Contents

  1. History Log
  2. Original Dispute
  3. Elaboration
  4. Ruling

History Log

EOT Private Part

Original Dispute

Elaboration

1. C asks how to interpret the "at least 7 days before" deadline

Wikipedia defines a day [1] as a unit equal to 24 hours. "At least 7
days before" means that there has to be a timespan of at least 7 days
between when the nomination was delivered to the secretary and the
election. At "least 7 days before" does mean not "6 days and 1 hour
before" and not "6 days and 23 hours" before.

The UK Ministry of Justice defines in its Civil Procedure rules to only
measure full days to satisfy a "at least X days before" requirement [2].
The would mean X x 24 hours + some additional hours. This would also require
to define when a day starts or ends, which would allow for several sensible
possibilities: UTC, the time zone used within the organizations communication;
ACT, the time zone where the organisation is registered; or AoE, giving the
latest possible expiration of the deadline (usual procedure for international
conference dead lines).

Given the debatable selection of the time zone and possible confusion
required when accounting for daylight savings times, I suggest just
going with a day as defined by the International System of Units (SI),
thus "at least 7 days before" means "at least 168 hours before". This 
way it was handled by the association with consent during the last years.


2. C interpreted the rule in a way, that secretary has to send a notification
of committee candidates 7 days before the AGM

The association rules never state that a notification about committee 
candidates has to be sent to the members. It would be sufficient to present
the candidates list during the AGM. For ordinary resolutions, members have
to be notified 14 days before the general meeting (the template adds another
24 hours for the secretary to collect the received resolutions and send out
the notification to the members) and 21 days before the general meeting if 
special resolutions are proposed (*). If between notification of the AGM and
the 14 and 21 days deadline additional business was proposed, an updated 
notification has to be sent.
Regarding nomination of candidates for the committee, members of the
association have time until 7 days before the general meeting to deliver
a complete nomination to the secretary. The final candidates list may be
notified to the members for convenience, and also as a courtesy to remind
about the upcoming general meeting.

(*) The CAcert Inc. association rules (Rule 27) only require the secretary
to send out one notice about the general meeting 14 (or 21) days before the
meeting. Any additional notice is just for convenience (except additional
business is to be notified duly). The association rules do not require the
secretary to call for business before a meeting. Rule 27 (4) allows members to
send business for the general meeting to the secretary anytime. However, the
business to be transacted has to be notified within the required dead lines.


3. C asks about the validity of having announced an earlier deadline or no deadline
by missing to replace the template text

The CAcert Inc. association rules are binding. They define the members rights
until when they can send nominations for committee candidates to the secretary
and the secretary has to consider them for the next general meeting. The secretary 
cannot limit the members rights granted by the CAcert Inc. association rules
and is obliged to honor any nomination received in time, "at least 7 days before"
the AGM.


4. C asks if the deadline can be flexible since he was about to propose another 
Australian candidate to comply with the Associations Incorporation Act.

Good intentions do not change the rules.


5. C asks if a nomination can be accepted that was maybe not duly received

As from the elaboration under point 1, there are several ways on how to
interpret the deadline. For accepting member nominations that maybe
arrived a bit too late, it is the secretaries decision on whether to
accept them. In any case, this should only be done within a sensible
grace period. Such a period might be 24 hours to allow to overcome
difficulties of different time zones, technical problems or procedural
issues. Secretary may also use some extra time to clarify nominations, e.g.
regarding formal issues like missing second, the nominees consent or
missing or invalid signatures noticed.

[1] https://en.wikipedia.org/wiki/Day
[2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part02#2.8

Ruling

After looking at the rules and different possible interpretations, I
come to the conclusion that it should be the secretaries personal
decision on whether to include a nomination that was maybe not duly received.

It is not the intention of arbitration to rule how secretary or board should perform their duties on behalf of the association.


The following advice may help to come to a decision, but should not be seen as binding for anyone who maybe has another interpretation of the rules.

The deadline of at least 7 days before the AGM defined in the association rules is a guarantee for the member sending his nomination to the secretary, that the proper nomination of the candidate will go to the final candidate list compiled by the secretary. Any nomination received later, might not be considered.

The secretary does not have to perform strict checks about the arrival date of the nominations, which would require an inadequate effort if performed properly. When the list is compiled after the deadline has passed, it is the secretaries personal decision on whether to include a nominations that maybe arrived a bit too late. However, once a final list is compiled, it should be final.

When deciding to accept maybe too late nominations, a sensible grace period should be honored, say 24 hours. Such a period is sensible to allow to overcome difficulties of different time zones, technical problems, procedural issues or misinterpretation of the rules. Secretary may also use some extra time to clarify nominations, e.g. regarding formal issues like missing second, the nominees consent or missing or invalid signatures noticed.

In doubt, I suggest to make a decision that allows the most democratic
process to select the committee members:

If there are seven (Rule 16 (4)) or more candidates (Rule 16 (5)), the
nomination should be accepted and thus leave the decision on whether to
grant a committee position to the nominee to the membership during an
election to be held at the AGM.

If there are less than seven candidates (Rule 16 (2)), the nomination
should be presented at the AGM to allow the membership to also present
other members and maybe have an election.

Braunschweig, 2015-11-20
Mario Lipinski

Arbitrations/a20151117.1 (last edited 2015-11-20 01:11:53 by Mario Lipinski)