Hello,
The following vote, which was taken in private today, is now made public in accordance with our statutes:
Vote:
The board determines the following final election results for the membership committee and appoints the following members:
Elected Members
- Gustavo Buzzatti Pacheco
- Stéphane Guillou
- Balázs Varga
- Pranam Kumarbhai Lashkari
- Jona Azizaj
Elected Deputies
6. Shinji Enoki
7. Andreas Mantke
8. Marco Marinello
This list is different from the preliminary election results. The board has decided to not appoint Cor Nouws (“the candidate”) as a member of the membership committee. Jona Azizaj, the substitute member with the next highest preference, is therefore a full member of the membership committee. Our reasons are explained below.
It is very urgent that the new membership committee starts its work for the quarterly filing of trustees. Therefore this vote runs 48h from now.
Public rationale
For the past ten days, the board has intensively discussed the election of the membership committee. We had an extensive email conversation, a long online meeting with our legal counsel and we asked for advice from two different lawyers. Both confirmed we as a board have no choice but to prevent possible conflicts of interest.
Below we summarize the situation and the rationale for our decision. We want to be transparent with you as members who participated in a democratic vote. At the same time we cannot make all the details public because they are related to legal matters that we as a board currently address. These legal matters also involve the past actions of the candidate.
1. Unclear affiliation and “cooling-off” period
The foundation’s statutes (Statutes of The Document Foundation — The Document Foundation) require that the board publishes “conflicts of interest lasting longer than one month” and that it “prevents possible conflicts of interest within the foundation”.
One example of such a conflict is the “one third rule” in § 8 paragraph 4. Not more than 1/3 of the members of the board, the membership committee or the advisory board may have the same affiliation with a firm, organization or entity or one of its affiliate organizations.
Not only the statutes regulate this. Also the rules of procedure (Board of Directors Rules of Procedure - The Document Foundation Wiki) mandate to prevent possible conflicts of interest. In the same spirit as the statutes they require a “cooling-off” period of three months (§ 11 number 3). This is an established rule that is in place since May 2015.
These three months are the absolute minimum time. Civil servants in some countries have a cooling-off period of several years.
The board considers to change the statutes to introduce a limit of consecutive terms for the board and the membership committee. We want to restrict changing from one of the foundation’s bodies to another and add a long “cooling-off” period for affiliations. As soon as we have a first proposal, we will discuss it with you as our members.
2. Failure to disclose affiliation
The candidate did not properly disclose his affiliation at the time of the nomination. The affiliation, if it has changed at all, changed only days before the start of the election, but after the self-nomination. The candidate’s self-nomination contained a wrong affiliation. It was only clarified to be “per September 1st” after a community member explicitly asked (Self nomination as candidate for the MC - #3 by cornouws).
The candidate’s second statement is contrary to his first. The candidate also failed to publish all changes in a timely manner.
The candidate’s own declaration on August 25 was not correct. The second declaration on August 28, one day after two out of three election townhall meetings had taken place, was not suitable to fully eliminate all doubts created by the candidate’s own communication. This communication was also used in self-marketing his candidacy during the election.
The board cannot exclude an effect on the election outcome. Fairness demands us to take this possible advantage into account.
3. Failure to clarify
Because the situation was unclear, the board wanted to clarify it. Therefore, we have asked five reasonable questions to both the candidate and to the company the candidate could still be affiliated with. By answering the questions, both could have helped to remedy the concerns.
Unfortunately, the company did not answer the questions in a satisfying way. The candidate has explicitly rejected to answer the questions when he was asked a second time. Therefore the affiliation remains unclear.
The board correctly previously stated, not contested by the candidate, that the affiliation is grounds for a conflict of interest (Declaration of Conflict of Interest - Cor Nouws).
Additionally, it is unclear whether a non-disclosure agreement (NDA) between the candidate and the company exists. The board is aware that such NDAs could exist and could bind the candidate for several years, longer than one term in the membership committee.
As our questions have not been answered, we as board and responsible body for the elections of the membership committee could not determine the affiliation of the candidate with reasonable certainty.
Court rulings confirm that omitted or false statements during an election can lead to an impossibility to appoint the candidate.
It is the board’s duty to avoid that the membership committee has more than one third of its members affiliated with the same firm, organization or entity or one of its affiliate organizations. Even more, the board has to prevent possible conflicts of interest. The candidate was at the center of such a conflict of interest, lasting longer than one month. Therefore we as a board are obliged to act as foreseen in the statutes.
4. Determination of conflicts of interest
The candidate has been found in a conflict of interest lasting longer than one month by the previous board (Declaration of Conflict of Interest - Cor Nouws). This decision has not been contested nor challenged.
While the board has to prevent even potential conflicts of interest, it has to act even stronger in case a conflict of interest has been determined.
When weighing the different arguments, the board also took into consideration the criteria and standards the candidate himself established in his previous board term during a vote on conflict of interest for another member of the board. Applying these criteria and standards to himself, the candidate has been in a conflict of interest in the past and is in a conflict of interest now.
5. Conflicts due to past activities in the board and audits
The membership committee is the supervisory body of The Document Foundation. The foundation has to undergo annual audits. The current year’s audit covers the board’s activities of the past year. As a result of changing from the board to the supervisory body, the candidate could be involved in an audit of his own actions.
For the past months already, the current board has been dealing with the consequences of actions of the past board, of which the candidate was a member. It is expected that also for the next years to come, at least until the end of this board’s term, we will have to deal with matters that arose from the previous board.
These actions create an ongoing problematic situation for TDF. This includes ongoing correspondence with the foundation authorities and insurances. The situation has been blocking a lot of daily work at TDF for a long time and it led to resignations of members of the board and the staff. It is the main reason why TDF had to stop tenders for about two and a half years already, with a negative impact on our software. Even more, the past board, including the candidate, had to dissolve all budget items related to tenders and create 491,000.00 € emergency spending and reserves ([DECISION] - Approve 2023 annual budget and reserves) on the last day of the year 2023. The situation of board members with conflicting interests present also forced the foundation to spend a large amount of money on legal fees in the past three years (Accounting Ledgers - The Document Foundation Wiki).
The board cannot disclose all details. However, to appoint the candidate as a member of the supervisory body would be to the foundation’s detriment.
After the events of the past, to change to the membership committee in this particular situation is a source for a possible conflict of interest in itself. Independent of the candidate’s possible conflict of interest for his affiliation, any third party would find it outrageous to change to the controlling body at the very time the controls need to be tightened severely, immutably and provable to the public.
6. Respecting the voter’s will and lack of public information
The board is fully aware of the fact that the decision prevents the full development of voters’ will. This has been thoroughly weighed in this very difficult decision, but unfortunately was unavoidable.
For good reasons, the one third rule in the statutes and the obligation to prevent conflicts of interest clearly regulate what we must do here, even if it means an elected person will not be appointed as member of the body. Based on historic experience the statutes provided for solutions in order to ensure a fair and impartial participation in the foundation.
Unfortunately, not yet all information has been shared with the members. The current board is working hard to get aware of, compile and share all relevant information with the members. Unfortunately, the information provided by the previous board is in parts insufficient. Additionally, the current board was made aware that several discussions in the past board took place excluding two board members, one of them the back-then deputy chairperson. Even further, these activities seem to have been started by the candidate himself. As we learn more day by day, it is not unlikely that even the current board does not have access to all information. This played a role in last year’s audit, and it will also be a problem in this year’s.
7. Unviable alternatives
If the board had decided differently the membership committee would have faced a situation almost impossible to solve. More than a third of its members would have current or not yet “cooled-off” interests.
As an alternative, the board could have decided to appoint the candidate as a member of the membership committee, following the preliminary election results. However, if the board confirmed a conflicted member it would violate its own duties as per § 8 paragraph 4 sentence 1 of the statutes. The board needs to avoid and prevent even potential conflicts of interest.
If we would appoint the candidate as a member of the membership committee, we would have to remove him immediately afterwards. Therefore, the board is required to prevent conflicts from the very beginning.
By asking reasonable questions, the board tried hard to remedy the situation in favour of the candidate. However, the candidate decided explicitly to not answer the questions, in a situation where there is an urgency to appoint the new membership committee.
8. Summary
The board of directors has to prevent possible conflicts of interest. We tried hard to get answers and clarification from the candidate and other sources, including the company. However, the questions were not answered in a way that helps to resolve the situation. There is an urgency to appoint the members of the membership committee so it can start business at the end of the quarter.
With the situation around the previous audit, this board needs to show even more due diligence to protect the foundation from conflicts and make this verifiable also to compensate for previous wrong acts. A previous board member in the membership committee with an affiliation, that at best changed very recently, while the audit of the previous board’s work is going on, will create further issues and might be in the way of solving them.
The missing transparency of the candidate, the surprising timing of the potential affiliation change, the few days lapsed between the indicated change of the longstanding affiliation and the elections, untrue information disregard his own announcement during townhall meetings and the election phase, previous board decisions about conflicts of interest started by that same candidate, the rejection of the board’s questions, and the legal advice, leaves no other option to us as board.
The board has been elected to decide and we took that difficult decision in a more than difficult situation. We feel no candidate should push limits any further but hope that the foundation bodies can now smoothly continue their tasks.
The Board of Directors at the time of voting consists of 7 seat holders (not including deputies). In order to be quorate, the vote needs to have 1/2 or more of the Board of Directors members, which gives 4.
A total of 7 Board of Directors members have participated in the vote.
The vote is quorate.
Result of vote:
5 approvals: Osvaldo, Sophie, Paolo, Eliane, Italo; deputy Mike supports the motion as well
0 abstain
2 disapprovals: Simon, Laszlo
Decision: The proposal has been accepted.
Given this is an extraordinary situation, for this particular vote, as an exception the board directly publishes the comments of the board members who disagree with the motion, to show that the decision was difficult and controversial. By publishing the comments, the board neither endorses them, nor the board implicitly or explicitly confirms that what is stated as facts in these comments is correct from the board’s point of view.
Simon Phipps: "I vote against this as it
1. fails to honour the election of Cor Nouws by a significant number of adequately informed voters and
2. fails to reflect the lack of a consensus on the Board for the outcome you propose, presenting the outcome in a way that might suggest consensus. Even if I agreed with denying the Trustees will I cannot agree with the rationale.
Given there is no minuted discussion, please include these two comments in the result."
László Németh: "Dear Eliane, dear board,
-1
My comments:
I agree with Simon Phipps’s vote, including his two comments.
The fact that Cor Nouws (ex-community representative in the Community Council of OpenOffice.org, founder of LibreOffice) has no well-known or known conflicts of interest, and our legal advice was clearly worded in this case: the board must follow the will of our trustees.
The fact that the board did not ask Cor 5 questions. Cor Nouws did not refuse to answer for the (partly incomprehensible) questions sent by certain directors, without the authorisation of the board, but he referred to his previous clear statement, which referred also to the statutes of The Document Foundation. Cor Nouws was not informed that the board would vote to exclude him, if he does not respond satisfactorily to the questions from certain directors.
In my opinion, it cannot be ruled out by this vote that Cor Nouws will not become a victim of character assassination, especially when one of the directors who initiated the review of the election results wrote to our legal adviser (bypassing official channels) about Cor Nouws that “Are his past actions as a director to be taken in consideration by this board to evaluate if he should ever again become member of one of TDF’s bodies?”
Given there is no minuted discussion, please include these four comments in the result.
Thanks and best regards,
László"
We as board understand this is an extraordinary and complex situation. Transparency is very important to us. To answer the questions from our members, we will organize a townhall meeting in the next days.
On behalf of the board, Eliane Domingos
