501 lines
23 KiB
Text
501 lines
23 KiB
Text
Software Freedom Conservancy Conflict of Interest Policy
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:Date: 1 March 2012
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== Purpose
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The purpose of this conflict of interest policy (``Policy'') is to protect
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the Software Freedom Conservancy (``Conservancy'') and its Member Projects
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when Conservancy contemplates entering into a transaction or arrangement
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that might benefit the private interest of a Director, Officer or Staff
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Member of Conservancy or a member of a Project Leadership Committee
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(``PLC''), or might otherwise result in a possible excess benefit
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transaction. This Policy is intended to supplement but not replace any
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applicable state and federal laws governing conflict of interest
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applicable to nonprofit and charitable organizations.
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== Conservancy Directors, Officers and Staff
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Directors, Officers and Staff Members of Conservancy (``Conservancy
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Persons'') each have a duty to protect Conservancy and its Member Projects
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from violating New York State and USA federal -- and to avoid any appearance of
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impropriety. Conservancy Persons serve the public interest and are to have
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a clear understanding of Conservancy's charitable mission. All decisions
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made by Conservancy 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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=== Defining a Conflict of Interest for a Conservancy Person
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In general, Conservancy Persons should avoid making decisions on matters
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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 as
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conflicts of interest:
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* A Conservancy Person (or his or her family member) is a party to a
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contract, or involved in a transaction with Conservancy for goods
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or services.
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* A Conservancy Person (or his or her family member) is a director,
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officer, agent, partner, associate, employee, trustee, personal
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representative, receiver, guardian, custodian, legal representative or in
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some other way has a fiduciary duty to an entity involved in a transaction
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with Conservancy.
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* A Conservancy Person (or his or her family member) is engaged in a substantial
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capacity or has a material financial interest in a for-profit enterprise
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that competes with Conservancy or a Conservancy Project.
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* A Conservancy Person (or his or her family member) has a material
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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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* A Conservancy Person (or his or her family member) has a material
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financial interest in or fiduciary duty to the competitor of an entity
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Conservancy has engaged in a free software license compliance effort,
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enforcement effort, or related litigation on behalf of a Conservancy
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project.
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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 make
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a decision as to what (if any) course of action Conservancy or relevant
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Conservancy Persons should take so that Conservancy's best interests are
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not compromised by personal interests.
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=== General Policies for Conservancy Persons
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* *No Personal Profit or Gain.* No Conservancy Person (or family
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member) shall derive any personal profit or gain, directly or indirectly,
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by reason of his or her participation with Conservancy. Personal profit
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or gain does not include compensation approved by the Board for paid
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employees, or reimbursement of legitimate Conservancy expenses.
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* *Disclosure and Abstention when Conflicted.* Each Conservancy
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Person shall disclose to Conservancy's Board any conflict of interest
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which he or she may have in any matter pending before Conservancy
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and shall refrain from participation in any decision on such matter.
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* *Conservancy Conflict Disclosure Form.* Every six months, each
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Conservancy Person shall complete a Conservancy Conflict Disclosure
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form <<Exhibit-A,attached as Exhibit A>> and submit it to the Board and to
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Conservancy's General Counsel.
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=== Conflict Resolution Procedures for Conservancy Persons
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* *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 Person having a conflict of interest and
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who 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. If board members are aware that Staff or other volunteers
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have a conflict of interest, relevant facts should be disclosed by
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the board member or by the interested person him/herself if invited
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to the Board meeting as a guest for purposes of disclosure.
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* *Disclosure of Conflict When Absent.* A Conservancy Person
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who plans not to attend a meeting at which he or she has reason to
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believe that the Board or Board Committee will act on a matter in
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which he or she is conflicted shall disclose to the Chair of the meeting
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all facts material to the conflict of interest. The Chairperson shall
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report 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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* *Participation in Discussions and Votes Regarding Conflicted Matter.*
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On a matter in which a Conservancy Person has a conflict of interest, the
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conflicted Conservancy Person must abstain from, and must not hear nor
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read the pre-vote discussions of the matter by the Board or Board
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Committee, except to disclose material facts and to respond to
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questions. The conflicted Conservancy Person shall not attempt to exert
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his or her personal influence with respect to the matter, either at or
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outside the meeting. The Conflicted Person may read minutes and/or
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logs of the matter's discussion after voting is complete.
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* *Participation in Votes Regarding Conflicted Matter.* A conflicted
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Conservancy Person may not vote on the Board action with which he
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or she has a conflict of interest, and shall not be present in the
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meeting room (or on the conference call) when the vote is taken. His
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or her ineligibility to vote shall be reflected in the minutes of
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the meeting.
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* *Conflicted Persons Cannot Establish Quorum.* A conflicted
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Conservancy Person shall not be determining the presence of a quorum
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for purposes of a vote on the matter where he or she has a conflict
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of interest.
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* *Managing an Officer's Conflict of Interest.* If a Conservancy
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Person is an Officer involved in a decision, matter or transaction
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in which he or she has a conflict of interest, he or she must immediately
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disclose all facts material to the conflict to the Chair of the Board
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(or the Chair's designee). The Board must then approve any future
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decisions, negotiations, and/or other actions taken by the Officer
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regarding the conflicted matter, and include the person's disclosure
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of the conflict and the Board's subsequent actions in the minutes
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of the next meeting.
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* *Managing a Staff Member's Conflict of Interest.* If a Conservancy
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Person is a Staff Member who has been assigned duties that involve
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a decision, matter or transaction in which he or she has a conflict
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of interest, he or she must immediately disclose all facts material
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to the conflict to the President (or the President's designee). The
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President (or designee) must then approve any future decisions, negotiations,
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and/or other actions taken by the Staff Member regarding the conflicted
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matter, and file a written report acknowledging the potential conflict.
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* *Confidentiality of Conflict Disclosures.* Each Conservancy
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Person shall exercise care not to disclose confidential information
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acquired in connection with disclosures of conflicts of interest or
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potential conflicts, which might be adverse to Conservancy's interests.
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\end{itemize}
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== 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 (``PLC Persons''). Conservancy understands and
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expects that many PLC Persons exploit professional skills relating
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to their Project as individuals by providing developing, consulting,
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and/or training services. Nonetheless, each PLC Person has a duty
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to act in the best interests of his or her Project when making technical
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decisions about the Project.
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=== Defining a Conflict of Interest for a PLC Person
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In general, PLC Persons should avoid making technical decisions on
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matters where his or her 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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* A PLC Person (or his or her family member) 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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* A PLC Person (or his or her family member) is an employee, owner,
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or otherwise has a financial interest in an entity involved in a transaction
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with Conservancy relating to his or her Project.
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* A PLC Person (or his or her family member) is a director, officer,
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agent, partner, associate, trustee, receiver, guardian, personal representative,
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custodian, legal representative or in some way has a fiduciary duty
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to an entity involved in a transaction with Conservancy relating to
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his or her Project.
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* A PLC Person (or his or her family member) is engaged in a substantial capacity
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or has a material financial interest in a for-profit enterprise that
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competes with his or her Project.
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* A PLC Person (or his or her family member) 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 PLC Person (or a family member)
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has a material financial interest in or fiduciary duty to an entity
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adverse to this effort.
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Conservancy further notes that a scenario may arise where a PLC Person
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(or his or her family member) works for, owns, or otherwise has a
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financial interest in an entity that competes with a second entity
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involved in a transaction with Conservancy regarding the Project in
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question. This may or may not result in a conflict of interest, depending
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on the specific facts. Should this scenario arise, Conservancy requests
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that the circumstances be disclosed to Conservancy's Executive Director
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and to the PLC.
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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 PLC Persons should take
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so that the Project's best interests are not compromised by personal
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interests.
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=== General Policies for PLC Persons
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* *No Compensation for PLC Persons.*
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No PLC Person shall receive any salary or other substantial benefit from
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Conservancy as compensation for his or her duties as a PLC Person.
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Compensation does not include reimbursement of legitimate Project
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expenses.
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* *Disclosure and Abstention when Conflicted.* Each PLC Person
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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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* *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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* *Conservancy is Final Arbiter.* Each PLC Person 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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* *Project Conflict Disclosure Form.* Each PLC Person shall complete
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a Project Conflict Disclosure form <<Exhibit-B,Attached as Exhibit B>> and
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submit it to the PLC and to Conservancy's Executive Director on an
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annual basis.
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[[Procedures-PLC-Persons]]
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=== Conflict Resolution Procedures for PLC Persons
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* *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 PLC Person having a conflict of interest and who is
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in attendance at the meeting shall disclose all facts material to
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the conflict. Such disclosure shall be reflected in the minutes of
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the meeting.
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* *Disclosure of Conflict When Absent.* A PLC Person who plans
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not to attend a meeting at which he or she has reason to believe that
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the PLC or PLC sub-committee will act on a matter in which he or she
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is conflicted shall disclose to the Chair of the meeting all facts
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material to the conflict of interest. The Chair shall report the disclosure
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at the meeting and the disclosure shall be reflected in the minutes
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of the meeting.
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* *Participation in Discussions and Votes Regarding Conflicted Matter.*
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On a matter in which a PLC Person has a conflict of interest, the
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conflicted PLC Person must abstain from, and must not hear nor
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read the pre-vote discussions of the matter by the PLC or PLC
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sub-committee, except to disclose material facts and to respond to
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questions. The conflicted PLC Person shall not attempt to exert
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his or her personal influence with respect to the matter, either at or
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outside the meeting. The conflicted PLC Person may read minutes and/or
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logs of the matter's discussion after voting is complete.
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* *Participation in Votes Regarding Conflicted Matter.* A conflicted
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PLC Person may not vote on the PLC action with which he or she has
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a conflict of interest, and shall not be present in the meeting room
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(or on the conference call) when the vote is taken. His or her ineligibility
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to vote shall be reflected in the minutes of the meeting.
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* *Conflicted Persons Cannot Establish Quorum.* A conflicted
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PLC Person shall not be determining the presence of a quorum for purposes
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of a vote on the matter where he or she has a conflict of interest.
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=== Procedures for Conservancy Retaining PLC Person's Services
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Notwithstanding the above, Conservancy acknowledges that many PLC
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Persons are software developers who can provide professional services
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useful to advance computing and contribute to Conservancy's mission.
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In many instances, a PLC Person will have the strongest mix of credentials,
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experience, and interest and availability 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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* *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 PLC Person (or his
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or her family member), a PLC Person's employer and/or a fellow employee
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of PLC Person's employer wish to be considered a candidate to fulfill
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the funded software development contract, that PLC Person has a conflict
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of interest and must recuse herself or himself from the proposal drafting
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process, except to disclose material facts and to respond to questions,
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and must abstain from any vote to approve that proposal. All other
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procedures as outlined in <<Procedures-PLC-Persons,_Conflict Resolution Procedures for PLC Persons_>> shall still apply. The PLC must
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document the PLC Person's abstention from the proposal drafting process
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in the minutes of the next PLC meeting.
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* *Selecting a PLC Person to Fulfill a Contract.* Once a PLC
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has drafted and approved a development proposal, the PLC is free to
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consider qualified candidates to fulfill the funded contract. If the
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PLC wishes to recommend that Conservancy contract with a PLC Person
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to carry out the work, the following criteria must be met:
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** *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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** *Independent Assessment of Credentials.* The PLC (or an unaffiliated
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PLC Person) must provide Conservancy's Executive Director (or designee)
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with a written assessment as to why the PLC Person is uniquely qualified
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to fulfill the funded contract.
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** *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 PLC Person to fulfill a given contract.
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Should that instance arise, Conservancy's Executive Director (or designee)
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will consult with the PLC to select the candidate best suited to fulfill
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the contract within the budget allotted.
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* *Conservancy holds Sole Authority to Negotiate and Execute Contracts.*
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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 PLC Persons -- beyond collecting the terms
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of the developer(s)' bid.
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== 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,'' and all decision-making
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authority rests with the PLCs and/or Conservancy.
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* *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.
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[[Exhibit-A]]
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== Exhibit A: Conservancy Conflict Disclosure Form
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Directors, Officers and Staff Members of Conservancy each have a duty
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to protect Conservancy and its Member Projects from violating state
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and federal laws -- and to avoid any appearance of impropriety. Conservancy
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Persons serve the public interest and are to have a clear understanding
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of Conservancy's charitable mission. All decisions made by Conservancy
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Persons are to be made solely on the basis of a desire to promote
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the best interests of Conservancy and the public good.
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This Form is to be completed every six months and submitted to the
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Chairperson of Conservancy's Board and to Conservancy's General Counsel.
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Date: +++__________________________+++
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Next Form to be completed by (six months from now):
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Name: +++__________________________+++
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Date: +++__________________________+++
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Position (employee/officer/trustee): +++_________________________________+++
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I affirm the following:
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* I have received a copy of the Software Freedom Conservancy Conflict
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of Interest Policy. +++__________________+++ (initial)
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* I have read and understand the policy. +++_________+++ (initial)
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* I agree to comply with the policy. +++_________+++ (initial)
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* I understand that Conservancy is a public charity and in order to
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maintain its federal tax exemption it must engage primarily in activities
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which accomplish one or more of tax-exempt purposes. +++_________+++ (initial)
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.Disclosures:
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Please describe below any relationships, transactions, positions you
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(or your family member) hold, or any other circumstances that you
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believe could cause a conflict of interest as defined by the Policy
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between your duty to Conservancy and your personal interests, financial
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or otherwise:
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+++________+++ I have no conflicts to report
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+++________+++ I have the following conflicts and/or potential conflicts
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to report:
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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I hereby certify that the information set forth is true and complete
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to the best of my knowledge.
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Signature: +++______________________________________+++
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Date: +++_________________+++
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[[Exhibit-B]]
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== Exhibit B: Project Leadership Committee Conflict Disclosure Form
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Each volunteer, academic and/or industry professional that serves
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on a Conservancy Member Project's Project Leadership Committee (PLC)
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have a duty to act in the best interests of his or her Project when
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making decisions about the Project's technical direction. Every committee
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member must also abide by New York State and USA federal laws associated with non-profit
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organizational governance.
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Committee members must complete this form annually and submit it to
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his or her PLC and to Conservancy's Executive Director.
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Date: +++_____________+++
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Next Form to be completed by (one year from now): +++___________+++
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Name: +++____________________________________+++
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Date: +++____________________+++
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Position (if applicable): +++________________________________+++
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Employer (if student or self-employed, please indicate): +++________________________________+++
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I affirm the following:
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* I have received a copy of the Software Freedom Conservancy Conflict
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of Interest Policy. +++_________+++ (initial)
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* I have read and understand the policy, in particular, Section 3 (relating
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to PLCs). +++_________+++ (initial)
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* I agree to comply with the policy. +++_________+++ (initial)
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* I understand that Conservancy is a public charity and in order to
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maintain its federal tax exemption it must engage primarily in activities
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which accomplish one or more of tax-exempt purposes. +++_________+++ (initial)
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.Disclosures:
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Please describe below any relationships, transactions, positions you
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(or your family member) hold, or any other circumstances that you
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believe could cause a conflict of interest as defined by the Policy
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between your duty to your Project and your personal interests, financial
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or otherwise:
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+++________+++ I have no conflicts to report
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+++________+++ I have the following conflicts and/or potential conflicts
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to report:
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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+++____________________________________________________________________________+++
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I hereby certify that the information set forth is true and complete
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to the best of my knowledge.
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Signature: +++________________________________________+++
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Date: +++____________________________________+++
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