[previous DECISION] Protect/Shield Team and Tendering

Hello,

as one of its tasks, the current board is looking into decisions and meeting minutes taken in the past that were not yet published according to our statutes.

What follows is a decision taken in private, by the previous board, on 2023-10-11, which is now made public.

The Board of Directors at the time of voting consists of 7 seat holders (not including deputies).

In order to be quorate, 4 members need to participate to the vote.
A total of 6 Board of Directors members have participated in the vote.
The vote is quorate. One deputy director has participated as well.

Of the 6 participating directors, one abstained. Therefore a decision could be reached with a (relative) majority of 3 votes.

Result of vote: 5 approvals, 1 abstains, 0 disapprovals.
The vote was also supported by one deputy director.

Decision: The proposal has been accepted.

Participants in the vote:
Thorsten Behrens +1
Paolo Vecchi 0
László Németh +1
Ayhan Yalçinsoy +1
Gábor Kelemen +1
Cor Nouws +1
Gabriel Masei +1

Thanks all for helping the discussion and drafting!

I hereby call for a vote of the following resolution.
Please send your votes in the next 72 hours.

// ------

The Board of Directors of the Document Foundation decides:

  • Additional to a. shielding the team in the ESC Ranking Procedure
    (2, as demanded by 1); and b. anchoring a policy/various forms of
    protection in a corporate compliance framework, which is a natural
    next step in a growing TDF;

  • to Protect & Shield Team and Tendering from undue influence;

  • with the following as a first version of the ruling:

    = Preventing undue influence on staff around TDF tendering

    1. Directors associated with ecosystem companies bidding on tenders
      (3) are not allowed to have any contact, neither directly nor
      indirectly, wrt ranked projects, tendered projects, and tenders
      with team members handling tenders;

    2. In general, the board agrees that beyond that, all direction
      towards the team needs to go via the ED, who himself is not
      handling any of the above;

    3. Breaching of these rules must be reported immediately via the
      whistle blowing procedure.

  • The board asks Mike Schinagl to review this draft and communicate that with the board;

  • The board will then have the final vote.

References:

  1. Carlo’s “opinion_signed.pdf” (Forwarded Jan 26 by Mike:)

  2. "…Rules can be as strict only as there is staff that is free enough from external and internal pressure. In a public body, this means being sufficiently shielded from the political side and even from the top management. In a private entity, from stakeholders and – again – from members in a position of potential conflict of interest and this includes first and foremost members who are also affiliates with successful bidders "

  3. See “Definitions for the tendering process” in
    [VOTE] Technical Budgeting Procedure

As a personal comment, I reported to the full board my concerns about this vote. I mentioned:

  • a “pressure on staff to deliver tenders”
  • that the ED is “e.g. in each tender committee, for the administrative bits”

I’ve abstained in this vote as while a mechanism to protect members of staff is necessary the proposed one as ineffective in ensuring the application of the arm’s length principle, incorrect in some points and it hasn’t been validated by our legal team.

This is what I wrote in my dissenting statement:
Hi all,

On 07/10/2023 17:02, Cor Nouws wrote:

Dear people,

Thanks all for helping the discussion and drafting!

I hereby call for a vote of the following resolution.
Please send your votes in the next 72 hours.

// ------

The Board of Directors of the Document Foundation decides:

  • Additional to a. shielding the team in the ESC Ranking Procedure
    (2, as demanded by 1);

A further explanation of 1 states:

“While there are more meanings in “staff protection”, from the limited purposes of the procedure I am helping setting up, it goes without saying, it is to foster the “at arm’s length” position vis a vis bidders in tenders. This is why I have left the whistleblowing provision and suggested that there might be an independent Ombudsman to receive such complaints, as per my initial opinion, pages 6 and 7.”

Trying to tightly limit the protection only to tendering goes against the fostering of the implementation of the arm’s length principle for directors affiliated with companies that had well documented behaviours showing their influence on many matters where they are conflicted including also tendering.

Due to clear precedents a staff protection mechanism should not be limited only to the tendering process.

and b. anchoring a policy/various forms of
protection in a corporate compliance framework, which is a natural
next step in a growing TDF;

What’s the meaning of anchoring in this context?

There is no “corporate compliance framework” to which anchor anything yet.

Would that mean that, as suspected quite a while back, the intention is to bundle the staff protection vote with other stuff which would force some to vote against that bundle?

  • to Protect & Shield Team and Tendering from undue influence;

  • with the following as a first version of the ruling:

    = Preventing undue influence on staff around TDF tendering

    1. Directors associated with ecosystem companies bidding on tenders
      (3) are not allowed to have any contact, neither directly nor
      indirectly, wrt ranked projects, tendered projects, and tenders
      with team members handling tenders;

As above this should include all elements in which affiliated directors are conflicted with.

The ED is being directed by affiliated directors to do things they should stay away from including influencing the process of setting up a new tendering process and avoiding to apply the necessary arm’s length principle so this is already a problem.

  1. In general, the board agrees that beyond that, all direction
    towards the team needs to go via the ED, who himself is not
    handling any of the above;

Who himself is managing the team members handling the tenders and the related admin tasks.

If you don’t define exactly what the ED will be allowed to do or not do in relation to the tenders it would be better to remove the end of the sentence.

  1. Breaching of these rules must be reported immediately via the
    whistle blowing procedure.

Let’s not forget to appoint the trusted person that will handle the various cases.

  • The board asks Mike Schinagl to review this draft and communicate that with the board;

Mike Schinagl should be instructed not only to review the draft but also to advise on changes and addition that the board will adopt.

  • The board will then have the final vote.

References:

  1. Carlo’s “opinion_signed.pdf” (Forwarded Jan 26 by Mike:)

  2. "…Rules can be as strict only as there is staff that is free enough from external and internal pressure. In a public body, this means being sufficiently shielded from the political side and even from the top management. In a private entity, from stakeholders and – again – from members in a position of potential conflict of interest and this includes first and foremost members who are also affiliates with successful bidders "

  3. See “Definitions for the tendering process” in
    [VOTE] Technical Budgeting Procedure

------ //

As the proposal hasn’t taken in consideration several critical elements I cannot fully support it.

In the hope that our legal counsel will evaluate the issues I will point out and that the board will amend the proposal accordingly, at present, I can only abstain.

Cheers,
Cor

Ciao

Paolo