[Linux-aus] Re: [LACTTE] Constitution Version 6 - Last one!

[David Lloyd]

Pia,

> OK, sorry for the disruption fols. We are voting on Ammendment 5 and 5
> only. We will deal with 7 later, the only diff is a easier way to accept
> members more automatically. Unless anyone can see a loop hole to get the
> ammendment accepted in a constitutional happy way (David L. this is your
> arena).

/me ponders

You seem to have asked the wielder of the Palantir for advice? I give my
advice but you must take responsibility for the decision:


1. The Constitution

Firstly to alter the rules:

==
Alteration of objects and rules

37.

    The statement of objects and these rules may be altered, rescinded or
added to only by a special resolution of the association.  Special
resolution
==

In a previous section it says:

==
31.

    A resolution of the association is a special resolution:

        (a) if it is passed by a majority which comprises at least
three-quarters of such members of the association as, being entitled under
these rules so to do, vote in person or by proxy at a general meeting of
which at least 21 days' written notice specifying the intention to propose
the resolution as a special resolution was given in accordance with these
rules; or

        (b) where it is made to appear to the Director-General that it is
not practicable for the resolution to be passed in the manner specified in
paragraph (a), if the resolution is passed in a manner specified by the
Director-General. 
==

2. What does this mean?

The notice is only an intention to propose the resolution as a special
resolution. A special general meeting is still a meeting and it still must
be conducted in a manner befitting a meeting. All meetings, unless otherwise
stated, must conform (eventually) to the common law.


3. Want a loophole?

You will recall me talking at length about proxies and amendments. You would
recall that I was concerned about defining what a proxy is:

 1. Does the proxy holder vote ONLY on the proposed motion unamended as
    directed by the proxy giver
 2. Does the proxy holder wield full voting rights, or to put it another
    way, for the duration of the meeting, does the proxy holder wield the
    equivalent of a power of attorney over the proxy giver?

It would be easiest to assume (2) but let's just assume (1). I am going to
assume (1) because that's the one that any detractors [yes, LA has
detractors and there are Agents listening, Pia, there are Agents] are likely
to pick on.

Let's take a look at the proxy form:

Its most important part in this discussion I post below - we'll assume that
the rest has been carried out correctly:

==
(Cross out the following if not desired) My proxy is authorised to vote on
the following resolutions in the noted manner:


  Resolution: ___________________________________     For/Against
              (description of resolution)             (strike out whichever
                                                       not applicable)
===

So, it appears that the proxy form also assumes (1). A problem, they say? Oh
not really, there's a few ways to interpret this.

LET'S FIND LOOPHOLES
--------------------

METHOD 1:

First, it's a meeting:

 It's accepted by common law--and there's no specific rules binding Linux
 Australia that says that meetings are to be run any other way--that
 "resolutions may be amended" providing the "amendments" do not change the
 general intent of the motions being put.

Second, what does Version 6 say that Version 5 doesn't:

 It removes  

   "If the committee determines to approve an application for membership"
    and replaces this with: "If an application is approve"

 The specific enacting motion is:


Version 5:

==
In rule 3, APPLICATION FOR MEMBERSHIP, remove (1a) "a member of the
association" and replace with "the applicant". Also append clauses (5) and
(6):

      (5) The Committee may at their discretion accept any person for Life
Membership. Fees are applicable as provided by rule 8.

      (6) The Committee may at their discretion grant to any Linux Community
member an Honorary Life Membership at no cost to the member in recognition
of their contributions to the Community.

==

Version 7:
== 
In rule 3, APPLICATION FOR MEMBERSHIP, remove (1a) "a member of the
association" and replace with "the applicant". In (2) insert after 'the
Secretary', "is to approve the application or" and remove "must".  (3)
remove "If the committee determines to approve an application for
membership," and replace with "If an application is approved, ". 

Also append clauses (5) and(6)

      (5) The Committee may at their discretion accept any person for Life
Membership. Fees are applicable as provided by rule 8.

      (6) The Committee may at their discretion grant to any Linux Community
member an Honorary Life Membership at no cost to the member in recognition
of their contributions to the Community.
==

Herein lies the loophole.

Would moving an amendment that changed Version 5 to Version 7 change the
motion's meaning in a "substantive manner"? It is my opinion that it does
not:

 1. The intent of these clauses are to set up means whereby someone may
    apply and be accepted as a member of the organisation

 2. The constitution clearly states that the committe has power of the
    affairs of the organisation:

==
Powers of the committee

13.

    The committee is to be called the committee of management of the
association and, subject to the Act, the Regulation and these rules and to
any resolution passed by the association in general meeting: 

    (a) is to control and manage the affairs of the association; and 

    (b) may exercise all such functions as may be exercised by the
association, other than those functions that are required by these rules to
be exercised by a general meeting of members of the association; and 

    (c) has power to perform all such acts and do all such things as appear
to the committee to be necessary or desirable for the proper management of
the affairs of the association. 
==

 3. Above the committee are the members who can, at a general meeting,
    direct the committee to act in such ways as they wish [i.e. although the
    power is delegated to the committee, it is never ever removed from the
    members at a general meeting; the principle goes: "A committee or
    delegator cannot absolve its own power to do that which it has
    delegated; it can give the power to do so to the named delegate BUT the
    committee or delegator is still responsible AND STILL HAS THE POWER to
    do that which it delegated."]

 4. Clearly the amendment simply reworks the clause to say "If an
    application is approved".

 5. Reading between the lines it's probably the association that is doing
    the approving (and not King Kong, The Joker or Batman)

As The Oracle would say, "Bingo!". This isn't a substantive change, it
doesn't change the essence of what was originally proposed and the amendment
should change.

The formal amendment should read:

"That such words in this motion be replaced so as to make the motion read:

In rule 3, APPLICATION FOR MEMBERSHIP, remove (1a) "a member of the
association" and replace with "the applicant". In (2) insert after 'the
Secretary', "is to approve the application or" and remove "must".  (3)
remove "If the committee determines to approve an application for
membership," and replace with "If an application is approved, ". 

Also append clauses (5) and(6)

      (5) The Committee may at their discretion accept any person for Life
Membership. Fees are applicable as provided by rule 8.

      (6) The Committee may at their discretion grant to any Linux Community
member an Honorary Life Membership at no cost to the member in recognition
of their contributions to the Community."

 6. So, what does this do if we assume the most narrow definition of the
    proxy approval form?

 Well, the resolution may have been amended, but it is STILL the resolution.
 The constitution and the NSW law goes silent about "motions ammending
 special resolutions" so I'm going to take the liberty and interpret
 "motions ammending special resolutions" under Common Law.

 You only need a majority present to vote an amendment in. You can ignore
 the proxy voters as far as the vote to accept the amendment [they didn't
 authorise the proxy voter to vote on the amendment - only on the resolution
 - so they effectively "disappear" legally on that vote] and then you take
 the proxy votes into account when the resolution is amended.

See? A nice jumble but that's a reasonable rebuttal to the "But the proxy
form doesn't let you do that..." and "The constitution needs 21 days'
notice."

***

Your problem here is the proxies, not the change to the constitution. I
told you that I don't *like* proxies ;-P

The motion can be ammended at the meeting in the way I've specified.
Admittedly it is a loophole and therefore by nature slightly devious but you
did *ask* ;-P

DSL

--
"Theoden is a kindly old man. Denethor is another sort, proud
 and subtle, a man of far greater lineage and power, though
 he is not a king." [Gandalf the White to Peregrin Took]

For this week and the next, consider me as Denethor; if you
wish the Steward's kindness, then make no haste to insult him, 
or the lands under his watch.