The EcoPort Foundation
Custodial Oversight
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Questions, comments and suggestions: t.putter@ecoport.org

When this constitution was first conceived, and during the period of its drafting (2002 - 2003), a series of corporate scandals in the USA and Europe placed the ethics of management under stern scrutiny. The details of the concerns are a matter of history, but the author of this constitution concluded that even if the traditional, three layers of not-for-profit enterprises, namely the Board, the Executive and the Members are rigorously constrained by checks and balances, the community constituting the enterprise, is nonetheless a closed and delineated group. As such, they are not (i) inherently immune to developing self-serving policies and strategies, and neither are they (ii) actually beholden and responsible to any authority outside their community and the stipulations of the constitution they drafted themselves. For example, a board of a particular school will work with the administrators and teachers of that school to do the best by the pupils and parents of the specific school. Thus, the board can hardly be expected not to compete with other schools, thereby serving a particular schooling service rather than education sensu latu.

This lacuna created by the hiatus between global versus local interests, is especially important to EcoPort, because the Foundation is fundamentally committed to serving the global public good. Since all beneficiaries of this public good, in whose name the service operates, obviously cannot be part of the Member >> Executive >> Board chain of command, it is deemed necessary for the Foundation's constitution and structure to make provision for a mechanism that will represent these public interests that are wider than the within-community interests of the voting members of the Foundation.

In this constitution, this function will be fulfilled by an Advisory Council (AC) with Terms of Reference described in another section of this presentation.

This AC function will be outsourced to a suitable institution with a proven track record and reputation for statesmanship, being larger than itself and wisdom to play a genuine 'honest broker' role to understand and communicate the needs of the public-at-large in counter-point to the more restricted needs of the members of the Foundation community. AC members will not be elected by members of the Foundation nor by the Foundation's Board. Neither will the AC have any executive power or authority; e.g. to contest Board decisions. Instead, the AC will fulfil the role of 'wise councillor', that could, in the mechanism of independent studies (topics chosen entirely at the discretion of the AC itself) and in the manner of minority reports, prepare 'issues papers' intended to guide the Board and not to 'direct' it. The intention is that the dialectic tension between public good and local interests — no matter how benign or inclusive the latter might be — is the primary dynamic whereby EcoPort would, through this constitution, open itself to formal, self-invited scrutiny that is qualitatively different from the way that a Board would serve local, within-community self-interest.

In order to justify and implement this impartial oversight process, it would be important for the AC to be financially independent of the Foundation itself. Thus, it is further envisaged that the institution that will be invited to host and implement the AC function envisaged here, would, in agreeing to play this role, also accept the financial burden of fulfilling the 'Secretariat' function and role that an independent AC would have to deliver in guidance of the foundation's elected board. This outsourcing arrangement would be formalised in a Letter of Agreement entered into by the EcoPort Foundation Inc, on the one hand, and by the officials of the AC-service on the other.

In deference to its critical role in the history of EcoPort and the Foundation, and in respect for its international status as a senior UN agency, FAO will be offered first rights of refusal to provide the Secretariat facility to constitute and implement the Advisory Council described herein. As explained in the AC's Terms of reference, it would seem 'natural' to the vision of the AC/Board relationship invented in this constitution, for the CEO to be hosted by and located at the offices of the AC.

It is assumed — but this is not a necessary condition — that the institution volunteering to accept the role and responsibility of AC Secretariat would be doing so because the institution is also a major stake-holder in the substantive knowledge management work conducted by the EcoPort Foundation. Therefore, it is envisaged that the AC-hosting institution would designate one of its own staff members to be a focal point for the AC x Foundation Board interactions.

This designated AC Focal-point person would naturally serve on key committees of the EcoPort Foundation, and would attend Foundation Board meetings to convey any guiding advice generated by the AC to the Board. Thus, this AC Representative at Foundation Board meetings would be the avenue or conduit whereby the AC plays its guiding role to the Board, but without formally being a member of the Board or having voting rights in Board decisions.

Far from being an impediment, the non-voting status of the AC is direct proof of its impartiality. The position adopted by the AC on any issue that the AC representative takes to the Board, will be circulated openly to all Members at the same time as it is submitted to the Board. Members will thus be enabled to think about the issue and to lobby the Board thereby to have an opportunity to influence policy decisions made by the Board.

This envisaged 'best & impartial advice' will also be open to public scrutiny on the Foundation's website in a section: 'Council Recommendations & Management Responses' wherein each Council Recommendation will be stated and supported by corroborating argument and twinned with the Board/Management's response, also supported by information explaining the Board/Management's final decision on the issue. (See section Advisory Council for Authority Parameters of the Council, which are the equivalent to 'Terms of Reference'.)