I was forwarded an email sent by the VP of Capital and Finance to Board (but not membership) yesterday. I respect and appreciate the substantial effort Nick has put into this - both the bylaw and the email. In particular, I was pleased to learn that CFCom last week concluded that an advisory board of non-voting external Directors would provide many of the same benefits as true external Directors, without a bylaw change.
I hope that Nick and everyone else invested in cooperative democracy will read read the analyses presented here and in linked pages on this site, with an open mind.
Nick's email sets out to challenge two narratives he claims are "half-truths, miscommunication, and misunderstanding" that "fail to acknowledge what the bylaw change is and, instead, describe the bylaw change as something that it is not." I respectfully maintain that the objections presented here are in fact about the bylaw change as it actually is.
"Select Members of the BSCAA Board"
The first such narrative deals with "Select Members of the BSCAA Board"'s involvement with the process. I am less familiar with the background for this part, but a few points stand out as misleading or misguided.
Our number one priority is the voice of our student leadership, as elected by our membership.
While this is a reasonable explanation for the proposed changes to V.A.1., it conflicts with the rest of the proposal, which reneges on promises to fix the electoral college-style apportionment instituted in 2015. Currently, each member at Kidd has five times the voting power of each member at Cloyne. We should not be expanding the pool of non-members to give votes to, until all members have a proportional voice at Board.
It is hard for me to understand the sentiment that BSCAA alumni have been “left out in the cold” and ignored. I am not sure if these specific sentiments are due to an obliviousness of the conversations that have been had with alumni (from alumni participation in IACom, CFCom, EACom, and Cabinet, to individual meetings, and discussions had within the BSCAA Board space) or if these notions are an inflammatory charade. The BSCAA exists to support alumni and gain direction from the BSC student leadership. It does not exist to “check” BSC governance structures or BSC staff via a dissenting vote at the BSC Board level.
As a current member who has been in the BSC awhile, I can attest that the current BSCAA representatives have been both far more responsive to current members, and far more respectful of our governance structures, than my own elected Board Directors. By contrast, BSC staff are not members and should absolutely not have more voice than members in governance.
Ultimately, the response to the first narrative reads as an argument that BSCAA alumni need to be put in their place, by making the alumni rep accountable to current members. This would be far more persuasive if Cabinet were itself interested in being accountable to current members.
I want to shed light on the majority of our alumni (both due-paying members of the BSCAA and part of the tens of thousands of alumni who cannot afford to be part of the BSCAA). This Bylaw Change exists to uplift their voices, to empower the alumni who have been shadowed, and to ensure that the BSC reaches out to everyone who has called themselves a BSC member.
"The Few BSC Members Who Believe this Bylaw Change is an Infringement of Member Voice and Opens the BSC to Corrupt Politicians and Corporate Greed:"
Recall that this was an email sent only to Board, about a bylaw change that has never been straightforwardly publicized to membership, nor even notified to Board 25 days in advance as required. Few BSC Members know about this bylaw change, and [select members of] Cabinet have had an active hand in ensuring that. Among BSC members who are aware of the proposal, these criticisms are widely held.
The BSC as a Legal Cooperative
First and foremost - just because we're not legally obligated to do the right thing, doesn't mean it's ok to do the wrong thing.
I will first start by stating that the BSC adopts cooperative ideals in many of it practices; however, it is not structured as a legal cooperative like, say the Cheeseboard Cooperative. We do not adhere to the cooperative corporation code.
This is another half-truth. It is true that we are incorporated as a 501(c)3 non-profit, and it is certainly true that Board's actions are not in adherence with the cooperative corporation code. But that's not because it doesn't apply to us - in fact, our non-compliance is a liability. See Yes, we are a cooperative for more detailed analysis.
Our members do not own 1/1300th of all of buildings; they can[not] collect their “owned” shares when they leave.
That is true, but it's also true of most cooperatives, per the Rochdale Principles:
3rd Principle: Member Economic Participation
Members contribute equitably to, and democratically control, the capital of their co-operative. At least part of that capital is usually the common property of the co-operative. Members usually receive limited compensation, if any, on capital subscribed as a condition of membership. Members allocate surpluses for any or all of the following purposes: developing their co-operative, possibly by setting up reserves, part of which at least would be indivisible; benefiting members in proportion to their transactions with the co-operative; and supporting other activities approved by the membership.
Part of what we pay in becomes part of the indivisible reserve, and that reserve goes by the name "Berkeley Student Cooperative".
Our buildings and our organization are a public entity. We are a 501(c)3 non-profit membership corporation.
Still waiting to hear back from the lawyers on this one, but according to executive staff in 2015, this means we are entitled to a referendum, regardless of our status as a pseudo-cooperative.
The Bylaw being Illegal:
There is a clause in our current bylaws that states, “any Bylaws fixing or changing the number of Directors may be adopted, amended or repealed” only by a member referendum. Our suggested change does not “fix or change” the number of Directors that sit on the BSC Board of Directors. Currently there is room for 29 Board Directors:
- 25 are elected by unit councils
- 1 is appointed by the BSC Employee Association (as dictated in our employee contract)
- 1 may be appointed by the BSC Alumni Association President
- 2 additional board directors (either from the Alumni Association or UC Berkeley Faculty) may be recommended by the BSC President and voted in by the BSC Board of Directors
Our current Bylaw Change Proposal does not “fix or change” this number. There will still only be room for 29 Board Directors. Our current Bylaw Change is centered around the individuals who can be elected to three additional spots (outside the EA and student elected Directors), how they will be elected, and who they will serve at the pleasure of. It does not affect the number (increasing, decreasing, or fixing). Fixing, here, means establishing a steadfast number.
Firstly, there are 26 elected Directors, not 25. There are 30 Board Directors total. I have pointed this out multiple times. This speaks to the incomplete nature of this proposal - it is not ready to become a bylaw.
That aside, the only argument here is that the total number of Board Directors remains the same, therefore it's ok. By the same logic, they could trade student Directors for additional external ones until we're down to one elected Director per house.
Political and Corporate Influence over Board:
I think this is a valid sentiment, one that has existed for the life of the BSC, for the life of any cooperative I’m sure, and one that will continue to exist long into the future. Because this sentiment is one that will be in the back of the minds of many generations of members to come, I am not worried. I trust future students of future Boards to make the right decisions.
Unfortunately, some of us have been around long enough to see how trusting future Board works out in the long run. It doesn't take bad intentions, it just takes turnover and the mundane pressures of the nonprofit-industrial-complex.
This current Bylaw change allows for ample control, by the student leaders, to ensure that their voice, wants, and needs will be continually prioritized. Beyond that, I trust that, like us, they will ask the hard questions, think critically, and act in the best interest of the BSC membership.
Let's dissect this. The Bylaw change allows control by the student leaders to ensure that their voice, wants, and needs will be prioritized. Nick trusts that they will act in the best interest of the BSC membership.
If the goal is ultimately to act in the best interest of the BSC membership - and it is - then there is a much easier way to ensure this: Ask the membership. Recall that this is a proposal that guts members' rights to elect our own Board Directors without interference. If they are confident they are doing what's best for us, why not let us have a say?
Non-Student Directors Taking Over Cabinet:
It is illegal to create a clause in out Bylaws that certain Board Directors (i.e. non-student Board Directors) cannot hold an executive position. All Board Directors have equal rights, including the offices that they can hold. However, this has been the case for 85 years, and so far Cabinet has not been taken over by non-student Directors. Again, I trust the future student leaders of our organization to act in the best interest of the BSC membership.
This is an excellent reason not to make external consultants Board Directors in the first place.
It is woefully naive to say that just because non-students have not taken over Cabinet yet, they never will. This amendment expands the pool of potential Directors to include a lot more rich and powerful people. It makes it much harder to remove external Directors, and much easier for external Directors to contribute to removing students. It is also being promoted for the express purpose of bringing in people with no connection to cooperative values.
In combination with Cabinet's creative interpretation of XIII to bypass the member referendum requirement, a Board that has no commitments to cooperative democracy beyond the bare minimum legal requirements, cannot be expected to withstand continued temptation to choose professionalization over cooperation.
Member Vote being Diluted:
The removal clause has also been a concern under this sentiment. The fact that the BSC Board can vote to remove a Board Director if they are recklessly not-completing their fiduciary duties is a common and important clause. It ensures that the BSC membership is protected from recklessness and the BSC can remain operational as an organization.
Again, let's dissect this. What does it mean to be "recklessly not-completing their fiduciary duties"? To borrow Nick's example from elsewhere in the same email, the only situation where this would come up, is if
- 2/3 of Board wants to remove a unit's representative, and
- Board presents the case and engages in good faith dialogue with the members of the house to try to convince the members to recall that representative, and
- The unit's members still do not consent to the removal.
So who is "the BSC," and whose recklessness is it protecting "the BSC membership" from? If Board cannot persuade a truly reckless Director's own constituents of the need to remove them, then Board is not protecting the BSC membership from the recklessness of an aberrant Director. In that case, Board incumbents would only be protecting themselves from the membership, and the inherent "recklessness" of member-driven democracy.
While Cabinet has effectively deployed the language of accountability to current student leadership in the context of disenfranchising alumni, this narrative falls apart in the face of their abject refusal to engage with the current membership, and the paternalistic dismissal of member concerns by a select few Cabinet members.
Members are the BSC. There are no "interests of the organization" apart from the democratically embodied will of its members. We do not need "protection" from our own democratic structures.