This is a very insightful.
As a preliminary matter I think removing the mandatory TNL Stewards is both symbolic and a major milestone, like taking off the training wheels. Hopefully it is a signal of TNL’s confidence in the DAO and a step further in the direction of decentralized control/governance of the the ENS Protocol itself.
Under EP4, Rule 4.4 the Stewards are responsible for day to day management of the DAO. Effectively TNL is a 3rd party developer, and the individual TNL team members have separate roles (Directors, stewards, and delegates) within the DAO in their individual capacities. All that said we don’t want TNL or any contractor unavailable to our Stewards, nor do we want Directors/Fellow Stewards/Delegates to generally be unavailable to our Stewards.
To echo the concerns you raised, I think there should be formal communication procedures between the Stewards and all subgroups/3rd party contractors/directors of the ENS Foundation and potentially even legal counsel.
I’m not sure if all the potential communication procedures fit within EP4, and some of that might be properly covered in the proposed by-laws which are currently tabled, and as I have previously recommended some of those matters should be supplemented and governed by separate IRL written legal agreements (“contracts”) such as Directors Agreements, Service Agreements, Licensing Agreements (in the case of the Swag store for example).
One of the benefits the Foundation is intended to provide is limited liability protections to the DAO and the DAO members. However, the DAO must actually use the Foundation as the legal vehicle that enters into contracts IRL to perfect the intended mitigation of legal risks and potential liabilities for any given transaction and/or 3rd party contractual relationship. Legally, I don’t think TNL or even the ENS Foundation Directors has any duty to protect the DAO, and that legal duty would appear to rest solely with the Stewards in control of the day to day management of the DAO under EP4.
For that reason I think EP4, Rule 4.5 should maybe be amended to specifically memorialize it is a responsibility/duty/power of the Stewards to authorize the Directors to enter into legal agreements in furtherance of DAO activities, as may be required from time to time either as voted by the DAO, in the discretion of the Stewards and/or at the advice of counsel.
One specific example I’ll offer for illustrative purposes is with respect to the pending ENS Swag Store RFP. Effectively the grants/awards under the Swag Store RFP are akin to a Limited License Agreement for manufacturing/distribution and this would be an example of a transaction where there is sufficient real world activity and potential legal risk that the DAO/Stewards should really be authorizing the Directors to enter into written contracts IRL between the Foundation and Swag Store contractor(s) for a variety of reasons, including, protecting ENS IP, indemnification, limiting the liability of both the DAO and Foundation from 3rd party acts, and more generally governing law/venue/jurisdiction selection.