- Case Number: a20151117.1
- Status: closed
- Claimant: Etienne Ruedin (Secretary CAcert Inc.)
- Respondent: CAcert Inc.
initial Case Manager: MartinGummi
Case Manager: MartinGummi
Arbitrator: Mario Lipinski
- Date of arbitration start: 2015-11-18
- Date of ruling: 2015-11-20
- Case closed: 2015-11-20
- Complaint: Interpretation of Association Rules
- Relief: I ask Arbitration for (a) an advice or even (b) a decision, how to handle this issue / to interprete the Associations Rules.
- 2015-11-17 (issue.c.o): case [s20151117.113]
- 2015-11-18 (iCM): added to wiki, request for CM / A
2015-11-18 (CM): I'll take care about this case as CM and MarioLipinski will be A
- 2015-11-18 (CM): add errata from (R)
- 2015-11-20 (A): Elaboration
- 2015-11-20 (A): Ruling, case closed
Link to Arbitration case a20151117.1 (Private Part), Access for (CM) + (A) only
EOT Private Part
Dear Arbitrator This is about the nominations for the AGM, to be held on November, 22th 19:00 UTC (about the best way to do things, interpretation of the Association Act). As Secretary of CAcert Inc. I am preparing the agenda and try to do it in a neutral way, following the statutes. Now I am under pression from a representant of a group of candidates concerning accept/not accept some nominations. What is the matter? 1. The Association Rules (statutes) says: "16 Election of members • (1) Nominations of candidates for election as office-bearers of the association or as ordinary members of the committee: ◦ (a) must be made in writing or by digitally signed email, signed by 2 members of the association and accompanied by the written or digitally signed email consent of the candidate (which may be endorsed on the form of the nomination), and ◦ (b) must be delivered to the secretary of the association at least 7 days before the date fixed for the holding of the annual general meeting at which the election is to take place. • (2) If insufficient nominations are received to fill all vacancies on the committee, the candidates nominated are taken to be elected and further nominations are to be received at the annual general meeting." The delay is "at least 7 days". This can be interpretated as seven days (date, f.ex. if AGM is on Nov. 22, until Nov. 15) or 7x24 hours. 2. The secretary's template says: "Nominations for Members of the Committee must be received before <agmdate-7d> <agmtime> UTC. " (http://wiki.cacert.org/AGM/TemplateEmails written by Mario Lipinski in 2011) This is an interpretation of the statutes that 7 days means 7x24 hours. 3. As in the template for the agenda is written or at least interpretated by the secretary this way, that he should inform the members about the nominations "7 days before" http://wiki.cacert.org/AGM/Next and told in August/September during preparation of the postponed AGM, that this means date and time I wrote in a first e-mail on 31.10.2015 14:24 and another on 07 Nov 2015 18:05:50: "Nominations for Members of the Committee must be received before November 14th, 19:00 UTC." This was an adaptation of Lipinski's template. I added 24 hours, not to change rules, but to have sufficent time to inform the members in time. 4. In a thirs e-mail, sent on ccccc, apeared just the template text: "Nominations for Members of the Committee must be received before <agmdate-7d> <agmtime> UTC." This means November 15th, 19:00 UTC. 5. As this was not really clear, a member asked for clarification. The anser (to all members) on 13 Nov 2015 11:28:42 was: "You are right. The limit for nominations "<agmdate-7d> <agmtime> UTC" is not clear. In previous mails, I wrote Saturday November 14th, 19:00 UTC. In fact, hat is 8 days before the AGM. I have to send the nominations to the members no later than Sunday, November 15th, 19:00 UTC. I need to be able to respect the deadline a little lead time. I am therefore grateful when the nominations are not submitted at the last moment." This was still based on the template (and not on the Association Rules). 6. Parallel to this, I was looking for nominations from Australia, as there have to be 3 (we had 1), be the newsouthwelsh Associations Incorporation Act §28.2: "The committee must include 3 or more members, each of whom is aged 18 years or more and at least 3 of whom are ordinarily resident in Australia." if not: "An association’s registration is liable to be cancelled if its committee does not comply with this subsection." I found finally a third Australian candidate at 15 Nov 2015 19:09:47 CET = 18:09 UTC. As I am not online 24/24, I red the e-mail after 19:00 UTC, but still on Nov 15th. So the nomination was made (and also the second) between 19:00 and 24:00 UTC. At this moment, I read the Association Rules (see 1) an saw, that it could be interpreted the way that all nominations on this date can be accepted - or (as does is the template) only until the starting times of an AGM. To avoid the risk that CAcert Inc. will be cancelled by the newsouthwelsh authorities, I would like to interprete the Association Act the first way: if it arrives the 7th day before the AGM. 7. I do so for Australian nominations to garantuee the continuity and the survive of CAcert Inc., I have to do the same for all nominations (legal equality). Further more, following <Person> during the postponed AGM in September, Australia allows some time flexibility, especially if it is only a small period. As I know, CAcert Inc. is still based on Newsouthwelsh and Australian laws. 8. As I wrote above, I am under attac. This people write (not in English): As I had written 14.11.2015 19:00 as secretary and member of the committee, this would be legally the last time limit for nominations - the assiciation rules would be only a fall back date. Translated text: "You've done so in your capacity as Secretary and Board Member, thus this time - legally speaking - is the last date to a valid Nomination. The scheme made in the statutes of CAcert that nominations not later than 7 days in advance is a "fall-back solution" to set a general limit. If however, as has happened in this particular case an earlier limit be set, so this is compliant statutes and binding. Therefore, all nominations are received after the announced by you date is no longer valid." I do not share this interpretation (how the committee or even the secretary can over-rule the Association Rules), but to avoid troubles on the AGM, I like to have a clear decision before. - It can be 14. Nov 19:00 (one of secretry's e-mail; less than 7 nominations, not 3 Australians). - It can be 15. Nov 19:00 (Lipinski's template and another secretry's e-mail; not 3 Australians). - It can be 15. Nov 24:00. Unfortunately, from the committee, there is no clear support, so I ask Arbitration for (a) an advice or even (b) a decision, how to handle this issue / to interprete the Associations Rules. I appologise for the short time that remains until the AGM. Best regards Etienne Ruedin Secretary CAcert Inc.
1. C asks how to interpret the "at least 7 days before" deadline Wikipedia defines a day  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 . 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.  https://en.wikipedia.org/wiki/Day  https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part02#2.8
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