BYLAWS OF APEREO FOUNDATION INCORPORATED
(a New Jersey Nonprofit Corporation)
NAME AND PURPOSES
Section 1. Name
The name of the corporation is: Apereo Foundation Incorporated (the “Foundation” or “Apereo”) as incorporated on 28 December, 2012.
Section 2. Purposes
The Foundation is a New Jersey non-stock, nonprofit corporation. The core mission of the Foundation is to assist and facilitate educational organizations which “collaborate to foster, develop, and sustain open technologies and innovation to support learning, teaching, and research."
The Foundation is organized exclusively for the purpose of receiving and administering funds, and carrying on activities in furtherance of the purposes set forth in Sections 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue law) (the "Code"), including, for such purposes, making of distributions to organizations that qualify as exempt organizations under Section 501(c)(3) of the Code in furtherance of the purposes of the Foundation. The purposes of the Foundation shall include:
- Promoting and fostering education by strengthening the practical collaboration between educational organizations, the sharing of best practice, and dissemination of results of innovative approaches to applying open technology architectures and systems in an educational context;
- Sustaining and developing a global community of interest among educational institutions to advance open source and open standards technologies, architectures, systems and content, and promoting international collaboration in these areas;
- The Foundation shall be empowered to do anything permitted under the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A: 1-1 et seq. (the “Act”) in furtherance of, or incidental to, the foregoing purposes.
- No substantial part of the activities of the Foundation shall be the carrying on of propaganda, or otherwise attempting to influence legislation in any country, and the Foundation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of, or in opposition to, any candidate for public office.
- The Foundation shall not have or issue stock or shares, and no part of the assets, income or net earnings of the Foundation shall inure to the benefit of, or be distributed to, its members, directors, officers or any other private persons, except that the Foundation shall be authorized and empowered to pay reasonable compensation for services rendered to make payments and distributions in conformity with the Foundation’s purposes with the purposes set forth in this Subsection (ii) of Article I, Section 2 of these Bylaws.
- Notwithstanding any other provisions of these Articles, the Foundation shall not carry on any other activities not permitted to be carried on by:
- any organization exempt from federal income taxation under Section 501(a) of the Internal Revenue Code of 1986 as an organization described in Section 501(c)(3) of such Code;
- an organization described in Section 509(a)(1) or (2)of the Internal Revenue Code of 1986 (as the case may be); and/or,
- an organization, contributions to which are deductible under Section 170(c)(2), 2055(a)(2), or 2522(a)(2) of the Internal Revenue Code of 1986.
Further information about the objectives, and work, and values of Apereo, which does not form a part of these Bylaws, is available at:
Section 1. Registered Agent and Registered Office
The Foundation shall have and continuously maintain in the State of New Jersey a registered office, and a registered agent whose office is identical with such registered office, as required by section 15A: 4-1(a) of the New Jersey Nonprofit Corporation Act (“Act”). The registered office may be, but need not be, the same place where the Foundation conducts its activities in conformity with the purposes set forth in Article II, Section 2 of these Bylaws. The current registered agent and registered address of the Foundation in New Jersey is:
Apereo Foundation Incorporated
c/o National Registry Agents
100 Canal Pointe Boulevard
Princeton, NJ 08540
Section 2. Other Offices
The Foundation may have such other offices, either within or without the State of New Jersey, as the Board of Directors may determine or as the activities of the Foundation may require from time to time.
Section 1. Membership
- The Foundation shall have two types of members: Organizational Members with voting rights under the Act, and Individual Members.
- Organizational membership in the Foundation is open to educational, academic, research, and commercial organizations and institutions with programs and missions consistent with the purposes of the Foundation as set forth in Article I, Section 2. Organizational Membership criteria shall be established by Organizational Members from time to time by an affirmative vote of the majority of Organizational Members present at a meeting where a quorum exists.
- Individual Membership in the Foundation is open to any individual with full and open access to, and participation in, other Apereo activities and projects, except those Apereo activities and projects limited to Organizational Members. Individual Membership recognizes a personal commitment to open source projects, and validates participation in the larger Apereo community.
Section 2. Membership Fees
All Members agree to pay membership fees and dues as specified by the Foundation’s Board of Directors from time to time. These are set out in a Membership Schedule published on the Apereo web site, or sent out to the members by other electronic and non-electronic means.
Section 3. Member Representatives; Voting; Proxy Voting
- Only Organizational Members are able to participate in all Apereo voting except for voting for the Individual Member Director. [See below] Individual Members are only eligible to vote for the Individual Member Director, and are not eligible to participate in other Apereo voting.
- Organizational Members will designate a Primary Representative and contact with the Foundation. Primary Representatives serve at the pleasure of their member organizations, and may be changed by their member organization at any time, with seven (7) days advance notice to the Executive Director of the Foundation.
- Primary Representatives may from time to time be asked to vote on issues affecting the Foundation. One (1) vote is allowed per member organization. A quorum of the membership shall be the lesser of twenty (20) members or thirty percent (30%) of the membership. Except as provided in Article V, Section 2, Subsection (b), decisions of the membership will be taken on the basis of a simple majority vote of those Primary Representatives present at a meeting where a quorum exists.
- The Individual Members shall elect an Individual Member Director. Such election shall take place at the Annual General Meeting in a manner prescribed by the Foundation Board of Directors.
- Any Individual Member in good standing shall be eligible to be elected as Individual Member Director.
- The Individual Member Director shall be a member of the Board of Directors, as specified in the Bylaws, Article V.2(e).
Section 4. Applications; Admission to Membership
- Membership is open to all organizations and individuals which that broadly agree with the mission and purposes of the Foundation and meet the membership criteria as described in Article III, Section A.
- Individual Members are not required to be affiliated with an Organizational Member, commercial affiliate, or other institution with a formal relationship with the Apereo Foundation.
Section 5. Removal from Membership
Any member shall be removed from membership, and cease to be an Organizational Member or Individual Member upon failure to pay membership fees and dues, as prescribed by the Board of Directors of the Foundation. The grace period and other details related to membership fees and dues may be found in the Membership Schedule referenced in Section 2 above. Membership may also be terminated by the Board of Directors upon a majority vote of the Directors present at a meeting where a quorum exists. At least thirty (30) days' advance notice of the intent to consider such action at such meeting must be given to the member which is in jeopardy of losing membership status.
Section 6. Reciprocal Membership Arrangements
- Recognizing the great variety of organizations which share common interests and objectives with the Foundation, the Board of Directors may, from time to time, reach agreement expressed in a Memorandum of Understanding with such entities. Such agreements may include reciprocal membership arrangements.
- The Executive Director and/or a delegated member of the Board of Directors shall be empowered to negotiate and modify the terms of all such reciprocal membership arrangements, including termination of such agreements when deemed necessary or appropriate, subject to subsequent approval and ratification by the Board of Directors.
The organizations becoming members under any such reciprocal membership agreements shall have only those rights and obligations as specified in reciprocal membership agreements and shall not have any rights provided to members in these Bylaws or under the Act unless the reciprocal membership agreement so specifies. The making, modification and termination of such reciprocal membership arrangements is the sole prerogative of the Board of Directors, which prerogative shall be exercised by an affirmative vote of the majority of Directors present at a meeting where a quorum is present.
MEETINGS OF MEMBERS
Section 1. Annual Meeting
An Annual Meeting of Members shall be held on a date and during a time as may be fixed from time to time by the Board of Directors, and, in the absence of such a provision, during the Apereo Annual Conference. Each successive Annual Meeting shall be held on a date not more than thirteen (13) months following the preceding Annual Meeting. If the Annual Meeting is not held on the date designated, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient.
Section 2. Annual Meeting: Annual Report to Members and Agenda
At each Annual Meeting of Members, the Board of Directors shall present an Annual Report. Such report shall be published on the Apereo website, filed with the records of the Foundation and entered in the minutes of the proceedings of such Annual Meeting of Members. The Board of Directors of the Foundation shall set the Agenda for the Annual Meeting of Members, which shall include the election of Directors as set forth in Article V, Section 2(b) below.
Section 3. Other Meetings of the Membership
The Members may also meet at such other times and places in addition to the Annual Meeting of Members, provided at least ten (10) days prior notice of such meeting shall be publicized on the Apereo website and shall be provided electronically or non-electronically to all Members. The Board of Directors of the Foundation shall set the Agenda for any meeting of Members.
Section 4. Teleconference/Videoconference Meetings
Because the Apereo Foundation is an international organization, with members in many countries, any meeting of the Members may be held by teleconference, videoconference or other means of electronic communication by which the Members participating can hear each other.
Section 5. Notice
Notice of the place, day and time of every Annual Meeting and any other meeting of the membership is to be publicized through the Apereo website as well as distributed electronically or non-electronically to each Member. The Secretary of the Foundation shall be empowered to call the Annual Meeting and any other meeting of Members.
Section 6. Presiding Officers of Meetings of Members.
Meetings of the Members shall be presided over by the following officers, in order of seniority – the Chair, Vice-Chair or, if none of the foregoing is in office or present at the meeting, by a chair to be chosen by majority of the Members in attendance. The Secretary of the Foundation shall act as Secretary of every meeting. When the Secretary is not available, the Chair may appoint a Secretary of the meeting.
BOARD OF DIRECTORS
Section 1. General Powers
The activities of the Foundation shall be managed by its Board of Directors. The Board of Directors shall possess and exercise all the general powers granted to nonprofit corporations under section 15A:3-1(a) of the New Jersey Nonprofit Corporation Act (“Act”), including the powers to:
- Maintain the Foundation for perpetual duration;
- Sue and be sued, complain and defend and participate as a party or otherwise in any judicial, administrative, arbitrative or other proceeding, in the name of the Foundation;
- Have, use and alter, at its discretion, a corporate seal;
- Take and hold by lease, gift, purchase, grant, devise or bequest any property, real or personal, necessary or desirable for attaining the objects and carrying into effect the purposes of the Foundation as set forth in Article I, Section 2 of these bylaws and to purchase, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated subject to any future alteration or modification made by general law as to the amount of real and personal property to be held by the Foundation;
- Sell, convey, mortgage, create a security interest in, lease, exchange, transfer and otherwise dispose of the Foundation’s property and assets;
- Purchase, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, exchange, mortgage, lend, create a security interest in, or otherwise dispose of, and otherwise use and deal in and with, shares or other interest in, or obligations of, other domestic or foreign corporate entities, associations, partnerships or individuals, or direct or indirect obligations of any domestic or foreign government of instrumentality thereof;
- Make contracts and guarantees and incur liabilities, borrow money, issue bonds and secure any obligations by mortgage or creation of a security interest in the property, franchises and income of the Foundation;
- Lend money, invest and reinvest funds of the Foundation, and to take and hold real and personal property as security for the payment of funds loaned, invested or reinvested;
- Conduct the activities and operations of the Foundation, have offices and exercise all powers granted to the Foundation by the New Jersey Nonprofit Corporation Act anywhere in the universe;
- Elect or appoint officers, employees and agents of the Foundation and define the duties and fix the compensation, if any, of said officers, employees, contractors and agents of the Foundation;
- Pay pensions and establish pension and deferred compensation plans, and plans of similar nature for, and to furnish medical services, life, sickness, accident, disability or unemployment insurance and benefits, education, housing, social and recreational services and other similar aids and services to the officers, employees and agents of the Foundation including any of the foregoing who may be directors, their families, dependents or beneficiaries;
- Participate with others in any corporate entity, partnership, limited partnership, joint venture, or other association of any kind, or in any transaction, undertaking or arrangement which the participating corporation would have power to conduct by itself, whether or not that participation involves sharing or delegation of control with or to others;
- Have and exercise all other powers necessary or convenient to effect any of the purposes for which the Foundation is organized as provided in Article I, Section 2 of these Bylaws.
- The Board of Directors is responsible for financial oversight, together with the overall policy and direction of the Foundation. It may designate responsibility for day-to-day operations to the Foundation’s officers and/or Committees.
Section 2. Qualifications, Number and Election.
- Directors shall be at least eighteen (18) years of age and need not be United States citizens or residents of the State of New Jersey. The number of directors shall be not less than seven (7) and not more than twenty-one (21) as determined by the Board of Directors from time to time. All Directors shall serve three (3) year terms, which terms shall be staggered so as to have approximately one-third of the terms of the Directors expire each year. Directors are permitted to hold office for multiple terms, and may hold up to two (2) consecutive terms. It is not necessary for a Director to be employed by an organization which is a Member of the Foundation.
- Elected Directors. The Board of Directors shall establish, prior to the Annual Meeting of members, the number of open Director positions.
- A person may be nominated for a Director position by a Member or representative of a Member Organization in good standing prior to the Annual Meeting in a manner prescribed by the Board of Directors. The names of nominees shall be presented to the members at the Annual Meeting of the members for election of such nominees to the Board of Directors.
- Primary Representatives of Organizational Members will elect the majority of the Board of Directors.
- Individual Members, as a group, will elect one member to sit on the Board of Directors. Thus, the Individual Members seat on the Board will be voted upon every three years unless the elected representative is unwilling or unable to complete his or her term.
- Appointed Directors. The Board may appoint, at its discretion, by majority vote of the Directors present at a meeting where a quorum exists, up to three (3) additional Directors who have not been elected by the Membership (“Appointed Directors”).
- Ex-Officio Directors: The Executive Director and Treasurer shall be ex-officio members of the Board of Directors (“Ex-Officio Directors”). The Executive Director and Treasurer shall not be counted for quorum purposes and shall not have voting rights.
Section 3. Voting Rights.
Each Director, except for the Ex-Officio Directors, shall be entitled to one (1) vote on each matter submitted to a vote of the Board of Directors.
Section 4. Conflict of Interest.
A conflict of interest policy shall be adopted by and modified from time to time by the Board of Directors of the Foundation. Such current policy shall be attached as Appendix A of these Bylaws.
Section 5. Votes Required.
Whenever any action is required to be taken by the Board of Directors, it shall be authorized by majority of the votes cast at a meeting of the Board of Directors where a quorum exists, unless a greater number is required by these Bylaws or provisions of the Act.
Section 6. Resignation.
Any Director may resign at any time by giving written notice, or notice by email, of his or her resignation to the Board of Directors or to the Chair of the Foundation, and such resignation shall take effect at the time specified therein, or, if not specified, at the time of its receipt.
Section 7. Removal.
If a Director is absent from three (3) consecutive meetings, he or she may cease to be a Director of the Foundation, at the discretion of the Board of Directors, by majority vote of the Directors at a meeting where a quorum exists. An Elected Director may also be removed, for any reason, by a majority vote of the members present at a meeting where a quorum exists. Appointed Directors can also be removed from the Board of Directors, for any reason, by majority vote of the Board of Directors at a meeting where a quorum exists.
Section 8. Vacancies.
Any vacancy on the Board of Directors caused by death, resignation, removal, an increase in the total number of Directors or other cause may be filled by majority vote of the remaining Directors (even if less than a quorum). Nominations for new Directors must be received by the Secretary from present Directors at least two (2) weeks in advance of a Board meeting, and be sent out to all Directors before the meeting occurs. A Director so elected shall hold office until the next annual election. This interim term does not count as a consecutive term of office for purposes outlined in Section 2 of this Article.
Section 9. Compensation.
Directors of the Foundation shall not receive any salaries for their services, but by resolution of the Board of Directors, a fixed reasonable sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board of Directors.
MEETINGS OF BOARD OF DIRECTORS
Section 1. Annual Meeting
An Annual Meeting of the Board of Directors shall be held immediately after the Annual Meeting of the Membership for the transaction of such business as may come before the meeting. If a day that is fixed for the Annual Meeting is a legal holiday in the State of New Jersey, such meeting shall be held on the next succeeding business day. Failure to hold the Annual Meeting at the designated time or any adjournment thereof, shall not affect otherwise valid corporate acts or result in a forfeiture or dissolution of the Foundation. If the Annual Meeting is not held on the date designated, the Board of Directors shall cause the meeting to be held as soon thereafter as convenient.
Section 2. Regular Meetings; Teleconference or Videoconference Meetings
The Board of Directors shall hold regular meetings at least four (4) times per year. Regular meetings of the Board of Directors may be held at any place, within or without the State of New Jersey, as may be determined from time to time by the Board of Directors.
As the Apereo Foundation is an international organization, with members in multiple countries around the world, all meetings of the Board, Board committees, and other meetings that may arise, may be held via teleconference or videoconference: face to face meetings are not required.
Section 3. Special Meetings
Special meetings of the Board of Directors may be called by or at the request of the Chair or Board of Directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of New Jersey, as the place for holding any such special meeting.
Section 4. Place of Meetings
The Board of Directors may designate a place, either within or without the State of New Jersey, as the place for any annual meeting or for any regular meeting or for any special meeting called by the Board of Directors. If no designation is made, the place of meeting shall be the registered office of the Foundation in the State of New Jersey.
Section 5. Notice
Written notice of the time, place and purposes of every Annual meeting and Regular meeting of the Board of Directors shall be given not less than one (1) week and not more than eight (8) weeks before the date of the meeting, either personally, by email, or by mail, to each Director of record entitled to vote at the meeting. Notice of any special meeting of the Board of Directors shall be given at least two (2) days prior, by written notice delivered personally, by email, or sent by mail to each Director at his/her email address as shown by the records of the Foundation.
Section 6. Waiver
A Director may waive notice of any meeting. Notice of a meeting need not be given to any who signs a waiver of notice, in person or by proxy, whether before or after a meeting. The attendance of any Director at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of the meeting, shall constitute a waiver of notice by that Director.
Section 7. Quorum
Fifty percent (50%) of the entire Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. The Board of Directors shall not conduct any formal actions, motions, decisions, policies or any related functions on behalf of the Foundation absent a quorum, unless specifically allowed under these Bylaws. The Directors present at a duly organized meeting of the Board of Directors may continue to do business until adjournment, notwithstanding the withdrawal of enough Directors to leave less than a quorum. Less than a quorum may adjourn any meeting of the Board of Directors.
Section 8. Manner of Acting
The act of the majority of Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by the Act or these Bylaws. Any action required to be authorized by a vote of the Directors greater than a majority shall be rescinded or modified only by a like vote.
Section 9. Unanimous Written Consent
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Electronic mail consents without a signature received by the Secretary of the Foundation from all Trustees or all members of a committee in response to an electronic mail inquiry on a single issue shall also constitute unanimous written consent of such Trustees or committee members in lieu of a meeting.
Section 1. Officers
The officers of the Foundation shall consist of a Chair, a Vice-Chair, a Treasurer, a Secretary and an Executive Director. The Board of Directors may elect or appoint such other officers as the Board of Directors shall deem desirable. All officers shall have the authority and perform the duties in the management of the corporation as provided in these bylaws, or as may be determined by the resolution of the Board of Directors not inconsistent with these bylaws. Any two (2) or more officer positions may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one (1) capacity if the instrument is required by law or by these bylaws to be executed, acknowledged or verified by two (2) or more officers.
Section 2. Compensation
Officers of the Foundation other than the Executive Director may receive reasonable honoraria for their services at the discretion of the Board of Directors, but not if the officer is also a Director.
Section 3. Election and Term of Office
The Chair, Vice-Chair, Treasurer, and Secretary shall be elected annually by majority vote of the Board of Directors at its Annual Meeting. If the election of officers shall not be held at such meeting, an election shall be held as soon thereafter as convenient. New offices may be created and filled at any meeting of the Board of Directors. Each officer elected as herein provided shall hold office until a successor shall have been duly elected and qualified, subject to early termination by removal or resignation.
Section 4. Chair
The Chair shall preside at all meetings of the Board of Directors, and may exercise a casting vote in the event of any tied vote. The Chair may sign, with the Secretary or any other proper officer of the Foundation authorized by the Board of Directors, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or these bylaws or by New Jersey statute to some other officer or agent of the Foundation; and, in general, the Chair shall perform all duties incident to the offices of President and Chair and such other duties as may be prescribed by the Board of Directors from time to time.
Section 5. Vice-Chair
The Vice-Chair shall perform such duties and have such authority as from time to time may be delegated by the Chair or by the Board. The Vice-Chair will chair committees on special subjects as designated by the Board. In the absence of the Chair, the Vice-Chair shall perform the duties designated to the Chair.
Section 6. Executive Director
The Board may appoint an Executive Director as paid staff to manage the business affairs of the Foundation on a day-to-day basis. The Executive Director is responsible for the successful planning and operations of Apereo. An Executive Director shall be selected by majority vote of the Board of Directors from among applicants for the position. The Executive Director serves at the pleasure of the Board. Once the Executive Director is no longer employed by the Foundation in this position, he/she shall automatically no longer serve as an officer or Ex-Officio Director.
Section 7. Treasurer
The Treasurer shall work in concert with the Foundation’s executive and administrative staff to ensure sound operational and strategic financial oversight and management of Apereo. The Treasurer shall advise on financial aspects of Software Community and Community of Interest planning. Once the Treasurer is no longer in this officer position, he/she shall automatically no longer serve as an Ex-Officio Director.
Section 8. Secretary
The Secretary shall keep minutes of the meetings of the Board of Directors in agreed and appropriate media formats, and shall work with appropriate executive and administrative staff to ensure compliance with the Foundation’s document retention policy.
Section 9. Removal of Officers
Any officer elected by the Board of Directors may be removed with or without cause by a majority vote of the Board of Directors present at a meeting where a quorum exists, providing the item has been placed on the Agenda circulated with appropriate notice as per Article VI Section 6.
Section 10. Resignation
An officer may resign by written notice to the Chair or Board of Directors. The resignation shall be effective upon receipt thereof by the Chair or Board of Directors or at a subsequent time as shall be specified in the notice of resignation.
Section 11. Vacancies
Any vacancy occurring among the officers, however caused (including, but not limited to, death, resignation, removal, disqualification), shall be filled in the manner provided in these Bylaws, or, in the absence of such provision, by majority vote of the Board of Directors present at a metting where a quorum exists.
Section 1. Board Committees
- The Board of Directors, by resolution adopted by a majority vote of the entire Board of Directors, may appoint from among the Directors such committees as it deems necessary from time to time.
- The Board shall annually determine the membership of two (2) Standing Committees:
- A Remuneration Committee, the role of which is to:
- Guide the annual Executive Director and other appropriate Foundation employees assessment and evaluation process,
- Assess comparability of salaries and other regular payments to individuals conducting work on behalf of the Foundation under Section 4958 of the Internal Revenue Code,
- Based on the annual evaluation and the assessment of salaries, recommend to the Board appropriate salary increases and merit and other bonuses.
- This Committee must be composed of persons with no financial or personal interest in any agreement or arrangement with the Foundation.
- An Audit Committee, the role of which is to oversee or conduct an annual audit of Foundation finances.
- A Remuneration Committee, the role of which is to:
- No committee shall:
- Make, alter or repeal any Bylaw of the Foundation. They may, however, discuss and propose such changes;
- Elect or appoint any Director, or remove any officer or Director;
- Submit to Members any action that requires Member approval; or
- Amend or repeal any resolution previously adopted by the board.
Section 2. Vacancies, Abolishment and Removal
The Board of Directors, by resolution adopted by a majority vote of the entire Board of Directors in office, may:
- Fill any vacancy in any committee;
- Appoint one or more Directors to serve as alternate members of any committee, to act in the absence or disability of members of any committee with all the powers of the absent or disabled members;
- Abolish any committee, excepting the two (2) Standing Committees, at its pleasure; and
- Remove any Director from membership on a committee at any time, with or without cause.
Section 3. Chair
One member of each committee shall be appointed chair by the committee members.
Section 4. Quorum
Unless otherwise provided in the resolution of the Board of Directors designating a committee, a majority of the entire committee shall constitute a quorum and the act of a majority of the members present at a meeting at which a quorum is present shall be the act of the committee.
Section 5. Rules
Each committee may adopt rules for its own governance not consistent with these bylaws or with any rule adopted by the Board of Directors.
Section 6. Duty to Report to Board of Directors
Actions taken at a meeting of any committee shall be reported to the Board of Directors at its next meeting following the committee meeting; except that, when the meeting of the Board of Directors is held within two (2) days after the committee meeting, the report shall, if not made at the first meeting, be made to the Board of Directors at its second meeting following the committee meeting.
Section 7. Legal Responsibility Retained by Board of Directors
The designation of any committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any Director, of any responsibility imposed by law.
GOVERNANCE: INCUBATION, SOFTWARE COMMUNITIES, AND COMMUNITIES OF INTEREST
Section 1. Apereo Foundation Governance
- The Apereo Foundation is governed by a Board of Directors which is elected by Foundation members under the provisions of the Apereo Foundation By-Laws (Art. V, Sec. 2.). The Foundation Board directs, supervises, and evaluates the Executive Director, who is responsible for planning, operations, and supervision of the day-to-day activities of the Foundation.
- The Board of Directors of the Apereo Foundation has adopted the principle of Subsidiarity to govern the Foundation as a whole; with Subsidiarity defined as, "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level."[cf. https://en.oxforddictionaries.com/definition/subsidiarity]
- As but one example, Subsidiarity is the operating principle of the European Union, which declares, “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”[Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007. Protocol on the Application of the Principles of Subsidiarity and Proportionality, p. 150. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2007.30...
- Another example, is the United Nations Development Programme’s definition and description Subsidiarity or decentralization, as “a system of co-responsibility between institutions of governance at the central, regional and local levels,” with the benefit of, “thus increasing the overall quality and effectiveness of the system of governance, while increasing the authority and capacities of sub-national levels.”[UNDP. Decentralization: A Sampling of Definitions: Joint UNDP-Government of Germany Evaluation Working Paper of the UNDP Role in Decentralization and Local Governance, Oct. 1999, p. 2. http://web.undp.org/evaluation/documents/decentralization_working_report...
- Operationally, this means that the projects and communities that choose to join the Apereo Foundation are empowered to govern themselves within the policies and principles established by the Foundation and in alignment with the intellectual property and other services provided by Apereo.
- The principle of subsidiarity also extends to the Apereo Foundation’s desire to build closer partnerships with National and International organizations such as ESUP-Portail [https://www.apereo.org/regional/esup-portail. cf. https://www.esup-portail.org/] and JISC [ https://www.jisc.ac.uk/], to the extension of Apereo into K12 through the U.S. K12 Federation [ http://www.k12federation.org/home], and to recent conversations with the LAMP consortium [ http://lampschools.org/], as well as to the overall approach of the Apereo organization toward building communities around software development, support, teaching and learning, and learning analytics [https://www.apereo.org/content/projects-communities].
Section 2. Software Communities and Communities of Interest
- Apereo consists of overlapping associations of partners organized into communities, which include Software Communities and Communities of Interest. They are recognized as such by virtue of having:
- Completed an incubation or admission process; and,
- Been approved by the Foundation’s Board of Directors.
- Policies governing incubation or admission processes, together with guidance including, but not limited to, a range of governance models, are maintained by Apereo in an online public space. Such policies are subject to approval by the Foundation’s Board of Directors.
Section 3. Endorsement/Termination of Constituent Communities
- The Board of Directors must approve, by majority vote of the entire Board of Directors, the formal endorsement of a constituent community of the Foundation.
- A constituent community of the Foundation may be terminated by A two-thirds (2/3) vote of the entire Board of Directors.
Section 4. Community Governance
Each constituent community may adopt rules for its own governance provided they are consistent with these bylaws and with any policy adopted by the Board of Directors. Community governance structures will be responsible for strategic, financial and operational oversight of the community, including adherence to overall Foundation licensing and intellectual property policies. The Board must be notified within thirty (30) days of changes in community governance structures, and approve such changes by majority vote.
Section 5. Software Community and Community of Interest Governance Structures
The Executive Director, and the Foundation’s Board representative (or his/her designee), will be non-voting ex-officio members of a constituent community’s strategic governance body, in order to ensure effective and robust liaison with the broader community.
Section 6. Board Veto
The Board of Directors reserves the right, by an affirmative vote of a majority of Directors present at a meeting where a quorum exists, to veto any action or decision of a constituent community if, at the sole determination of the Board, that action or decision exposes the Foundation to undue financial, reputational, or other risk.
Section 7. Duty to Report to Board of Directors
Constituent community governance bodies will report their activities in writing to the Foundation’s Board at least once per year.
Section 8. Protection of Intellectual Property
The Foundation will provide a framework for managing the Intellectual Property ("IP") of the constituent communities and any products or projects they adopt. This IP consists of items covered under copyright, patent, trademark, or other IP law. This framework is implemented through a Foundation Intellectual Property Policy that provides rules and guidelines on how the communities, products, and projects can accept contributions of IP (either licensed or assigned), how they can make use of externally-available IP, and how the resulting IP can then be licensed and redistributed back to the public. The Foundation Board is responsible for maintaining this Intellectual Property Policy.
The Foundation is the legal owner of all trademarks and service marks established for the Foundation itself and for any of its constituent communities, products, and projects. To protect the Foundation, it will oversee the use of the Apereo name and logo, and all other Foundation trademarks and service marks, and will take appropriate action when the Foundation feels that the names or logos are wrongfully used.
Section 9. Legal Responsibility Retained by Board of Directors
The designation of any community or other governance structure, and the delegation thereto of authority, shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
CONTRACTS, CHECKS, DEPOSITS AND LOANS
Section 1. Contracts
The Board of Directors may authorize any officer or officers, agent or agents of the Foundation, in addition to the officers so authorized by these bylaws, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Foundation, and such authority may be general or confined to specific instances.
Section 2. Checks, Drafts, Etc.
All checks, drafts or orders for the payment of money, notes or other evidences in indebtedness issued in the name of the Foundation, shall be signed by such officer or officers, agent or agents of the Foundation and in such manner as shall from time to time be determined by resolution of the Board of Directors. In the absence of such determination by the Board of Directors, such instruments shall be signed by the Treasurer or an Assistant Treasurer and countersigned by the Chair or a Vice-Chair of the Foundation.
Section 3. Deposits.
All funds of the Foundation shall be deposited from time to time to the credit of the Foundation in such banks, trust companies or other depositories as the Board of Directors may select.
BOOKS AND RECORDS
Section 1. Books and Records.
The Foundation shall keep records of account and minutes of the proceedings of its members, Board of Directors and other bodies in appropriate written or electronic formats. The Foundation shall make available for inspection at its registered or principal office records containing the names and addresses of the directors entitled to vote.
Section 2. Form of Records.
Corporate records shall be kept in accordance with the Document Retention Policy as adopted and modified by the Board of Directors from time to time. The current Document Retention Policy is attached as Appendix B.
Section 3. Right of Inspection.
Rights of inspection for all documents are given in accordance with the Foundation’s Document Retention Policy.
LIABILITY, INDEMNIFICATION AND INSURANCE
Section 1. No Personal Liability
The Directors of the Foundation shall not be personally liable for the debts, liabilities or obligations of the Foundation.
Section 2. Indemnification
The Foundation may, by majority vote of the Directors present at a meeting where a quorum exists, agree to indemnify a Director, officer, employee or agent of the Foundation against reasonable costs, disbursements, counsel fees and liabilities in connection with any proceeding involving such Director, officer, employee or agent of the Foundation because of that person’s present or former capacity as a Director, officer, employee or agent of the Foundation in the manner, and subject to any conditions, prescribed by Section 15A:3-4 of the New Jersey Nonprofit Corporation Act (“Act”), or corresponding section of any future Act, to the extent of the Foundation’s relevant directors and officers liability insurance coverage. Such person, however, shall not be indemnified where the action or proceeding is based upon or arises out of his own intentional or negligent misconduct in the performance of his Foundation duties.
Section 3. Insurance
The Foundation shall have the power to purchase and maintain insurance on behalf of any director officer, employee or agent of the Foundation against reasonable costs, disbursements, counsel fees and liabilities asserted by reason of such person’s present or former capacity as a director, officer, employee or agent or the Foundation, whether or not the Foundation would have the power to indemnify that person under these bylaws.
Section 4. Advancement of Expenses
To the full extent permitted by law, the indemnification provided herein shall include "expenses" (as such term is defined in Section 15A:3-4 of the Act); and, in the manner provided by law, any such expenses may be paid by the Foundation in advance of the final disposition of such proceeding provided the Foundation receives a statement writing from the indemnitee that should it be finally determined that indemnitee was not entitled to indemnification, the indemnitee shall repay to the Foundation the expenses advanced by the Foundation.
Section 1. Fiscal Year
The fiscal year of the Foundation shall begin on the first day of January and end on the last day of December in each year.
Section 1. Dissolution
- The Foundation shall be dissolved in the following two-step process.
- The Board of Directors of the Foundation first must, by a majority vote of the Board at a meeting where a quorum exists, make a recommendation that the Foundation be dissolved.
- Thereafter, the members, upon a majority vote of the entire membership, must vote on the dissolution.
- Upon the dissolution of the Foundation, the Board of Directors shall, after paying or making provision for payment of all of the liabilities of the Foundation, dispose of all of the assets of the corporation exclusively for the educational purposes of the Foundation in such a manner, or to such organization or organizations organized and operated exclusively for educational purposes as shall at the time qualify as an exempt organization or organizations under Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law), as the Board of Directors shall determine. Any of such assets not so disposed of shall be disposed of by the court having jurisdiction over such matters, exclusively, for such purposes or to such organization or organizations, as the said court shall determine, which are organized and operated exclusively for such purposes.
Section 1. Amendments to Bylaws
Any member of the Foundation may propose an amendment to the Bylaws to the Board of Directors by sending the proposed amendment to the Secretary of the Foundation for consideration by the Board of Directors. An affirmative vote of a majority of members at any meeting where a quorum exists shall approve such an amendment.
Section 1. Severability
Each of the sections, subsections and provisions hereof shall be deemed and considered separate and severable so that if any section, subsection or provision is deemed or declared to be invalid or unenforceable, this shall have no effect on the validity or enforceability of any of the other sections, subsections or provisions.
Section 2. Transparency
Apereo shall transparently and publicly maintain a digital platform which may include, among other things, (i) a calendar of scheduled meetings of the Board, Standing Committees and Discussion and Work Groups; (ii) a docket of all pending policy development matters, including their schedule and current status; (iii) specific meeting notices and agendas as described below; (iv) information on Apereo budget, annual audit, financial contributors and the amount of their contributions, and related matters; (v) announcements about activities of interest to the community; (vi) other information of interest to the community.
Apereo Conflict of Interest Policy
The purpose of the conflict of interest policy is to protect this tax-exempt organization’s (Organization) interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Organization or might result in a possible excess benefit transaction. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit and charitable organizations.
- Interested Person: Any director, principal officer, or member of a committee with governing board delegated powers, who has a direct or indirect financial interest, as defined below, is an interested person.
- Financial Interest: A person has a financial interest if the person has, directly or indirectly, through business, investment, or family:
- An ownership or investment interest in any entity with which the Organization has a transaction or arrangement.
- A compensation arrangement with the Organization or with any entity or individual with which the Organization has a transaction or arrangement, or,
- A potential ownership or investment interest in, or compensation arrangement with, any entity or individual with which the Organization is negotiating a transaction or arrangement.
Compensation includes direct and indirect remuneration as well as gifts or favors that are not insubstantial.
A financial interest is not necessarily a conflict of interest. Under Article III, Section 2, a person who has a financial interest may have a conflict of interest only if the appropriate governing board or committee decides that a conflict of interest exists.
- Duty to Disclose
In connection with any actual or possible conflict of interest, an interested person must disclose the existence of the financial interest and be given the opportunity to disclose all material facts to the director and members of committees with governing board delegated powers considering the proposed transaction or arrangement.
- Determining Whether a Conflict of Interest Exists
After disclosure of the financial interest and all material facts, and after any discussion with the interested person, he/she shall leave the governing board or committee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining board or committee members shall decide if a conflict of interest exists.
- Procedures for Addressing the Conflict of Interest
- An interested person may make a presentation at the governing board or committee meeting, but after the presentation, he/she shall leave the meeting during the discussion of, and the vote on, the transaction or arrangement involving the possible conflict of interest.
- The chair of the governing board or committee shall, if appropriate, appoint a disinterested person or committee to investigate alternatives to the proposed transaction or arrangement.
- After exercising due diligence, the governing board or committee shall determine whether the Organization can obtain with reasonable efforts a more advantageous transaction or arrangement from a person or entity that would not give rise to the conflict of interest.
- If a more advantageous transaction or arrangement is not reasonably possible under circumstances not producing a conflict of interest, the governing board or committee shall determine by majority vote of the disinterested director whether the transaction or arrangement is in the Organization’s best interest, for its own benefit, and whether it is fair and reasonable. In conformity with the above determination it shall make its decision as to whether to enter into the transaction or arrangement.
- Violations of the Conflicts of Interest Policy
- If the governing board or committee has reasonable cause to believe a member has failed to disclose actual or possible conflicts of interest, it shall inform the member of the basis for such belief and afford the member an opportunity to explain the alleged failure to disclose.
- If, after hearing the member’s response and after making further investigation as warranted by the circumstances, the governing board or committee determines the member has failed to disclose an actual or possible conflict of interest, it shall take appropriate disciplinary and corrective action.
IV. Records of Proceedings
The minutes of the governing board and all committees with board delegated powers shall contain:
- The names of the person who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the governing board’s or committee’s decision as to whether a conflict of interest in fact existed.
- The names of the persons who were present for discussions and votes relating to the transaction or arrangement, the content of the discussion, including any alternatives to the proposed transaction or arrangement, and a record of any votes taken in connection with the proceedings.
- A voting member of the governing board who receives compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.
- A voting member of any committee whose jurisdiction includes compensation matters and who received compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.
- No voting member of the governing board or any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the organization, either individually or collectively, is prohibited from providing information to any committee regarding compensation.
VI. Annual Statements
Each director, principal officer and member of a committee with governing board delegated powers shall annually sign a statement which affirms he or she:
- Has received a copy of the conflicts of interest policy,
- Has read and understands the policy,
- Has agreed to comply with the policy, and
- Understands the Organization is charitable and in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes.
VII. Periodic Reviews
To ensure the Organization operates in a manner consistent with charitable purposes and does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, include the following subjects:
- Whether compensation arrangements and benefits are reasonable, based on competent survey information, and the result of arm’s length bargaining.
- Whether partnerships, joint ventures, and arrangements with management organizations conform to the Organization’s written policies, are properly recorded, reflect reasonable investment or payments for goods and services, further charitable purposes and do not result in inurement, impermissible private benefit or in an excess benefit transaction.
VIII. Use of Outside Experts
When conducting the periodic reviews as provided for in Article VII, the Organization may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the governing board of its responsibility for ensuring periodic reviews are conducted.
Apereo Document Retention/Destruction Policy
This policy specifies how important documents (hardcopy, online, or other media) should be retained, protected, and eligible for destruction. The policy also ensures that documents are promptly provided to authorities in the course of legal investigations or lawsuits.
Document Retention Schedule
The following types of documents will be retained for the following periods of time. Hard copy documents may be scanned and stored digitally for long-term retention. At least one copy of each document will be retained according to the following schedule.
- Article of Incorporation to apply for corporate status: Permanent
- IRS Form 1023 (in the USA) to file for tax-exempt and/or charitable status: Permanent
- Letter of Determination (for example, from the IRS in the USA) granting tax-exempt and/or charitable status: Permanent
- By Laws: Permanent
- Board policies: Permanent
- Resolutions: Permanent
- Board meeting minutes: Permanent
- Sales tax exemption documents: Permanent
- Tax or employee identification number designation: Permanent
- Annual corporate filings: Permanent
- Chart of Accounts: Permanent
- Fiscal Policies and Procedures: Permanent
- Audits: Permanent
- Financial statements: Permanent
- General Ledger: Permanent
- Check registers/books: 7 years
- Business expenses documents: 7 years
- Bank deposit slips: 7 years
- Cancelled checks: 7 years
- Invoices: 7 years
- Investment records (deposits, earnings, withdrawals): 7 years
- Property/asset inventories: 7 years
- Petty cash receipts/documents: 3 years
- Credit card receipts: 3 years
- Annual tax filing for the organization (IRS Form 990 in the USA): Permanent
- Payroll registers: Permanent
- Filings of fees paid to professionals (IRS Form 1099 in the USA): 7 years
- Payroll tax withholdings: 7 years
- Earnings records: 7 years
- Payroll tax returns: 7 years
- W-2 statements: 7 years
- Employee offer letters: Permanent
- Confirmation of employment letters: Permanent
- Benefits descriptions per employee: Permanent
- I-9 Forms: 5 years after termination
- Property Insurance policy: Permanent
- Directors and Officers Insurance policy: Permanent
- Workers’ Compensation Insurance policy: Permanent
- General Liability Insurance policy: Permanent
- Insurance claims applications: Permanent
- Insurance disbursements / denials: Permanent
- All insurance contracts: Permanent
- Employee contracts: Permanent
- Legal correspondence: Permanent
- Vendor contracts: 7 years
- Warranties: 7 years
Donations / Funder Records:
- Donor lists: 7 years
- Grant applications: 7 years
- Donor acknowledgements: 7 years
Documents (hardcopy, online, or other media) will be stored in a protected environment for the duration of the Document Retention Schedule. Computer backup media will be included.
Hardcopy of documents will be destroyed by shredding after they have been retained until the end of the Document Retention Schedule. Digital copies will be destroyed by other proven means after they have been retained until the end of the Document Retention Schedule.
Provision of Documentation for Investigations or Litigation:
Documents requested and subpoenaed by legally authorized personnel will be provided within 5 business days. The Board Chair and Executive Director will authorize provision. No documents will be concealed, altered or destroyed with the intent to obstruct the investigation or litigation.
Apereo Whistleblower Policy
This policy is intended to encourage directors, staff (paid and volunteer) and others to report suspected or actual occurrence(s) of illegal, unethical, or inappropriate behaviors, practices, or events without retribution.
The Whistleblower should promptly report the suspected or actual problem to his/her supervisor.
If the Whistleblower would be uncomfortable or otherwise reluctant to report to his/her supervisor, then the Whistleblower may report the problem to the next highest or another level of management, including to an appropriate Board committee or member.
A Whistleblower can report a problem with his/her identity or anonymously.
The Whistle blower shall receive no retaliation or retribution for a report that was provided in good faith – that was not done primarily with malice to damage another or the organization.
A Whistleblower who makes a report that is not done in good faith is subject to discipline, including termination of the Board or employee relationship, or other legal means to protect the reputation of the organization and members of its Board and staff.
Anyone who retaliates against the Whistleblower (who reported a problem in good faith) will be subject to discipline, including termination of Board or employee status.
Crimes against person or property, such as assault, rape, burglary, etc., should immediately be reported to local law enforcement personnel.
Supervisors, managers and/or directors who receive the reports must promptly act to investigate and/or resolve the issue.
The Whistleblower shall receive a report within five business days of the initial report, regarding the investigation, disposition or resolution of the issue.
If the investigation of a report, that was done in good faith and investigated by internal personnel, is not to the Whistleblower’s satisfaction, then he/she has the right to report the problem to the appropriate legal or investigative agency.
The identity of the Whistleblower, if known, shall remain confidential to those persons directly involved in applying this policy, unless the issue requires investigation by law enforcement, in which case members of the organization are may be subject to subpoena with which they should comply.
Openness & Apereo
Apereo supports open source, and is committed to the larger framework of "open," as is discussed on the value statements contained in, The Value of a Common Foundation: The Case for Apereo [https://www.apereo.org/sites/default/files/Values/The%20Value%20of%20a%2...
To this end the Apereo Foundation Board of Directors has adopted the tagline, "100% Open." What does this mean?
- Open Source
- All software code and associated documentation will be publicly available and downloadable;
- Exception: software code in general or software security related code, patches, and documentation may not be available while a security vulnerability exists or while fixes are in progress. Once those fixes are complete, however, associated code and documentation will be made public.
- Open Communities
- Anyone may participate and submit code, write documentation, etc. for inclusion in any Apereo project, subject to review and acceptance process of project leadership.
- The Apereo Foundation, and all projects under its "umbrella," are open to all people regardless of race, creed, age, nationality, culture, political affiliation and beliefs, gender, sexuality, etc. (cf. Apereo Welcoming Policy).
- Exception: Apereo is an International organization with events spanning the globe. Participants in activities that are not in their home country and/or culture should expect to conform to the culture and mores of the location of the event.
- Open Access
- All Apereo events shall be open to the public, with effort made, where feasible to support remote access by video- and teleconferencing.
- Exception: Limitations are imposed by the nature of the space (seating numbers, fire codes, etc.) or the activity itself (e.g. small group brainstorming activities).
- Open Communications
- All communications, emails, lists, etc. will be open to read, participate, and respond to posts and messages;
- Exception: Certain lists and email communication must be restricted and kept private according to law or policy; e.g. the Board of Directors list, which occasionally discusses personnel and other sensitive matters, and project security lists.
- Open Operations (Transparency)
- All Apereo operations, project meetings, task forces, etc. will be open to the public, where feasible.
- Exception: Any activity not feasible for public access will have notes or Minutes taken and made available for public examination after appropriate review and approval.
Revised by the Apereo Foundation Board of Directors, March 2018