I’d like to split out another topic around executive roles, the radical new bylaws proposals reduce accountability and extend those roles further, and this needs scrutiny.
We should scrutinize governance changes from a long term perspective, in a way that is de-coupled from the current occupants of roles. While Florian has served TDF for many years from being our first staff member and now ED - he is often the first to point out that TDF is designed to last forever, and it is clear people are not built to last forever. So - I would like to look at the Executive Director (ED) role at TDF in a dispassionate way: how the role works, where we are at, how these bylaws change that, and suggest some changes.
To be clear - the role of ED is a really tricky one - pleasing ~ten managers is super hard. This in part is why the ED now manages all other staff, to free them from that.
Changes from 15 year old bylaw drafts
It is interesting to compare these bylaws with the (obsolete) 2010 bylaws proposal. Of course those were not authoritative, the statutes brought more balance, and we didn’t see it as necessary to adopt bylaws in 15 years. However these new bylaws are clearly based on that draft it is interesting to do a diff in regard to the ED role.
A quick summary of changes, we go from old proposal: “ED is an Officer …” to new: “ED is the highest Officer …” - but what is an Officer ?
The previous bylaws draft has “The ED supervises the activities of every other Officer of the Foundation except for the Chairperson.”. That seems to suggest that there is potential confusion over whether elected directors (such as the Chairperson) are Officers or not. If they are Officers, then this change sounds like it subordinates the board to the ED. It should be clarified that the opposite is the case.
The changes remove:
In the past boards gave ED some voting rights in ranking which was unproblematic and can be helpful, but clarifying these memberships can be helpful. The old draft goes on:
but now it reads:
Both of these accountabilities are seriously weakened, the at-least monthly basis is removed, and this is turned into a ‘reporting’ obligation, presumably on what they have decided to do in this new proposal. Gramatically ‘is reporting’ is also unhelpful in the present active.
This is also removed from the ED section. Possibly it is implicit - but I expect it is still worth stating in case of a future rogue ED.
Centralized power
One concern about the shape of this role is the degree to which power is centralized. Ideally good governance spreads power around with checks and balances, to protect itself from capture. What follows looks at some background and some negative hypotheticals - but this is what governance documents are to anticipate and constrain - what could go wrong:
The ED role gets included into both Board and MC meetings at significant times to provide authoritative briefing and guidance, as well as leading staff meetings.
The ED role is involved in the training of new, inexperienced board & MC members (where presenting a one-sided or partial picture of the history and state of TDF as an authority figure could be extremely influential). This influence grows as term-limits exclude experienced board members.
The ED role could pick winners on the board who get the greatest share of their time and attention to advance their policy positions, and can ignore un-favoured directors.
The ED role could effectively control the provision and presentation of information to chosen board members and trustees, which could make it extremely hard to get an accurate picture of the state of TDF.
The ED role provides abundant paid time, which could be used for political purposes, whereas board members are often part-time contributors with day-jobs, as well as other roles in the project. That time imbalance could make it trivial to undo months of board discussion quickly.
The ED role commands staff whose work is to build strong relationships with community members and Trustees. These relationships could be used to drive the ED’s own agendas - political and otherwise - over and against the elected board’s.
The ED role ultimately determines which budget items are executed and in what order, which tasks are done first and at what pace, which gives significant control over currently ~2/3rds of TDF’s budget.
The ED role oversees timing & priorities of staff, and counsel. This could be mis-used in their interest so that things they disagree with are never delivered, or that there are endless problems for every direction a board can come up with that the ED doesn’t like. Scheduling could also be used to ensure there is a defeater-argument for alternative courses of action eg. “only one course of action (so far) approved by counsel”.
The ED role gives significant advantage to a native German speaker when they assert as authoritative their view of what the statutes mean. As an aside - we perhaps see a contemporary example of this where somehow free-software is re-defined.
The ED role in its nature over a long period accumulates experience, and networks of connection inside and outside the project, these could be misused to progressively alter rules in their favor, and reduce accountability.
How to correct this potential imbalance
The ED role should be supporting board consensus building with skill & finesse: reaching out to help the board deliberate, providing information impartially to all sides, urging durable compromise. If there is a suspicion in future that this time is spent instead driving a personal agenda - this could poison trust to the detriment of long term board governance and trust in TDF.
As such I believe anyone in the ED role (as well as executive staff who are present in board meetings) should be publicly committed to and held to high standards of impartiality. That means not being involved in board politics. If they are a trustee - that means not exercising the power and standing that we give them to achieve their own ends - only the board’s.
Egalitarian-ism
There is clearly significant concern around constraining imbalances of power in the community: of some being more equal than others. I would suggest that ensuring that constraining this most significant power imbalance - of executive staff vs. trustees’ elected representatives should be a priority for the future.
one positive improvement here
This new staff-policy for not voting as regards personal CoI is better than nothing. On the other hand it is far from comprehensive - I would expect a directly or indirectly in there as in the CoI policy. However it is also a bit silly - staff clearly should be involved in discussions around negotiating their own salaries.
The bigger problem is the temptation to use privileged roles as a political tool to avoid accountability eg. through stronger staff policies. It is hard to know how best to draft a bylaw to tackle that - since both sides should be involved in a constructive discussion around staff policies - but this is a significant concern.
It is also the case that if we widen affiliation definitions we should be concerned to exclude close connections between staff and board members in the same way.
These new bylaws worsen this power imbalance
In addition to the concerns above we have:
This section needlessly re-states the (stricter) requirement in the statutes $8.4, but adds ‘external’ to it (presumably to exempt internal staff). This seems to open the door in future to stacking lots of TDF bodies and committees with staff reporting to the ED role. That could centralize and decay our governance further - it also conflicts with the statutes and should go. Other changes in that section needlessly alter thresholds to 30% from 1/3rd for no readily apparent reason, and may affect deputies too.
The board has to manage the ED role. To do this requires the ability to meet and generate consensus on their performance reviews. That discussion should emphatically not include the ED - particularly since this may invite retalition using the dramatic power imbalances outlined above. These discussions should be board confidential, with only a mature conclusion collectively communicated to the ED, so that statement needs tweaking to exclude performance management.
Why staff meetings should be more private than board meetings is not explained. That these are meetings from which board members are excluded (excepting super, staff board members which report to the ED) is amazing. It is extraordinarily asymmetric to allow ED presence in all board meetings, and have no avenue for robust board scrutiny of staff meetings. This should go it conflicts with the statutes’ concern for transparency, and there is no legitimate need for this that does not apply to other committees. As the staff becomes an ever larger proportion of TDF’s spending, effective oversight of their tasks becomes ever more important for the board’s role.
Conclusion
There seems to be consensus that our bylaws need to be built to handle and head off potential cases of badness for the future. Executive staff, and particularly the role of ED provides a role of extraordinary central power and privilege over the long term. With great power comes great responsibility - and that responsibility should be to ensure that this power is used by future EDs in a fair & even-handed way. That means a requirement to represent both sides of an issue, provide balanced perspective, providing advise, counsel and improvement to multiple competing policies in a timely way. It means (ideally) sharing all such advice and input with the whole board. It means not advancing their own views and interest in the process - and facilitating all of the elected BoD members’ in their roles. I would expect all that in this section in the bylaws.
Un-alterable commitments are problematic. We should recognize that there is currently no equality between executive staff, staff board members, board members, and general Trustees, and that executive staff have a special duty to protect TDF’s governance by acting impartially at all times unless a matter is decided by the board (when they should support executing it in a compliant fashion). Whatever equality is intended by this sentence should be clarified and specified better.
We badly need to re-introduce the requirement that the ED role is clearly accountable to the board, and add-back those mandatory monthly meetings with the Chairperson we saw in early drafts. We should go further here to ensure that the board has easy access to all documents, full minutes of every staff meeting, and all information the ED role has on all topics that board members have no agreed CoI on.
Checks and balances on the exercise of staff power are both necessary, and also liberating. Staff should be set free by new bylaws to deliver, without distraction by political discussion.
And to conclude - it would really be best if we can separate the discussion of the wisest form of governance from current events, and look to the future of the ED role.