Clarify interactions between AC / Team / Board about MoUs

[frivoal]

This PR does several things:

• Replaces CEO with Team, so that it applies to whichever member of the Team has signing authority.
• Adds an exception for Partnership agreements (the previous Process had one for Host agreements).
• Adjusts some punctuation to improve readability of the exceptions.
• Otherwise maintains the existing AC review requirements applying to MoUs.
• Gives the Board the ability to override a successful AC appeal; but does not allow the Team to do so without the Board's explicit instructions.

See #670

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Preview | Diff

[dwsinger]

I still think that this continues to contain a basic confusion: MoUs and Contracts are different and using the term MoU to include contracts is a mistake. An MoU documents a mutual understanding that doesn't set formal contractual obligations ("we understand you'll standardize the delivery protocol and we'll standardize the document format, and we'll have some joint workshops to make sure they work together", for example).

I say this because MoUs on technical matters can and should be handled by the team and WGs, and AB and TAG, but probably don't need the Board or Counsel. Contracts, on the other hand, that make legally binding commitments possibly including financial ones, may well rise to that level (unless the commitments or moneys are trivial). This text seems to suggest, by not mentioning the Board or Counsel, that contracts can happen without them.

[frivoal]

This text seems to suggest, by not mentioning the Board or Counsel, that contracts can happen without them.

The Team is hired by, and works under delegation of, the Board. When they negotiate something on behalf of W3C, this is not "without" the Board, this is on its behalf, and as authorized by it. As the Process does say earlier:

Oversight over the Team, budgeting, and other business decisions, is provided by the W3C Board of Directors, rather than managed directly by the Process.

The Process is overall silent about how the Board and Counsel manage the Team not because the Process doesn't want the Board and Counsel to manage the Team, but because it doesn't want to dictate how they do so.

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I still think that this continues to contain a basic confusion: MoUs and Contracts are different and using the term MoU to include contracts is a mistake.

The ambiguous overlap between Contracts and MoUs is not of our own making, and not something we can all that easily desist. If you go have a read at the wikipedia definition of an MoU, it too echoes this fuzzy notion that MoU's aren't typically contracts, and are often looser agreements than them, but can be contracts some of the time, depending on exactly what's in them.

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Letting terminology aside, this paragraph stipulates that "agreements related to the ordinary provision of services for the purpose of running W3C" are out of scope for this, and therefore the Board and the Team can do them without involving the AC.

As for agreements that aren't about the ordinary running of W3C, the Board certainly shouldn't let the Team sign them willy-nilly, and should certainly define parameters for what the Team is allowed to negotiate or sign, but the question here is: if we want to sign an agreement of some kind, MoU or contract, about things that relate to the standardization Program of the W3C rather than the running of the organization, should the Board+Team be allowed to do it without consultation with the AC at all?

Here are some examples:

• the agreement with the WHATWG
• the agreement through which W3C merged with IDPF (or at least tried to).
• the cooperation agreement with the Open Mobile Alliance
• MoU with COVESA (formerly GENIVI Alliance)
• MoU with Geospatial

For this discussion, I don't particularly care about whether we call these MoUs or contracts. The point is that this is very different from a contract with Virtual, renting office space, hiring staff, procuring cloud services… This section is not about how W3C works, this is about what it does. And I do believe that it is appropriate to run such things by the AC, prior to signing.

I also agree that it would be bad to tie the board's hands when it comes to contractual relationships, so there's an explicit allowance here for the Board to go ahead even without the assent of the AC (the allowance doesn't create the ability of the board to do it, it creates the ability to do it without breaching the Process and the Member agreement that references it).

Rejecting this pull request and leaving the text unchanged would result in the Board being able to sign contracts despite the AC dissent only by breaching the member agreement. Removing the section altogether would give W3C Inc (via its Board and Team) the ability to bind the consortium on matters relevant to the technical program without even consulting the membership at all. Neither seem desirable.

I think that one way or another, we need to stay clear both of "the Board cannot act when it thinks it needs to" and of "the AC can be completely bypassed on matters pertaining to the technical program". This PR attempts to find a balanced middle ground, and I don't think it's too far off, but alternative suggestions are certainly welcome.

[frivoal]

@dwsinger in particular, in #670 (comment) you argued that:

If a contract is proposed, and the AC says one thing, can the Board go the other way? I suspect that the answer is yes

This PR aims to propose exactly that.

[nigelmegitt]

MoUs definitely need Counsel review to ensure that they are not, in fact, and presumably unintentionally, contracts.

[dwsinger]

Thanks, I don't disagree with your analysis, but feel we can do better here.

1. I'd call them agreements, and say that agreements include Memoranda of Understanding (MOUs), contracts, and possibly other vehicles.
2. As you say/imply, we need to scope what does in fact get brought to the attention of the AC; an agreement with Staples to provide office supplies does not, for example. Something like "Agreements that are related to the technical work of the consortium, its publications, technical liaisons, etc. MUST be brought to the attention of the AC etc. as outlined here."
3. and carry on to say ", in addition to any other management or governance procedures that apply (e.g. formal review of proposed contracts)". It's possible (desirable, even) that the management team have processes in place to develop and agree such agreements, and of course Counsel and/or Board review is needed in some cases. By admitting that those other reviews happen, we can stop people from claiming that the Process defines the only steps needed.

Here's an attempted re-write using the P2021 text as a base:

The W3C Director may negotiate an agreement with another organization. For the purposes of the W3C Process an agreement is a formal contract or Memorandum of Understanding (MoU) or similar document, between W3C and another party or parties, that relates to the technical activity of the Consortium (e.g. its publications, groups, or liaisons), and specifies rights and obligations of each party toward the others. These rights and obligations may include joint deliverables, an agreed share of technical responsibilities with due coordination, and/or considerations for confidentiality and specific IPR.

Non-technical agreements e.g. related to the operation of the Consortium, including agreements between the Hosts or between Hosts and W3C members for the purposes of membership and agreements related to the ordinary provision of services for the purposes of running W3C, are not subject to these Process provisions.

In addition to any other management or governance procedures that apply (e.g. formal review of proposed contracts), before signing such an agreement, the Team MUST inform the Advisory Committee of the intent to sign and make the agremeent available for Advisory Committee review; Advisory Committee representatives may initiate an Advisory Committee Appeal of the decision to sign the agremeent. Unless an appeal rejects the proposal to sign an agreement, the Director may sign the agremeent on behalf of W3C. A signed Agreement should be made public.

[LJWatson]

I like @dwsinger's proposal in #704 (comment). If it takes an explanation in a Github thread to explain what's meant in the document itself, it's probably a sign we could make it clearer to begin with 😊

[frivoal]

Yes, I like where @dwsinger is going with this too. As he said, he based that off the 2021 process, rather than the current Draft Process, which means that he missed on some other changes that happened along the way (other than this pull request itself), so I've just pushed a new commit to this pull request that integrates the logic of what he was going after into the text we are now working from. Made some minor editorial tweaks along the way as well.

Let me know how you feel about this updated version. I suspect we're getting closer.

[frivoal]

For those who'd rather read a rederred version than a diff, here's what that yields:

W3C may negotiate technical agreements with another organization. For purposes of the W3C Process, a technical agreement is a formal contract, or a Memorandum of Understanding (MoU), or a similar document, between W3C and another party or parties, that relates to the technical activity of the Consortium (e.g. its publications, groups, or liaisons). It specifies rights and obligations of each party toward the others. These rights and obligations may include joint deliverables, an agreed share of technical responsibilities with due coordination, and/or considerations for confidentiality and specific IPR.

Non-technical agreements, including those between W3C and its Members for the purposes of membership, between W3C and its Partners for the purposes of partnership [BYLAWS], and other agreements related to the operation of the Consortium or to the ordinary provision of services are not subject to these Process provisions.

When considering a technical agreement, (i.e., before the decision whether to sign is made), the Team should provide the Advisory Committee with a draft of the proposed agreement, along with an explanation of how W3C would benefit from signing this agreement, for their review and discussion. After addressing any comments, and subject to any management or governance procedures that apply (e.g. formal review of proposed contracts by legal counsel or by the Board), if the Team decides to proceed with signing the agreement, the Team must announce the intent to sign, and provide the final text of the agreement with an explanation of signing rationale, to the Advisory Committee. Advisory Committee representatives may initiate an Advisory Committee Appeal of the decision to sign the agreement. If the appeal rejects the proposal, the Team must not sign the agreement on behalf of W3C unless directed to do so by the Board. A signed agreement should be made public.

[TallTed]

Some minor punctuation tweaks.

[cwilso]

Does this still need AB review, or has this moved to the Board for review? (Trying to determine if this should be on our next AB agenda.)

[dwsinger]

Does this still need AB review, or has this moved to the Board for review? (Trying to determine if this should be on our next AB agenda.)

I suspect that neither AB nor Board review are required any more.

[css-meeting-bot]

The Revising W3C Process CG just discussed Introductions.

The full IRC log of that discussion

<fantasai> Topic: Introductions
<plh> Github: https://github.com//pull/704