Board of Directors Report: Policy and Bylaws Update

by Ruth Garbus

The Policy and Bylaws Committee members are Richard Berkfield, Jerelyn Wilson, John Hatton, and Ruth Garbus

I’ve experienced the Co-op’s  board of Directors and bylaws as a customer, shareholder, employee, and director, which complicates but deeply enriches the process of creating bylaws proposals. I’ve written this article to explain the path our board has taken with two proposals already written about in Food For Thought, which were opened up again as a result of shareholder feedback.

Bylaw Section 5.4 

What the current bylaw states:

5.4 Nomination- Candidates for patron directors shall be nominated by the board, by a nominating
committee of the board, by petition signed by at least ten shareholders or, in the event that voting by absentee ballot is not used, by nomination from the floor at a shareholder meeting. Candidates for staff directors shall normally be nominated by shareholders who are regularly employed by the Coop, but they may be nominated by any of the means available for
nomination of patron directors.

Initially, we decided to update this bylaw because of many directors’ discomfort with the idea of nominating candidates, which the board has seemingly not done in years, if ever. But when we looked deeper we saw that there are many ways candidates have been brought into contact with the board before deciding to run, which could be considered a nomination process, and in this way, the board has maintained itself as a functioning entity and preserved a sense of continuity from one year to the next. And if the board is dysfunctional, it puts the whole co-op at risk; isn’t it important that the board be willing to show shareholders who the board considers a candidate worth electing?

So we decided it would be in the shareholders’ best interest to maintain and even reinvigorate the nominations process, as part of our due diligence on shareholders’ behalf; as Jerelyn wrote in her July article, we proposed this:

5.4 Nomination- Candidates for patron and staff directors shall be nominated by the board, by a  nominating committee of the board, by petition signed by at least ten shareholders or, in the event that voting by absentee ballot is not used, by nomination from the floor at a shareholder meeting.

Then we got a seriously thought-provoking response from a shareholder which pointed out the danger, from a democratic perspective, of having the board be too strong a filter for the candidates presented for shareholders to vote on. Even if the petition option opens running for the board up to virtually anyone, the board’s stamp of approval or lack thereof is a powerful statement, and perhaps it’s not good to give the board that power. It seems to contradict Ends #7 – “Reasonable access to participation in the cooperative.” And, I thought, maybe the board is sometimes on the wrong track and in need of a shake-up from someone outside its preferred candidates; hadn’t my previous experiences shown me so? When I, as an employee, attempted to get the board to recognize our right to unionize in 2012, it seemed to me that the board and the bylaws were intentionally obfuscating and impenetrable. How could I now be supporting a proposal to keep the net so tight?

These days things are very different and much improved, in part because many of the dissenting voices from the past have since been elected as directors themselves; the board is as dynamic and diverse as it’s probably ever been. This wonderful situation paradoxically creates a problem in crafting bylaws, which will likely outlive the current group of actors, perhaps by many years — all the potential dangers that need to be considered are left to the imagination. And it’s difficult for me to gauge the rational bounds of potential challenges at this particular moment: while my history with organizing the union pulls me towards allowing more freedom, the recent presidential election leaves me fearful of a “drain the swamp” mentality and the destruction that can wreak.

Weighing all these perspectives, here is our current proposal, which we feel strikes a balance between openness and responsibility:

5.4 Board Candidacy-
Candidates for directors must be a current shareholder in good standing and are required to read the candidate packet and fill out and sign the requisite candidate form no later than two weeks prior to the Annual Meeting.

It’s wide open to whoever wants to run, but requires there be a point of contact for potential directors with the board. It’s very simple, but as you now can see it’s the result of much thoughtful deliberation. We hope you like it.

Gendered Bylaws

One revelation I’ve had over my two years on the board is that the bylaws don’t only operate on the one-dimensional field of contractual law. They can also operate on a symbolic level: What do they communicate about the board’s relationship to the shareholders? About what the Co-op perceives itself to be? It’s also an historical document, containing the philosophy and character of the people and time from which it arose. With this in mind, let’s refer back to the article Richard wrote in the August Food For Thought. In a nutshell, the board decided to join the progressive/LGBTQ community in moving forward with the “…new paradigm, in which more and more people are challenging the use of the gender binary (he and she, her and him, etc).” We all enthusiastically gave our seal of approval to the idea of changing all mentions of “he or she” in the bylaws to “they” or “them,” and Richard’s article beautifully explained the reasoning behind this. But then, again, we got some important shareholder feedback. Admittedly, it was tough to hear any kind of disagreement with our righteous endeavor, but it is clear the argument is not with the concept of gender neutral language, but with the potential lack of clarity of using “they” or “them” in a legal document. It’s not helpful to make a statement about the Co-op’s place in the LGBTQ community if the words themselves undermine what it’s supposed to communicate. It’s another situation in which the board’s need to protect the interests of shareholders is potentially at odds with an ends policy- here it’s #2, in which we’re charged with creating a “welcoming community marketplace.” Again, as in bylaw 5.4, we reached a compromise: where originally there were five places the change from “he/she” was to be made to “they/them”, we’ve changed three of those to simply restate the proper noun. For example, in 5.1, currently it states:

The powers and duties of the board shall include… engaging a general manager and monitoring and evaluating his or her performance….

In August we proposed this:

The powers and duties of the board shall include… engaging a general manager and monitoring and evaluating their performance….

And now we’re proposing this:

The powers and duties of the board shall include… engaging a  general manager and monitoring and evaluating the General Manager’s performance….

To conclude: yes, it’s true, the bylaws can be tedious. But probably so is cutting the facets of an emerald, or weeding a beautiful rose garden, or painting a masterpiece. The tenor of the work itself doesn’t necessarily speak to the power of its end result.