OSI election ends with unsatisfying results

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The Open Source Initiative (OSI) has announced the results of its recent board of directors election. Ruth Suehle and McCoy Smith are new to the board, while Carlo Piana will serve another term. The results, however, seem tainted in the eyes of some participants and observers. The election has been plagued by missteps from the beginning. It has culminated with the exclusion of three candidates for failing to meet a requirement to sign the OSI board agreement, which was added after the election was over and before results were tallied or announced.

OSI board of directors

OSI is a 501(c)(3) non-profit founded in 1998. It, of course, published the Open Source Definition (OSD) which is the litmus test that open-source licenses are judged by. Its primary function these days seems to be around approving licenses via its license review process, open-source advocacy, as well as policy and standards work.

OSI's board has 12 directors. Four of the board members are directly appointed by the board itself. According to its elections page, this is "to ensure that the resulting Board has an optimal balance of skills, knowledge, and demographics". Board-appointed directors serve two-year terms. Four of the board seats are affiliate seats, which are nominated and voted on by OSI's affiliate members, which are the organizations "engaged in and with the open source community". That includes projects like the Apache Software Foundation, Debian, GNOME, KDE e.V., the Linux Foundation, and many others. Affiliate directors serve three-year terms. Finally, the other four board members are nominated and voted on by the individual members of OSI. That would be OSI supporters who pay a yearly membership fee (starting at $50). Directors nominated by individual members serve two-year terms. No director is allowed to serve more than six consecutive years before being required to sit out a year before serving again.

OSI has elections annually, to replace directors whose terms are ending, with the timeline determined by the board in December and publication of the timeline for the election in January. This year, the elections were announced on January 22, by OSI head of community Nick Vidal, with nominations running through February 17 for one affiliate director and two individual directors. That was later corrected to two affiliate directors and one individual director, after nominations had closed, with an update inserted into the blog post:

Thankfully, a candidate caught the mistake in time, and we have corrected the ballots before elections opened. To prevent similar errors in the future, we have updated our procedures to improve accuracy. We appreciate your understanding and your participation in the process!

The elections, however, are non-binding. OSI's board makes the final determination whether to accept the results and seat the winners.

Election missteps

Typically, OSI elections draw little attention. However, the OSI has received more attention than usual in the past year over the Open Source AI Definition (OSAID), which LWN covered in October. Several people critical of OSAID decided to stand for the board, including Debian developer Luke Faraone, who initially wanted to be nominated as an affiliate candidate. However, since there was apparently only one affiliate seat open, they said that they decided to run for an individual seat instead.

Since Bradley Kuhn is also running for an Affiliate seat with a similar platform to me, especially with regards to the OSAID, I decided to run as part of an aligned "ticket" as an Individual Member to avoid contention for the 1 Affiliate seat.

Faraone submitted their self-nomination "around 9pm" US Pacific Time on February 17. Their candidacy was rejected, though, due to missing a poorly-advertised deadline of 11:59 p.m. UTC on that day. While the date was well communicated, the time was not. It was only present in one of two emails about the election that were sent to members. (I received copies of these emails from Faraone and a member of the OSI board.) It was apparently also mentioned during information sessions run by OSI for potential directors, but Faraone did not attend those. (Update: Faraone's post made reference to post-nomination meetings, rather than pre-nomination meetings, which of course he could not attend as his nomination was not accepted.)

Faraone said that it seemed arbitrary and capricious to govern elections by UTC when the organization is based in California. They urged OSI to reconsider the policy and allow them to stand for election, but the organization declined to do so.

Kuhn, and Richard Fontana, ran on an "OSI reform" platform that sought to repeal the Open Source AI Definition (OSAID) and remove the "code of silence" from the board agreement. Specifically, the agreement requires board members to "support publicly all Board decisions, especially those that do not have unanimous consent".

On March 3, Kuhn published a lengthy blog post about problems with the OSI elections which said that this was unfair to candidates:

If we had known there were two Affiliate seats and just one Member seat, Debian (an OSI Affiliate) would have nominated Luke a week early to the Affiliate seat. Instead, Debian's leadership, Luke, Fontana, and I had a complex discussion in the final week of nominations on how best to run as a "ticket of three". In that discussion, Debian leadership decided to nominate no one (instead of nominating Luke) precisely because I was already nominated on a platform that Debian supported, and Debian chose not to run a candidate against me for the (at the time, purported) one Affiliate seat available.

He argued that this impacted several affiliate organizations. Kuhn said he was nominated by four affiliates, because "if they nominated someone else, that candidate would be effectively running against me". At least one of those would have nominated a second person if it had been known at the time that there were two available seats and not only one. He called for OSI to reopen nominations and reset the election, but to no avail.

Kuhn has detailed a number of what he terms irregularities with the OSI election in his post. Some might be considered minor, such as a complaint about the order in which candidates are presented on the ballot, or the fact that only one nominating organization was listed for each candidate instead of listing all nominating organizations. One, in particular, seems fairly substantive and worth noting. Kuhn had reached out, by email, to likely voters in the affiliate category to promote his candidacy. In an apparent reaction to this, OSI sent out an email to affiliate voters that said it had learned a candidate was reaching out to voters "without their consent":

We do not give out affiliate emails for candidate reachouts, and understand that you did not consent to be spammed by candidates for this election cycle.

Candidates can engage with their fellow affiliates on our forums where we provide community management and moderation support, and in other public settings where our affiliates have opted to sign up and publicly engage.

Kuhn said that he spent between 12 and 14 hours researching to find the contacts at affiliate organizations to reach out to. The text of the email Kuhn sent to 55 people at affiliate organizations is included in his blog post. Kuhn complained that OSI had not given candidates any specific guidance about reaching out to voters, and said that it is not spam to "contact one's 'FOSS Neighbors' to learn their concerns when in a political campaign for an important position". What is considered "spam", of course, varies greatly from person to person. However, in my experience, Kuhn's lobbying affiliates for votes is not at all unusual. While I have never held an affiliate vote for an organization in OSI elections, I have been a voter for similar positions in other open-source foundations and can attest that other people have lobbied for my vote. Merely reaching out to voters once and asking for consideration does not seem beyond the pale in this type of election, nor unwelcome. If an affiliate voter is put off by this sort of campaigning, the obvious result would be that they vote for another candidate.

In the same post, Kuhn said that OSI should reopen the nominations or just forget elections entirely, since the elections are only advisory in any case.

OSI's halfway solution (i.e., a half-heartedly organized election that isn't really binding) seems designed to manufacture consent. OSI's Affiliates and paid individual Membership are given the impression they have electoral power, but it's an illusion. Giving up on the whole illusion would be the most transparent choice for OSI, and if the OSI would rather end these advisory elections and just self-perpetuate, I'd support that decision.

Board agreement

On March 19, Fontana, who was running for an individual seat, posted on the OSI Discourse forum that he had received an email asking him to sign the OSI board agreement before the results were announced. Kuhn wrote about this requirement on his blog the same day. Fontana and Kuhn objected to this, saying that it was explained during the orientation sessions that "signing the Board Agreement was a requirement to be seated as a director, but it was never stated that mere candidates were expected to sign".

OSI executive director Stefano Maffulli replied:

While the polls were open, we've heard that there may be candidates with no intention to sign the board agreement, which has become a mandatory requirement since you last served. We need to know who the actual candidates are before we run the STV calculation to determine the outcome of the vote. So for process efficiency, the board asked all candidates to confirm their good faith intention to serve on the board, so we can tell the software.

The board agreement only applies to seated members.

If the agreement applies only to seated members, it is puzzling that the OSI would require signing the agreement before a candidate has been elected. It seems akin to requiring political candidates to take an oath of office before an election, rather than doing so in order to be seated or asking job candidates to sign non-disparagement agreements before being offered a job instead of as part of onboarding paperwork.

Kuhn refused to use the proprietary Docusign service to sign the agreement, but returned an annotated PDF that struck out the requirement to publicly support all board decisions. Fontana attached an addendum that would allow and encourage public dissent "involving matters central to OSI's core mission and the public interest", as long as the member makes it clear that they are speaking in their personal capacity. It also would free directors to comment on decisions made prior to their tenure, and ensure that nothing in the board agreement would silence whistleblowing or contravene fiduciary duties to the OSI.

Thierry Carrez, a member of the board, defended the "code of silence" as standard practice in non-profit boards that he has served on. He asked Fontana how publicly complaining would help an organization like OSI, instead of hurting it. Fontana replied that it should be possible for a board member to express dissent in a respectful way rather than a false show of public unanimity or resigning from the board. Smith defended the requirement and said that disagree and commit is a "pretty common standard in the corporate world". Pamela Chestek, also a board member, and Casey Valk, who ran but did not win a seat, added support in the conversation for the board agreement's requirement to support board decisions.

Results and aftermath

Both Fontana and Kuhn said that they had returned a signed version of the board agreement prior to the stated deadline, but their signed versions were altered and apparently not delivered via OSI's preferred method of using Docusign. The OSI does not seem to have recognized those as valid, and votes for Kuhn and Fontana are not included in the public results. The announcement said that three candidates were excluded from the results, two for not signing the agreement and one for failing to meet the deadline, though it did not name the candidates who were excluded. The other candidate who seems to have been excluded is Bentley Hensel. His platform doesn't indicate any desire for radical change at OSI.

Chad Whitacre, who had run for the board in this election, wrote on the OSI forum that it was "unfortunate that OSI had to deal with such adversarial trolls in this election", though he acknowledged that the OSI had not helped itself by misstating the number of seats available for the election.

On social media, Kevin P. Fleming said that the entire process was confusing and poorly communicated, as well as placing requirements on candidates after votes had been cast. He said the people elected are good people, but "that's not the only measure of the process 'going well'". Maffulli replied that the candidates "excluded themselves" by not signing the board agreement. He allowed that there were bumps in the election process, and pointed to a decision by the board to create a retrospective on the election by April 19. Fleming followed up to suggest that the retrospective should be performed by independent members of the organization because the board members should not be analyzing their own behavior. Currently, it appears that board member Josh Berkus will be leading the retrospective.

Aaron Wolf pointed out that it isn't merely the candidates who have lost out: those who voted for them have been disenfranchised. He said that the only way forward with integrity would be to release the vote totals. Josh Triplett said that the board should have tallied the results, announced the winners, and then enforced the requirements. Failing to do that presents the appearance that the rule changes specifically targeted candidates that the current board does not like.

It doesn't *matter* if that was the real reason or not, it's the default and reasonable assumption anyone should make when the process of an election is changed on the fly in ways that *just so happen* to affect specific candidates. The process itself is now rightfully suspect, when it had no need to be.

The conversation has continued on social media, but nothing new has emerged to date. The OSI board seems content with its handling of the election, and it may never be known whether OSI's members and affiliates wanted Kuhn or Fontana on the board. That is deeply unfortunate, and undermines trust and goodwill in an organization that depends heavily on both. It is worth remembering that the OSI's authority to define what is, or isn't, open source is purely based on the willingness of others to follow its definition. It has no teeth to enforce the use of the term "open source". The respect for the OSD comes from a large community of people willing to police the use of the term, and to recognize the OSI's authority to approve (or not) new licenses.

It may well be that Fontana and Kuhn would have lost anyway, but we have no way of knowing. A cynical person might conclude that the last-minute requirement to sign the agreement was to disqualify one or both because they would have won otherwise; and that the OSI leadership was unwilling to have even a minority number of board members who might seek to steer the ship in a different direction. If that was the case, the board has the authority to simply treat the results as non-binding and it could have refused to seat unwelcome candidates without disqualifying them or using other machinations to pretend there was a fair election where there was not.