- Case Number: a20160330.1
- Status: running
- Claimant: Reinhard M
- Respondent: Alexander B, Jeffery F, Ian G, Mario L, Michael T, Gero T, Etienne R, Guy S
initial Case Manager: MartinGummi
Case Manager: MartinGummi
- Date of arbitration start: 2016-04-05
- Date of ruling: 2016-04-08
- Case closed: 201Y-MM-DD
- Complaint: Dispute to cancel the rebel meeting
- Relief: My relief is to cancel the rebel meeting convened to be held on 2016-04-09.
- 2016-04-05 (issue.c.o): case [s20160330.84]
- 2016-04-05 (iCM): added to wiki / request for CM / A
2016-04-05 (CM): I'll take care about this case as CM and LambertHofstra will be A
- 2016-04-05 (CM): init mail send out
- 2016-04-08 (CM): publish ruling
Link to Arbitration case a20160330.1 (Private Part), Access for (CM) + (A) only
EOT Private Part
iCM: leave the privacy cleanup this disputes CM/A
Dispute to cancel the rebel meeting Hereby I file a dispute against the members of CAcert Incorporated - Mario L[...] - Alexander B[...] - Ian G[...] - Jeffery F[...] - Etienne R[...] - Gero T[...] - Guy S[...] - Michael T[...] because of sending an email to firstname.lastname@example.org, subject "Invitation: CAcert SGM, Saturday, 9th of April 2016 at 12:00h UTC" breaching our statutes and claiming evidently wrong facts. Etienne R[...] sent this email to all members and wrote: * Dear Member, * the following members of CAcert Inc. have, in accordance with Parts 2 * and 3, rule 26 of the associations rules called a Special General * Meeting of CAcert Inc: * Mario L[...] * Alexander B[...] * Ian G[...] * Jeffery F[...] * Etienne R[...] * GuillaumeR[...] * Gero T[...] * Guy S[...] * Michael T[...] > At first of March 2016 5% of the membership of CAcert Inc. had lodged > the according requisition with the secretary. As the committee failed > to convene a special general meeting to be held within 1 month after > that date Part 4, rule 26 of the association rules applies. And by > this, the members who made the requisition now invite for a special > general meeting to be held > at Saturday, 9th of April 2016 at 12:00h UTC The respondents make the claim that - there was a valid request for such a SGM; - the request was made on March 1st; - the respondents have lodged this request with the secretary. All these claims are objected. Reasons: Our statutes require these topicsto be met Rule 26 (3) A requisition of members for a special general meeting: (a) must state the purpose or purposes of the meeting, and (b) must be signed by the members making the requisition, and (c) must be lodged with the secretary, and (d) may consist of several documents in a similar form, each signed by one or more of the members making the requisition. The emails in question have been send out Mon, 29 Feb 2016 00:27:04 +0000 (UTC) Ian G[...], CARS Tue, 1 Mar 2016 23:03:49 +0000 (UTC) Jeffrey F[...], Cars Tue, 1 Mar 2016 23:22:12 +0000 (UTC) Alexander B[...], NO CARS, NOT signed by certificate! Tue, 1 Mar 2016 23:37:44 +0000 (UTC) Etienne R[...], CARS Wed, 2 Mar 2016 02:51:32 +0000 (UTC) Gero T[...], CARS, no valid certificate Wed, 2 Mar 2016 23:47:18 +0000 (UTC) Guy S[...], valid certificate Mon, 7 Mar 2016 01:45:10 +0000 (UTC) Michael T[...], valid certificate Alexander B[...] did not give a CARS statement nor did he sign this email with a digital certificate. This email is not a valid request. Ian G[...] gave a link to a wikipage, https://wiki.cacert.org/SGM/Next. This wikipage was frequently edited and its content changed. The dates of the emails and the editing actions are shown here: Mon, 29 Feb 2016 00:27:04 +0000 (UTC) Ian G[...], CARS, later edited versions 9 + 10 Tue, 1 Mar 2016 23:03:49 +0000 (UTC) Jeffrey F[...], Cars, Tue, 1 Mar 2016 23:22:12 +0000 (UTC) Alexander B[...], NO CARS, NO certificate Tue, 1 Mar 2016 23:37:44 +0000 (UTC) Etienne R[...], CARS, later edited versions 11 + 12 Wed, 2 Mar 2016 02:51:32 +0000 (UTC) Gero T[...], CARS, invalid cartificate, later edited version 13 Wed, 2 Mar 2016 23:47:18 +0000 (UTC) Guy S[...], valid cartificate, later edited version 14 + 15 Mon, 7 Mar 2016 01:45:10 +0000 (UTC) Michael T[...], valid cartificate, later edited version 16 Rule 26 (3) (d) requests that the document must be signed by the members which evidently did not happen. The respondents in this case refer to a wikipage which is not in line with 3(a). That wikipage has been frequently edited and changed. The board said during the last board meeting that weall are interested in clarifying the situation and made a motion following rule 26 (1) and voted to convene a Special General Meeting to be held on April 10th. Furhter said that the respondents believe that their different emails fullfill the requirements of Rule 26 (3). They believe that board failed to convene such a meeting. Rule 26 (4) * If the committee fails to convene a special general meeting to be * held within 1 month after that date on which a requisition of * members for the meeting is lodged with the secretary, any one or * more of the members who made the requisition may convene a * special general meeting to be held not later than 3 months after * that date. They contended to act in line with rule 26(4). This is to be objected. The email in question was send out on Mon, 21 Mar 2016 23:23:10 +0000 (UTC). To be inline with rule 26 (4) the respondents have to wait 1 month after successful request to check if the meeting was held as requested. Etienne said that a successful request was made on March 1st. Assumed it would be true he has to wait 1 month to see if board convenes the requested SGM. In this case the earliest date to call a SGM is 2016-04-01. Their call to convene such a meeting is a clear breach of their own rules. Board voted to convene a SGM to be held on 2016-04-10 by motion m20160313.1. During the boardmeeting, held on 2016-03-23, the board pointed out that up to this date not a valid request was made to call such a meeting. The following lines are an excerpt from the transscript of that meeting. 129 21:01 #board-meeting: <@reinhardM> 2.2.1 Discussion about the email from Etienne R[...], subject "Invitation: CAcert SGM, Saturday, 9th of April 2016 at 12:00h UTC". 130 21:03 #board-meeting: <@INOPIAE> There are a lot of failures, e.g. missing the formal requirements of 4 supporters who *must* sign the agenda and send it to secretary (No. 26 (3) d of the stautes). Further we have agreed by motion to hold this SGM on April 10th. We comply with our statutes and the regulation act where is said that we have to convene such a meeting within one month after such request. 131 21:05 #board-meeting: <@reinhardM> In regards to all errors and failures board always has the chance to call a SGM. It is my wish to clarify the current situation as early as possible. But I cannot accept that these guys always argue that we persistently breach our rules and statutes. Just to remember: it is Ian G[...] who made the community to believe that CAcert Incorporated may deliberately ignore the Association Regulation Act 2010. 132 21:07 #board-meeting: <@reinhardM> I propose to help etienne and others to get the SGM hold on April 10th as decided by board. 133 21:08 #board-meeting: <@INOPIAE> aye 134 21:08 #board-meeting: <@StefanT> second 135 21:08 #board-meeting: <@felix> aye 136 21:10 #board-meeting: <@reinhardM> So secretary will send out the agenda in time. Relief: My relief is to cancel the rebel meeting convened to be held on 2016-04-09. This dispute is an urgent dispute and should be resolved by arbitration ASAP. Kind regards Reinhard M[...]
The original dispute was a combination of facts and emotions. Given the extreme short time frame, and the importance for the members of Cacert Inc. to have a ruling before the first planned SGM I will limit the ruling to the specific underlying question as explained to me by Claimant: how can we avoid having two SGM's? Since the initial request a third SGM was announced and I have included that in the overall ruling. Due to the complex nature of the current situation I have split the case into a number of underlying questions, and to question specific rulings, leading up to the final ruling.
note: Again, because of the importance for a quick ruling I will All underlying documentation
This ruling is based on the CAcert Inc.- Rules of the Association, adopted by CAcert AGM 2013-11-17 and ratified by OFT 2013-12-12. The text can be found at https://svn.cacert.org/CAcert/CAcert_Inc/By-Laws/CAcert-Rules%20of%20Association.pdf
Because of the importance of a quick ruling I will refer to the rules in that document and not copy the corresponding text in the initial publication. The Wiki will be completed at a later date to avoid further delay.
Question 1: is the SGM on March 9 12.00 UTC valid?
– a SGM was asked for on February 29 and supported by at least 5% of members (4 out of 72) on March 2 :
Rule 26.2 states that if a request is received by the secretary, the committee must convene a SGM.
Rule 26.3 a, b, c, d explains the requirements, which are met by the requestors
Rule 26.4 states that requestors have the right to convene a SGM in case the committee fails to call for a meeting that is held within one month after the original request.
The committee convened a SGM for April 10, which is more than 1 month after the date of the original request.
Ruling 1: The requested SGM to be held on April 9 12.00 UTC is valid
Question 2: what is the agenda that is to be used for the SGM on April 9?
Rule 26.3.a states that the requisition must state the purpose or purposes of the meeting, meaning that the purpose of the meeting must be known at the time of the request and cannot be changed at a later point.
Ruling 2: The agenda to be used for the meeting on April 9 is the agenda as it was available on March 2nd, which is version 13: https://wiki.cacert.org/SGM/Next?action=recall&rev=13.
Question 3: Who has the role of president and who has the role of secretary during the meeting?
Rule 29.1 states that the president (or vice president) must preside as chairman
Rule 29.2 states that if both president and vice president are absent or unwilling to act, the members present at the SGM must elect one of their members to preside as chairperson
Rule 17.2.c states that the secretary has to keep minutes of all proceedings at general meetings.
The rules do not describe the situation where the secretary is absent or unwilling, however, it provides an indication how to proceed in rule 26.5:
Rule 26.5 states that SGM's called by members must be convened as nearly as practicable in the same manner as SGM's convened by the committee.
Ruling 3: The SGM must be chaired by the president or vice president, if both are absent or unavailable the members can vote for another chairman. The secretary must fulfill his normal duties as secretary at a SGM. If the secretary is absent or unwilling the members present at the SGM must elect one of their members to act as secretary
Question 4: is the SGM on April 10, 11:00 UTC valid?
Rule 26.1 clearly states: the committee may, whenever it thinks fit, convene a SGM
Ruling 4: The SGM on April 10 11:00 UTC is valid
Question 5: what is the agenda that is to be used for the SGM on April 10 11:00 UTC?
Rule 27.1 states that the secretary must, at least 14 days before the meeting, specify date and time and the nature of the business to be transacted.
Rule 27.3 states that no other business is to be transacted at the meeting
The invitation is done at least 14 days before the SGM, and included a reference to the agenda (version 13 of the agenda as proposed by original requestors)
Ruling 5: The agenda to be used for the meeting on April 10 11:00 UTC is the agenda that was mentioned in the invitation, which is version 13: https://wiki.cacert.org/SGM/Next?action=recall&rev=13.
Because we now have two consecutive SGMs with identical agenda items the following question is raised:
Question 6: Can there be a second vote on a topic that has already been voted upon in an earlier SGM?
There is no simple answer to be found in the rules, only rule 23B which calles for transparent governance. To answer this question we need to look at why the rules exist: to protect the members against arbitrary decisions: guided by the rules members know what is to be expected. Voting a second time for the same resolution in another meeting is therefore counterproductive and not a transparent decision making mechanism.
This does not mean that there can never be a second vote on a resolution, however, a new meeting must be called in accordance with the normal rules, and it should be clear and transparent to every member that a revote is called for.
Ruling 6: During the SGM on April 10 11:00 UTC only those resolutions can be voted for that were not voted for in the SGM April 9.
Question 7: Who has the role of president and who has the role of secretary during the meeting?
Ruling 7: See ruling 3 (The SGM must be chaired by the president or vice president, if both are absent or unavailable the members can vote for another chairman. The secretary must fulfill his normal duties as secretary at a SGM. If the secretary is absent or unwilling the members present at the SGM must elect one of their members to act as secretary)
Question 8: is the SGM on April 10, 9:00 UTC valid?
This SGM is called for by the secretary on April 4. Topic is the appeal by Ian G. in regards to being expelled
In his invitation the secretary is not using the Cacert Inc. statutes which are ratified by the OFT on December 12 2013, but refers to a model constitution that was published in june 2010. This is incorrect because it is bypassing the statutes that were confirmed by the Cacert Inc. members in the CAcert AGM of 2013-11-17 and ratified by OFT 2013-12-12. The fact that the rules are ratified by the OFT and as such that deviations from the model are accepted by the OFT ensure that the ratified statutes take precedence over the generic model. The remainder of the ruling will therefore be based on our own statutes.
Rule 13.1 states that a member may appeal within 7 days. This is done by Ian within 2 days.
Rule 13.3 states that the committee is to convene a meeting within 28 days after the date on which the secretary received the notice.
Rule 13.5 states that if the association passes a special resolution in favor of the confirmation of the resolution, the resolution is confirmed
Based on Rule 13.5 the rules for a SGM with a special resolution apply, being rule 27 and 32.
Rule 27.2 requires 21 days between notice to members and the actual meetings
Rule 32.a requires a ¾ majority to pass the resolution.
Ruling 8: the SGM regarding the appeal cannot take place before april 25 (21 days after notice by secretary) but also not after april 26 (28 days after march 28, the day Ian appealed). Therefore the board cannot hold a SGM on April 10 9:00 UTC. and must reschedule this meeting in order to have a valid SGM
Conclusion: The SGM called for by members on April 9 is valid. The SGM called for by the committee on April 10 11:00 is valid in itself, but can only address agenda items that were not addressed in the SGM April 9. The board could have avoided this situation if it had convened a meeting within the defined time frame.
The SGM on April 10 9:00 is not convened in accordance to the rules of Cacert Inc. and must be rescheduled. Unfortunately the only remaining day is April 25.
CM note to Rule 32.a: ¾ mean 75%