Doug, I have yet to find a COI policy that defines the term "confidential", most likely because the term is wholly dependent on the context. Anecdotal examples would not likely be sufficiently illustrative of the wide variety of potential conflicts. The real definition of confidential information is that which is learned by a Board member or Vice director in the context of their service to the League, which is deemed to be confidential by the presenter at the time of the presentation. But that is not a particularly enlightening definition. Disclosure of confidential information most certainly could include disclosure of some events that occur in the Board room but perhaps not others. A standard definition for contractual purposes would be "any non-public information relating to the League's business". If that suits you (and I suspect it would not, based on your e-mail) we could add that. Sorry not to be more helpful; perhaps others more creative than I am could come up with a definition that we could add that would be sufficiently comprehensive to suit your concern but not so limited that the organization is not protected. I think the answer is entirely contextual, however. 73, Chris W3KD On Fri, Dec 19, 2014 at 12:08 PM, Doug Rehman <doug@k4ac.com> wrote:

“(3) A Board Member or Vice Director may not disclose confidential information obtained by him or her relating to the League to any third person or entity.”

I don’t find a definition of “confidential information” anywhere in the attached Word document. I am hesitant to support a revision that contains a term of great significance without some idea of what that term comprises. I’m not looking for a four page all-inclusive definition of the term, but rather some general examples from which the clear intent could be extracted.

Without some definition of what is “confidential information”, speaking in generalities of what occurred in a Board Meeting could be construed as violating this provision. I am not a proponent of “what happens in the Board Room stays in the Board Room”. I believe that, excluding some personnel issues and some financial strategy issues, members have a right to know what happens in the Board Room. As written, this revision could be used as a tool to ensure the members know nothing other than what’s in the limited, often cryptic, Minutes.

A solution might be to place examples of “confidential information” into the WHEREAS clauses of the Motion for these changes. At least that way future Board members that are not part of this process would have some guidance in understanding what was intended by the Directors that put the language in place. (This was what we were missing when we went through the exercises earlier this year.)

73,

Doug

K4AC

*From:* arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] *On Behalf Of *Christopher Imlay *Sent:* Friday, December 19, 2014 11:40 AM *To:* arrl-odv *Subject:* [arrl-odv:23644] Proposed Revised Articles of Association and Bylaws

Per President Craigie's message earlier today, the Executive Committee undertook a re-examination of the Conflict of Interest Policy at its October meeting in Memphis. At that meeting a drafting committee was appointed to evaluate and prepare draft changes to the Articles and Bylaws, especially Bylaw 45, in an effort to clarify the concerns that arose earlier in the year when Bylaw 45 was applied.

The result of the effort of that drafting committee, which consisted of Directors Ahrens, Lisenco and Isely, President Craigie, CEO Sumner and myself, was the attached draft. It was vetted to the full EC which unanimously approved its distribution to the Board for consideration at our January meeting.

These revised Articles of Association and Bylaws are, in the collective opinion of the drafting committee, necessary and sufficient in order to efficiently implement a revised Bylaw 45 Conflict of Interest policy. The draft proposes modification of Articles 7 and 12 and Bylaws 41 and 45. I should note that this represents a consensus document, which does *not* mean that it is or was endorsed by each or even most of the members of the drafting committee in its entirety. Rather, it is a version that the committee members can accept. There are many ways to approach this, and this draft is but one. However, it does represent the investment of a good deal of time and effort by those involved as President Craigie noted.

Because this draft is being circulated beyond the time that a 2/3rds vote of the Board would be required to modify the articles and bylaws as proposed, it will therefore require a 3/4ths vote of the Board to approve these amended articles and bylaws.

There are so many changes to the present Articles 7 and 12 and Bylaws 41 and 45 that it would not be helpful to provide a redline version of the proposed changes. Newcomers to the Board can of course view the existing Articles and Bylaws on the ARRL web site. I will, at or before the Board meeting, be pleased to discuss the details of the changes proposed in the attached draft, either collectively with the Board or individually. However, the following is a brief summary of the major points that were incorporated in the new conflict policy:

1. In Article 7, the main clarification is that Vice Directors are not members of the Board (whichh is indisputable as a matter of law) but that the Vice Director acts for the Director in certain circumstances and during those times, the Vice Director has all of the same obligations, duties and responsibilities and authority as does a Director.

2. In Article 12, we deleted the separate conflict test that has been in this Article for many decades and moved that to the purposes statement of Bylaw 45. Also, we made it a condition of eligibility of candidates to be elected Director or Vice Director, President or Vice President or Treasurer, (or to serve or continue to serve), that they be in compliance with articles, bylaws and rules governing ethics and conflicts of interest.

3. Bylaw 41 was changed to address the proper roles of the Ethics and Elections Committee. The Committee will still have primary jurisdiction to evaluate candidates for election relative to the Conflicts Policy, but unless the E&E Committee finds that a candidate is disqualified using the substantive criteria of Bylaw 45, the Board will not routinely review those decisions. The Board may, however, review the decision in such a case. The Committee will, however, in cases of a finding of a conflict on the part of an incumbent officer, director or vice director, report those findings of fact to the Board and the Board will review those findings and determine the proper remedy.

4. It is Bylaw 45 that is largely new. It begins with a three-point statement of the purposes of the policy: to protect confidential business information of ARRL; to protect the integrity of the Board's processes; and to preclude a situation in which a Director, Vice Director, President or Vice President has interests which conflict with those of the ARRL. It also states unconditionally that a Board member or Vice Director cannot disclose confidential ARRL information to any third party or entity.

5. Bylaw 45 also puts primary emphasis on voluntary disclosure by candidates or incumbents of actual or potential conflicts. It clarifies that the failure of a Board Member or Vice Director to voluntarily disclose facts that may constitute a conflict is a violation of that Board Member or Vice Directors' fiduciary duty to ARRL, whether or not ARRL was damaged in fact by the non-disclosure. Circumstances of immediate family members are taken into account in determining whether or not a Board member or Vice Director has a conflict of interest.

6. Once the disclosure is made, the E&E Committee will ascertain whether or not a conflict exists and will report the findings of fact and any recommendations the Committee has to the full Board. The Board will then determine whether recusal is or is not an adequate remedy and if so, what level of recusal is appropriate. The theory is that all conflicts are fact-based and that in general, they can be adequately mitigated by some level of recusal. Seldom is disqualification required.

7. The three levels of recusal are: (1) leaving the room during discussions of issues that might trigger the conflict; (2) remaining in the room but not participating in the discussion or voting; or (3) staying in the room and participating in the discussion but not voting. The Board will determine, in each case, which of these three levels of recusal, if any, are necessary and sufficient to protect the interests that ARRL has declared in the introductory paragraph. If it is a Director who must leave, the disinterested Vice Director will take his or her place, either by taking the chair of the Director or by simply acting in his or her place and fulfilillng the functions that the Director can't do.

8. A very strict test is provided for disqualification. It is only where all of the following are present that a Director or Vice Director (or a candidate for either role) can be disqualified:

The Board Member or Vice Director, (or candidate): (1) is engaged in an ongoing business or activity that directly, materially and consistently competes with an active program, business interest or activity of the League on a continuing basis, or which engages regularly or periodically in commercial business transactions with the League; *and* (2) that application of any of the three levels of recusal would be inadequate or insufficient to accomplish the purposes of this Conflict of Interest policy; *and* (3) that the nature of the conflict of interest is so pervasive and continuous as to render the Board Member or Vice Director ineligible to serve or continue to serve.

9. Finally, the Board Members would under this draft not be asked to affirm in their annual conflicts disclosure and policy acknowledgement that they "understand" the policy. They are asked only to certify that they have read it. The "understanding" provision was problematic for one Vice Director relative to the current Bylaw 45.

'

That is about it. Thanks to the drafting committee members, each of whom contributed to the draft, and to the EC which quickly reviewed it. Thanks especially to Cliff Ahrens and Dave Sumner who took leadership roles in the drafting committee's work and to Jay Bellows who offered important edits that had not been caught earlier. None of those three individuals is to be labelled an advocate of this draft, however. As I say, it is merely a consensus draft. For my part, however, I do unconditionally recommend it to you for adoption at the January meeting.

73, Chris W3KD

--

Christopher D. Imlay

Booth, Freret & Imlay, LLC

14356 Cape May Road

Silver Spring, Maryland 20904-6011

(301) 384-5525 telephone

(301) 384-6384 facsimile

W3KD@ARRL.ORG

-- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG

Chris: Thank you for your research and thoughts on the issue. I think we’re getting closer to something I can support. This may be one of those issues where the solution becomes evident, or at least clearer, after some face to face discussions. 73, Doug K4AC From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Sunday, December 21, 2014 11:37 AM To: Doug Rehman Cc: arrl-odv Subject: Re: [arrl-odv:23644] Proposed Revised Articles of Association and Bylaws Doug, because I was not satisfied with the response that I gave you on Friday relative to the definition of the term "confidential" for our Bylaw 45 purposes (and I am quite sure that you weren't either), I consulted with a very knowledgeable lawyer who advised me that confidential information in the context of a COI policy might be defined as "information identified as such by a speaker when presented orally or labeled confidential when presented in written or electronic form." I think that is a very pragmatic definition but I think it may be too narrow. It covers the recently distributed financial Plan, for example, which is specifically identified as confidentia. There is, however, most certainly a large volume of information that is learned at a Board meeting, orally or in written form, or between meetings via electronic communications that may not be specifically identified as confidential but which the context would make it obvious that it is; Board deliberations, I would think, in a Board meeting, during the development of at least some strategic policies would be understood by a Board member to be confidential. But the fact of an award to a radio amateur that is made during a Board meeting would not seem to be confidential once voted on by the Board, and disclosure of the fact of that award immediately thereafter. That is why I indicated that the definition is contextual and subject to the good faith judgment of a Board Member or Vice Director. Of course, the Board itself establishes the level of confidentiality of its own meetings and deliberations and what that level is or should be has been a topic of conversation repeatedly at Board meetings that I have attended over the past 35 years. That is why it is not a simple matter to define it, either a priori or anecdotally in the Bylaw itself or in a separate document. The contexts vary widely and may change over time, and from Board to Board. I should note that a suggestion was made during the drafting committee's work that perhaps the COI policy might be established in writing separate from the Bylaws. I didn't think much of the idea at the time but it is certainly possible to cull out the policy, make it as extensive and expressive as the Board wants, and simply incorporate it by reference in the Bylaws. I think, however, that the policy is inextricably tied to both the Board processes and the election process and therefore should be in the Bylaws, but it goes to show that there are numerous approaches to the issue of a modified COI policy, and the drafting committee and the EC have proffered but one. 73, Chris W3KD On Fri, Dec 19, 2014 at 2:26 PM, Christopher Imlay <w3kd.arrl@gmail.com> wrote: Doug, I have yet to find a COI policy that defines the term "confidential", most likely because the term is wholly dependent on the context. Anecdotal examples would not likely be sufficiently illustrative of the wide variety of potential conflicts. The real definition of confidential information is that which is learned by a Board member or Vice director in the context of their service to the League, which is deemed to be confidential by the presenter at the time of the presentation. But that is not a particularly enlightening definition. Disclosure of confidential information most certainly could include disclosure of some events that occur in the Board room but perhaps not others. A standard definition for contractual purposes would be "any non-public information relating to the League's business". If that suits you (and I suspect it would not, based on your e-mail) we could add that. Sorry not to be more helpful; perhaps others more creative than I am could come up with a definition that we could add that would be sufficiently comprehensive to suit your concern but not so limited that the organization is not protected. I think the answer is entirely contextual, however. 73, Chris W3KD On Fri, Dec 19, 2014 at 12:08 PM, Doug Rehman <doug@k4ac.com> wrote: “(3) A Board Member or Vice Director may not disclose confidential information obtained by him or her relating to the League to any third person or entity.” I don’t find a definition of “confidential information” anywhere in the attached Word document. I am hesitant to support a revision that contains a term of great significance without some idea of what that term comprises. I’m not looking for a four page all-inclusive definition of the term, but rather some general examples from which the clear intent could be extracted. Without some definition of what is “confidential information”, speaking in generalities of what occurred in a Board Meeting could be construed as violating this provision. I am not a proponent of “what happens in the Board Room stays in the Board Room”. I believe that, excluding some personnel issues and some financial strategy issues, members have a right to know what happens in the Board Room. As written, this revision could be used as a tool to ensure the members know nothing other than what’s in the limited, often cryptic, Minutes. A solution might be to place examples of “confidential information” into the WHEREAS clauses of the Motion for these changes. At least that way future Board members that are not part of this process would have some guidance in understanding what was intended by the Directors that put the language in place. (This was what we were missing when we went through the exercises earlier this year.) 73, Doug K4AC From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Christopher Imlay Sent: Friday, December 19, 2014 11:40 AM To: arrl-odv Subject: [arrl-odv:23644] Proposed Revised Articles of Association and Bylaws Per President Craigie's message earlier today, the Executive Committee undertook a re-examination of the Conflict of Interest Policy at its October meeting in Memphis. At that meeting a drafting committee was appointed to evaluate and prepare draft changes to the Articles and Bylaws, especially Bylaw 45, in an effort to clarify the concerns that arose earlier in the year when Bylaw 45 was applied. The result of the effort of that drafting committee, which consisted of Directors Ahrens, Lisenco and Isely, President Craigie, CEO Sumner and myself, was the attached draft. It was vetted to the full EC which unanimously approved its distribution to the Board for consideration at our January meeting. These revised Articles of Association and Bylaws are, in the collective opinion of the drafting committee, necessary and sufficient in order to efficiently implement a revised Bylaw 45 Conflict of Interest policy. The draft proposes modification of Articles 7 and 12 and Bylaws 41 and 45. I should note that this represents a consensus document, which does not mean that it is or was endorsed by each or even most of the members of the drafting committee in its entirety. Rather, it is a version that the committee members can accept. There are many ways to approach this, and this draft is but one. However, it does represent the investment of a good deal of time and effort by those involved as President Craigie noted. Because this draft is being circulated beyond the time that a 2/3rds vote of the Board would be required to modify the articles and bylaws as proposed, it will therefore require a 3/4ths vote of the Board to approve these amended articles and bylaws. There are so many changes to the present Articles 7 and 12 and Bylaws 41 and 45 that it would not be helpful to provide a redline version of the proposed changes. Newcomers to the Board can of course view the existing Articles and Bylaws on the ARRL web site. I will, at or before the Board meeting, be pleased to discuss the details of the changes proposed in the attached draft, either collectively with the Board or individually. However, the following is a brief summary of the major points that were incorporated in the new conflict policy: 1. In Article 7, the main clarification is that Vice Directors are not members of the Board (whichh is indisputable as a matter of law) but that the Vice Director acts for the Director in certain circumstances and during those times, the Vice Director has all of the same obligations, duties and responsibilities and authority as does a Director. 2. In Article 12, we deleted the separate conflict test that has been in this Article for many decades and moved that to the purposes statement of Bylaw 45. Also, we made it a condition of eligibility of candidates to be elected Director or Vice Director, President or Vice President or Treasurer, (or to serve or continue to serve), that they be in compliance with articles, bylaws and rules governing ethics and conflicts of interest. 3. Bylaw 41 was changed to address the proper roles of the Ethics and Elections Committee. The Committee will still have primary jurisdiction to evaluate candidates for election relative to the Conflicts Policy, but unless the E&E Committee finds that a candidate is disqualified using the substantive criteria of Bylaw 45, the Board will not routinely review those decisions. The Board may, however, review the decision in such a case. The Committee will, however, in cases of a finding of a conflict on the part of an incumbent officer, director or vice director, report those findings of fact to the Board and the Board will review those findings and determine the proper remedy. 4. It is Bylaw 45 that is largely new. It begins with a three-point statement of the purposes of the policy: to protect confidential business information of ARRL; to protect the integrity of the Board's processes; and to preclude a situation in which a Director, Vice Director, President or Vice President has interests which conflict with those of the ARRL. It also states unconditionally that a Board member or Vice Director cannot disclose confidential ARRL information to any third party or entity. 5. Bylaw 45 also puts primary emphasis on voluntary disclosure by candidates or incumbents of actual or potential conflicts. It clarifies that the failure of a Board Member or Vice Director to voluntarily disclose facts that may constitute a conflict is a violation of that Board Member or Vice Directors' fiduciary duty to ARRL, whether or not ARRL was damaged in fact by the non-disclosure. Circumstances of immediate family members are taken into account in determining whether or not a Board member or Vice Director has a conflict of interest. 6. Once the disclosure is made, the E&E Committee will ascertain whether or not a conflict exists and will report the findings of fact and any recommendations the Committee has to the full Board. The Board will then determine whether recusal is or is not an adequate remedy and if so, what level of recusal is appropriate. The theory is that all conflicts are fact-based and that in general, they can be adequately mitigated by some level of recusal. Seldom is disqualification required. 7. The three levels of recusal are: (1) leaving the room during discussions of issues that might trigger the conflict; (2) remaining in the room but not participating in the discussion or voting; or (3) staying in the room and participating in the discussion but not voting. The Board will determine, in each case, which of these three levels of recusal, if any, are necessary and sufficient to protect the interests that ARRL has declared in the introductory paragraph. If it is a Director who must leave, the disinterested Vice Director will take his or her place, either by taking the chair of the Director or by simply acting in his or her place and fulfilillng the functions that the Director can't do. 8. A very strict test is provided for disqualification. It is only where all of the following are present that a Director or Vice Director (or a candidate for either role) can be disqualified: The Board Member or Vice Director, (or candidate): (1) is engaged in an ongoing business or activity that directly, materially and consistently competes with an active program, business interest or activity of the League on a continuing basis, or which engages regularly or periodically in commercial business transactions with the League; and (2) that application of any of the three levels of recusal would be inadequate or insufficient to accomplish the purposes of this Conflict of Interest policy; and (3) that the nature of the conflict of interest is so pervasive and continuous as to render the Board Member or Vice Director ineligible to serve or continue to serve. 9. Finally, the Board Members would under this draft not be asked to affirm in their annual conflicts disclosure and policy acknowledgement that they "understand" the policy. They are asked only to certify that they have read it. The "understanding" provision was problematic for one Vice Director relative to the current Bylaw 45. ' That is about it. Thanks to the drafting committee members, each of whom contributed to the draft, and to the EC which quickly reviewed it. Thanks especially to Cliff Ahrens and Dave Sumner who took leadership roles in the drafting committee's work and to Jay Bellows who offered important edits that had not been caught earlier. None of those three individuals is to be labelled an advocate of this draft, however. As I say, it is merely a consensus draft. For my part, however, I do unconditionally recommend it to you for adoption at the January meeting. 73, Chris W3KD -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 <tel:%28301%29%20384-5525> telephone (301) 384-6384 <tel:%28301%29%20384-6384> facsimile W3KD@ARRL.ORG -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 <tel:%28301%29%20384-5525> telephone (301) 384-6384 <tel:%28301%29%20384-6384> facsimile W3KD@ARRL.ORG -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG