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On Wed, Dec 02, 2020 at 06:55:01PM +0100, Andreas Mantke wrote:
Am 02.12.20 um 12:23 schrieb Florian Effenberger:


The Board of Directors at the time of voting consists of 7 seat
holders without deputies. In order to be quorate, the vote needs to
have 1/2 of the Board of Directors members, which gives 4.

A total of 7 Board of Directors members have participated in the vote.

The vote is quorate.

A quorum could be reached with a simple majority of 4 votes.

Result of vote: 3 approvals, 3 disapprovals, 1 abstain.
One deputy approves, one deputy disapproves.

As the vote is a tied vote, § 9 IV of the statutes come to
effect. The Chairperson has the deciding vote, and voted +1 to the
proposal.

as far as I know the statutes doesn't speak about a second vote of
the Chairperson here. The vote of the Chairperson is only deciding
in such case.

I don't understand what you mean by "only deciding". Clearly, the
statutes (Satzung) intend for the Chairperson (Vorsitzender) or his
Deputy (Stellvertreter)) to act as a tie-break. Else the sentence

 In the event of a tied vote, the chairman, or as a substitute the
 vice chairman, has the deciding vote.

 Bei Stimmengleichheit gibt die Stimme des Vorsitzenden, ersatzweise
 seines Stellvertreters den Ausschlag.

Is wholly without effect, as it can never have any effect in
practice. Can you please give a scenario where the fact that, in your
interpretation and understanding of the Statutes, the vote of
Chairperson being "deciding" leads to a decision that would not have
been reached without the "deciding" quality of the vote?

Thus it counted only 3 approvals and not 4. The necessary approvals
are not reached and the request has not been accepted.

To make my question above more precise, the "deciding vote" of the
Chairperson applies only in case of "Stimmengleichheit" which I would
define (somewhat redundantly) as:

  Gleichheit der Zahl der für zwei oder mehr zur Wahl stehenden
  Alternativen, die in dieser Wahl eine (identische) Stimmenzahl haben
  bekommen die höher als die Stimmenzahl der anderen Alternativen ist,
  abgegebenen Stimmen

or in English

  Equality of the number of votes cast for two or more alternatives
  that have gotten a(n) (identical) number of votes in this election
  that is higher than the number of votes for the other alternatives.

So what does "only deciding" mean? To take a decision without the vote
being "deciding", it needs to be "mit einfacher Mehrheit", which
Wikipedia (https://de.wikipedia.org/wiki/Mehrheit#Einfache_Mehrheit)
defines as having strictly more votes than all other options together
(cumulatively), not counting abstention as another option.

If the vote got to "Stimmengleichheit", necessarily there is no
"einfache Mehrheit", so the intention is that the Chairperson vote
lead to a decision, and that the winning alternative does _not_ have
"einfache Mehrheit". So in my analysis, you cannot reject the decision
of the vote for not having "einfache Mehrheit", much less for not
having "absolute Mehrheit" (absolute majority), which is what I
understand by your "only 3 approvals and not 4". (In the vote at
hand, having 6 non-abstaining votes, einfache and absolute Mehrheit
have the same meaning in terms of number of votes).

Please do explain.

In addition: as far as I know two members of the board have a CoI on
this topic. But only one board member abstained from voting (correct
behavior). The second approved the proposal, instead of
abstaining. This could be seen as a violation of his duties as a
member of the board or his loyalty for TDF. Thus his vote had to
been rejected (and not counted in).

If you intend to reject a vote based on this, "could be seen as X" is
not enough. Either you assert it _is_ X, or no consequence can come
out of it. Additionally, rejecting a vote can only happen on the basis
of pre-established formal rules.

You are entitled to think poorly of people that behaved otherwise than
you think is proper, you are entitled to campaign for their not being
reelected, but you cannot exclude their vote other than based on
written rules that predate the vote.

On the subject of conflict of interest, the choice made by the
Statutes is _not_ to exclude "conflict of interest" votes, but to
limit those to _one_ _third_. You may think that is a poor choice, you
certainly can campaign for a *future* change of the statutes on this
point, but you cannot remove votes expressed in accordance with, and
within, the limits of the statutes, and other established rules, as
they stood during the vote.

If CoI votes were to be excluded, why would the composition of the
board be limited to one third from the same company? If CoI votes were
excluded, we can have e.g. 70% (five members out of seven) board
members from the same company, and on each conflict-of-interest vote,
the votes of the five are excluded (or rather, they don't vote), and
the remaining two board members vote among themselves. To me, this is
an indication that the limit of one-third is intended as _another_
solution to the CoI problem than "exclude CoI votes", not cumulative
to it. (Again, it doesn't mean I think it is a good choice.)

-- 
Lionel

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