Re: [board-discuss] Board of Directors Meeting 2023-03-20
Hi Cor, all, Am 31.03.23 um 16:35 schrieb Cor Nouws: Hi Andreas, all, Andreas Mantke wrote on 30/03/2023 14:28: Am 29.03.23 um 15:58 schrieb Cor Nouws: A personal interest is not a conflict of interest which in general is not a reason to abstain from discussing topics. sorry to be very clear here: I've never read or heard such nonsense inside other communities, I'm active in. Apart from the validity of your statement: as we all know, TDF is not the average organization. your statement is nonsense. TDF is a foundation within the German civil law and thus has to follow the rules of the German law system. I think the documents, linked by Paolo in his email on this list, should show, that all members with a personal interest had to keep out of any discussion (and decision) of the corresponding topics. So you and Paolo forget TDF rules? Let's take a detailed look then. = TDF Statues = = = = = = = = = (...) - - - - (4) The board of directors prevents conflicts of interest within the Foundation. The board of directors is therefore obliged to ensure, that the board of directors itself, the membership committee, and the advisory board, at maximum have one third of their members being employed by a single company, organisation, entity or their respective affiliates of the aforementioned. The board of directors can expel one member per month from each of the foundations bodies, until the conflict of interest situation is either settled, or a re-election of the entity has been initiated. The board of directors can to resolve the conflict of interest by expelling the necessary number of members from other committee at once, and/or replace member by other members of such committee. - - - - Conclusion: § 8.3. deals with § 8.4, i.e. the composition of the foundations bodies. - - - - You should read the first sentence as the general rule. TDF and its board has to prevent conflicts of interest. The further sentences give TDF and its board only some explicit extra options / actions. This dilutes not the general rule. If there is a conflict of interest TDF and its board need to prevent it. Thus it has e.g. to follow the rule of the law that nobody could be a judge in own cases, which covers the whole process including the discussion of the case inside the decision-making body. This rule is not on the disposal of the BoD (and of TDF) to change this rule. It is higher-ranking law. Conclusion: Stop talking about CoI without taking Common sense and applicable law in many countries, also in Germany, into account. It is very clear that you and also Thorsten and Gabor are not allowed to take part in the whole decision making process about the three topics you declared an personal interest, which is also a CoI. Regards, Andreas -- ## Free Software Advocate ## Plone add-on developer ## My blog: http://www.amantke.de/blog -- To unsubscribe e-mail to: board-discuss+unsubscr...@documentfoundation.org Problems? https://www.libreoffice.org/get-help/mailing-lists/how-to-unsubscribe/ Posting guidelines + more: https://wiki.documentfoundation.org/Netiquette List archive: https://listarchives.documentfoundation.org/www/board-discuss/ Privacy Policy: https://www.documentfoundation.org/privacy
Re: [board-discuss] Board of Directors Meeting 2023-03-20
Hi Thorsten and all, On 30/03/2023 19:42, Thorsten Behrens wrote: Hi Andreas, dear list, Andreas Mantke wrote: Am 29.03.23 um 15:58 schrieb Cor Nouws: A personal interest is not a conflict of interest which in general is not a reason to abstain from discussing topics. sorry to be very clear here: I've never read or heard such nonsense inside other communities, I'm active in. Whether you like it or not, what Cor states is within the rules the board operates under: https://wiki.documentfoundation.org/TDF/BoD_rules (in particular, the current CoI policy). unfortunately this is a topic that keeps being interpreted in different ways and it's a source of frequent frictions as threads show on board-discuss and elsewhere. By stating that a director which declared a personal interest can participate to the discussion and influence board decisions on topics that are also covered by several regulations (item 5), then it is clear that we create the condition for a perceived/potential/actual conflict of interest. The CoI Policy is a guideline for a process based on Article 8 of our statutes, including Art. 8.4 "The Board of Directors prevents possible conflicts of interest within the foundation.", so when a possible conflict of interest is brought to the attention of the board (as Andreas did), the board must investigate it. Trying to dismiss that by just pointing members of the board of trustees enquiring on transparent processes to the CoI Policy doesn't make the situation look much better. It seems like some people think that my statement in my previous email is wrong: "I presume it is common knowledge that a conflict of interests isn't confirmed only when directors with a personal interest cast their vote, the perceived/actual conflict of interests materialises also along the whole decision process if the directors influence the process and other non conflicted members." Ref: https://listarchives.documentfoundation.org/www/board-discuss/2023/msg00082.html There is probably a need, within the board, to still clarify and implement processes that ensure there are no eventual issues with various local regulations and that they are in line with the recommendations received from the specialists that have been consulted. I think the documents, linked by Paolo in his email on this list, should show, that all members with a personal interest had to keep out of any discussion (and decision) of the corresponding topics. That might be your personal opinion, but since TDF is not an EU institution, we operate under slightly different rules. Last time I checked, especially for item 5 which is linked to items 6 and 7, there are indeed EU rules, regulations and processes which we share, in their fundamental scope, with public institutions. Saying that we are not an EU institution or that we are somehow a different type of organisation doesn't mean we shouldn't respect those rules especially if experts in the subject that have been consulted say that all organisations in similar positions should respect those rules and processes. Paolo knows this, and has personally participated in discussion around LibreOffice Online (where he has/had an interest). It is good that this has been mentioned that as it shows that under some conditions the board does the right thing and investigates the potential conflict of interests when there is a doubt. That situation was quite peculiar as, to this day, I still don't know if directors with opposite affiliations and personal interests related to the matter (at the time the board included 4 directors, the majority, in that position) participated to the process influencing the determination of that personal/business interest and it hasn't yet been determined if that is a commonly acceptable way to do it. At the end of months of investigation I've been found by the majority of the board as having a personal/business interest in "an online version of LibreOffice/ based on LibreOffice Technology". It is a very odd way to call LibreOffice Online, a project that was promoted as under TDF's umbrella, which I was under the impression I was supposed to promote as much as LibreOffice but if that's the reading then I guess I was, as LibreOffice Online doesn't exist anymore, guilty as charged and I'll have to be careful on how much I promote LibreOffice so that I don't get accused of having personal interests on that as well. As I've been notified of the investigation the 09/09/2022, nearly 2 years after LibreOffice Online stopped receiving updates from one of the major contributors and other volunteers, it is has been made clear the desire of the majority of the board of making our CoI policy retroactive and that it is its will to determine past personal interests and conflict of interests. Since the, unfortunately, the same directors refrained to apply the same methodology to themselves and other directors. As dou
Re: [board-discuss] Agenda for TDF board meeting on Monday, April 3rd, 1800 Berlin time (UTC+2)
Hi all, On 31/03/2023 02:16, Thorsten Behrens wrote: 2. Status Report, Discuss: Update on formalising board fiduciary duties (Paolo Vecchi, Cor Nouws, 5 mins) if anyone would like to read the draft of the proposal and related documents here's the link: https://nextcloud.documentfoundation.org/s/FZKYSkyPZZfty5L Don't hesitate to share your feedback. Ciao Paolo -- Paolo Vecchi - Member of the Board of Directors The Document Foundation, Kurfürstendamm 188, 10707 Berlin, DE Gemeinnützige rechtsfähige Stiftung des bürgerlichen Rechts Legal details: https://www.documentfoundation.org/imprint OpenPGP_signature Description: OpenPGP digital signature
Re: [board-discuss] Board of Directors Meeting 2023-03-20
Hi Andreas, all, Andreas Mantke wrote on 30/03/2023 14:28: Am 29.03.23 um 15:58 schrieb Cor Nouws: A personal interest is not a conflict of interest which in general is not a reason to abstain from discussing topics. sorry to be very clear here: I've never read or heard such nonsense inside other communities, I'm active in. Apart from the validity of your statement: as we all know, TDF is not the average organization. I think the documents, linked by Paolo in his email on this list, should show, that all members with a personal interest had to keep out of any discussion (and decision) of the corresponding topics. So you and Paolo forget TDF rules? Let's take a detailed look then. = TDF Statues = = = = = = = = = == § 8 Duties of the Board of directors == (3) The board of directors is obliged, via explicit publication in a generally used communication medium, to notify the public about: a.) (about statues, rules etc) b.) (about composition of the bodies) c.) (about procedings, discussions, decisions) d.) conflict of interest lasting longer than a month; e.) (decision on a complaint) - - - - Note: How to read the 'conflict of interest'? What more do the statues tell about 'conflicts of interest'. The only, _only_, mention is to be found in 8.4: - - - - (4) The board of directors prevents conflicts of interest within the Foundation. The board of directors is therefore obliged to ensure, that the board of directors itself, the membership committee, and the advisory board, at maximum have one third of their members being employed by a single company, organisation, entity or their respective affiliates of the aforementioned. The board of directors can expel one member per month from each of the foundations bodies, until the conflict of interest situation is either settled, or a re-election of the entity has been initiated. The board of directors can to resolve the conflict of interest by expelling the necessary number of members from other committee at once, and/or replace member by other members of such committee. - - - - Conclusion: § 8.3. deals with § 8.4, i.e. the composition of the foundations bodies. - - - - Do the statues provide more support for this reading? Let us look at § 9.6: == § 9 Resolutions of the Board of directors == (6) A board of directors member is barred from voting, if the vote contains any of the following subject matters: * self-dealing with the member, * the initiation or cessation of a lawsuit between the Foundation and the member, or * grants from Foundation means towards the member, or an entity the member is a board member or a member of the executive body of another entity. - - - - So this § 9.6 mentions the topics where directors may not vote. That are all typical conflict of interest situations, and all linked to voting/resolutions; situations limited in time per definition and not 'permanent'. So 'conflict of interest lasting longer that a month', is also in § 9.6 not related to specific topics/proposals. - - - - Source https://www.documentfoundation.org/statutes/ = From the older Community Bylaws = = = = = = = = = = = = = = = = = = = It is interesting to look at the older Community Bylaws, that were the base for the current statues. These mention three rules to prevent the most-obvious potential cases of such conflicts in our Community: max 3 BoD members of one entity; max 30% of members in MC; and max 30% of members of the ESC from one entity. Source https://wiki.documentfoundation.org/CommunityBylaws#Provisions_Concerning_Possible_Conflicts_of_Interest = CoI policy = = = = = = = = = What does the CoI policy learn? From 4.1 and 4.2 it is clear that a person with a CoI may not vote on topics/items causing or bordering with the conflict.. but may participate in discussions: " … a conflicted person 4\.1 shall at a minimum always be excluded from any vote and any activity regarding any topics or items causing or bordering with the conflict for as long as the conflict is not certain to have vanished. The person *may participate in discussions, unless it suspended its disclosure duties (see 4.2*). ... 4\.2 according to below rules has a duty to disclose. As an exceptional procedure an obliged person may *suspend their disclosure duties* only if they* fully and completely refrain from influencing a discussion,* thread, topic or topical area in all direct or indirect means, directly or via third parties. This requires complete and full abstention e.g. from any proposal, vote, decision, contract or transaction, until the topic is fully settled. Source https://wiki.documentfoundation.org/images/6/6e/BoD_Conflict_of_Interest_Policy_ver1_3_2.pdf = Conclusion = = = = = = = = = - - - - * The statutes do not say that persons in a (potential) CoI situation should abstain from discussions around the topics; and the statutes dó -implicitly- expect tha
Re: [board-discuss] Board of Directors Meeting 2023-03-20
Hi Thorsten, all, Am 30.03.23 um 19:42 schrieb Thorsten Behrens: Hi Andreas, dear list, Andreas Mantke wrote: Am 29.03.23 um 15:58 schrieb Cor Nouws: A personal interest is not a conflict of interest which in general is not a reason to abstain from discussing topics. sorry to be very clear here: I've never read or heard such nonsense inside other communities, I'm active in. Whether you like it or not, what Cor states is within the rules the board operates under: https://wiki.documentfoundation.org/TDF/BoD_rules (in particular, the current CoI policy). a personal interest / Conflict of Interest (CoI) exists independent of the confirmation of the board. If one of the many examples for a CoI applies to a topic (and also if it is only probably) it is the fiduciary duty of the concerned member to stay out of any discussion etc. on that topic. This is independent from its confirmation by the BoD. There is a rule of law that you couldn't be a judge in own cases. This rule cover the whole process including the discussion of the case inside the decision-making body. It's not on the disposal of the BoD (and of TDF) to change this rule. It is higher-ranking law. Thus I ask all of you, Thorsten, Cor and Gabor, to not participate in any discussion (and decision) of the corresponding topics. This is important because otherwise you violate obligations as board member and create liabilities. Regards, Andreas -- ## Free Software Advocate ## Plone add-on developer ## My blog: http://www.amantke.de/blog -- To unsubscribe e-mail to: board-discuss+unsubscr...@documentfoundation.org Problems? https://www.libreoffice.org/get-help/mailing-lists/how-to-unsubscribe/ Posting guidelines + more: https://wiki.documentfoundation.org/Netiquette List archive: https://listarchives.documentfoundation.org/www/board-discuss/ Privacy Policy: https://www.documentfoundation.org/privacy