== Discovery of a20151125.1 == <> <> === A. CAcert Inc. statutes extracts === [[https://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/CAcert-Rules%20of%20Association.pdf|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: 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 [2] http://wiki.cacert.org/AGM/Next#Agenda [long footer and CARS] }}} ===== findings ===== * the wording of this request does neither match the entries in the wiki, nor the ones in the notification-mail, nor the one that was voted on * the topic maybe was not ment as an ordinary resolution but as simple ordinary business without need for a vote * the request was added after the deadline for the first AGM attempt had passed (after the first AGM attempt) but in time for ordinary business for the second AGM attempt * according to CAcert Inc. statutes 30 "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." * if the first attempt was valid and only adjourned and the second attepmt would have been an adjournmnet * in this case that business would not have been allowed to be added at all * the last part of the request could have lead outside of the authorities of an AGM as it somewhat looks like the intention to handle a kind of dispute outside of the DRP (see CAcert Inc. statutes 11, CCA, DRP) and/or a step into the range of authority of the Policy Group (but not necessarily so) <> ==== 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 ===== * this request does not match the description in the wiki, the notice for the AGM and also not the votes that were done * it was split into 3 business topics with 3 resolutions, leaving the last part about other team leader positions out * parts of the requested business did not make it to the notice and to the AGM * the resolution was added in time for the first AGM attempt (the same is true for Bennys request) * to add a deadline to the selection of the Software TL could be a conflict with the Security Policy (SP), if the TL is chosen by board and not the team at all (ruling in a20150420.1 points into that direction) * a comparable issue may be with the same short deadline for other officer posts especially as the availabilty would have to be checked as well * the version of Benny was ignored completely. * however the wording for the first attempt in the wiki was: "I request to vote a new [officer post]" (for all thre posts) * this could have been a reaction to Bennys request, and a prior discussion * but it was not requested by either of both requestors <> ==== 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 ===== * wording matches wiki entry, but neither notice text nor vote * it was send in time * as discussed at the AGM the resolution is way outside of what an AGM can do, as a lot of requested points are outside of the power of CAcert Inc in total, others require a special kind of SGM and some are even outside of CAcert at all; further, for other intended points (continued sub-committee over the legislative time of the committee) probably would require a change to the statutes of CAcert Inc. and by this a special resolution * while there was no deep evaluation of this topic in this case, there was a detailed discusion at the AGM about this topic and this opinion was shared by any arbitrator who had voiced an opinion about this topic, there (and also non-arbitrators) - if necessary this point could be elaborated in this case, as well * also there were inconsistencies based on the additional information which the requester had added at the following location and what he was requesting * https://wiki.cacert.org/AGM/2015/Transition * the requestor based his request on that background information which was asking for something else than the resolution, as was pointed out and discussed at the AGM, as well * this resolution was never seconded, it is unclear if the requirement for CAcert Inc. statutes 31 is met. ------ <> === 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. 1. '''''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. 1. '''''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. 1. '''''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. 1. '''''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. 1. "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. 1. '''''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] 5.2 Sub committee for transition, by Benedikt Heintel . [2015-11-22 22:07:37] since benedikt is online ... feel free to ask ... . [2015-11-22 22:07:58] . [2015-11-22 22:07:58] @BenediktHeintel - please explain your logic here . [2015-11-22 22:08:02] I do not understand this either . [2015-11-22 22:08:10] 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] "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] order the new board to hire personal for this jobs . [2015-11-22 23:04:21] @stefan: within 2 weeks????? . [2015-11-22 23:05:07] 4 weeks should be realistic . [2015-11-22 23:05:08] *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] appoint of course . [2015-11-22 23:06:55] @stefan: can you prepare the wording for these 3 resolution so we can continue? . [2015-11-22 23:07:01] ??? . [2015-11-22 23:07:14] (one by one ... not all in one vote ... ) . [2015-11-22 23:07:27] the wording is there on the agenda, right? We can’t *change* the wording otherwise the 2 and 3 weeks thing is a mockery 1. '''''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. 1. '''''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...) 1. '''''You are claiming that the different wording should lead to the affected resolutions not being valid.''''' . Yes. 1. '''''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. 1. '''''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. 1. '''''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 === * 2015-09-30 Reinhard Muntz sends resolution requests (as special resolutions) * 2015-09-05 call and notification send . resolutions in wiki, all named as ''special'' resolutions: 1. Adjust Arbitration (1), by Reinhard Mutz 1. Adjust Arbitration (2), by Reinhard Mutz * 2015-09-06 deadline for special resolutions and notification if special resolutions are present * Resolution(s) by Stefan Thode were send * Benny Baumann also names candidates for the positions named in Stefan Thodes resolution * Resolution(s) by Benny Baumann were send [probably too late by some hours] * Ian Grigg proposes a motion motion to accept special resolutions with 2 weeks timeframe, this is seconded [there later is an item perforemed about late business], this is not further commented later (but could be the reason for re-classification of resolutions) * 2015-09-07 secretary updates wiki: . resolutions in wiki, all named as ''special'' resolutions: 1. Adjust Arbitration (1), by Reinhard Mutz 1. Adjust Arbitration (2), by Reinhard Mutz 1. Public Relation Officer, by Stefan Thode 1. Event Officer, by Stefan Thode 1. Software Team Lead, by Stefan Thode 1. Suspension member 1, by Benny Baumann 1. Suspension member 2, by Benny Baumann * 2015-09-12 Benedikt sends his resolution request to secretary and a separated wiki-page * 2015-09-13 deadline for ordinary business and notification in case of (only) ordinary business * 2015-09-15 secretary updates wiki: all business re-classified as ordinary busines & resolution of Benedikts resolution added as first item . resolutions in wiki, all named as ''ordinary'' resolutions: 1. Sub committee for transition, by Benedikt Heintel 1. Adjust Arbitration (1), by Reinhard Mutz 1. Adjust Arbitration (2), by Reinhard Mutz 1. Public Relation Officer, by Stefan Thode 1. Event Officer, by Stefan Thode 1. Software Team Lead, by Stefan Thode 1. Suspension member 1, by Benny Baumann 1. Suspension member 2, by Benny Baumann * 2015-09-27 first AGM date * 2015-11-01 deadline for notification with special resolutions [if possible to add] * 2015-11-06 Marc-Oliver Hofmann sends resolution request * 2015-11-07 second notification send, all resolutions present as ordinary resolutions * sedond notification send * resolutions added to new wiki page, all as ''ordinary'' resolutions: 1. Board reports about the current situation of support and arbitration up to the actual date, by Marc Hofmann 1. Sub committee for transition, by Benedikt Heintel 1. Adjust Arbitration (1), by Reinhard Mutz 1. Adjust Arbitration (2), by Reinhard Mutz 1. Public Relation Officer, by Stefan Thode 1. Event Officer, by Stefan Thode 1. Software Team Lead, by Stefan Thode 1. Suspension member 1, by Benny Baumann 1. Suspension member 2, by Benny Baumann * 2015-11-08 deadline for notification [and ordinary business, if possible to add] * 2016-11-12 Reinhard Mutz declares that his resolutions should be removed * 2016-11-13 Reinhard Mutzs resolutions marked as deleted in wiki * 2016-11-14 Benny Baumanns resolutions marked as deleted in wiki * 2015-11-22 second AGM date 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 ===== * no agenda is named but a link to the wiki is provided as some kind of reference * the context implies that this link is the one to look for the business * deadlines for ordinary and special resolutions are named 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 . 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 ===== * the agenda looks like a list of the synapsis for the different agenda item * it does not look seem to aim to provide the exact proposed wording for any resolution for any agenda item * "Adjust Arbitration (1)", "Adjust Arbitration (2)", "Suspension member 1" and "Suspension member 2" clearly never could be a wording for a sensible resolution * this is not changed by the fact that those items were withdrawn later * most of the named business items give more or less no context at all * but they are named as "ordinary resolutions" * there is a link to the wiki page where some further details about the agenda were maintained * that link was only named in the context of coordination for candidates and the like * it was not given as a reference for the agenda * it was the same in some follow up mails, which were send by the secretary 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 * What is the relevant reference/document? * May the resolution text be changed or not prior to the vote? * What effect has it if the secretary presents different versions? * Is there a requirement to handle resolutions as they were entered by the requesting member? If yes is it allowed to derive from this? If yes may this be done without notifying anybody? * If there are multiple issues with the invitation and more than one of them lead to the resolutions having to be declared invalid, are only those resolutions invalid? At what point is the whole AGM invalid? [We also did not do the assignment of board-roles, which the statues defines as the authority of the GM. I know that we did not do it in the last years, but I saw that it was explicitly delegated to board and not ignored.] * For the answer of the last question, it may be relevant that a minor issue with the notification of the first attempt was found to result in an invalid / no AGM by a (claimed to be later) AGM