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Software Freedom Conservancy Conflict of Interest Policy

Purpose

The purpose of this conflict of interest policy ("Policy") is to protect the Software Freedom Conservancy ("Conservancy") and its Member Projects when Conservancy contemplates entering into a transaction or arrangement that might benefit the private interest of a Director, Officer or Staff Member of Conservancy or a member of a Project Leadership Committee ("PLC"), or might otherwise 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.

Conservancy Directors, Officers and Staff

Directors, Officers and Staff Members of Conservancy ("Conservancy Persons") each have a duty to protect Conservancy and its Member Projects from violating New York State and USA federal -- and to avoid any appearance of impropriety. Conservancy Persons serve the public interest and are to have a clear understanding of Conservancy's charitable mission. All decisions made by Conservancy Persons are to be made solely on the basis of a desire to promote the best interests of Conservancy and the public good.

Defining a Conflict of Interest for a Conservancy Person

In general, Conservancy 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:

A Conservancy Person (or his or her family member) is a party to a contract, or involved in a transaction with Conservancy for goods or services.
A Conservancy Person (or his or her family member) 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.
A Conservancy Person (or his or her family member) is engaged in a substantial capacity or has a material financial interest in a for-profit enterprise that competes with Conservancy or a Conservancy Project.
A Conservancy Person (or his or her family member) 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.
A Conservancy Person (or his or her family member) 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.

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 Persons should take so that Conservancy's best interests are not compromised by personal interests.

General Policies for Conservancy Persons

No Personal Profit or Gain. No Conservancy Person (or family member) shall derive any personal profit or gain, directly or indirectly, by reason of his or her participation with Conservancy. Personal profit or gain does not include compensation approved by the Board for paid employees, or reimbursement of legitimate Conservancy expenses.
Disclosure and Abstention when Conflicted. Each Conservancy 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.
Conservancy Conflict Disclosure Form. Every six months, each Conservancy Person shall complete a Conservancy Conflict Disclosure form attached as Exhibit A and submit it to the Board and to Conservancy's General Counsel.

Conflict Resolution Procedures for Conservancy Persons

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 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.
Disclosure of Conflict When Absent. A Conservancy 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.
Participation in Discussions and Votes Regarding Conflicted Matter. On a matter in which a Conservancy Person has a conflict of interest, the conflicted Conservancy Person must abstain from, and must not hear nor read the pre-vote discussions of the matter by the Board or Board Committee, except to disclose material facts and to respond to questions. The conflicted Conservancy Person shall not attempt to exert his or her personal influence with respect to the matter, either at or outside the meeting. The Conflicted Person may read minutes and/or logs of the matter's discussion after voting is complete.
Participation in Votes Regarding Conflicted Matter. A conflicted Conservancy 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.
Conflicted Persons Cannot Establish Quorum. A conflicted Conservancy 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.
Managing an Officer's Conflict of Interest. If a Conservancy 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.
Managing a Staff Member's Conflict of Interest. If a Conservancy 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 President (or the President's designee). The President (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.
Confidentiality of Conflict Disclosures. Each Conservancy 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.

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 ("PLC Persons"). Conservancy understands and expects that many PLC Persons exploit professional skills relating to their Project as individuals by providing developing, consulting, and/or training services. Nonetheless, each PLC Person has a duty to act in the best interests of his or her Project when making technical decisions about the Project.

Defining a Conflict of Interest for a PLC Person

In general, PLC Persons should avoid making technical decisions on matters where his or her 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:

A PLC Person (or his or her family member) is a party to a contract, or involved in a transaction with Conservancy for goods or services relating to his or her Project.
A PLC Person (or his or her family member) is an employee, owner, or otherwise has a financial interest in an entity involved in a transaction with Conservancy relating to his or her Project.
A PLC Person (or his or her family member) is a director, officer, agent, partner, associate, trustee, receiver, guardian, personal representative, 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.
A PLC Person (or his or her family member) is engaged in a substantial capacity or has a material financial interest in a for-profit enterprise that competes with his or her Project.
A PLC Person (or his or her family member) is the owner of copyrights that are the subject of a Conservancy-led compliance effort, enforcement effort, or related litigation -- and the PLC Person (or a family member) has a material financial interest in or fiduciary duty to an entity adverse to this effort.

Conservancy further notes that a scenario may arise where a PLC Person (or his or her family member) works for, owns, or otherwise has a financial interest in an entity that competes with a second entity involved in a transaction with Conservancy regarding the Project in question. This may or may not result in a conflict of interest, depending on the specific facts. Should this scenario arise, Conservancy requests that the circumstances be disclosed to Conservancy's Executive Director and to the PLC.

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 PLC Persons should take so that the Project's best interests are not compromised by personal interests.

General Policies for PLC Persons

No Compensation for PLC Persons. No PLC Person shall receive any salary or other substantial benefit from Conservancy as compensation for his or her duties as a PLC Person. Compensation does not include reimbursement of legitimate Project expenses.
Disclosure and Abstention when Conflicted. Each PLC Person 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.
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.
Conservancy is Final Arbiter. Each PLC Person acknowledges that Conservancy is the final arbiter of any issue relating to potential conflict.
Project Conflict Disclosure Form. Each PLC Person shall complete a Project Conflict Disclosure form attached as Exhibit B and submit it to the PLC and to Conservancy's Executive Director on an annual basis.

Conflict Resolution Procedures for PLC Persons

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 PLC 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.
Disclosure of Conflict When Absent. A PLC Person 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.
Participation in Discussions and Votes Regarding Conflicted Matter. On a matter in which a PLC Person has a conflict of interest, the conflicted PLC Person must abstain from, and must not hear nor read the pre-vote discussions of the matter by the PLC or PLC sub-committee, except to disclose material facts and to respond to questions. The conflicted PLC Person shall not attempt to exert his or her personal influence with respect to the matter, either at or outside the meeting. The conflicted PLC Person may read minutes and/or logs of the matter's discussion after voting is complete.
Participation in Votes Regarding Conflicted Matter. A conflicted PLC Person may not vote on the PLC 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.
Conflicted Persons Cannot Establish Quorum. A conflicted PLC 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.

Procedures for Conservancy Retaining PLC Person's Services

Notwithstanding the above, Conservancy acknowledges that many PLC Persons are technical service contractors (e.g., software developers, documentation writers, website developers, etc.) who can provide professional services useful to advance computing and contribute to Conservancy's mission. In many instances, a PLC Person will have the strongest mix of credentials, experience, and interest and availability to fulfill a technical service contract desired by Conservancy and/or a Project. To address those instances, Conservancy requests Projects to follow the following procedures.

Drafting the Technical Service Proposal. PLCs must draft a written proposal for every technical service project their Project wishes to fund. During the drafting process, if a PLC Person (or his or her family member), a PLC Person's employer and/or a fellow employee of PLC Person's employer wish to be considered a candidate to fulfill the funded technical service contract, that PLC Person has a conflict of interest and must recuse herself or himself from the proposal drafting process, except to disclose material facts and to respond to questions, and must abstain from any vote to approve that proposal. All other procedures as outlined in Conflict Resolution Procedures for PLC Persons shall still apply. The PLC must document the PLC Person's abstention from the proposal drafting process in the minutes of the next PLC meeting.
Selecting a PLC Person to Fulfill a Contract. Once a PLC has drafted and approved a technical service 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 PLC Person to carry out the work, the following criteria must be met:
- Suggested Compensation. The PLC must provide Conservancy's Executive Director (or designee) with a suggested compensation (converted into an hourly wage) for the technical service contractor to be retained to fulfill the funded contract.
- Independent Assessment of Credentials. The PLC (or an unaffiliated PLC Person) must provide Conservancy's Executive Director (or designee) with a written assessment as to why the PLC Person is uniquely qualified to fulfill the funded contract.
- Conservancy Retains Right to Request Competitive Bids. PLCs acknowledge that Conservancy retains the right to ask for bids from technical service contractors in addition to PLC Person 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.
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 technical service contractors -- including PLC Persons -- beyond collecting the terms of the technical service contractor(s)' bid.

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," and all decision-making authority rests with the PLCs and/or Conservancy.

Community Members Cannot Direct Funds. Community Members are free to offer suggestions and engage in open dialogue with PLCs and/or key developers and architects 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.

Exhibit A: Conservancy Conflict Disclosure Form

Directors, Officers and Staff Members of Conservancy 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 Persons serve the public interest and are to have a clear understanding of Conservancy's charitable mission. All decisions made by Conservancy Persons are to be made solely on the basis of a desire to promote the best interests of Conservancy and the public good.

This Form is to be completed every six months and submitted to the Chairperson of Conservancy's Board and to Conservancy's General Counsel.

Date: __________________________

Next Form to be completed by (six months from now): __________________

Name: __________________________

Position (employee/officer/trustee): _________________________________

I affirm the following:

I have received a copy of the Software Freedom Conservancy Conflict of Interest Policy. __________________ (initial)
I have read and understand the policy. _________ (initial)
I agree to comply with the policy. _________ (initial)
I understand that Conservancy is a public charity and in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of tax-exempt purposes. _________ (initial)

Disclosures:

Please describe below any relationships, transactions, positions you (or your family member) hold, or any other circumstances that you believe could cause a conflict of interest as defined by the Policy between your duty to Conservancy and your personal interests, financial or otherwise:

________ I have no conflicts to report

________ I have the following conflicts and/or potential conflicts to report:

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

I hereby certify that the information set forth is true and complete to the best of my knowledge.

Signature: ______________________________________

Date: _________________

Exhibit B: Project Leadership Committee Conflict Disclosure Form

Each volunteer, academic and/or industry professional that serves on a Conservancy Member Project's Project Leadership Committee (PLC) have a duty to act in the best interests of his or her Project when making decisions about the Project's technical direction. Every committee member must also abide by New York State and USA federal laws associated with non-profit organizational governance.

Committee members must complete this form annually and submit it to his or her PLC and to Conservancy's Executive Director.

Date: _____________

Next Form to be completed by (one year from now): ___________

Name: ____________________________________

Date: ____________________

Position (if applicable): ________________________________

Employer (if student or self-employed, please indicate): ________________________________