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

[cornouws]

@EyalRozenberg

But, @cor, your quoting of it on this thread and out of context is quite uncalled for.

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.

[cornouws]

So wrt clear and correct information, briefly the following:

@italovignoli

As a result of the Audit, the German Authorities requested information from the three members of the BoD One of these three members is Cor Nouws.

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.

@italovignoli

… Trying to simplify the concept, “excess of power of representation” occurs when the BoD of a nonprofit foundation makes a decision that is not or is not perceived to be equidistant from all stakeholders, and therefore is or can be interpreted as favorable to only one of the stakeholders. The problem is solved by introducing the subtle concept of “arm’s length,” which obviously has nothing to do with arm’s length but refers to equidistance with all stakeholders.

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.

@italovignoli

The Membership Committee of The Document Foundation is the body responsible for coordinating the audit, deciding to whom to assign the task, and monitoring its performance. Because of its role, it may also be involved in the audit, at the discretion of the professionals assigned to the work.

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.

@italovignoli

Obviously, it is the BoD’s task to demonstrate to the auditors that the results of the previous Audit have been given due consideration and that the BoD has embarked on a path aimed at a progressive solution of the problems…

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

[mmeeks]

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.