TDF situation in relation to the German Foundations Authority, and why this led the BoD to make an extremely difficult decision on the MC election

Board Discuss
#25

supremecourt.pdf (256.0 KB)
supremecourt-english.pdf (45.8 KB)

The case number is exactly that one, i.e. III ZR 139/20, and according to my understanding does not leave any room to interpretation. I have uploaded the original judgement and the English translation of the most relevant contents (the length of the original German text has been reduced by omitting all the references to other laws, which were not needed to understand the issue of excess of power of representation.

The English translation is based on my translation to Italian of the original German text (which of course was more convenient for my full understanding of the original German text), so there may be some small inaccuracies. What I did was to translate the entire German original, read it carefully, and once understood the contents get rid of what I considered redundant. No one else participated in the translation process or tried to influence my understanding and the resulting opinion, and the draft of the post to Board-Discuss, which was originally written in Italian for accuracy, read by my wife to check if it could be understood by someone completely unaware of the topic, machine translated into English and double-checked by myself to avoid the typical machine translation errors.

To better understand the issues related to the power of representation in not for profit foundations, I have also read several documents which explain the topic under different point of views. This is a list of the documents, which can be easily found on the internet in PDF format:

Deloitte - The Effective Not for Profit Board
Edward L. Glaeser - The Governance of Not for Profit Firms
VVAA - Governance Challenges for Not for Profit Organisations
Weil - Guide to Not for Profit Governance 2024
Wolfgang Reinhard - Representation of Power and Power of Representation

They are all interesting, but the last one provides a historical perspective on the development of the concept, which helped me in understanding the issue and shaping my opinion.

#26

Hi Simon,

I respect your opinion, but I continue to think that Cor Nouws candidacy was a completely irresponsible act, based on the fact that he was aware of the results of the 2023 audit on 2022 balance sheet, he knew that there would be an audit in 2024 on 2023 balance sheet, he knew that the authorities have not yet taken any action in relation to the 2023 audit but can take it at any time, he knew that he was involved in some of the issues spotted by the 2023 audit and that he will be involved in some of the issues which will be spotted by 2024 audit because of his position as a TDF Director and his former Conflict of Interest, and that by being elected he could sit on the other side of the table as TDF MC is overseeing TDF BoD’s actions. Even in Italy, which is not known to be respectful of laws, the concept that you cannot sit on both sides of the table during an investigation is respected. Silvio Berlusconi was banned from the Italian Parliament until the Italian Supreme Court decided that he was not guilty of the charges he was accused of. I find this incredibly simple to understand, and I am amazed that the BoD decision continues to be analysed under different points of view. In this case the Conflict of Interest, the potential abstention, and any other possible solutions to the issue do not apply. I repeat, while you are investigated, you cannot sit on the side of who controls the investigation.

#27

You keep repeating that, without responding to the clear rationale comments that show that there is no logic connection of the items you mention in your argument.

#28
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#29

As Italo said during the session at LibOCon, the board made a lot of mistakes around this decision.
Will the next one will be not retracting the decision and repecting and following the foundations rules?

#30

Please avoid putting words that I have never pronounced in my mouth. And please remember that I spoke in front of many TDF Trustees, that either have a very poor memory or will perfectly recall what I said, as I said it three times.

What I said is that the two PREVIOUS BOARDS - those you were a member of, and you were also responsible for most of the wrong decisions, either because you voted for the wrong decision or you tried to derail the right decision - have made an incredibly large number of mistakes in relation to the issue of “excess of power of representation”.

What you have just written confirms my choice of not talking with you after our short talk at the conference. You want to convince me of things I know based on legal documents, in addition to my understandings based on what I could read on board-discuss and other chat/email sources during the two previous board terms.

If you want me to believe - as people in Rome say to describe this kind of situations - that Jesus Christ died because in Jerusalem it was too cold to spend the night under the stars completely naked, well, you are talking to the wrong person.

I could comment further, but I hope that TDF Trustees - reading your misleading statements - start to get a better picture. In the next couple of days I will publish some additional food for thought, but I think that the message I am replying to provide enough of it.

#31

Who said during the community meeting that he’s not speaking the truth 80% of the time?

#32

If you have never done marketing, maybe you don’t know what Italo was speaking about:

I hope you’re not insulting Italo either in his marketing role or his board role, which, if you didn’t noticed yet, implement very different postures and responsibilities.

#34

I was fortunate to have my father as an example of righteousness. My 48-year career as a teacher, manager and professional speaks for me, as does what I have done within the project since I joined in 2004. Those who think they can embarrass me with sleazy wordplay are only qualifying themselves for embarrassing nothingness.

Obviously, this ends any kind of relationship at any level. Not even a letter of apology can make up for what has been written.

1 Like
#35

I can’t believe that you actually wrote that, Cor.

You take a humorous comment about marketing and storytelling, from a community session, and link it to that person’s very distinct and separate statements as a board member? Do you realise how bad that is?

Context, for those who weren’t present in the community meeting. And I don’t want to speak for Italo, but we were talking about marketing and storytelling and how in those fields there is exaggeration, which is where Italo mentioned the 80%. Pretty much everyone in in the room was laughing (I was there) and knew it was a funny remark about how marketing pushes the boundaries.

That Cor would now twist and use this completely separate comment to smear a board member’s researched and serious statements about the situation in TDF is very bad indeed IMO.

I think most community members will now see what we (the current board) have to deal with. There’s a lot we need to do better, but the fact that previous board members – leaving us with all this shit to sort out – still smear and twist words and try to damage what we’re doing to fix the foundation is really, really sad.

Shameful, Cor. Genuinely shameful.

(Edited to reply to the correct message in the thread.)

2 Likes
#36

To be fair, you did actually say that edit: the community session** in the context of marketing stories. And it is also clear even when quoting that sentence out-of-context that it cannot be meant literally (e.g. otherwise even that sentence falls under the 80% and is likely false). But, @cor, your quoting of it on this thread and out of context is quite uncalled for.

It is as bad as bad taste. And you would be well reminded that inappropriate rhetoric is never nearly as shameful as inappropriate action.

#37

I believe the session was recorded, sadly I was not there; is there a transcript of some kind ?

#38

Eyal, please avoid mixing up words spoken on different days and in different situations. What I said during the community meeting is completely out of context when it comes to the Q&A session at the end of the conference.

To imply that I lied during the Q&A session by referring to a phrase that I said three days earlier in a completely different situation and in a completely different role is totally unacceptable and - I am sorry to say - does not qualify the person who made such a statement as deserving my respect.

For the record, I have never said that the CURRENT Board made a lot of mistakes, whereas I have been saying since 2020 - expressing a very personal opinion which I believe is still valid today - that the PREVIOUS Boards made a huge number of mistakes, ranging from the communication approach to the issues, which did not make it easy to have a comfortable ground for consensus on an acceptable solution, to the excessive use of opinions of lawyers and other advisors in a futile search for confirmation of their own positions, even in the face of incontrovertible legal opinions.

At this point I see no point in continuing this discussion as I do not see how any form of civilised confrontation can be achieved in the face of unacceptable and offensive disrespect.

As there is still much to explain in order to respond clearly and understandably to the legitimate information needs of TDF members, I consider it appropriate to devote my time to this task. For me, this issue is closed.

#39

but I continue to be astounded by the gross superficiality of the person who decided to submit his candidacy in any case despite being aware of the situation

I find it sad to see such highly insulting language being used.

Shame on you Italo.

Cor has worked hard for this community for many years, and deserves better.

Cor no doubt has a different view of the situation, and was most likely acting in good faith, volunteering his time and effort in an ongoing mess of a situation.

#40

Shame on you Italo.

No, Italo is quite legitimately offended.

Cor has worked hard for this community for many years, and deserves better

Both Italo and Cor have worked hard to promote LibreOffice in different ways. Neither is beyond criticism; and neither of them deserves being taken out of context.

But more importantly, we don’t deserve a derailing of the conversation from what it was initially about. Sorry for doing a bit of that myself.

#41

I believe Italo to be quite thoroughly incorrect. But whether or not Italo is offended or not, these discussions would be greatly improved by there being less insults thrown around.

For example, I am quite offended by you saying I took Italo out of context (when the context was quite clear), but that does not mean I will take that opportunity to comment on your character or morals.

1 Like
#42

I agree that it was not good to quote that without the context. My apologies for that.

On the other hand, when Italo mentions the bad timing of boards action and in the same breath many problems, one should not be surprised that it is understood in the way I did, given the amount of non clarified questions and the reported problems reg. the topic. Maybe I did get that wrong, and was my comment 29 incorrect. Then in stead of putting blame on me (what happened…) apologies for the confusion would have been reasonable maybe?

But enough said on that; I’ll forget about it and go on: there’s factual questions left that need our attention.

#43

So wrt clear and correct information, briefly the following:

This really looks inaccurate. At the time that I received a letter, there was by far no report from the audit, that could have reached the authorities, nor does the letter make any relation to that. Given specific content, it looks rather like someone with inside information reported anonymously to the authorities.

Just as Italo, IANAL, but rationally it appears that two things are mixed up here:

  • ‘Arms-length’ is one of the ways to prevent that people are involved in unduly influencing decision from which they are benefiting personally. So that is_linked to CoI.
  • ‘Excess of power of representation’ means that decisions are taken that do not match the foundations goals (“Der Vorstand ist in seiner Vertretungsmacht durch den Zweck der Stiftung beschränkt.”).

One may assume this confusion comes from the theoretical possibility that a decision will be taken both in CoI and that also it does not serve the goals of a foundation. In TDF’s practice, decisions have been taken with arms-length, and the foundations goals always (also before we added the related clause to the statues) have been an important part of decision making. Apart from that,I have always supported and actively contributed, in a realistic way, to further improve the Foundations rules to keep up with the evolving situation etc.

This does not look as a correct representation of reality. The MC merely represents the Trustees in appointing an auditor to do an audit(*). Nothing more. Well, maybe, additionally the MC might be given a role in overseeing the process and that the Board is correctly providing all information. Statues do not handle that, and it hasn’t been the case in 2023 (where it was said the MC would officially manage the audit, for some reason) and also I wonder how the MC could do that, other than being the one where internal whistleblowers can call on. Even if there would be a role of the MC, how likely is it that one MC member can convince the Board or staff to withheld information from the auditor?

Wondering: what interaction did the MC have the past two years with the auditor, if any, or what audit-related activity? Perhaps one of the other MC members can help here?

All that aside, even if a situation turns out to be that someone has a CoI in a current role and related to an audit, the foundations CoI policy explains perfectly how to handle. Full stop.
*) and I would even suggest that the MC gives that back to the Board of Trustees; this practice has only been invented at a moment of great haste.

Quite! And these results are around a. arms-length decisions and b. trademark licenses/use…
I miss the link with the MC representing the Trustees in appointing an auditor to do an audit?
Starting with a violation of the statues (changing the outcome of elections), does not look like a great choice to ‘demonstrate improvements in behavior’…

(Trying to keep it brief, but I think I’ll have to write in more detail on some of the topics touched here. Will work on that.)

Cor

[DECISION] Solve past issues by splitting them into reasonable and manageable tasks
[DECISION] Solve past issues by splitting them into reasonable and manageable tasks
Current Activities of TDF BoD - November 2024
Scheduling townhall meetings on MC elections result
#44

After some more thought, IANAL etc. but this deserves a response. For the record, I don’t believe this cited case - in which almost the entire business of the foundation was out-sourced to a newly founded company - is comparable to the TDF situation.

Compounding that; given that (as Thorsten points out) the clause you build the argument on was added well after the events you outline - makes it even less clear that the case is applicable.

As such - while there may be useful things to address here, relevance of this to the MC election is an even further stretch from my perspective.

The Law, and personal opinions
#45

I’ve just sent a mail with more relevant details to tdf-internal, since I think it is appropriate to discuss details with the members.
(Are you a member, and not subscribed to tdf-internal: do so now.
And do sent me a DM if you want to have the mail.)

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