our legal counsel urges the board to run several votes immediately as one of the required preconditions which will allow us to have a valid budget soon.
As advised by our lawyers I propose the following vote:
Rationale as confirmed by Carlo Piana: legal advice has not been followed by the members who voted in favour
This vote will run for 72h. Early votes are welcome, as we need to finalize our budget. If everyone voted before the 72h timeline, the vote can be concluded earlier.
To add on that: directors role is to consult for available options,
conscientiously consider related advice, put effort in clarifying
ambiguities etc, as far as time reasonable allows, and then evaluate and
take responsibility.
And while trying hard to keep all happy is important, sadly it will of
course not always work. I’m convinced we need to focus on solutions that
are true to TDF’s principles.
the differences between the 2 texts might not seem that big at first glance but, as you might know, there are no unsubstantial changes when it comes to text recommended by lawyers especially when we want to comply with procurement processes which naturally includes the fact that all potential bidders should participate on a level playing field and with all of them we must apply the arm’s length principle.
There is also the detail that each time that an unnecessary change is proposed to a text that needs to be validated by a lawyer it costs time for all people involved and donors money.
The two main elements that have been changed from a text that IMHO was ready to be voted months ago are:
Affiliate → Associate
Our lawyer chose “affiliate” as it has a specific meaning, it is well suited within the context of the document as it is also further defined and clarified in the same document to remove all possible doubts.
I have seen no logical rationale for the idea of changing “affiliate” into “associate”, which has a slightly different meaning, which is then defined in the document to mean affiliate. That creates confusion more than anything else and it would lead to more discussions about its interpretations.
Then adding to the first sentence of the Definitions “… and should not be used elsewhere” is completely unnecessary unless it is intended to avoid the use of the terms in other documents and resolutions which are related to the compliance with public procurement processes and the arm’s length principle that we must use to create a level playing field that welcomes new contributors. That would be counterproductive and a sign of unwillingness to welcome new contributors on a level playing field.
I talked about the other major problematic change here:
As you have seen from votes and various discussions, staff protection has been an unresolved issue for a long time which must be resolved starting from the board side.
Members of staff are working on all sort of tasks that are related to tendering, even choosing to fix a bug or using a technology instead of another has effects on what gets tendered, so they cannot be managed or have their performances assessed by their “bosses” which are also affiliated with bidders.
The 4 votes I sent out, that the board should pass as advised by our lawyer, will fix the issues with the text (which was already advised against) and the other procedures. This is the first necessary step to finally approve a valid budget and implement a legally sound tendering process.
the differences between the 2 texts might not seem that big at first
glance but, …
It is easy to see them yourself.
[PaoloVecchi]
as you might know, there are no unsubstantial changes when
it comes to text recommended by lawyers especially when we want to
comply with procurement processes
(see at the bottom of my response: there are no problems in the
procedure the board voted in.)
which naturally includes the fact that
all potential bidders should participate on a level playing field and
with all of them we must apply the arm’s length principle.
Which has always been the case, but of course the significant factor
that we can’t ignore, is that those companies that have experience in
LibreOffice development are in a clear advantage - given the size and
complexity of the project - compared to newcomers.
There is also the detail that each time that an unnecessary change is
proposed to a text that needs to be validated by a lawyer it costs time
for all people involved and donors money.
Given the importance of the work, few details more or less, should
really not matter?
[PaoloVecchi]
The two main elements that have been changed from a text that IMHO was
ready to be voted months ago are:
Affiliate → Associate
Our lawyer chose “affiliate” as it has a specific meaning, it is well
suited within the context of the document as it is also further defined
and clarified in the same document to remove all possible doubts.
There’s serious problem here; let me spell that out.
Do search the internet for the meaning of affiliate, and you’ll find
readings as e.g.
And although the rules speak about affiliated persons and the above is
for business, the difference with the definition in the new procedure is
significant.
Also if you search for definitions of affiliate persons, it shows in the
same, clear direction.
It is clear: business under direct control. In contrast to the term in
the new procedure, where it is stretched to all sort of cooperation over
years etc.
All that would not be a huge problem (after all in the procedure
‘affiliate’ refers to the definition given in that same procedure) were
it not the case, that the word affiliate is also used in our statues, in the
translated English version. In our statues it represents the meaning
explained in the articles I referred to above here. For those who doubt
if that is indeed the intended meaning: read the German, binding,
version of the statues. That says ‘Tochterorganisationen’.
Apart from that it is not smart to use one term in two different
meanings for important matters, we live in a situation where certain
forces work hard to fight TDF’s ecosystem companies. And the outlook on
more time wasted by fighting (then over the meaning of ‘affiliate’ in
our statues) is not appealing to me. More important: the board should
avoid that.
So the ‘placeholder term affiliate’ has been replaced with the term
‘associate’, that is explained e.g. here
[PaoloVecchi]
I have seen no logical rationale for the idea of changing “affiliate”
One wonders what Paolo has been doing when it was discussed.
into “associate”, which has a slightly different meaning, which is then
defined in the document to mean affiliate. That creates confusion more
than anything else and it would lead to more discussions about its
interpretations.
Though here Paolo clearly shows, that he does know the discussion: he
has the habit of turning arguments round in discussions, and indeed in
the discussion in the board, with the lawyer, there has been warned for
the real confusion, with the statues, as explained above here too.
I regret that, indeed, I’ve not been able to convince the lawyer of the
problem with the use of affiliate. Maybe I should have put more effort
in that? On the other hand, there is a lot of pressure on the whole
discussion; for the time available; for people being busy; for others
whose style is putting stress on many of the discussion.
And then of course: me convincing the person who is helping us with
advice, is definitely a plus, but not the real goal.
Then adding to the first sentence of the Definitions “… and should not
be used elsewhere” is completely unnecessary unless it is intended to
I agree it is a bit over the top.
avoid the use of the terms in other documents and resolutions which are
related to the compliance with public procurement processes and the
obviously it is meant to say what it says
If there is reason to use (few) of those terms similarly in other
procedures, the solution is quite simple…
arm’s length principle that we must use to create a level playing field
that welcomes new contributors. That would be counterproductive and a
sign of unwillingness to welcome new contributors on a level playing field.
Heh - this to me looks a repetition of the framing Paolo used as well
above
So let me repeat: there is (and was) no unfair situation for ‘new
companies’ that want to bid.
[PaoloVecchi]
I talked about the other major problematic change here:
Yes, staff protection. The part that the board majority has added and that
Paolo (and Emiliano) want to see removed from the procedure…
It had been discussed; the lawyer appreciated the idea, but preferred
something different, but without rejecting the original idea.
sentence has been mentioned once in the board mailing list with an
objection that stated: "Members of the ESC affiliated with potential
bidders are unlikely to have a similar clause in their employment
contract and it would be anyway very difficult to verify and
Paolo didn’t understand or remember the difference; TDF staff are not
developers affiliated with a company.
[PaoloVecchi]
As you have seen from votes and various discussions, staff protection
has been an unresolved issue for a long time which must be resolved
starting from the board side.
Therefore the board added it to the procedure right now. And a
whistleblowing mechanism will be put in place too.
So brief the ‘huge’ differences in the voted in procedure:
it prevents confusion around ‘affiliation’
it already makes clear statements on staff protection;
various grammar/language corrections.
I think a lot is explained also by the fact that in the
after-vote-discussion (that seems to be a normal, but time consuming and
frustrating procedure in TDF board nowadays) in response to some 5 clear
asks for mistakes/blockers/problems in the text voted in, none has
been given.
I hope this clarifies why we are where we are now…
I don’t know what I was doing as I don’t know when it has been discussed by other members of the board that took the habit, since last year, to decide things between themselves while excluding 2 directors.
The matter has been already discussed here:
There the major issue I raise isn’t about the definition of a single word but a limitation that has been imposed on TDF that is not present with the bidders.
Actually you haven’t been able to convince 2 lawyers as Carlo is working with our legal counsel which knows very well our statutes as he’s one of those that wrote them. That should be a clear signal that once again you are pushing members of the board to do something against legal advice.
Then in theory we could have used the term “cucumber” instead of affiliate or associate as then the description provided to that word clearly defines it as affiliate, so might as well use a word that is closest to its meaning.
The term “associate” is “much broader” and that could mean having more people in potential CoIs. How distant should someone be before he/she is “associated” with the interests of a bidder? If use and contribution to the product of a bidder could create an association then we would have 2 more members of the board being seen as associated with bidders.
Adding a clause that limits the tendering organisation isn’t “staff protection”.
Staff protection gets implemented with these 2 votes:
Then as a last comment:
Someone might then wonder why we stopped tendering in May 2022 and we spent tens of thousands of Euro with several lawyers.
The majority of the board could choose once again to not follow or to circumvent legal advice but after having evaluated all recommendations from various lawyers I’m personally of the idea that is wise to follow legal advice that could have allowed us to have voted for the budget months ago and could allow us to finally have one with a process validated by lawyers by next week.
I don’t know what I was doing as I don’t know when it has been discussed
by other members of the board that took the habit, since last year, to
decide things between themselves while excluding 2 directors.
It has been discussed with Carlo and again in the exchange after the
vote passed.
And again, no, there is no decision making outside the full board, there
is no exclusion, no hidden information.
But if you never wonder why others feel the need to occasionally
exchange opinions without the exhausting distraction of … and the
board is in the unprecedented situation with directors leaving, as we’ve
seen this term…
Then in theory we could have used the term “cucumber” instead of
Feel free to propose, and …
affiliate or associate as then the description provided to that word
clearly defines it as affiliate, so might as well use a word that is
closest to its meaning.
… as shown with all the references in my previous post, ‘associate’ is
a much closer match with the actual meaning advised for the procedure,
then ‘affiliate’.
Adding a clause that limits the tendering organisation isn’t “staff
protection”.
I don’t understand that. How does " Also, staff members must be
protected so that they can vote freely in their role as individual and
volunteer member of the ESC. Any instruction for them to vote by their
management chain up to and including the board, should be reported via
the whistleblowing mechanism. " limit TDF’s capabilities to tender please?
This is technically incorrect: Adam Fyne resigned and left the project in 2015 half way through his term. I assume you mean “leaving due to internal friction”, but even then I think the reality is far more nuanced.
TDF is currently at its 6th board and I count 31 unique elected individuals (incl. deputies). I recall that some stopped casting votes and showing up at board calls months before the end of their term, and practically there is little difference between going MIA and actively resigning. While thankfully most are still active in the project, quite a few have left. What’s most telling — and frankly worrying — is that some are no longer active at the global foundation level anymore, but still active within their respective subproject and/or local community.
Most have not publicly explained why they resigned or gone MIA and I’m not going to speculate. But some have, and blamed specific individuals for draining motivation; individuals from all “sides” and opinions, several of whom are still sitting at the board today.
I doubt anyone is rejoicing having board members going MIA or resigning. Yet it would be nice if folks playing blame game and deflection today would step back and reflect on their own responsibility in driving others away. That applies to all sides.
(Board) member burnouts are all equally tragic for the project. Whether the person happens to be a developer, a translator, or anything else the MC deemed worthy enough to be a member, is irrelevant.
Indeed. I hope we can all agree with that (I certainly do). There is a plethora of opinions how we can improve here, mine continues to be: work towards having more constructive discussions, and stamp out toxic behaviour. That includes situations where this toxicity would originate from yours truly.
