The Law, and personal opinions

Board Discuss
#1

The post, in which I tried to explain in a simple and understandable way the causes of the problematic situation in which the Document Foundation finds itself, had 43 comments (some of which were my replies to comments) and was viewed 1,100 times. Given these figures, I would assume that it has been read by all the TDF Trustees.

The post I am referring to is this one: 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 (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). When I say that it is simple and understandable, I do so with full knowledge of the facts, because before publishing it I had several people completely unconnected to the project read it and ask them to assess the clarity of the text, and all these people confirmed that the text was clear and understandable even to those completely unconnected to the project.

I repeated several times in the text, also in response to some comments, that my statement was intended to define the legal contours of the issues based on the evidence provided by lawyers and a decision of the German Supreme Court. My statement also contained some personal opinions in order to clarify certain points on which speculation was possible, and in all these cases I made it clear that these were personal opinions.

Moreover, some of these personal opinions partially justified some of the illegitimate and inappropriate behaviour of the members of the two previous Board of Directors. This, judging by some of the comments, was understood by only a few, including none of those who should have understood it because they were the authors of those behaviours. Nor did they seem to understand it after reading My point of view on the history of the LibreOffice project (My point of view on the history of the LibreOffice project), another post in which I reiterated my opinions, which was followed by 11 comments and viewed 189 times.

In my opinion, here the lack of understanding has a specific instrumental reason, linked to communication objectives aimed at creating uncertainty and doubts, and thus confusing the ideas of those who enter the discussion at a later time. Looking at some comments, this has worked, and this is why I am writing again – although I am repeating the same statements already made multiple times, in writing and in public talks – about this topic.

In fact, I had already tried to clarify the issue in the replies to some comments on the first post, by providing both the original German and the English translation of the German Supreme Court ruling, along with other documents that might help in understanding the problem (which I repeatedly described as extremely complex). Unfortunately, at a certain point that discussion turned into the realm of personal insults, and I could not follow up further.

Unbelievably, after almost two months, someone continues to smuggle out his personal opinions as if they were legal opinions, and even asks to distribute them to all TDF Trustees, to create further confusion with the legal opinions and judgments of the German Supreme Court, which are the ones that make case law. Whether we like it or not, the management of a charitable foundation must follow the dictates of the law and not personal opinions.

In the second post, I tried to describe the evolution of the decision-making process within the board of the Document Foundation, and how all the initial discussions were based on common sense. Such an approach was probably sufficient at the time, because although the stakes were high, money was tight, so it was easy to conform to the canons of the non-profit sector. I also wrote that I thought everyone was acting in good faith at the time.

However, with the passing of time and the increase in donations, the transition to a more structured approach - based on recognised best practices at all levels, including the legal level - capable of guaranteeing growth according to rules that are also known and shared by the authorities, has been missing. Unfortunately, it is exactly the absence of this transition that has created the current problems. And on this point I think I can say that we are all a little guilty, again in good faith, of excessive naivety (i.e. we should have thought about it).

From that moment on, common sense in the application of the rules was no longer sufficient, because individual opinions on the principle of conflict of interest became secondary to the definitions provided by the law, and there is no individual opinion on the excess of power of representation, because it is the law, and certainly not the opinions of individuals, that defines the limits.

I would add, to emphasise the complexity of this principle, that the King of England - the most famous of those who fall within the bounds of the excess of power of representation - must abide by the rules laid down by law. And if the King of England himself must abide by the law… I think there is nothing more to be said.

Therefore, once we have established, on the basis of the opinions of lawyers specialised in this field (management of non-profit foundations), confirmed by a ruling of the German Supreme Court (which is case law), that certain decisions of the Board of Directors of The Document Foundation were unlawful due to excess of power of representation, in some cases aggravated by conflicts of interest, there is no choice but to act within the limits of the law.

In fact, even if we personally have different opinions on how to deal with the excess of power of representation and the CoI, when we are in office we have to abide by the law in the following order: 1. the German Constitution, 2. the German Law (Criminal and Private Law), and 3. the Foundation Statutes. Only at that point then we can express our own opinion by making it very clear that is our own opinion, and we do not agree with the law.

To argue that specialised lawyers and the German Federal Supreme Court (which makes case law) can be ignored, because the members of the Board - on the basis of their personal opinions - decided on the basis of the objectives of The Document Foundation and respected the principle of free competition, and are therefore guilty neither of the excess of power of representation nor of conflict of interest, is pointless. In fact, the authorities decide on the basis of the law and not on the basis of the opinions of individuals.

This attitude has been going on for at least two years and is one of the reasons for the freezing of the Board’s activities from 2022 to 2024, with all the negative consequences that this entails for The Document Foundation. In addition, it has caused confusion in the community, because the collaboration and friendship between people, which in some cases has lasted for years, has led some of them to believe in the validity of personal opinions rather than that of the law, based on the POV of their friends.

At this point, I must conclude with a comment that I never imagined I would have to make in 2010, the year of the birth of the LibreOffice project, which is also a question.

If you have problems understanding what laws must be abided by, and also show that you do not understand where the line is between abiding by the law and personal opinion, and also have the presumption to claim that your personal opinion is superior to the law, are you really able to take on the responsibility of representing the Document Foundation as a member of the Board or Membership Committee?

I repeat: in 2010, I never thought I would have to ask this question, because - perhaps naively, even at the age of 56 - I had full confidence in the people who had contributed to the birth of the LibreOffice project. Today that trust is gone, and for me that is a very bad sign for the future of the project.

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Por Italo Vignoli: La ley y las opiniones personales
Por Italo Vignoli: A lei e as opiniões pessoais
#2

It is of course someone’s personal choice to ignore the facts that advises received (apparently) was not based on full and proper information. But does that mean these advises in the current state are suitable for our foundation?

#3

Italo,

I’m still falling to find where, in the statutes or other rules of governance of the foundation, e.g. on the organization of elections, there is a legal basis for excluding a person’s candidacy after the fact. No one in the Board has provided any such legal justification for this exclusion, at least not publicly, other than some vague assertion that a decision had to be made for the sake of errors made by previous Boards regarding excess of power of representation and the potential repercussions thereof to the maintenance of the status of the Foundation as a foundation under German law.

If the solution to the existing problems involves disapplying the current rules of governance around the election of members simply because it suits the current Board to do so, couldn’t it be argued that the Board is committing the same sin of excess of power of representation as the one it is trying to remedy?

My point is that arguing that the law must be respected without then publicly providing the legal justification for excluding a duly elected member is fallacious at best.

What if someone were to inform the German authorities that the Foundation appeared to be incapable of following its own election rules? I imagine that the authorities would take an equally dim view of the situation, perhaps even considering this to be a further topic for audit, or even the final nail in the coffin.

Is there legal advice that has given the Board the confidence to proceed in this manner, without reholding the elections or amending the rules to enable it to act in such a manner in the future?

The current decision taken to exclude a duly elected candidate seems to me just as legally unfounded as the excess of representation of power issue that has led to the audit in the first place.

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#4

Hi Italo,

There was no other way but ‘personal opinion’ to guide me and other board members here, since we were effectively cut off from legal advise - for example, just like the general public and all TDF trustees, I have never seen this legal expert statement that you keep referring to. I’ve seen other bits, but those all do not lead anywhere near to the conclusions you describe. So I was asked to trust the judgement of fellow directors in the legal group, who had quite definitely not earned that trust.

#5

just a few examples why that is not accurate.

On the very last day of the year 2023 the board had to decide for the budget again. This vote is documented on board-discuss. That clearly could have been avoided following what two lawyers, two other board members, several MC members and others said months before.

You however seem to have understood the severity of the issues, because that December 31 budget contains “491,000.00 € emergency spending and reserves”.

The board also took votes that were explicitly discouraged by legal experts, like the rules of procedure change, and did not take other votes that were urged for by legal experts. Some of them even failed the quorum. Also these (non-)votes are documented on board-discuss.

It’s also interesting to hear that on one hand there are complaints to be “effectively cut off from legal advise”, and on the other hand I read on this forum lawyers have been instructed wrong, didn’t have all the material, or don’t understand our situation.

You and another board member also had their own chance for handling legal advice, by the way. Everyone on board-discuss can read how that ended up.

#6

Hi @floeff ,

I believe you’ve just confirmed, that part of the board was effectively cut off from legal advice (except from perhaps the kind of “I tell you what to do, but won’t explain why, or what other options are there” - either by staff or board member proxy, or by no-reply emails). And with your last reference, you’ve also confirmed that any attempts to remedy that were frustrated.

#7

Iterating it repeatedly doesn’t make your statement true.
The fact that you seem to blame everyone else speaks for itself, and I am sure readers can judge that properly.

#8

Maybe it is time to pay attention the toDo list for out community, that was the result from the meeting with Board, MC and staff in Bucharest. I think the real problems are listed there, and for sure they will not be solved by referring to decisions/situations etc with too little context for others to judge or understand.

#9

Marketing is not law.

#10

I can confirm that there is an element of truth in this sentence:

That happened with the law firm that Thorsten decided to contract with the excuse that there was a legal backlog of stuff he wanted them to deal with while the board was already having difficulties in keeping up with the then current legal issues confirmed by several other lawyers.

Some expected that it was an excuse to try to get a different opinion from yet another law firm and warned the law firm that the then chairperson had conflict of interests on several matters.
It seemed like the law firm understood that but only when the new board received the invoice we discovered that Thorsten and Cor have been dealing with that law firm without informing the board about it and that they were asking advice on matters that were related to their personal/business conflict of interests.

It was only due to the embarrassingly poor quality of the Staff Policy that Cor wrote but presented to us as being produced by the law firm, misleading the board and everyone else, that the new board challenged the law firm and discovered that they had dealings with that law firm, paid by TDF, to try to get answers that differ from the many other lawyers TDF engaged with officially.

Only in that case Thorsten would be right in saying that “part of the board was effectively cut off from legal advice” as he, together with Cor, created that situation.

#11

Surely the lawyers being instructed inadequately is the most positive interpretation of some of the more egregious examples of this. Clearly it is possible to arrive at conclusions from reading the output of the legal advice - without having been able to interact with the apparently flawed construction of that output.

If threatening legal approaches get sent out - that are contradicted by TDF’s own website and agreed public positioning - then I think the only reasonable conclusion is that the lawyers acting in good faith have been mis-advised and/or mis-instructed and/or that their advice has been mis-handled.

Is there a pattern of inadequate handling and instruction of counsel? The recent
FIXME: add clause documents just voted through don’t inspire confidence in this regard.

If these opinions so created - apparently based on a very shaky factual basis - are then treated as unchallengable fact, and are the provided to auditors and used to fuel this ongoing permacrisis - that is bad. I havn’t seen the advice; but the pattern looks problematic from the outside.

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#12

It is time to make public within TDF, how the legal advisors were hired, the instructions, the communications with them and their reports.
Public can be to email each member, indicating the reservation of the information.

We members do not need self-serving interpretations here and there.

It is certainly curious the lack of transparency, after almost a year with such a transparent Board.

#13

Are you blaming also yourself for it as you were a member of the board when lawyers were being instructed to evaluate the situation?

Or are you blaming other directors with interests on the matter that went on asking the lawyers how to continue doing what was deemed to be wrong?

Was that rant actually necessary?

You had a call with a director that explained to you that previous decisions have been deemed legally invalid and that the board had to act to fix the situation.

You were aware of the actions that the board needed to take but, instead of calling/sending an email requesting further information, you decided to go out with a public rant.

It was appreciated that you gave the board an opportunity to react and reply to correct the many elements that were factually incorrect in your message but we realised you published just half an hour before we sent you the corrections and once again offered you to clarify the matter.

It would have been great to see a message from your side correcting the factually incorrect statements so that members and the public would have understood that it was probably a misunderstanding but that unfortunately did not happen.

It would be interesting to have a reaction from all the lawyers involved in the matter to see if they can be so easily subjected to what you state.
Thorsten and Cor even contracted a lawyer all for themselves to get yet another opinion, while in conflict of interest and while interacting with all the lawyers despite them stating the contrary, but the outcome did not change.

So, maybe, your reasonable conclusion is incorrect?

It has been stated that it’s still work in progress but as most of the Procurement Policy is sorted we wanted to share this preliminary version.

You can use it to promote a narrative about inadequate handling of the lawyers involved or you could thank us for sharing it while we finalise the last few bits.

Check your email archive and you will notice that you have seen the part of the advice as you were still a board member when legal statements started arriving. Since May 2022 we received further clarifications which added more information and recommendations on how to fix the issues but the logic of the issues were already described in the emails you have.

For those looking at the situation from the outside I’m sure they find it problematic to understand what is going on as unfortunately there are many factually incorrect statements being made which confuse the situation more than what is necessary.

#14

Four very simple comments:

  1. I have repeated ad nauseam that I do not consider ANY opinion from other people who correct my documents, except from lawyers and authorities, so please avoid complaining about not having listened to your “important” statements, because I do not consider them important, and I often consider them biased. I will read and filter them if they have a positive approach (i.e. they are not trying to correct me), and I may consider them if I find them clever enough to help.

  2. I was not referring to a specific decision of the Board, but to the general situation of The Document Foundation. Of course, it is possible to read the post as a specific response to some people, although my aim was to clarify a situation that has gone on for too long and should stop as soon as possible. Only when we stop wasting time on discussions that lead nowhere, because the German authorities - when making their decisions - will look at the law and ignore our messages, will we be able to start again in the right direction.

  3. I have already acknowledged that version 1 of the procurement policy has some hiccups due to a problematic conversion from markup to PDF. We have accepted the suggestion to use LibreOffice to produce our documents and version 1.1 will be a LibreOffice document. The file has already been converted/commented and will be ready for approval at the next Board meeting. We will welcome comments on version 1.1. The same process will be followed for the Development Agreement.

  4. All legal advisors have been signed by the previous Board of Directors or by the previous Board of Directors. The current Board has referred to the legal advice provided in 2020 and 2022 and has sought the opinion of legal advisers who were already acting as advisers to The Document Foundation prior to the start of this term of office.

#15

I don’t think anyone is debating this. From recent experience it seems we should ensure that our more complex matters are explicitly and unambigously signed off by a German Rechtsanwalt. As an example it is still unclear if that was done for the latest procurement policy as it was voted through. While taking that into consideration it is critical to ensure that there is no partisan gate-keeping of counsel and such opinions. Board members who have different approaches and views must have timely and impartial access to counsel: something that was denied to me in previous boards - necessitating funding that personally.

I challenged this opinion of yours here. Let me repeat that - and underline this again. I do not 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.

Nor have I seen an opinion that something that actually happened - was unlawful. On the contrary - I have recused myself and sat on the opposite site of the table to TDF counsel, Board members and Staff - for example during tendering. That suggested to me that the initial contracts were discussed and dealt in a sensible process even if I had no insight into that - I signed agreements that looked sensible with TDF in good faith.

Italo - I much preferred your earlier emphasis that perhaps mistakes if they exist - have been made on all sides, and that the key here is not digging over history and playing some blame-game, but charting the most constructive course to resolve any apparent issues as cleanly as possible. I would appreciate returning there.

As I’ve previously said Collabora is willing to engage positively to bring this to resolution at pace. It is not clear to me why we have still not met to discuss the concerns here - but I’m hopeful that TDF is making progress in its decision making.

Finally I think much of this belongs on tdf-internal - if you are a Trustee you can subscribe here.

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#16

It would be great if you stop repeating something that is well documented not to be correct as it is happening way too often. This is yet another example:

We have a huge archive of emails and documents showing that not only you had full access to our counsel but you abused everyone’s patience when you couldn’t get the outcomes you wanted as they couldn’t fit with the laws and regulations TDF must respect.

I, and the rest of the board, can keep correcting you publicly as I did recently but it would be preferable if you to go back to your email and document archive before making further statements so that we can avoid unproductive discussions.

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#17

Its interesting to see an opponent of funding timely and impartial legal advice for board members now seem to support that after the event.

Since we seem to live in a world of alternative-facts these days; I will re-iterate and underline my statement above. I am dismayed to see the shouting down of others with ‘liar’ - an unpleasant post-truth phenomenon coming to our community in meetings and by implication here too.

At that time as I recall, at least you were willing to throw your weight against other board members getting getting prompt legal advice. Perhaps your position has changed; would you now support or oppose a resolution to:

Promptly instruct TDF's general counsel to answer questions sent
by TDF's Board of Directors members impartially and in a timely
fashion, including the whole board in each written reply

Again it is clear I did not believe I had access to counsel necessary to do my job on the board; it is an unarguable fact that I felt it necessary to contract my own to get timely advice. Now - to be fair - I did get answers: you liked to answer legal questions yourself, and then claim that I had the answers I needed =) pardon me for not believing that your opinions as presented were qualified legal advice.

The hypothetical meta-problem here is rather clear: if there is partiality in how timely legal advice is provided to the board such that only a single pre-packaged option is presented to it, with little scope for iteration and improvement, this leaves the board unable to make meaningful choices between compliant options.

I believe that a very simple executive staff policy - that ensures that board members of every perspective (not just mine) have fair access to impartial advice from executive staff - would build confidence. Surely we all want to encourage the board to develop, compare and combine multiple legally compliant options; that is absolutely vital for our governance.

I also believe that involving the whole board in the process of hammering out durable compromises that are legally compliant ultimately leads to a far better result. The alternative - of ignoring the input of parts of the board (and advisory board, and Trustees) and forcing poorly thought through governance changes is deeply unhelpful.

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#18

Michael, as stated:

You copy pasted a motion you sent out the 14/10/2021 so don’t say “as I recall” as you have a large amount of emails around it showing exactly what was going on.

Here you are trying to play the same game you wanted to play during the townhall knowing to see if you can discredit someone with statements you know to be false. You tried exactly the same trick at LibOCon this year, you’ve been told why your statement was wrong and to stop playing that game but you did it again during the following townhall meeting regardless of the fact that you knew you were going to make a false statement.

Do you remember the discussions we had also at the end of LibOCon in Milan?
You were trying to play the same game and for more of an hour, until I got fed up and told you to leave me in peace, you have thrown at me all sort of accusations and objections hoping that something would stick.

I was hoping that you have grown out of that behaviour, which tested the patience of anyone that wasn’t agreeing with you in the board and maybe also outside of the board, but it seems it’s still your preferred method to try to wear people out and making them agree with you just to make you stop.

On the specifics of your accusation you failed to mention that it was about the painfully lengthy discussion on the Conflict of Interests Policy on which you weren’t particularly keen as you believe it would have had an “impact on corporate citizens” of which you and other members of the board at the time were the main representatives.

You also failed to mention that your motion was totally unnecessary as work was already ongoing but you kept wanting to ask the same questions for which you already received answers in the hope to receive different answers.

Furthermore you failed to consider during the discussions that a strong CoI Policy was necessary to avoid the issues that are still keeping this board busy.

I could carry on but I presume it would be a waste of time as you will come up with yet another accusation or objection for which you already have evidence of being false.

As you know, I’m always available to have objective and constructive discussions but as I’ve already told you stop wasting everyone’s time with lines of questioning that have the only purpose of wearing people down and create noise.

#19

Hi @PaoloVecchi ,

A simple “yes” or “no” answer would have been cool here, for what appears to be a very simple question? That would also help to reduce unnecessary noise.

Best, Thorsten

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