Hi Cor and all, On 31/03/2023 16:35, Cor Nouws wrote:
Hi Andreas, all,Andreas Mantke wrote on 30/03/2023 14:28:Am 29.03.23 um 15:58 schrieb Cor Nouws:A personal interest is not a conflict of interest which in general is not a reason to abstain from discussing topics.sorry to be very clear here: I've never read or heard such nonsense inside other communities, I'm active in.Apart from the validity of your statement: as we all know, TDF is not the average organization.
Regardless of the wonderful things it has been able to achieve, TDF is still a foundation incorporated under German laws and regulations without any special exemption.
I think the documents, linked by Paolo in his email on this list, should show, that all members with a personal interest had to keep out of any discussion (and decision) of the corresponding topics.So you and Paolo forget TDF rules? Let's take a detailed look then.
TDF statutes and rules do not list all the laws, regulations and common sense we, as any other organisation in any other country, need to follow.
Further question: why didn't declare Cor also a personal interest aboutthis three topics?Sorry if it is not there. IIRC I said the same applied for me - as is usually the case - so my name should be there in the minutes too.I ask you and also Thorsten and Gabor to not participate in any discussion (and decision) of the corresponding topics. This is important because otherwise you violate obligations as board member and create liabilities.Nope - the only logic reading from the statues is that it is allowed for board members to also participate in discussions where there is a CoI in the decision. You should also be able to find out that there is no legal ground either, to exclude people with a CoI from discussions. Finally the archives of discussions at the start, around the first bylaws and from there to the statues are clear on the intention and reading.
The above statements are very problematic as it once again do not take in consideration the legal and regulatory frameworks within which TDF must operate.
It is clear that our statutes and bylaws do not require directors to have master degrees covering the laws and regulations that any organisation, including our foundation, must follow but the basic concepts of avoiding perceived or actual conflict of interests should be covered by basic common sense.
To help directors whose specialisations and interests do not include reading lots of laws and regulations, I put together a draft of commonly known fiduciary duties so that we can avoid arguing about the intersection of our statutes and policies with other complex legal text:
https://nextcloud.documentfoundation.org/s/FZKYSkyPZZfty5LIf we stick to those few rules then many of the unnecessarily diverging interpretations of what Stiftung, Treuepflicht, Sorgfaltspflicht, etc. mean will vanish and will stop these types of arguments that have been affecting the board operations for years.
Concluding: to me the push from you, some members of the board and people around the board to not follow TDF's statues/rules, looks as a attempt to exclude members affiliated with ecosystem companies at various places in TDF.
The meme that anyone is trying to exclude members affiliated with the ecosystem companies has been used all the times someone does not understand that what is being proposed might not be aligned with the laws and regulatory frameworks a foundation must follow.
If some board members find it difficult to evaluate their proposals against charitable, commercial, antitrust, competition, etc. laws and many regulations then they should stop arguing that those that work hard to ensure that we do things properly want to exclude them.
I don't think in other foundations they have the same arguments as most people understand what they can and can't do.
Eg. this foundation has a much larger ecosystem that we have without anyone complaining they are being excluded as everyone know the rules:
https://www.linuxfoundation.org/legal/antitrust-policyLaws and regulations are complex and we have plenty of advice provided by specialists which tell us what to do, those that are not inclined to read and understand pages and pages of legalese then should start with evaluating if their actions/proposals are compatible with their fiduciary duties and if still in doubt ask through the relevant channels for their proposal to be assessed.
And that would be a clear breach with the principles that helped to ground the foundation.
It is not.The founders agreed on creating TDF specifically as a German Stiftung evaluating the pro and cons of that legal form over others.
Meaning that TDF surely wants and needs a vibrant ecosystem which includes a large number of companies all cooperating on a level playing field.
It also means that the "arm's length principle" must be applied with all members of the ecosystem. Especially those that are members of the board must show that they are not more equal than others.
If the founding members wanted to create an entity where companies could exert pressure and push their own interests without having their representatives being in constant conflict of interests then they could have chosen a simple association or a cooperative.
If you and others are of the opinion that that should happen, please be clear and work on a sensible discussion around the topic. But please do stop behaving as something that one would associate with a troll rather then a member contributing our work.
Please stop saying that if we follow laws and regulations we violate the principle of the foundation as it is far away from reality.
Some of the founders are also members of the ecosystem and members of the board of directors affiliated with those companies, they accepted and supported the fact that a Stiftung follows rules that are very different from a cooperative and should accept that in their position their actions should be under even more scrutiny than others to avoid showing even a perceived conflict of interest.
As a member of the board of directors affiliated with a member of the ecosystem you should be the first to show that you are not more equal than others as that could have a negative effect on those that might want to join the ecosystem as they feel they wound be treated as equal.
Having had this type of discussions too many times I expect that the chairman will instruct an impartial and objective CoI evaluation for all the members of the board and the adoption of clear fiduciary duties that all board members must follow to remove the doubts that members of the board of trustees are expressing.
Thanks, Cor
Ciao Paolo -- Paolo Vecchi - Member of the Board of Directors The Document Foundation, Kurfürstendamm 188, 10707 Berlin, DE Gemeinnützige rechtsfähige Stiftung des bürgerlichen Rechts Legal details: https://www.documentfoundation.org/imprint
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