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