[Community-Discuss] Gratitude

Tue Jun 4 05:39:25 UTC 2019

> On Jun 3, 2019, at 21:32 , Noah <noah at neo.co.tz> wrote:
> 
> Owen
> 
> Selective Memory………

Not deliberately so, but I will admit that from the vague and ambiguous description below, I am unable to reassemble a memory of what you are referring to.

> If we are going to throw around the narrative of folks on the board acting acting in bad faith, may I remind some of the members castigating the board in defense of a respectable employee who chose to resign from their position for reasons unknown to all of us but are now using the specific board minutes to go after the board for suspiciously other unknown reasons,  about the history of the so called mighty NDA.

Can you translate this out of doublespeak and into facts?

The specific board minutes are being used to castigate two specific board members which have been named (Serge Ilunga and Cristian Bope) because they acted in bad faith bringing two motions to criticize fellow board members for disclosing information which was already public, allegedly because it violated the NDA since the board had (possibly ex post facto, though the timeline is admittedly not 100% clear from the minutes) decided (for reasons passing understanding) to delay publication.

> If we remember correctly recent events dating back a couple of years ago when the whole breach of NDA issue surfaced before members and the community,  you will realize that one of the vocal members here used the NDA to defend what I would probably call the most unethical boardroom behaviors and tactics a few years ago from what we learned as a community. In fact the board chair at the time had reducted board minutes and presented to the community what was purely misinformation in the name of the NDA.

If you’re referring to Andrew’s various tirades claiming he was unable to disclose details due to board NDA, then I will let him answer for that alone. While I have found myself agreeing with Andrew about many things, I have never supported his particular style of communication, nor have I ever supported his unsubstantiated rants.

> Two Board members at the time acted against this and released the unreducted minutes to the community.  A number of board members called for the two to resign so as to make a statement to the community which they did and years  later we came to learn that the same folks who led the call for resignation of directors, years later did exactly the same thing of releasing information that the board had not yet decided to release.

In this particular case, the board members in question released material that WAS NOT PUBLIC prior to their disclosure.

Do you not see the difference between material that is not already public and a document which is by definition a matter of public record? Is it really so hard to make this distinction?

If you will recall, many of those same community members also called for the resignation of Sunday Folayan on the same basis. I won’t speak for the others, but at least in my case, I had to agree that selective enforcement is an unacceptable path.

> The issue of the information being public should therefore not be used here because the community had been told that the information was public and they should be able to find it. As some have mentioned already, we all work or belong to communities where some rules are outwardly out of tune.  But we work to change them and not to manipulate them.

Once the information is public, the NDA specifically excludes it from any limitations of the NDA. Read the NDA… To whit:

> I understand that certain information about AfriNIC is confidential, which is information not previously published or otherwise disclosed to the public and which relates to but is not limited to the following:
> 

> (a) the operations of AfriNIC
> 

> (b) the customers of AfriNIC; and
> 

> (c) the financial, legal, technical and strategic matters relating to AfriNIC.
> 

> 2. I understand that AfriNIC receives from other organisations detailed information; for example, about the internal network infrastructure, customers and development plans. Such information is provided to AfriNIC for the purpose of enabling AfriNIC to properly carry out its business; an organisation providing information to AfriNIC may consider much of that information to be of a confidential nature and that unauthorized disclosure of that confidential information to the public or its competitors could be harmful to the business of the organisation or its customers or to AfriNIC. Therefore such information is also considered by AfriNIC as confidential. 
> 

The very first sentence includes the clause “…which is information not previously published or otherwise disclosed to the public…”

This makes the fact that the information was already public relevant because it is specifically excluded from the NDA at that point.

> I have not read anywhere why the current CEO decided to resign and I obviously have no idea about his reasons.  It is not the first time an AFRINIC CEO has resigned and I can't seem to understand all these attacks I have seen towards the board as I catch up with all the emails that have been flying all over the place.

I have no knowledge of this, nor has it been a point in any of my arguments. You’ll have to ask those discussing that matter.

> PS: The role of the CEO is not a lifetime role nor is the role of board member.  We have prescribed processes of changing these roles with AfriNIC continuing to stand tall.The outgoing CEO is a highly respected member of this community and instead of us celebrating his tenure, members are looking at board minutes to taint his work for their own reasons.

Again, I don’t see any relationship between this comment and anything I have said.

I will point out that we also have a process for removal of board members who fail to meet their fiduciary responsibilities or otherwise act in a manner contrary to the good function of the company. These bad faith accusations are just such an example of a perfectly valid reason for the community to call said board members to account.

> It's as if every year as we head into the AGMM for the past couple of years, we see the same members of the community come in to attack the institution of the board with the worst attack from the same members of this community in Senegal last year. 

I don’t recall personally making any attacks on the board last year other than criticizing their decision to reject the hearing of a particular motion at the AGMM.

I believe that the board acted against the interests and desires of the community in doing so and I raised it as such. I would not call that an attack on the board, I would call that an argument in favor of good governance. I honestly am not sure whether the motion had merit, but I believe that the members should have been allowed to make that decision rather than having the board reject the idea of giving said members the opportunity to do so.

> I really ask that we cease and desist…………….

When I see the board or members of the board acting in a manner I feel is inappropriate to their roles and responsibilities, I will comment on it. Members of the community have a duty to hold the board accountable for its behavior in discharging the duties entrusted to them by the membership and by extension the community. I do not take this obligation lightly.

I am not making personal attacks on particular board members because I favor or don’t favor the election results. I am commenting on malfeasance as I see it conducted by particular board members in this case based on the facts. You may like the board members in question or you may be tired of the community criticizing the board’s behavior. So be it. I am tired of the board’s consistent failure to live up to reasonable standards of conduct. I ask that the board cease and desist in so disappointing the community and violating our trust.

I will assure you that when the board ends its campaign of misbehavior, I will stop vocally criticizing the board.

> My 2 bit coins
> Noah

Hmmm… The original saying was “My 2 cents”, value “USD$0.02”.
Two bitcoin are currently valued at approximately “USD$15,889.64”.

That’s quite some inflation you’ve built into your signature there.

Owen

> 
> 
> On Tue, Jun 4, 2019 at 2:30 AM Owen DeLong <owen at delong.com <mailto:owen at delong.com>> wrote:
> 
> 
>> On Jun 3, 2019, at 13:14 , Noah <noah at neo.co.tz <mailto:noah at neo.co.tz>> wrote:
>> 
>> Hi Andrew 
>> 
>> During discussions many suggestions/ideas, are said and the whole idea of the discussions is to arrive at a decision by listening to other board members.  In fact the outcome of these discussions and the most important outcomes of the board meetings are the crafted resolutions.
> 
> Sure, but there certainly ought to be a reasonable expectation that an accusation against another board member which is factually baseless and involves a claim of violation of an agreement which makes it perfectly clear that the conduct in question _IS_ permitted would not be permitted in such a body.
> 
> As Andrew pointed out… Every member of the board signed the document in question and should, therefore, be familiar with its content.
> 
> As Andrew pointed out, the document in question specifically allows for board members to further discuss and disseminate information of a public nature.
> 
> As Andrew pointed out, the document shared with the community was a public document.
> 
>> Therefore when we start scrutinizing minute by minute what individual board members say or suggest in discussions we are now entering mind control territory.
> 
> When the board takes such a provocative action by acting in bad faith against one of its own, the community has a duty to scrutinize the boards actions. Indeed, the community has a broad responsibility to oversee the actions of the board and ensure responsible governance and accountability of the board to the members and the community.
> 
> Failing to review and comment on the minutes in question would be failing in that responsibility.
> 
>> There is nothing abnormal with what transpired in the discussions in those minutes unless of course if you want to make us foolishly believe that an individual board member must not suggest a subjective idea which a collective group can determine through a discussion if what was a subjective view point becomes an objective viewpoint.
> 
> Sadly, I think you may be right that it may not be abnormal for board members to act in bad faith against other board members. However, I do not believe that means we should continue to tolerate it.
> 
> Without wading into your awkward sentence about subjective and objective, I will point out that objectively, the facts are as Andrew stated them…
> 
> 	1.	Every board member should be familiar with the terms of the NDA.
> 	2.	The NDA specifically allows board members to publicly share information which is already public.
> 	3.	The document shared by the board members in question was, by definition already public.
> 
> All of these are objective facts. Not subjective.
> 
> Bringing a motion against a board member claiming that the action in question violated the NDA is, therefore, objectively an act of bad faith.
> 
>> That whole discussion was perfectly normal and the conclusion of the minutes indicate as such. There was no NDA violation and the was a call for the board to find better ways to cohesively work together including improving communication between themselves as relates with the management of the organization in a more corporate structured manner.
> 
> There remains in the minutes a claim that the CEO should not have published the document without board approval. This claim is patently absurd and the fact that you would call it normal  is almost as disturbing as the fact that the board came to that irrational conclusion.
> 
>> There is therefore no reasonable cause to call out for the resignations of the board members and I fully support the board as they continue carrying out their mandate.
> 
> A board member brought a serious accusation against another board member in objective and clear bad faith and you do not feel that this warrants a call for that board member’s resignation? I suppose here we get into subjective territory, but I believe that board members should at the very least be encouraged to limit accusations to those which can be backed up by facts and which are not so obviously specious in their origins.
> 
> I think it is unreasonable and unwise to tolerate such conduct from board members. The fact that the board ultimately came to the correct conclusion does not justify the initial acts of bad faith which initiated the discussion in question.
> 
> Owen
> 
>> 
>> 
>> Cheers,
>> Noah
>> 
>> On Sat, 1 Jun 2019, 00:08 Andrew Alston, <Andrew.Alston at liquidtelecom.com <mailto:Andrew.Alston at liquidtelecom.com>> wrote:
>> Thank you Alan,
>> 
>>  
>> 
>> Now – I would like to break this down a bit – firstly – every directory is signatory to this document – and by signing it – have acknowledged – under their own hand – their knowledge of its contents.  There can be no claim that the contents of this document once signed by a director are not known.
>> 
>>  
>> 
>> Now – with that said – let us look at what the NDA said – wording relevant to this is highlighted:
>> 
>>  
>> 
>> 1. I understand that certain information about AfriNIC is confidential, which is information not previously published or otherwise disclosed to the public and which relates to but is not limited to the following:
>> 
>>  
>> 
>> Now – there can be no question that the information in said documents were disclosed to the public.  The court had the documents – the courts – are a public entity – judges – are public servants. To add further weight – I point to the fact that resolution 201411.211 states:  However, information disclosed by the Board to third parties not under NDA to the Board is no longer confidential and is deemed to be in the public domain.
>> 
>>  
>> 
>> So – it is absolutely beyond dispute that those court documents were public information.  It is absolutely beyond dispute that every director had to know the definition of confidential – they signed the NDA.  Therefore – logic states – that any director making a claim of NDA violation or claiming contractual violation in breach of the NDA was bringing a motion that he KNEW was both frivolous and without any merit whatsoever.
>> 
>>  
>> 
>> Now – let us look beyond the bylaws at the companies act specifically section 143 entitled “Duties of directors to act in good faith and in best interests of the company”
>> 
>>  
>> 
>> Section 143.(1).(c) states: exercise their powers honestly in good faith in the best interests of the company and for the respective purposes for which such powers are explicitly or impliedly conferred;
>> 
>>  
>> 
>> Now – since it can be CLEARLY established that the power to bring charges of NDA violation and violation of contract were exercised in bad faith – considering the full knowledge of said director under his own signature that the information was not – and could not be – covered under the NDA – at the VERY least one director is in, at least in my mind, in clear violation of this clause and his fiduciary duties as a director.  Furthermore – while perhaps more tenuous an argument – I would argue that the chair – knowing full well that the charges being brought were frivolous and in bad faith (on the same basis that the charges made by Serge were in bad faith) acted contrary to the best interests of the company  by allowing these charges to be heard – and published – showing the world a completely dysfunctional board acting in bad faith.
>> 
>>  
>> 
>> So – while I stand by my statements that I believe the board as a whole should resign – particularly in light of the fact that not a single director objected to the charges brought and the fact that the meeting was being held in the first place – thereby lending credibility to a clear cut act of bad faith – and therefore also acting against the best interests of the company – I need to state – that this in particular applies both the Chair and Serge Ilunga – both of whom in my mind CLEARLY violated the companies act and their fiduciary duties as is clearly documented in those minutes.
>> 
>>  
>> 
>> Hence – I reiterate my call for the resignation of the directors.
>> 
>>  
>> 
>> Thanks
>> 
>>  
>> 
>> Andrew
>> 
>>  
>> 
>> From: Alan Barrett <alan.barrett at afrinic.net <mailto:alan.barrett at afrinic.net>>
>> Date: Friday, 31 May 2019 at 20:55
>> To: General Discussions of AFRINIC <community-discuss at afrinic.net <mailto:community-discuss at afrinic.net>>
>> Cc: AFRINIC Board of Directors' List <board at afrinic.net <mailto:board at afrinic.net>>
>> Subject: Re: [Community-Discuss] Gratitude
>> 
>>  
>> 
>> 
>> 
>> > On 28 May 2019, at 14:49, Frank Habicht <geier at geier.ne.tz <mailto:geier at geier.ne.tz>> wrote:
>> > 
>> > Dear AfriNIC board members,
>> > 
>> > reference is made in below email, and also in several other discussion
>> > items regarding AfriNIC and its governance, to an NDA that board members
>> > are to adhere to.
>> > 
>> > Can you share the document please?
>> 
>> The Board NDA has been published at <https://afrinic.net/board/board-documents <https://afrinic.net/board/board-documents>>
>> 
>> Regards,
>> Alan Barrett
>> 
>> 
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