SUO: FW: Gathering questions and issues with IEEE motion
SUO WG,
Lowell Johnson advises that the first level of appeal is to him, as
SAB Chair. I'm starting to draft these up and will copy this list as I
submit them.
Jim Schoening
-----Original Message-----
From: Johnson, Lowell G [mailto:Lowell.Johnson@UNISYS.com]
Sent: Monday, January 21, 2002 12:54 PM
To: 'Schoening, James R CECOM DCSC4I'
Subject: RE: Gathering questions and issues with IEEE motion
Jim,
I am at work this week (temporarily).
First level appeal is to me as SAB chair.
If you have more than one issue, develop each separately.
It is possible some may succeed and some fail.
State the problem, the basis for your appeal, and precisely what action
will cause your appeal to be withdrawn.
Call me if you want to talk. (and send your phone $).
Lowell
-----Original Message-----
From: Schoening, James R CECOM DCSC4I
[mailto:James.Schoening@mail1.monmouth.army.mil]
Sent: Monday, January 21, 2002 11:39 AM
To: Lowell G Johnson (E-mail)
Subject: FW: Gathering questions and issues with IEEE motion
Lowell,
I'd like to proceed with an appeal, or whatever others means is
available to address some concerns, which I've written up below. I'll try
to reach you at for how and who to submit this to.
Jim
-----Original Message-----
From: Schoening, James R CECOM DCSC4I
[mailto:James.Schoening@mail1.monmouth.army.mil]
Sent: Saturday, January 19, 2002 7:26 AM
To: Standard-Upper-Ontology (E-mail)
Subject: SUO: Gathering questions and issues with IEEE motion
SUO Members,
Regarding the IEEE-SA BoG motion I just forwarded, here's a starter
list of questions and concerns I'm planning to forward back up the chain.
Please submit your comments and edits.
ATTN: Mr. Lowell Johnson, Chair, CS Standards Activity Board:
1. This guidance itself has differing statements on what constitutes a
majority. It's clear abstentions would be counted, but are non-votes also
counted? In an email vote, is everyone considered present, since the ballot
was sent to everyone? Some non-voters did acknowledge receipt of the ballot
or were active on the listserv during this period, but a few showed no sign
of receipt. Background:
a. IEEE Bylaws Section I-300, subsection 4 relating to Board of
Directors and Committee actions: "Unless otherwise provided in the
Certificate of Incorporation, the Constitution, these Bylaws, or the
Not-For-Profit Corporation Law of the State of New York, the vote of a
majority of the votes of the members present and entitled to vote, at the
time of the vote, provided a quorum is present, shall be the act of the
Board of Directors, any Committee thereof, or the Major Board, or any
committees of the forgoing."
b. Section 613 of the New York Not-for-Profit Corporation Law:
Sec. 613. Vote of members.
a) Except as otherwise required by
this chapter or by the certificate of incorporation or the by-laws as
permitted by this chapter, directors shall be elected by a plurality of
the votes cast at a meeting of members by the members entitled to vote in
the election.
b) Whenever any corporate action, other
than the election of directors, is to be taken under this chapter by vote of
the members, it shall, except as otherwise required by this chapter or by
the certificate of incorporation or by by-laws as permitted by this chapter,
be authorized by a majority of the votes cast at a meeting of members by the
members entitled to vote thereon.
c) Except as provided in paragraph (b),
any reference in this chapter to corporate action at a meeting of members by
"majority vote" or "two-thirds vote" shall require the action to be taken by
such proportion of the votes cast at such meeting, provided that the
affirmative votes cast in favor of any such action shall be at least equal
to the quorum. Blank votes or abstentions shall not be counted in the
number of votes cast.
c. The Dorsey and Whitney opinion stated: "Mr. Smith advised
Messrs. Spillers and Schoening that the
motion failed because the affirmative votes did not constitute a majority
(i.e., 22) of the total number of the ballots cast." [This would mean
non-votes are not counted. ]
2. Does this motion apply to just the vote on introducing the SUMO starter
document, or should it also apply to another vote by this working group, on
on introducing the "IFF" starter document? If so, the discrepancy described
in item #1 1 above comes into play:
a. SUMO votes were: Y=17, N=16, Abstain=9, No Vote=5; 42 voted but
47 were entitled to vote at the time. Do we need a majority of 42 or 47.
Either way, SUMO did not pass.
b. IFF votes were Y=18, N=6, Abstain=9, No Vote=17; 33 voted but
50 were entitled to vote at the time of this vote. Do we need a majority of
33 or 50? 18 Yes votes was a majority of 33 but not of 50. A few entitled
voters may not have received the ballots, but this would not come close to
allowing this to pass.
3. Why has this rule seemingly been applied only to the the vote on the SUMO
document? Is it because this is a direct response to Bob Spiller's request?
Couldn't it be argued this is a form of an appeal? IF so, why weren't key
stakeholders informed of this meeting and given a chance to be heard? Does
this violate Due Process or Fairness? The IEEE-SA BoG clearly has the
authority to disband this working group, but do they have the authority to
direct it to take actions that would violate Due Process? As chair, I
believe this violates Due process, which I am concerned could create a
liability for IEEE and possibly myself. Therefore, I request a legal
opinion and clear guidance, through proper channels, that this action would
not violate anything.
4. Problem with Dorsey and Whitnet legal opinion: It statess: "The
participants in our call also noted that no voting rules for Standards
working groups are specified in the IEEE Bylaws or the IEEE-SA Standards
Board Bylaws or Operations Manuals." It fails to consider the IEEE
Computer Society Standards Activity Board Policies and Procedures direct
working groups to function under Roberts Rules of Order, which provide clear
voting rules. Request this legal opinion be updated to recognize and factor
in this key information. If this changes anything significant, we request
IEEE-SA BoG reconsider this matter.
5. On Jan 15, 2002, Adam Pease, Teknowledge Corp., a SUO WG member, sent me
a legal opinion on this matter (inserted below). We request Dorsey and
Whitney respond to this opinion. If this changes anything significant, we
request IEEE-SA BoG reconsider this matter.
[I'm sure there's more issues and questions, but this is all I have at the
moment.]
Please submit your edits, quesitons, concerns, etc.
Jim Schoening
================================
Inserted Copy of Tecknowledge Legal Opinion:
January 15, 2002
Adam Pease
Teknowledge Corporation
1810 Embarcadero Road
Palo Alto, CA 94303
RE: Memorandum on IEEE Working Group Vote
Dear Adam:
The question presented is whether a vote taken in connection with an e-mail
ballot conducted by the P1600.1 Standard Upper Ontology Working Group (the
"Working Group") to determine whether a document should become a base
document should be conducted, and the definition of majority interpreted,
under Robert's Rules of Order or the New York Not-for-Profit Corporation
Law.
In reviewing the instant issue, it will be necessarily to review the
linkages and chain of authority of the various documents flowing down to the
Working Group from the superior entities within the IEEE and ultimately the
State of New York.
Bottom Up
The Working Group reports to Computer Society / Standards Coordinating
Committee (the "Sponsor"). The Sponsor reports to the Standards Activity
Board of the IEEE Computer Society (the "Minor Board"). The Minor Board
reports to the Computer Society Board of Governors (the "Society"). The
Society reports to the Standards Association (the "Major Board"). The Major
Board reports to the IEEE (the "Organization"). The Organization is
established under the laws of the State of New York.
The Working Group is particularly subject to the Policies and Procedures of
the IEEE Computer Society Standards Activities Board 1998 Policies and
Procedures <http://computer.org/standards/orient/p&ptoc.htm>, which provides
a provision precedence of documents to used in the interpretation of
provisions and the resolution of conflicts between inconsistent provisions.
The precedence of documents will provide the roadmap for the review at hand.
Specifically, the Standards Activities Board Policies and Procedures,
Section 2 provides:
In the event of inconsistencies between two or more of the
above documents, the document (indicated by earlier appearance on the
following list) shall take precedence:
1. IEEE Bylaws
2. IEEE Standards Association Bylaws
3. IEEE Standards Association Operations Manual
4. IEEE-SA Standards Board Bylaws
5. IEEE Policies and Procedures Manual, Section
8
6. IEEE Board of Directors Resolutions
7. IEEE-SA Standards Board of Operations Manual
8. IEEE CS Constitution and Bylaws
9. IEEE CS Policies and Procedures, Section 11
10. IEEE Board of Governors Resolutions
11. IEEE CS SAB P&P
12. Robert's Rules of Order
13. Sponsor Policies and Procedures
14. Working Group or Study Group Policies and
Procedures
In the instant situation, several additional items are applicable that are
not listed, and several listed items are inapplicable. For instance, the
IEEE Bylaws receive their authority from the IEEE Constitution, which was
drafted in accordance with the New York Not-for-Profit Corporation Law.
Consequently, these documents will be included for the purposes of this
analysis. Conversely, the Sponsor Policies and Procedures (item 13) in this
case refers to Computer Society Policies and Procedures, and to the extent
that they reference Section 11, are redundant with item 9. Consequently,
since this analysis only refers to the relevant Section 11, item 13 will be
deleted and item 9 will retain its order of precedence. Additionally, no
IEEE Board of Governors Resolutions or IEEE Board of Directors Resolutions
pertain to the issue at hand, and consequently will not be included in this
analysis. Consequently, the revised order of precedence is:
1. New York Not-for-Profit Corporation Law
2. IEEE Constitution
3. IEEE Bylaws
4. IEEE Standards Association Bylaws
5. IEEE Standards Association Operations Manual
6. IEEE-SA Standards Board Bylaws
7. IEEE Policies and Procedures Manual, Section
8
8. IEEE-SA Standards Board of Operations Manual
9. IEEE CS Constitution and Bylaws
10. IEEE CS Policies and Procedures, Section 11
11. IEEE CS SAB P&P
12. Robert's Rules of Order
So, working from the bottom up, we look at Robert's Rules of Order.
Robert's Rules of Order contains provisions that determine how to determine
what constitutes a majority vote. Consequently, by the authority granted in
the IEEE CS SAB P&P, this provision would prevail.
Next, we look at the IEEE CS SAB P&P to determine if there is anything
contradictory.
Section 1.1 states the purpose of the SAB:
"Standards development activities in the IEEE CS are the
responsibility of the SAB and comply with the policies and procedures of the
documents listed below. Additional policies and procedures, when necessary,
are defined in this document."
Consequently, by the authority of the Computer Society, the Standards
Activity Board is charged with the responsibility of ensuring that the
Working Group follows, among other items, and notwithstanding any direction
to the contrary in a document of higher precedence, Robert's Rules of Order
in its development of the draft standard.
The Standards Committee Organization and Procedures are outlined in Section
4 as follows:
4.0 CS Standards Committee Organization and Procedures
4.1 Overview
The IEEE standards development process
includes two volunteer groups: a Sponsor, who supervises all phases of the
development and maintenance of a standard, and a standards developing
committee such as a WG or SG, which is responsible to the Sponsor, and which
develops the draft standard. A draft standard is forwarded to the IEEE
Standards Board by the Sponsor for action once it has met the IEEE approval
criteria.
4.2 Use of Robert's Rules of Order
CSSCs shall operate under Robert's Rules of
Order, Newly Revised.
4.5 Quorum
The default quorum for CSSCs shall be
one-half (50%) of the voting membership.
Therefore, under the IEEE SAB P&P, the Working Group and the Sponsor are
directed to follow Robert's Rules of Order, with the proviso that a quorum
shall consist of one-half of the voting membership.
The Standards Activities Board references its authority to so direct in
Section 5 of the IEEE SAB P&P:
5.2 Responsibilities of the SAB
As established in Section 1 of Article XI of
the IEEE CS Constitution and Bylaws [Ref. 6], the SAB is responsible for:
recommending to the CS Board of Governors all policies and practices with
respect to standards; oversight responsibility for all standards activities
to assure conformance to approved policies and procedures; and to provide
guidance and resolution of issues in areas not specifically covered by the
policies and procedures.
Specifically, with regard to Sponsors:
6.1 Sponsor Scope
Each Sponsor shall have a scope approved by
the SAB.
6.2 Standards Development Process [Informative]
The Standards Development Process should
normally consist of: optional SG operation not to exceed six (6) months;
PAR approval by the Sponsor; PAR approval by the IEESB; WG development of a
draft standard; approval to ballot by the Sponsor; recirculation/negative
ballot resolution by the WG as necessary; RevCom submission approval by the
Sponsor; and standard approval by the IEEESB.
The only direct reference to Working Group Procedures are found in Section
7, and only pertain to the fact that the Chair, and Vice-Chair of Working
Groups shall be IEEE or CS-affiliate members.
In following the roadmap laid out in the IEEE CS SAB P&P, we next look at
Section 11 of the IEEE CS Policies and Procedures. This section outlines
the procedures by which draft standards developed within the Computer
Society are submitted to the IEEE Standards Board, in order to be approved,
adopted and published as IEEE Standards. This Section further states that
as far as the relationship of the Computer Society to IEEE Standards Board
is concerned, the policies and procedures of Section 11 as established by
the SAB operate within the scope of the IEEE Bylaws.
The Standards Activities Board claim of authority in Section 5 of the IEEE
SAB P&P is confirmed in Article X of the Computer Society Bylaws which that:
"The Standards Activities Board shall formulate the policies
and practices with respect to standards, and monitor all standards
activities to assure conformance to approved policies and practices."
The Computer Society itself is organized within the IEEE, and is obligated
under Article II, Section of the Computer Society Constitution to operate
within the IEEE constitution and bylaws and within such other policies and
procedures that are authorized under these documents.
Having established the operating protocols at the Working Group, Sponsor,
Minor Board and Society levels, we move up to the Major Board level, whose
controlling documents are the IEEE Standards Association Bylaws, IEEE
Standards Association Operations Manual, IEEE-SA Standards Board Bylaws, and
IEEE-SA Standards Board of Operations Manual. We will also take a brief
detour to the organization level with IEEE Policies and Procedures Manual,
Section 8
IEEE-SA Standards Board of Operations Manual states in Section 1.2 that the
organization and basic procedures of the IEEE-SA Standards Board are covered
by the IEEE-SA Standards Board Bylaws, and that the provisions of the
IEEE-SA Standards Board of Operations Manual supplement the provisions of
the IEEE-SA Standards Board Bylaws, which shall be the prevailing document
in the event of conflict. Like the Society, Minor Board, Sponsor, and
Working Group below it, the Major Board is directed to conduct business in
accordance with Robert's Rules of Order.
Section 5 of the IEEE-SA Standards Board of Operations Manual directs the
Sponsor to operate in accordance with a written set of policies and
procedures which do not conflict with the IEEE-SA Standards Board Operations
Manual. In the case of a Sponsor that is a committee of an IEEE Society,
the Society may develop a common set of P & P for standards development that
is applicable to all Sponsors in that Society. In the instant case, the
Sponsor is the Computer Society / Standards Coordinating Committee operating
under the Minor Board and Society Policies and Procedures.
Before moving on to the remaining Major Board documents, we are directed by
the precedence of documents to review an Organization document, specifically
Section 8 of the IEEE Policy and Procedures Manual. This provision provides
that responsibility for the standardization activities of IEEE is assigned
by the Board of Directors to the Standards Association, or what we are
referring to as the Major Board. Specifically, the Standards Association is
directed to discharge this responsibility by, among other things, the:
"Promotion of open and innovative deliberations that result
in broad consensus in accordance with due process procedures detailed in the
IEEE Standards Association bylaws and operations manuals of its subsidiary
boards and committees."
Detailed procedures are further outlined in Section 8.4:
"Detailed procedures and requirements for standards
activities within the IEEE are set forth in the IEEE Standards Association
bylaws and operations manuals and the bylaws and operations manuals of its
subsidiary boards and committees..."
Returning to the Major Board documents, the SA Standards Board Bylaws don't
provide any particular direction to the issue at hand, other than claiming
their authority under section S-401 of the IEEE Bylaws.
The Standards Association Operations Manual asserts that the organization
and basic policies of the IEEE Standards Association are covered by the IEEE
Standards Association Bylaws, and that the Standards Association Operations
Manual supplements the provisions of the IEEE Standards Association Bylaws,
which is the governing document in the event of conflict. Like the Society,
Minor Board, Sponsor, and Working Group below it, the Major Board is again
directed to conduct business in accordance with Robert's Rules of Order
under Section 4.3.
The final Major Board document, the Standards Association Bylaws, claims its
authority from IEEE Bylaw I-304.6 and establishes that the IEEE Standards
Association shall be directed by a Board of Governors, who shall be
responsible for establishing policy and conduct standards-related activities
within the technological fields in the IEEE Constitution.
Turning now to the organization documents, the IEEE Bylaws provide the
organizational framework and terms of governance for itself and child
entities. Section I-107 defines an IEEE organizational unit is a subset of
the entire IEEE membership that has been formed to carry out particular
educational, geographic, professional, technical, or other appropriate
activities of interest and service to those who are members of that
organizational unit as permitted by law.
Section I-300, subsection 3 of the IEEE Bylaws covering Governance and
Parliamentary Procedures states that:
"Implementation of the constitutional provisions by specific
organizational units and their policies, is contained in these IEEE Bylaws,
which are approved and amended by the IEEE Board of Directors. The IEEE
Policy and Procedures Manual contains more detailed statements of specific
policies, objectives and procedures which may be approved only by the IEEE
Board of Directors.
Robert's Rules of Order (latest revision) shall be used to
conduct business at meetings of the IEEE Board of Directors, Executive
Committee, Major Boards, Standing Committees and other organizational units
of the IEEE unless other rules of procedure are specified in the
Not-For-Profit Corporation Law of the State of New York, the IEEE
Certificate of Incorporation, the IEEE Constitution, these Bylaws, the IEEE
Policy and Procedures Manual, resolutions of the IEEE Board of Directors, or
the applicable governing documents of those organizational units provided
such organizational documents are not in conflict with any of the
foregoing."
After having swam upstream through the Minor Board, Society, and Major Board
documents, we have reached a provision that specifies when the use of
Robert's Rules of Order shall not be used to conduct business at an
organizational unit of the IEEE, that being when other rules of procedure
are specified in the documents referenced in the precedence of documents
list. Having found no such directive so far, we need to continue through
the remaining IEEE Bylaws, IEEE Constitution and New York Not-for-Profit
Corporation Law.
Not particularly helpful at this point is Section I-300, subsection 4
regarding the action of the Board of Directors and Committees which states
that:
"Unless otherwise provided in the Certificate of
Incorporation, the Constitution, these Bylaws, or the Not-For-Profit
Corporation Law of the State of New York, the vote of a majority of the
votes of the members present and entitled to vote, at the time of the vote,
provided a quorum is present, shall be the act of the Board of Directors,
any Committee thereof, or the Major Board, or any committees of the
forgoing."
Here, it is confirmed that a majority vote will carry an act of a committee,
and that Robert's Rules of Order will determine the definition of majority
absent a provision in the remaining IEEE Bylaws, IEEE Constitution or New
York Not-for-Profit Corporation Law.
The remaining Organization document, the IEEE Constitution, in Article I,
Sec. 3, states that the IEEE shall carry out its general administrative
functions in accordance with the New York Not-For-Profit Corporation Law,
and in Article II, Section 1 establishes that the IEEE Bylaws shall be
established for the purposes of governing the operations and administration
of the IEEE.
This brings us to a review of the relevant Section 613 of the New York
Not-for-Profit Corporation Law which states that:
Sec. 613. Vote of members.
a) Except as otherwise required by
this chapter or by the certificate of incorporation or the by-laws as
permitted by this chapter, directors shall be elected by a plurality of
the votes cast at a meeting of members by the members entitled to vote in
the election.
b) Whenever any corporate action, other
than the election of directors, is to be taken under this chapter by vote of
the members, it shall, except as otherwise required by this chapter or by
the certificate of incorporation or by by-laws as permitted by this chapter,
be authorized by a majority of the votes cast at a meeting of members by the
members entitled to vote thereon.
c) Except as provided in paragraph (b),
any reference in this chapter to corporate action at a meeting of members by
"majority vote" or "two-thirds vote" shall require the action to be taken by
such proportion of the votes cast at such meeting, provided that the
affirmative votes cast in favor of any such action shall be at least equal
to the quorum. Blank votes or abstentions shall not be counted in the
number of votes cast.
Subsection Section c) provides the critical difference from Robert's Rules
of Order on the definition of what constitutes a majority. Having swam
upstream from the Minor Board documents that direct the Sponsor and Working
Group in the conduct of their business at hand, through the Society, Major
Board and Organization documents, the question at hand is whether this
provision flows downstream to the extent that it controls and directs the
Working Group in the conduct of its business.
Form the context of the Article 6 of the New York Not-for-Profit Corporation
Code, it is clear that these provisions apply solely to the corporate
governance of the Organization, and not to the business conduct of its
Organizational units, which Article I, subsection 4 defines as follows:
"Conducting of activities" of a corporation means the
operations for the conduct of which such corporation is formed and may
constitute "doing of business" or "transaction of business" as those terms
are used in the statutes of this state.
Article 6 specifically applies to Members and the requirements that must be
met in order for Members to effect changes to the bylaws or corporate
structure of the Organization. Specifically, Article 6 addresses adoption
and modification of bylaws, annual meetings, and special meetings for the
election of directors, all clearly areas of Corporate Governance.
Top Down
From a top-down perspective, the IEEE Constitution and Bylaws reference and
serve to establish the IEEE under the authority of the New York
Not-for-Profit Corporation Law. In so doing, the IEEE has obligated itself
to conduct its Corporate Governance under the strictures of the New York
Not-for-Profit Corporation Law, including the manner in which it calculates
a majority vote.
The IEEE Bylaws provide a framework for the governance of subsequent IEEE
organizational units which states that the strictures of the New York
Not-for-Profit Corporation Law, IEEE Constitution, and IEEE Bylaws will flow
down to the implementation of the constitutional provisions, but that
Robert's Rules of Order will be used in the conduct of business.
The Organization documents essentially flow down this model through the
Major Board, Society, and Minor Board documents authorizing the inferior
entities below them while passing through constitutional strictures and
authorizing the conduct of specific business.
Consequently, when we arrive at the issue at hand, we must confront the
question of whether the development of a draft standard by a Working Group
is a constitutional act of corporate governance or the conduct of the
business for which it was formed. If it is a constitutional act of
corporate governance, then the definition of majority must be interpreted as
defined by the New York Not-for-Profit Corporation Law. If it is conduct of
the business for which the Working Group was formed, then the definition of
majority must be interpreted under Robert's Rules of Order as directed by
the IEEE CS SAB P&P. That the development of a draft standard is the
conduct of the business for which it was formed is clear from the directives
of the IEEE CS SAB P&P. To erase any doubt on this score, I note that other
inferior entities of the IEEE, including the Learning Technology Standards
Committee Sponsor, reference the use of Robert's Rules of Order, and
specifically call out its definition of majority, as follows in the Policies
and Procedures:
4.2 Use of Robert's Rules of Order
LTSC Standards Committees shall operate
under Robert's Rules of Order, Newly Revised.
Voting
The default percentage for a vote to be
successful in LTSC Standards Committees is more than one-half (>50%) Yes
votes of the total Yes and No votes cast, excluding abstentions.
Votes are recorded as 'Yes'; 'No'; 'Abstain'
or 'Nil-return'.
For determining outcomes only Yes and No
votes are used to determine percentages.
Conclusion
For the reasons enumerated in the foregoing analysis, it is clear the vote
taken in connection with an e-mail ballot conducted by the Working Group to
determine whether a document should become a base document should be
conducted, and the definition of majority interpreted, under Robert's Rules
of Order.
Sincerely,
Benedict O'Mahoney
Vice President, Administration and Legal Affairs