65 new of 91 responses total.
I suspect Richard still hasn't read The Articles of Incorporation. Pay special attention to Article 6, subsection 4. I sure wouldn't want to be a board member who voted to sell our assets to a non-501(c)3 entity so that we could continue to benefit from them after surrendering our non-profit status.
Article 6, subsection 4 of the Articles of Incorporation is in conflict with Article 8 of the bylaws. The former says that the assets, physical and otherwise, must be distributed to charity, the latter says the assets must be sold and the cash distributed. Which is correct? Does Article 8 of the bylaws supercede Article 6 subsection 4 of the Articles of Incorporation? If so, the bylaws *clearly* allow the company's physical assets to be sold and doesn't specify sold to a charity. The funds would then have to be distributed to charity. Perhaps this needs to be addressed. Amend the bylaws to clarify dissolvement procedures more clearly.
This response has been erased.
In fact Article 8 of the Articles of Incorporation says:
ARTICLE 8
The bylaws of Cyberspace Communications are the final
authority in matters of conflict between documents
The bylaws override the Articles of Incorporation when there is a
conflict
This clearly means that the Article 8 of the bylaws "Dissolvement"
clause supercedes Article 6 subsection 4 of the Articles of
Incorporation. Article 8 allows the assets to be sold, and doesn't
specify sold to a charity.
Grex CAN, in fact, be sold to Tonster or any other user willing to pay
for it and sign an agreement to continue operating Grex is it is for a
period of time, A clause can be put in to the effect that if at such
time the purchasing user no longer wants to operate Grex, that the
former board members retain the right to buy back the equipment and
software at the same price for which it was sold.
I think you clipped your quote, Richard. Here is that full sentence: The bylaws of Cyberspace Communications are the final authority in matters of conflict between documents except when a provision of proposal to change a provision in the bylaws would countermand the legal restrictions of a nonprofit tax exempt corporation. And it happens that the Internal Revenue Service rules require an organization qualified under a 501(c)(3) exemption - a nonprofit - must distribute assets to a tax-exempt corporation with a charitable purpose after dissolution. Your turn, Richard.
Distribute *assets* Article 8 of the bylaws clearly requires the property to be sold. The '*assets* would be the cash, existing and the proceeds from the sale, and those assets must be distributed to charity. I do not believe that Article 6, subsection 4 requires the box and the software must be distributed to charity.
In fact I believe a strict interpretation of Article 6 subsection 4 puts the board in an impossible situation if they ever wanted to dissolve, because what if there is no charitable organization that wishes to accept an old box, old equipment, old software. Further, there are many options for Grex's future (like you mentioned with the Well), but the corporate structure currently inhibits any such considerations. Makes it much more difficult to consider such things. It is time, I submit, to get out from under this corporate structure which frankly few want to support anymore. I mean if we accepted the interpretation I suggest and sold Grex to Tonster or somebody else, just to get rid of the corporation, is anyone here going to hire a lawyer and challenge it? Is the government going to challenge it? No, so it doesn't matter.
Further Mary, exacty why, if the Articles required all assets to be 'distributed to charity', was Article 8 of the subsequent bylaws put in requiring that said assets be sold and the proceeds donated? Wouldn't that have been because the founders realized it might be easier to sell the physical property than to seek out a charity to take it? Why put a 'disswolvement' clause in the bylaws in the first place if the Articles already covered it? Logically you'd think that what was written in the Articles was reconsidered when drafting the bylaws don't you?
I think they said "sold" because "destroyed" sounded harsh. The only thing we have of any value is our domain name. The rest is what encloses an old motherboard and disk that would need to be destroyed. I know you're looking for a bad guy here and maybe a quick fix for all that ails Grex. Our bylaws aren't it. Really. They have changed over time and are easily changed again. All it takes is a little research, focus and work to propose a change and see it through. I think I just lost Richard with that last.
Richard, only Article 6(4) of the Articles of Incorporation apply. Article 8 of the Bylaws is invalid as law. It shouldn't have been put in the bylaws. No bylaw can change the Articles of Incorporation, in any case.
re #35 but with the complacency that is epidemic around here, even managing to accomplish the requirements necessary to amend the bylaws becomes more and more difficult. What you end up with is a situation where the bylaws control the group instead of the other way around. If grex's physical equipment and software become so outdated that there is no charity who would eventually be willing to accept it, even as a donation, then grex is stuck in a situaton where nothing can be done. You end up with a situation where Cyberspace Communications may be ready to dissolve but the articles of incorporation, which cannot be amended, provide no realistic way to do it. Can the board of directors propose a member vote to revise the articles of incorporation and would amending such be done the same way as amending the bylaws?
As I read the articles, there is nothing that says the members can't vote to stop being a 501(c)(3) and convert to a private foundation. Doing so would remove the previously referenced legal requirements and allow for Grex to be sold as opposed to donated. Grex need not be handcuffed by the articles of incorporation, which the founders apparently drafted as the bible which would control the bylaws. Otherwise why create a setup where the bylaws can be amended but not the articles. The articles were designed to be a control mechanism and it is not fair to the current members and board that the founders established it in a way that they couldn't be changed
The State if Michigan pretty much dictates what gets specified in a non- profit's Articles if Incorporation. So, talk to the mitten. (I've been waiting to use that line for years!)
Thats if the non-profit status is maintained. How compliant has this place been in recent years with the state regs? If the articles specify requirements for what happens if converted to a private foundation, then clearly this corporation can convert and drop its current filing status. Since grex has little funds and isn't requiring contributions for voting membership now, why is this non profit status necessary, if it prevents proper consideration of potentially healthy changes?
All of the talk about dissolution is interesting, I suppose, but it's not the purpose of this proposed amendment to the by-laws. All I want to do here is to remove the restriction on serving consecutive Board terms. It is intended as a move AWAY FROM the need to dissolve Cyberspace Communications (Kent). The rest of the discussion should go to a different item. It is not your right (again, Kent) to decide who should be here and who shouldn't. Grex is an open, public service. If you've been here longer than me, it was only by hours. I've been here since the first day Grex opened to the public. Furthermore, I have never taken an action of any kind intended to harm Grex or the corporation. I am getting awfully tired of being attacked by someone who thinks every change proposed by anyone but himself is bad. If you can't handle that other people think, and you want to limit what they say, go get yourself a blog and post all the announcements you want on it. This is a community. Get used to it.
re #41 the point is that your proposed amendmment to eliminate term limits underscores the current problems maintain the bylaws and the corporate requirements. If this is enacted, whats next, an amendment to extend terms to two, four, six or indefinite years? An amendment to do away with any membership requirements? At what point do you say 'enough is enough' and 'lets not further water down what was once a fine corporate entity' Lets not keep eliminating bylaws one by one. If thats the eventuality, lets not wait around, lets go all the way right now and find whatever the future is.
I think that both Richard and Mary are correct here. I think that the directive on dissolution to donate all assets to another 501(c)3 is there to prevent the final board from selling everything and then running off with the proceeds. I think that you could sell off the equipment or any other part of the corporation to whoever you choose, so long as the proceeds from all of that go to another 501(c)3 on dissolution. If we decided to sell the server now but continue with a VPS provider for a year from now, and then disband, what would we do? Have to re-acquire the hardware we'd sold in order to dissolve? The VPS would be entirely virtual. There's be nothing there that could easily be boxed up and sold or donated to anyone else. In fact, this would be a really difficult position for M-Net right now. Their hardware died a few months ago. M-Net currently resides in essentially this state today.
Maybe the board should vote to allocate such funds as necessary to seek out a legal opinion, having a lawyer look through the articles and bylaws, and define what can and cannot be done re: dissolvement and/or re-allocation of assets. I believe a lawyer might say that as long as any proceeds from any sale of corporate property are disbursed to charity upon disolvement, that grex could precede dissolvement by selling the server and the software to someone who would keep grex running. Said person could agree in writing to sell back everything to the board members, at same price, at such time as future direction should be determined. I think grex could far more easily accomplish a merger with say The Well, or seek co-habitation elsewhere, if the corporate structure wasn't there to slow and interfere with any chances to do anything.
(jep, I think Kent was talking about me: I was able to dial in to only one board meeting. Had I not succeeded that time, the Board wouldn't have met at all. All business was conducted by e-mail.) I don't see removing the limit on consecutive terms helping. But I'm just one person, and I'm not even a member. (I can become one, of course. ;)
Re #38: As posted in the parallel item" "If a non-profit drops its 501(c)3 status, it will owe all the taxes it did not previously pay on its income." (That would only apply *since* Cyberspace became a 501(c)3, and also I suspect that if we were legally not paying taxes on our income before becoming 501(C)3, we might not owe any on abandoning 501(C)3, but this would have to be determined.) My statement above is certainly a fact for 501(C)3's with significant income.
If grex dropped its 501(c)(3) status and dissolved, and sold all assets, the government could collect the back taxes how? That concern is moot. The greater issue is that cyberspace communications is barely able to continue as a going concern (if we don't amend term limits there might not be enough people to even have a board) If you are responsible and you start a corporation and a non-profit, you have to be responsible for properly ending it when the time comes. Otherwise its like you just abandon your car on the side of the road when it no longer runs and expect somebody else to dispose of it.
I support modifying the term limit requirement in the bylaws. Maybe along the lines that Eric suggested in resp:1. (Why is everybody talking about unrelated stuff?)
Re #47: I suggest you consult IRS regulations on a non-propfit relinguishing exempt status. There can be sanctions, penalities and fines if an oragnization violates the rules on dissolving and distribution of assets.
re #49 again, if Grex liquidated, how oculd the government collect *any* sanctions, penalties or fines? They could not. It is an empty threat. It wouldn't be even worth the IRS's time and money to come after Grex, there's nothing here, or wouldn't be by the time they realized what had happened.
The feds can fine the board members. It's in the law. You might be right though - - or lucky - that the IRS woudn't bother with such small potatos.
I always have wondered what would happen if all of the board members resigned and no one stepped up to take their places? I thought about this from time to time while I was on the receiving end of much abuse as a board member.
I don't (yet) know what the organization would be forced to do, but since it is a 501(c) Michigan corporation, it will be at the mercy of both the State of Michigan and the IRS. While the details may be messy, ulotimately the Articles of Incoration will rule, and all assets would have to go to another 501(c)3 corporation.
Maybe the State of Michigan would appoint an Emergency Finance Manager. >:)
re #51 the Articles indemnify the board members: The Corporation assumes all liability to any person other than the Corporation or its members for all acts or omissions of a volunteer director incurred in good faith performance of their duty as an officer occurring on or after the date of incorporation.
re resp:48: The proposal for this item was about a small, unexciting change. The other discussion is filling some sort of perceived void. Tomorrow is two weeks since I made the proposal. What is needed to cause this to come to a vote?
jep, one more week of discussion and final wording of your proposal, then two current members approving bringing the proposal to a vote.
Re #55: Read it again. It means that members can't sue the corporation.
re resp:57: I thought 10% of the membership was required. How many members are there? If there are less than 10, one member is 10%.
At last count, when I counted the votes for the election, there were sixteen members. Also, only two, not three, weeks of discussion are required. So post the final wording, at your convenience. :)
Reviewing the by-laws, my motion is as follows:
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shall the following changes be made to the by-laws?
By-Law change part A): Remove this section:
4.b. Upon serving two consecutive terms on the BOD, a person must
vacate the BOD for one year before being eligible to serve
again.
By-Law change part B) Change the following:
The current bylaw 4.c. states:
4.c. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months. A partial term so created of six months or less will
not count toward the two-consecutive-term limitation.
The new bylaw 4.c. should state:
4.c. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months.
I will support this change.
A couple of friendly amendments? "Remove section 4b, quoted below, and reletter the remaining sections appropriately." "Change the wording of the current bylaw 4.c, redesignated 4.b, as follows:" "The new bylaw 4.b should state:"
+1 to Joe's suggestions.
Thanks, Joe! Like this?
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shall the following changes be made to the by-laws?
By-Law change part A): Remove section 4b, quoted below, and re-letter
the remaining sections appropriately.
4.b. Upon serving two consecutive terms on the BOD, a person must
vacate the BOD for one year before being eligible to serve
again.
By-Law change part B) Change the wording of the current bylaw 4.c,
redesignated 4.b, as follows:
The current bylaw 4.c. states:
4.c. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months. A partial term so created of six months or less will
not count toward the two-consecutive-term limitation.
The new bylaw 4.b. should state:
4.c. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months.
(typo in the last stanza: 4.c to 4.b)
OK, we now have the final wording, more or less, and one member's approval for bringing it to a vote. We also have a members's "if-so then-so." The bylaws allow forty-eight hours for approval. It seems to me that 24 have elapsed. Are there any additional approvals? Do any who have already approved wish to revoke that approval? In the absence of an explicit revocation, I'm inclined to accept the "if-so then-so" as an approval. I think the midnight between March 1 and March 2, a reasonable time to close the floor for approvals to vote on the motion.
I would approve this.
I corrected the typo.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shall the following changes be made to the by-laws?
By-Law change part A): Remove section 4b, quoted below, and re-letter
the remaining sections appropriately.
4.b. Upon serving two consecutive terms on the BOD, a person must
vacate the BOD for one year before being eligible to serve
again.
By-Law change part B) Change the wording of the current bylaw 4.c,
redesignated 4.b, as follows:
The current bylaw 4.c. states:
4.c. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months. A partial term so created of six months or less will
not count toward the two-consecutive-term limitation.
The new bylaw 4.b. should state:
4.b. If an office is vacated before expiration of its term, an
election to fill the vacancy shall take place within three
months.
I'm not feeling well today. Also, I've run into a problem with backtalk that may affect voting: I've not been able to log in from the web. As soon as those two problems are resolved, I'll set up the voting booth. The election will run ten days. To pass, this amendment to the bylaws will need approval from three-fourths of the members voting.
The web bbs has been this way for a long long time. The issue is that the login uses http:// and we need https:// now. This coming from the various color schemes which set up the "Login now" link. A work-around is to attempt to log in and when you get the error, edit the URL to add https to it.
That's really . . . disappointing. It starts from https, then switches to http? Ugh. I'm feeling better, but not better enough to set up the voting today.
It's http in the backtalk scripts. It doesn't change as far as I know. We've got https on the front web page, so that gets you in that far, but when you click on "Login now" it is http:// which doesn't work.
I do not think it's important to hold this vote quickly. As long as it's done in time for the next election, I think that is fine.
The polls will open at one minute after midnight, Eastern Standard Time, March 8, and close at one minute before midnight, Eastern Standard Time, March 17, which is ten days minus ten minutes. I figured folks could use 24-hours notice of the polls opening. :) I'll make an announcement in agora and in the MOTD, but I am not mucking with the web page tonight.
The polls will be open ten days minus TWO minutes, not ten minutes. I can count, I just can't type. :(
('Twould be nice to have a logOUT option in backtalk.)
Thanks Joe!
Joe, can the vote link be added to the MOTD when it is active, please?
The command-line voting both has been closed for a while, I learned recently. There may be a way to put a lynx link into a text file, but I don't know how it would be done. There was some talk about a shell wrapper around lynx so that 'vote' would work again, but I'm not ambitious enough to figure it out right now.
BTW, we weren't really down 24 hours, but I extended the voting period to the end of 18 March anyway. I should update the motd, I guess.
I'm still waiting for a certified list of voters. A preliminary count shows seven for and one against. The proposal *probably* passed.
There is no hurry. As long as it's resolved by the next election, that will be fine. Thanks, Joe!
I now have the list of members. All but two of the votes were cast by members. The only NO vote was cast by a member. So the members voted five for and one against, which is more than the three-fourths requried to pass an amendment to the by-laws. Accordingly, the by-laws have been amended to remove the term limits on Directors. Directors may now serve for as many terms as they can convince the members to elect them to.
Thanks, Joe!
The files have been updated to reflect this change to the bylaws. If someone could please edit the web link to access: /cyberspace/grex/docs/archives/bylaws/bylaws.v9
Thanks, Mary. I'll update the link.
tnx gelinas and mary and kentn.
All the links and files that I could find that referred to the previous version of the bylaws have been updated to refer to v9. If I missed any, let me know. You might need to update your browser cache to find them, though.
Could items 26 and 325 (old versions of the bylaws) be retired? cmcgee retired item 2 when 26 was entered. Resigning to be re-elected won't fix the staggered problem: a vacancy is filled for the remainder of the original term, not for a new term. It's going to take some actual work to break the board into two classes. :(
Items 26 and 325 have been retired.
You have several choices: