduciary duty to an entity Conservancy +has engaged in a free software license compliance effort, enforcement +effort, or related litigation on behalf of a Conservancy project. +\item A Conservancy Interested Person (or a family member of same) has a +material financial interest in or fiduciary duty to the competitor +of an entity Conservancy has engaged in a free software license compliance +effort, enforcement effort, or related litigation on behalf of a Conservancy +project. +\end{itemize} +Conservancy acknowledges that other situations may create the appearance +of a conflict, or present a duality of interests. All such circumstances +should be disclosed to the Board, as appropriate, and the Board shall +make a decision as to what (if any) course of action Conservancy or +relevant Conservancy Interested Persons should take so that Conservancy's +best interests are not compromised by personal interests. + + +\subsection{General Policies for Conservancy Interested Persons} +\begin{itemize} +\item \textbf{No Personal Profit or Gain.} No Conservancy Interested Person +(or family member of the same), shall derive any personal profit or +gain, directly or indirectly, by reason of his or her participation +with Conservancy. +\item \textbf{Disclosure and Abstention when Conflicted.} Each Conservancy +Interested Person shall disclose to Conservancy's Board any conflict +of interest which he or she may have in any matter pending before +Conservancy and shall refrain from participation in any decision on +such matter. +\item \textbf{Conservancy Conflict Disclosure Form.} Every six months, each +Conservancy Interested Person shall complete a Conservancy Conflict +Disclosure form {[}FIXME: if this is posted online, then we can have +a link; if not, attach it as an Exhibit A{]} and submit it to the +Board and to Conservancy's General Counsel. +\end{itemize} + +\subsection{Conflict Resolution Procedures for Conservancy Interested Persons} +\begin{itemize} +\item \textbf{Disclosure of Conflict When Present.} Prior to any Board or +Board Committee action on a matter or transaction involving a conflict +of interest, a Conservancy Interested Person having a conflict of +interest and who is in attendance at the meeting shall disclose all +facts material to the conflict. Such disclosure shall be reflected +in the minutes of the meeting. If board members are aware that Staff +or other volunteers have a conflict of interest, relevant facts should +be disclosed by the board member or by the interested person him/herself +if invited to the Board meeting as a guest for purposes of disclosure. +\item \textbf{Disclosure of Conflict When Absent. }A Conservancy Interested +Person who plans not to attend a meeting at which he or she has reason +to believe that the Board or Board Committee will act on a matter +in which he or she is conflicted shall disclose to the Chair of the +meeting all facts material to the conflict of interest. The Chairperson +shall report the disclosure at the meeting and the disclosure shall +be reflected in the minutes of the meeting. +\item \textbf{Participation in Discussions and Votes Regarding Conflicted +Matter.} A conflicted Conservancy Interested Person shall not participate +in or be permitted to hear the Board's or Board Committee's discussion +of the matter where he or she has a conflict of interest, except to +disclose material facts and to respond to questions. The conflicted +Conservancy Interested Person shall not attempt to exert his or her +personal influence with respect to the matter, either at or outside +the meeting. +\item \textbf{Participation in Votes Regarding Conflicted Matter.} A conflicted +Conservancy Interested Person may not vote on the Board action with +which he or she has a conflict of interest, and shall not be present +in the meeting room (or on the conference call) when the vote is taken. +His or her ineligibility to vote shall be reflected in the minutes +of the meeting. +\item \textbf{Conflicted Persons Cannot Establish Quorum.} A conflicted +Conservancy Interested Person shall not be determining the presence +of a quorum for purposes of a vote on the matter where he or she has +a conflict of interest. +\item \textbf{Managing an Officer's Conflict of Interest. }If a Conservancy +Interested Person is an Officer involved in a decision, matter or +transaction in which he or she has a conflict of interest, he or she +must immediately disclose all facts material to the conflict to the +Chair of the Board (or the Chair's designee). The Board must then +approve any future decisions, negotiations, and/or other actions taken +by the Officer regarding the conflicted matter, and include the person's +disclosure of the conflict and the Board's subsequent actions in the +minutes of the next meeting. +\item \textbf{Managing a Staff Member's Conflict of Interest.} If a Conservancy +Interested Person is a Staff Member who has been assigned duties that +involve a decision, matter or transaction in which he or she has a +conflict of interest, he or she must immediately disclose all facts +material to the conflict to the Executive Director (or the Executive +Director's designee). The Executive Director (or designee) must then +approve any future decisions, negotiations, and/or other actions taken +by the Staff Member regarding the conflicted matter, and file a written +report acknowledging the potential conflict. +\item \textbf{Confidentiality of Conflict Disclosures.} Each Conservancy +Interested Person shall exercise care not to disclose confidential +information acquired in connection with disclosures of conflicts of +interest or potential conflicts, which might be adverse to Conservancy's +interests. +\end{itemize} + +\section{Project Leadership Committees} + +PLCs are comprised of volunteers, academics, and industry professionals +that represent a Project's community and make decisions about a Project's +technical direction (``Representatives''). Conservancy understands +and expects that many Representatives exploit professional skills +relating to their Project as individuals by providing developing, +consulting, and/or training services. Nonetheless, each Representative +has a duty to act in the best interests of his or her Project when +making technical decisions about the Project. + + +\subsection{Defining a Conflict of Interest for a Representative} + +In general, Representative should avoid making technical decisions +on matters where their personal and/or professional interests are +at odds with his or her Project's interests. In particular, the following +scenarios are to be identified as conflicts of interest: +\begin{itemize} +\item A Representative (or a family member of same) is a party to a contract, +or involved in a transaction with Conservancy for goods or services +relating to his or her Project. +\item A Representative (or a family member of same) is a director, officer, +agent, partner, associate, employee, trustee, personal representative, +receiver, guardian, custodian, legal representative, or in some way +has a fiduciary duty to an entity involved in a transaction with Conservancy +relating to his or her Project. +\item A Representative (or a family member of same) is engaged in some capacity +or has a material financial interest in a business or enterprise that +competes with his or her Project. +\item A Representative (or a family member of same) is the owner of copyrights +that are the subject of a Conservancy-led compliance effort, enforcement +effort, or related litigation - and the Representative (or family +member of same) has a material financial interest in or fiduciary +duty to an entity adverse to this effort. +\end{itemize} +Conservancy acknowledges that other situations may create the appearance +of a conflict, or present a duality of interests. All such circumstances +should be disclosed to Conservancy's Executive Director and to the +PLC, as appropriate, and the PLC shall make a decision as to what +(if any) course of action the PLC or relevant Representatives should +take so that the Project's best interests are not compromised by personal +interests. + + +\subsection{General Policies for Representatives} +\begin{itemize} +\item \textbf{No Compensation for Representatives.} No Representative shall +receive any salary or other substantial benefit from Conservancy as +compensation for his or her duties as a Representative. +\item \textbf{Disclosure and Abstention when Conflicted.} Each Representative +shall disclose to his or her PLC and to Conservancy's Executive Director +any conflict of interest which he or she may have in any matter pending +before the PLC and shall refrain from participation in any decision +on such matter. +\item \textbf{Multiple Employees from the same Employer on a PLC. }Conservancy +discourages the practice of having multiple employees of the same +employer serve on the same PLC. This practice increases the impact +of any prospective conflict of interest with the employer on the PLC, +and PLCs will have to exercise greater care to avoid the influence +of the employer's interests. If this situation is unavoidable, PLCs +are encouraged to err on the side of caution in identifying all potential +conflicts of interest relating to the employer. +\item \textbf{Conservancy is Final Arbiter.} Each Representative acknowledges +that Conservancy is the final arbiter of any issue relating to potential +conflict. +\item \textbf{Project Conflict Disclosure Form. }Each Representative shall +complete a Project Conflict Disclosure form {[}FIXME: if this is posted +online, then we can have a link; if not, attach it as an Exhibit A{]} +and submit it to the PLC and to Conservancy's Executive Director on +an annual basis. +\end{itemize} + +\subsection{Conflict Resolution Procedures for Representatives} +\begin{itemize} +\item \textbf{Disclosure of Conflict When Present.} Prior to any PLC or +PLC sub-committee action on a matter or transaction involving a conflict +of interest, a Representative having a conflict of interest and who +is in attendance at the meeting shall disclose all facts material +to the conflict. Such disclosure shall be reflected in the minutes +of the meeting. +\item \textbf{Disclosure of Conflict When Absent. }A Representative who +plans not to attend a meeting at which he or she has reason to believe +that the PLC or PLC sub-committee will act on a matter in which he +or she is conflicted shall disclose to the Chair of the meeting all +facts material to the conflict of interest. The Chair shall report +the disclosure at the meeting and the disclosure shall be reflected +in the minutes of the meeting. +\item \textbf{Participation in Discussions and Votes Regarding Conflicted +Matter.} A conflicted Representative shall not participate in or be +permitted to hear the PLC's or PLC sub-committee's discussion of the +matter where he or she has a conflict of interest, except to disclose +material facts and to respond to questions. The conflicted Representative +shall not attempt to exert his or her personal influence with respect +to the matter, either at or outside the meeting. +\item \textbf{Participation in Votes Regarding Conflicted Matter.} A conflicted +Representative may not vote on the Board action with which he or she +has a conflict of interest, and shall not be present in the meeting +room (or on the conference call) when the vote is taken. His or her +ineligibility to vote shall be reflected in the minutes of the meeting. +\item \textbf{Conflicted Persons Cannot Establish Quorum.} A conflicted +Representative shall not be determining the presence of a quorum for +purposes of a vote on the matter where he or she has a conflict of +interest. +\end{itemize} + +\subsection{Procedures for Conservancy Retaining Representative's Services} + +Notwithstanding the above, Conservancy acknowledges that many Representatives +are software developers who can provide professional services useful +to advance computing and contribute to Conservancy's mission. In many +instances, a Representative will have the strongest mix of credentials, +experience, and available bandwidth to fulfill a software development +contract desired by Conservancy and/or a Project. To address those +instances, Conservancy requests Projects to follow the following procedures. +\begin{itemize} +\item \textbf{Drafting the Software Development Proposal.} PLCs must draft +a written proposal for every software development project their Project +wishes to fund. During the drafting process, if a Representative (or +family member of same), a Representative's employer and/or a fellow +employee of Representative's employer wish to be considered a candidate +to fulfill the funded software development contract, that Representative +has a conflict of interest and must recuse herself or himself from +the proposal drafting process, and abstain from any vote to approve +that proposal. All other procedures as outlined in Section 3.3 shall +still apply. The PLC must document the Representative's abstention +from the proposal drafting process in the minutes of the next PLC +meeting. +\item \textbf{Selecting a Representative to Fulfill a Contract. }Once a +PLC has drafted and approved a development proposal, the PLC is free +to consider qualified candidates to fulfill the funded contract. If +the PLC wishes to recommend that Conservancy contract with a Representative +to carry out the work, the following criteria must be met: + +\begin{itemize} +\item \textbf{Suggested Compensation.} The PLC must provide Conservancy's +Executive Director (or designee) with a suggested compensation (converted +into an hourly wage) for the software developer to be retained to +fulfill the funded contract. +\item \textbf{Independent Assessment of Credentials.} The PLC (or an unaffiliated +PLC member) must provide Conservancy's Executive Director (or designee) +with a written assessment as to why the Representative is uniquely +qualified to fulfill the funded contract. +\item \textbf{Conservancy Retains Right to Request Competitive Bids.} PLCs +acknowledge that Conservancy retains the right to ask for bids from +software developers in addition to Representative to fulfill a given +contract. Should that instance arise, Conservancy's Executive Director +(or designee) will consult with the PLC to select the candidate best +suited to fulfill the contract within the budget allotted. +\end{itemize} +\item \textbf{Conservancy holds Sole Authority to Negotiate and Execute +Contracts. }PLCs acknowledge that Conservancy holds sole authority +to negotiate and execute contracts on behalf of Member Projects. In +turn, Conservancy pledges to negotiate all contracts zealously, putting +the best interests of the affected Member Project first. To avoid +any conflicts, PLCs must not engage in any pre-negotiation with prospective +contractors - including Representatives - beyond collecting the terms +of the developer(s)' bid. +\end{itemize} + +\section{Project Community Members: Participating Corporations and Volunteers} + +The work accomplished by Conservancy and its Member Projects would +not be possible without the generous donation of time, funds, and +support Project Community Members - including participating corporations, +sponsors, and volunteers alike. Community members are not traditionally +considered to be ``interested persons,'' all decision-making authority +rests with the PLCs and/or Conservancy. +\begin{itemize} +\item \textbf{Community Members Cannot Direct Funds.} Community Members +are free to offer suggestions and engage in open dialogue with PLC, +key developers regarding a Project's technical direction. However, +each PLC and Conservancy must together maintain sole and final control +over that Project's technical direction and charitable mission. Community +Members who make financial donations do not receive any additional +control over a Project's technical direction beyond what is available +to other vocal, active, and contributing community members. \end{itemize} + +\end{document}