Although the Node.js Foundation is a not-for-profit membership organization rather than a corporation owned by stockholders, the same legal rules and obligations apply to its Board of Directors as is the case with a publicly or privately held stock corporation. Thus, while a member of the Board may have been nominated or even appointed by the Director’s employer as an exercise of a membership right, such a director must be mindful of a Director’s obligations under standing law and the Foundation's Certificate of Incorporation and By-Laws. The purpose of this document is to acquaint new and existing Directors of these obligations.
It is the express policy of the Foundation to require that all its activities be conducted strictly in accordance with federal and state laws. It is extremely important that all members of the Board of Directors be aware of the legal and ethical standards to which you are held and the types of activities to avoid in order to fulfill your duties as directors properly, as well as to avoid liability.
The guidelines in this document, were prepared to provide you with a broad, summary overview of the standards under the law to which you will be held. However, you should note that these governance guidelines are not intended to be a complete and definitive statement of all aspects of the law relating to the duties of Directors. Any specific questions relating to your duties as a Director not addressed in these governance guidelines and standards should be referred to counsel for the Foundation or to your own legal counsel who has responsibility for considering your duties as a Director of the Foundation.
The Board of Directors represents the interests of the Foundation’s Members. The Board is the ultimate decision-making body of the Foundation except with respect to those matters reserved to the Members. The business and affairs of the Foundation are managed by its Board. Although the Board may delegate authority, the ultimate responsibility for the Foundation resides with the Board, which may not lawfully abdicate its duties.
Directors need to be aware that the Foundation’s funds are dedicated to the purposes set forth in the Certificate of Incorporation, and may only be used in a manner consistent with the Foundation’s authorized tax-exempt purposes.
Generally, the Board may take action at meetings at which the requisite number of Directors is participating (in person or via communications equipment), and the requisite number Directors vote in favor, in each case as provided in Article IV of the By-Laws. Actions may also be taken electronically in accordance with the rules of the same Article. In some cases, a Super Majority (two-thirds) of the then serving Directors is required to approve an action.
Additional information about Board governance and Directors is contained in Article IV of the By-Laws, which all Directors should review carefully.
The Board’s core responsibilities consist of the following:
- Advising and counseling management regarding significant issues facing the Foundation;
- Evaluating and approving the Foundation’s strategic direction and initiatives, and monitoring their implementation and results;
- Monitoring the Foundation’s activities and financial condition;
- Overseeing the Foundation’s integrity and ethics, compliance with laws and financial integrity and reporting;
- Succession planning and management development;
- Assessing the performance of senior management and setting compensation, if applicable; and
- Understanding and assessing risks to the Foundation and monitoring the management of those risks.
To fulfill their core responsibilities, Directors are expected to attend all meetings (except when special circumstances or pre-established material commitments dictate otherwise) and review materials in advance of the meetings.
Directors have a fiduciary duty to the Foundation to act in the best interests of the Foundation and its Members as a whole, including but not limited to acting with due care and owing a duty of loyalty to the Foundation.
Your duty of care, in general, means that you should be reasonably informed to participate in decisions of the Board and to do so prudently and in good faith. Important aspects of this duty include:
- Attendance at Meetings: You should attend all meetings of the Board of Directors (except when special circumstances or pre-established material commitments dictate otherwise). In order to do its job, the Board must act as a group, so your attendance at meetings is critical to ensure that all voices are heard.
- Exercising Independent Judgment: Directors serve as individuals, and the effectiveness of any vote or action they take as a member of the Board should not depend on whether it was authorized or directed by any other person or entity or was contrary to the instructions or interests of any other person or entity. Rather, you should weigh your votes on official action carefully, based upon your independent business judgment, and you should abstain or dissent when you believe any action for which approval is sought is not in the best interests of the Foundation or its mission.
- Continuing to be Informed: In order for you to make prudent decisions for the Foundation, it is important that you remain informed. In furtherance of this, you should read all materials supplied to you and, to the extent that the information provided is inadequate, you should request additional information. In addition, you should review carefully the Foundation’s Certificate of Incorporation and By-Laws.
- Delegating Responsibilities: Since the Board of Directors does not perform the day-to-day operations of the Foundation, it must prudently select officers and managers and delegate these operations. Once delegated, however, the Board must oversee the Foundation’s officers and managers to ensure they are acting responsibly.
- Acting in the Foundation’s Best Interest: You should always act in good faith and in a manner you reasonably believe to be in the Foundation’s best interest, and with independent and informed judgment.
Your duty of loyalty means, generally, that you exercise your powers as a Director in the interest of the Foundation and not in your own interests or the interests of another entity or person. You may not use your position as a Director for personal advantage or to take an opportunity that is offered to the Foundation and use it personally. In some cases, you may have interests that conflict with those of the Foundation. You must be aware of the potential for such conflicts and disclose any potential conflict to the Board when this type of situation arises, and must otherwise comply with the provisions of Article X of the By-Laws and of any Conflicts of Interest Policy that is then in place.
In addition, you should keep all matters and information relating to the Foundation in complete confidence until there has been general public disclosure by the appropriate spokesperson or the Board has decided as a whole that any director may disclose it, unless the information is already a matter of public record or common knowledge. All Directors are required to use reasonable care to protect and safeguard the Foundation’s confidential information.
Finally, you should be aware of the basic legal requirements to which the Foundation may be subject (such as anti-trust laws), and familiarize yourself with all related policies that may have previously been adopted by the Board. If you believe that an activity undertaken by the Foundation is illegal, you should bring it to the attention of the full Board for investigation and inquiry.
In fulfilling your duties to the Foundation, you are entitled to rely in good faith upon the records of the Foundation and upon such information, opinions, reports or statements presented to the Foundation by any of the Foundation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters you reasonably believe are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Foundation.
To assist Directors in fulfilling their responsibilities as members of the Board of Directors, Directors have certain rights, including the following:
- Reasonable access to management (upon which more will be said below);
- Access to the Foundation’s books and records, including financial statements;
- Adequate notice of meetings and the content thereof; and
- Minutes of meetings of the Board and its committees.
The Board will meet as frequently as necessary for the Directors to properly discharge their responsibilities. Meetings may be held on a regular schedule, and on occasion may be called on an interim basis as the need arises. Face-to-face meetings are ordinarily held several times a year, with the balance being held by telephonic or other electronic means of communication. The Board or its designee will establish the agenda for each Board meeting. Each Director is free to suggest the inclusion of agenda items, and each Director is free to raise at any Board meeting additional subjects that are not on the agenda for the meeting.
Information and data that are important to the Board’s understanding of the business to be conducted at meetings should be distributed in advance in writing to the Board with sufficient time for Directors to review and reflect on key issues. Directors should request such supplemental information as they believe appropriate before the Board meets. On those occasions on which the subject matter is too sensitive to put on paper, the presentation will be discussed at the meeting. Where there is no prior distribution of a presentation on a sensitive subject, it may be appropriate to advise each Director by email or telephone in advance of the meeting of the subject and the principal issues the Board will need to consider.
The Board may invite senior management and other guests to attend Board meetings.
Directors have access to the Foundation’s management team. Directors should use judgment to be sure that this contact is not distracting to the business operation of the Foundation. Furthermore, the Board encourages management to, from time to time, bring managers into Board meetings who: (a) can provide additional insight into the items being discussed because of personal involvement in these areas, and/or (b) represent managers with future potential that the senior management believes should be given exposure to the Board.
A Director may not act in an official capacity or speak publicly on behalf of the Foundation unless empowered to do so under the By-Laws or as specifically empowered by the Board. Except where so empowered or authorized, a Director speaking publicly to Foundation membership or in any other public forum must ensure that the Director’s statements are clearly identified as personal opinions and that the Director is not speaking on behalf of the Foundation in any official capacity or expressing the views or positions of the Foundation.
A Director must accept and publicly support Board decisions. A Director is encouraged to be an ambassador of the Foundation and, subject to the Director’s confidentiality and other obligations under this Code of Conduct, to promote the activities and actions of the Board with the Foundation membership and publicly. In doing so, a Director must stay faithful to the intent of the Board as expressed in its official statements, and should not reinterpret or re-characterize the Board’s actions to reflect the Director’s own view.
While a Director has the right and responsibility to exercise independent judgment and to express dissenting opinions during Board deliberations, a Director also has the obligation outside the Boardroom to respect and support decisions of the majority, even when the Director dissented from the majority view. A Director who does not support a Board decision may express the Director’s opposition within the Board in an appropriate manner, but must not take actions publicly or with respect to the Foundation membership that have the purpose or result of undermining the decisions or actions of the Board. Acting otherwise may be in violation of a Director’s fiduciary and loyalty duties. Accordingly, a Director who intends to publicly oppose a Board action should resign the Director’s position on the Board before doing so.
These governance guidelines and standards shall be reviewed periodically by the Board or an authorized committee of the Board, in consultation with legal counsel, and may be amended, updated or repealed by the Board or a duly authorized committee thereof as appropriate.
As approved by the Board of Directors on __________, 2017