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Subject: RE: [board-governance] RE: [oasis-board-comment] Re: [board-agenda] Conflict of Interest Policy Draft


Eduardo,

 

Thank you for taking the time to provide feedback. Our posting on the public board-agenda list was for just this purpose. The Governance Committee will review all feedback received in early March and make modifications to the draft CoI Policy, as needed, for subsequent consideration of the Board.

 

Regards,

Paul

 

Paul Lipton

CA Technologies

VP, Industry Standards and Open Source

Member, CA Council for Technical Excellence

Office Phone: +1 609 583-9718

Mobile: +1 267 987-6887

Email: paul.lipton@ca.com

 

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From: Peter F Brown [mailto:peter@peterfbrown.com]
Sent: Tuesday, February 01, 2011 6:41 PM
To: 'Eduardo Gutentag'
Cc: board-governance@lists.oasis-open.org
Subject: [board-governance] RE: [oasis-board-comment] Re: [board-agenda] Conflict of Interest Policy Draft

 

Eduardo:

I think that you make some great points, thank you.

I only want to respond to one – regarding line 49: indeed, I raised this myself (in a slightly different context) as I agree that the Board Chair  should never be supra legis. The term ‘chairperson’ is used in this phrase to make the distinction that it is the person chairing at that moment which, if the conflict of interest matter before the Board concerned the Chair (the person elected by the Board), would not – should not – be the same person. Could be worded differently to make that clearer, I grant you that.

 

Regards,

Peter

 

From: Eduardo Gutentag [mailto:eduardo.gutentag@oracle.com]
Sent: Monday, 31 January, 2011 17:59
To: oasis-board-comment@lists.oasis-open.org
Cc: Lipton, Paul C; board-agenda@lists.oasis-open.org
Subject: [oasis-board-comment] Re: [board-agenda] Conflict of Interest Policy Draft

 

Thank you for the opportunity to comment on this document.

General comments:

It would appear that the policy is based on some valid by erroneous assumptions; valid in that in the OASIS context there has been no precedent to contradict them, yet erroneous in that in a wider context there have been unfortunately many examples that do invalidate them. I'm referring to the following assumptions:

a) that the policy should apply only to directors and officers, but not to employees of OASIS, as if employees would never have occasion to suffer from a conflict of interest
b) that only one Board member or officer at a time would be involved in a conflict of interest, and
c) that the Chair of the Board would never be enmeshed in a conflict of interest dispute.

Detailed comments:

I cannot replace in a few minutes the many weeks or months of deliberations of the committee, but let me point out some issues:

Line 8: s/when it is contemplating/when it contemplates/

Line 10: "a possible excess benefit transaction" -- unclear what "excess" is, and not clear enough who would be the beneficiary, OASIS or some officer or director of OASIS

Line 10-11: state and federal are too US centric; while US law governs OASIS actions as an institution, officers and Directors are not necessarily bound by US law.

Suggested change to Article I:

The purpose of this policy is to prevent one or more officers or directors of OASIS, or any Interested Person as defined therein, to benefit from an action or arrangement for OASIS to enter or engage in, that they have a hand in formulating. This policy supplements but does not replace any applicable regional or national laws governing conflicts of interest to which such Interested Persons are legally bound.

Lines 15-17: The OASIS Bylaws do have a definition of Interested Person, it's not clear to me why this document does not make use of that very precise definition or at least tries to adapt it; in particular I think that it's silly to just say "family" on line 20 instead of the quite explicit and meticulous list presented in Section 5(b) of Article 3, which is there for some very good reasons.

I would suggest that the committee should replace its definition of interested person with a straight reference to the definition in the Bylaws, thus resolving the erroneous assumption pointed at above as (a), and replace passim "Members of the Board and corporate officer" with "Interested Person".

Lines 38-42 could be interpreted as saying that if the Interested Person agrees that there is a conflict of interest, then it's ok for that person to remain present and participate in the Board discussion of how to proceed. I think that the insertion of "if the affected member ... then" is unwarranted. The person(s) in question should just leave the room, period (just as in lines 46-48); no neutral and impartial discussion can take place while that person is in the room or on the phone.

Line 49: what if the person of interest is the chairperson of the Board? You can't just assume that this would never happen! (BTW, the bylaws talk of "Chair" or "Board Chair"; the introduction of the term "chairperson" is unneeded)

Line 51: what does "exercising due diligence" mean here? What is the Board supposed to do other than receive the report? This is very unclear.

Line 56: "for its own benefit" -- what does "its own" refer to? OASIS or the Board? This should not be ambiguous.

Line 65: "it shall take appropriate disciplinary and corrective action" -- as far as I know, there is no disciplinary action that the Board can take against one of its members, no matter how justified. Please suggest a change to the Bylaws rather than suggest unenforceable actions.

Lines 67-70 are superfluous if the use of Interested Persons is adopted throughout the document.

Lines 72-81: This section should make it clear that these minutes can be protected by executive session. Otherwise it gives the impression that you're talking about open proceedings when in fact they may not be.

Lines 83-87: I have no idea what this means in this context. It feels like it has been copied and pasted from some other document. My only reaction to this is "what?"

Line 99: s/federal law/US federal law/

Has any lawyer looked at this?


On 01/28/2011 05:16 PM, Lipton, Paul C wrote:

Hello,

 

The attached document has been approved by the Board's Governance Committee at its meeting of 28 January 2011.

The Committee asks that this be included as an "A" item for decision, at the Board's meeting of 17 March 2011. It is submitted in well in advance to allow time for comment and for the Governance Committee to respond, if necessary, in time for that Board meeting of 17 March.

 

Respectfully submitted,

Paul

 

Paul Lipton

CA Technologies

VP, Industry Standards and Open Source

Member, CA Council for Technical Excellence

Office Phone: +1 609 583-9718

Mobile: +1 267 987-6887

Email: paul.lipton@ca.com

 

 
 
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Eduardo Gutentag | Director, Standards Strategy & Policy
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