Discovery of a20151125.1

Contents

  1. Discovery of a20151125.1
    1. A. CAcert Inc. statutes extracts
      1. 27 Notice
      2. 30 Adjournment
    2. B. original resolution wordings by requesting members
      1. I. request for additioal topic at AGM by Marc-Oliver H send at 2015-11-06
        1. findings
      2. II. request for ordinary resolution at AGM by Stefan T send at 2015-09-06
        1. findings
      3. III. request for ordinary resolution at AGM by Benedikt H send at 2015-09-12
        1. findings
    3. C. answers from Claimant
    4. D. Timeline
    5. E. Notification of Business for Annual General Meeting
      1. 1. For 2015-09-27
        1. findings
      2. 2. For 2015-11-22
        1. findings
    6. F. some initial questions, regarding this case

A. CAcert Inc. statutes extracts

CAcert Inc. statutes

27 Notice

(1)
Except if special resolutions under rule 32 are proposed, the secretary must, at least 14 days before the date fixed for the  holding of the general meeting, give a notice to each member specifying the date and time of the meeting and the nature of the business proposed to be transacted at the meeting.

(2)
If special resolutions under rule 32 are proposed, the secretary must, at least 21 days before the date fixed for the holding of the general meeting, cause notice to be given to each member specifying the intention to propose the resolutions as special resolutions, and include any ordinary business received at that  time. The secretary may, no later than 14 days before the date, update the notice to include additional ordinary business duly received.

(3)
No business other than that specified in the notice convening a general meeting is to be transacted at the meeting except, in the case of an annual general meeting, business which may be transacted under rule 25(2).
(4)
A member desiring to bring any business before a general meeting may give notice in writing or by digitally signed email, of that business to the secretary who must include that business in the next notice calling a general meeting given after receipt of the notice from the member.

30 Adjournment

(1)
The chairperson of a general meeting at which a quorum is present may, with the consent of the majority of members present at the meeting, adjourn the meeting from time to time and place to place, but no business is to be transacted at an adjourned meeting other than the business left unfinished at the meeting at which the adjournment took place.

(2)
If a general meeting is adjourned for 14 days or more, the secretary must give written or digitally signed email or oral notice of the adjourned meeting to each member of the association stating the date and time of the meeting and the nature of the business to be transacted at the meeting.

(3)
Except as provided in clauses (1) and (2), notice of an adjournment of a general meeting or of the business to be transacted at an adjourned meeting is not required to be given.

B. original resolution wordings by requesting members

I. request for additioal topic at AGM by Marc-Oliver H send at 2015-11-06

[some empty lines removed, anonymised] 

Subject: Please add this Topics
Date: Fri, 6 Nov 2015 14:44:01 +0100
From: [complete name and email from Marc-Oliver H]
To: <secretary@cacert.org>
Reply-To: [email address]

Dear Board,

please add these Topics to the Agenda of the upcoming AGM:

*       Board reports about the current situation of support and arbitration up to the actual date

*         Board reports about the incident that happened at the FrOSCon 2015 during the test for Root Signing [1].

The auditor wrote: "Disturbance of the re-signing test session for non-urgent business for about 10 minutes. The procedure was not compromised, but the participants concentration was for the next 15 minutes". Please explain in more details.

*         Board reports about the other incidents that happened at the FrOSCon 2015

I would like to see what the actual Status of these Topics are and clarify what has happened and how we want to deal with such Issues in the future.

[Agenda at time of writing - skipped by Arbitrator because of no relevance for case]

[1]  <https://wiki.cacert.org/Audit/Results/session2015.4>
https://wiki.cacert.org/Audit/Results/session2015.4

[2] http://wiki.cacert.org/AGM/Next#Agenda

[long footer and CARS]

findings

II. request for ordinary resolution at AGM by Stefan T send at 2015-09-06

Subject: Request for Special Resolution for GM
Date: Sun, 6 Sep 2015 12:26:56 +0200
From: [name and email of Stefan T]
To: secretary@cacert.org, cacert-members@lists.cacert.org

Dear board,
dear members of CAcert,

please add the following topic as special resolution to the agenda of the AGM or SGM as the actual board was not able to define these open post for over 5 month by now.

I request the AGM or SGM to vote that the new board needs to fill the vacant team leader positions within 4 weeks after the election:

a. Public Relation Officer
b. Event Officer
c. Software Team Lead

The new board should also check the other team leader positions if the bearer are still availablein the same time frame.

[footer, no CARS]

There was another request for the same kind of business with a different focus by Benny Baumann: 

Subject:        Re: Request for Special Resolution for GM
Date:   Sun, 06 Sep 2015 15:21:07 +0200
From:   [name and email of Benny B]
Reply-To:       [name and email of Benny B]
To:     [name and emal of Dirk A (president)], [name and email of Stefan T], secretary@cacert.org, cacert-members@lists.cacert.org


Hi Dirk,

I really wonder what BOARD of all people has done to fill these positions while actim as an interim teamlead. Regarding PR I haven't noticed much, least for Events.

Not to mention the more or less open block on the things some teams have managed nonetheless.
FWIW: Please FW my mail to secretary earlier today, as it might be relevant to our members.

Thus if you insist on explicit nominations I'll go right ahead:

I hereby nominate Marcus Mängel for PR Officer.
Furthermore I nominate Neal Oakey for Events Officer.
In regards to the Software Team I'm sure you are aware of the nominee thus I don't need to repeat them here.

I'll skip on the question what BOARD did for team building, but you may answer anyway if you feel like it.

Kind regards,
Benny Baumann

Hower this was never directly named on any business agenda. It could have also been a request for a committee meeting item.

Research with the secretary showed that it probably was understood as this by the secretary.

But as it is of relevance, what the members in general have understood to be the requested business item, this should be mentioned and analyzed, as well.

findings

III. request for ordinary resolution at AGM by Benedikt H send at 2015-09-12

Betreff: Ordenary Resolution for next AGM
Datum: Sat, 12 Sep 2015 20:25:52 +0000
Von: benedikt [email address]
Organisation: CAcert Inc.
An: Secretary@cacert.org

Dear Secretary,

Me, Benedikt H[...], member of the CAcert Incorporatred, propose following special resolution for upcoming AGM: 
Create a sub-committee staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc. to the Austrian Association yet to be founded.

The sub-committee should consist of ordinary members of CAcert Inc. elected by its members. The power delegated to the sub-committee should be those delegated to a Project Team. The sub-committee should be let as a project team by a Project Manager with proven track record.

[footer and CARS]

findings

C. answers from Claimant

  1. Do you believe that the wording of those resolutions was relevant for what vote you have cast for any of those resolutions? Would the other wording have changed your vote?

    • Oddly, I would not have changed my vote. The reason I was voting against was primarily that I didn't know what the resolution was about. There were no words of explanation before the meeting that I saw.
    • Then, when I discovered the words for those that had not been properly announced -- after that very last vote I finally noticed that there were additional words in the votebot chat list -- I discovered that my original choice was even more correct - NO.

  2. Do you believe that someone else would have voted differently if the wording would have been as in the invitation mail or on the website?

    • If the member had only seen the invitation, yes, absolutely, they would have had an entirely different reaction to seeing the words of the purported resolution.
    • I had 4 or 5 proxies. Most of these people were looking to me because they didn't understand what was going on, and the invitation was not clear to the wording of the resolutions. They assumed I would know. I also assumed that at some stage it would become clear.
    • Only one person instructed me on how to vote and it was NO all the way through.
    • My guess on what other people would have done if they had better wording is that they might not have given me the proxies. But they would not have changed their votes, and would have voted no.

  3. Do you believe that if the other wording would have been used, that the result of the resolution would or could have been differently?

    • Well, yes. If there had been persuading wording, or the intent had been softer, then many of those resolutions could have passed. Several of them were on a knife's edge, so it only took a few votes to persuade either way. Absolutely, the absence of early wording and the substitution of bad wording at the end had a very serious effect.

  4. Do you believe that any of the present members (in person or by proxy) was confused about what the effect of the resolution would have because of the different wordings?

    • Yes. I think 4 of the 5 proxies I was provided / offered precisely did not understand how to vote. One only knew enought to vote, NAY.

  5. If you answer any of the above four questions with "yes", which of the resolutions would be affected?

    • The several that were on the knife's edge.
      1. The first resolution "board to report" on was dropped because it made no sense. Oddly enough, this was the only resolution that actually was presented correctly to members, as per the notice of business. The vote to drop it was carried 14 to 13, so clear presentation was a big issue there.
      2. "subcommittee". Again a knife edge result - motion not carried 15 to 14. In this case, the motion was not advertised in advance, and there was a claim that a wiki link had been posted, but I see or saw no email to that effect.
      3. "fill positions" in each of 3 cases there were two additional clauses: to fill the position, and within 4 weeks. These were all on the knife edge, so clarity of wording was essential.

  6. All resolutions were discussed before there was a vote initiated. During that discussion most of the details of the resolutions as they were later voted at were discussed. Do you think that this clarified any prior question regarding the wording of the resolution?

    • Well, in the first resolution discussion, the wording that was voted on was clearly presented at the start of the discussion. So one could argue that if nobody paid attention before hand, no harm was done. It's a specious argument though, we have a 14 day Notice period so as to discuss the exact motion so that no games can be played.
    • We can't go changing motions without following a process. A minimum would need a vote, but for a Resolution this would be highly irregular if it were in any way controversial because Resolutions are binding.
    • In others, not so. In the "subcommittee" discussion, the wording was presented correctly from the Notice:

      • [2015-11-22 22:07:10] <DirkAstrath> 5.2 Sub committee for transition, by Benedikt Heintel

      • [2015-11-22 22:07:37] <DirkAstrath> since benedikt is online ... feel free to ask ...

      • [2015-11-22 22:07:58] <EvaStoewe>

      • [2015-11-22 22:07:58] <IanGrigg> @BenediktHeintel - please explain your logic here

      • [2015-11-22 22:08:02] <EvaStoewe> I do not understand this either

      • [2015-11-22 22:08:10] <BenediktHeintel> just a remark to make the purpose clear: A subcommittee should be build for the transition of the assets from CAcert Inc. to the yet to found organisation

    • Then, the motion author explained something of it, but this was challenged by many. But all that discussion wasn't on the wording of the motion as voted, which only appeared at some 30 minutes into the discussion:

      • [2015-11-22 22:35:54] <BenediktHeintel> "Create a sub-committee staff it and delegate the needed power to it, to prepare and conduct the transition of assets and information from CAcert Inc. to an association yet to be founded."

    • At which point I pointed out the motion was probably illegal. 25 minutes later, even after the author had attempted to withdraw the motion, and had advised others to vote against. The motion was voted, and denied, 15 to 14. Again on a knife-edge. Clearly there was a clear danger of the changing of wording within the discussion.
    • And, in "fill positions" the wording was never presented before the vote, and the notion of "within 2 weeks" was added by the motion's author as a demand:

      • [2015-11-22 23:04:01] <StefanThode> order the new board to hire personal for this jobs

      • [2015-11-22 23:04:21] <DirkAstrath> @stefan: within 2 weeks?????

      • [2015-11-22 23:05:07] <StefanThode> 4 weeks should be realistic

      • [2015-11-22 23:05:08] <IanGrigg> *hire* personnel? well. I think that’s a budget question. We’d need to ask the board to look at its cash.

      • [2015-11-22 23:05:46] <StefanThode> appoint of course

      • [2015-11-22 23:06:55] <DirkAstrath> @stefan: can you prepare the wording for these 3 resolution so we can continue?

      • [2015-11-22 23:07:01] <IanGrigg> ???

      • [2015-11-22 23:07:14] <DirkAstrath> (one by one ... not all in one vote ... )

      • [2015-11-22 23:07:27] <IanGrigg> the wording is there on the agenda, right? We can’t *change* the wording otherwise the 2 and 3 weeks thing is a mockery

  7. Do you believe that the correct wording in the invitation would have lead to more or less or different votes (personally, proxy or early ballots) would have been present for those resolutions?

    • Yes.
    • Well, I believe also people have a right to rely on the rules. There is 14 days and 21 days notice so people can see controversial things up ahead of time and get their thoughts in order.

  8. Do you believe that the different wording had or could have had any other effect than those that I have already asked?

    • Well yes. The subcommittee resolution was basically dangerous, it would have placed the board into negligence which would have had to be reported to the OFT. If the subcommittee had then done anything wrong, the board would have been entirely responsible and could have been prosecuted in NSW, Australia.
    • Precedent for this is the /James Hardy/ asbestos case in which directors were found guilty at law, and I think they got jail sentences. The point of this is that up until that case, directors were "shielded" from the liability of the company, but afterwards, not so. Huge change.
    • (I recognise this situation of director's liability at law has been different in civil law countries...)

  9. You are claiming that the different wording should lead to the affected resolutions not being valid.

    • Yes.

  10. There was a first approach to the AGM that was stopped and the invitation and by this the meeting itself declared to be invalid, based on the fact that the resolutions were not included in the invitation but only visible in the wiki.

    • Well, that was accepted by a vote at the aborted meeting.

  11. Taking this into account, why are you claiming that only the affected resolutions are invalid?

    • To be specific, I claim that any resolution which was voted upon with wording that was not exactly as in the invitation is invalid. That amounts to all of them as far as I can see. Further, the differences in wording were material. Therefore all resolutions should be struck down.
    • At this level, even though the motions themselves were not passed in general, the point is about how we run our AGMs. If anyone can slide new wording in, then the temptation to do so will be high.

  12. Some of the questions I am asking are about your own consciousness regarding your votes. If you want your answers to be handled privately because of this, please state so and do not include the archive in your answer. Alternatively you are free to not answer the according questions, at all. In that case, please state that you chose this.

    • I don't mind answering questions about my own votes. However I do not see it as part of the claim. My claim is that the members were not given the due 14 days notice on the motions as voted, and the differences in wording were highly material. The members were not prepared, so the motions cannot stand, regardless of how people voted.

D. Timeline

Note: It's unknown to the Arbitrator, when Benny Baumanns resolutions were removed, or if they were removed because of them being added too late or some other issue, they are not covered by this case, so this question is not followed.

E. Notification of Business for Annual General Meeting

1. For 2015-09-27

Subject:        Call for Annual General Meeting, CAcert Inc.
Date:   Sat, 5 Sep 2015 21:33:00 +0000 (UTC)
From:   Etienne Ruedin [email address]
Reply-To:       Etienne Ruedin [email address]
To:     [members list address]


Dear members,

in accordance with Rule 25 (1) of the Rules of the Association, the committee
of CAcert Incorporated has decided to convene the Annual General Meeting of
CAcert Inc for the financial year 2014/2015. The AGM is to take place on
2015-09-27 at 18:00 UTC in the IRC channel #agm on irc.cacert.org.

Call for Business and Nominations
====================
If you want to bring up any business to be transacted at the meeting, the
notification must be received by me as secretary
(secretary AT cacert.org)
in
signed email before the appropriate date, in order to send out a formal
notice
to all members according to the rules.

Ordinary business must be received before 2015-09-12 18:00 UTC. Special
resolutions must be received before 2015-09-06 18:00 UTC. Any business
proposed later may not be considered.

Nominations for Members of the Committee must be received before
2012-09-20 18:00 UTC. Each candidate must be nominated by two members
and declare his consent.

Feel free to use the
cacert-members AT lists.cacert.org
mailing list by
copying mails there or the wiki page https://wiki.cacert.org/AGM/Next for
coordination with others members. But please remember that the
association rules require business items and nominations sent to
secretary AT cacert.org
in signed mail.

Membership dues
===========
Please also ensure that your membership dues are current, as you may not be
entitled to vote otherwise. If you have any doubts regarding your payment
status, please contact
secretary AT cacert.org
soon enough to sort this out in
time.

Etienne Ruedin
Secretary
CAcert Incorporated

findings

Anchor(Invitation2)

2. For 2015-11-22

Subject:        Notification of Business for Annual General Meeting November, 22th 2015 (GMT)
Date:   Sat, 07 Nov 2015 18:05:50 +0000
From:   Etien [email address]
Reply-To:       Etienne [email address]
Organization:   CAcert Inc.
To:     [members list address]

Dear Member,

the committee of CAcert Inc. has, in accordance with Part 4, rule 25 of the associations rules called an Annual General Meeting of CAcert Inc. for November, 22th 2015 at 19:00 UTC to take place in the IRC channel #agm on irc.cacert.org.

As secretary of CAcert Inc. I am bound by Part 4, rule 27 of said rules to notify all members of said Annual General Meeting and the business to be
transacted at least 21 days in advance of the meeting as special resolutions are proposed.

Agenda. 
I hereby notify all members of this Annual General Meeting and the agenda
which will contain in the following:

 * Confirm the minutes of the annual general meeting July, 20th 2014.
 * Confirm the minutes of the postponed annual general meeting September,
27th 2015.
 * Report of the Committee on the activities during the financial year July
2014 to June 2015.
 * Receiving and considering the statement which is required to be
submitted to members under section 26(6) of the act.
 * Election of office-bearers of the association and ordinary members of
the committee.
 * Ordinary Resolutions
-Board reports about the current situation of support and arbitration up to the actual date, by Marc Hofmann
-Sub committee for transition, by Benedikt Heintel
-Adjust Arbitration (1), by Reinhard Mutz
-Adjust Arbitration (2), by Reinhard Mutz
-Public Relation Officer, by Stefan Thode
-Event Officer, by Stefan Thode
-Software Team Lead, by Stefan Thode
-Suspension member 1, by Benny Baumann
-Suspension member 2, by Benny Baumann

Call for Nominations. 
Nominations for Members of the Committee must be received before November 14th 19:00 UTC. Each candidate must be nominated by two members and declare his or her consent.

Feel free to use the cacert-members@lists.cacert.org mailing list by copying mails there or the wiki page http://wiki.cacert.org/AGM/Next for coordination with others members. But please remember that the association rules require business items and nominations sent to secretary@cacert.org in signed mail.

Membership dues.
Please also ensure that your membership dues are current, as you may not be entitled to vote otherwise. You are currently paid up until <paiddate>. If
you feel anything is wrong regarding your payment or status, please contact secretary@cacert.org so this can be sorted out in time.


Best regards
CAcert Inc.
Etienne Ruedin
Secretary
secretary@cacert.org

findings

All in all: No wording for any resolution was provided with the agenda. As there was no hint that the wiki page would provide further information to the agenda it cannot really be assumed that every member understood the wiki to be of relevance or even available for the wording of resolutions.

The claimant is right to have ony used the agenda as refernce for the requested resolutions.

It is likely that this was the case, because of the decision at the first AGM attempt to call the first notification to have been too late, because there the agenda was provided only by a link to the according wiki page (which contained the collected information about the business items)

Anchor(Questions)

F. some initial questions, regarding this case

The following questions were noted down by the Arbitrator shortly after picking up the case, as possible questions regarding this case

Arbitrations/a20151125.1/Discovery (last edited 2016-11-15 18:47:55 by EvaStöwe)