[OSM-legal-talk] 23rd Dec board meeting

Peter Miller peter.miller at itoworld.com
Sat Jan 24 21:09:25 GMT 2009


On 24 Jan 2009, at 20:26, Grant Slater wrote:

> Liz wrote:
>> On Sun, 25 Jan 2009, Dair Grant wrote:
>>
>>> You argue that anyone with a commercial interest in OSM (e.g., me)  
>>> who's
>>> listed on the {{PD-user}} page (me again) has a potential conflict  
>>> of
>>> interest.
>>>
>>
>> That's the way Australian law works.
>> If I am on a Board (which I am) and some other aspect of my life,  
>> even
>> non-commercial could affect my decision making I have to declare the
>> interest.
>>
>
> OSMF Board member bios, declaring other interests.
> http://foundation.openstreetmap.org/officers-board/board-member-bios/

It is not sufficient to just declare ones interest. The following is  
the verbatim response to the question when we asked for clarification  
from our lawyer.  It seems that the board can vote to allow a  
'conflict'  however it also seems sensible to avoid such a tricky  
situation where possible. I am particularly concerned where two  
directors both with the apparent conflicts dismiss the concerns of  
another directors (ie those of Henk when he suggested more  
consultation was appropriate and Steve/Nick disagreed).

"the position under the Companies Act 2006 is that a director has a  
duty to avoid a conflict of interest. However the conflict can be  
authorised by the Board (section 175, the Act).

"Authorisation of conflict requires the Board to vote to permit the  
conflict, such vote to be undertaken by the remaining directors. For  
the purposes of this vote the interested director (and any other  
interested director) cannot be be counted towards either the quorum of  
the Board meeting or the vote.

"Directors also have a duty to declare all interests (including the  
nature and extent of such interest) which they have in any proposed  
transaction or arrangement to be entered into by the company. Further  
declarations must be made as the scope on nature of such interest  
changes (section 177, the Act).

"A director also has a duty not to accept benefits from third parties  
which are conferred by reason of his being a director or doing (or not  
doing) anything as a director. This duty will only be triggered if the  
acceptance of the benefit is likely to give rise to a conflict of  
interest and/or duties (section176, the Act).

"Depending upon the precise circumstances this duty not to accept  
benefits could be relevant in the case of the Foundation. Presumably  
Steve Coast Will receive some form of benefit from his other company  
which could be argued to arise as a result of actions which he  
undertakes as a director of the Foundation.


Regards,


Peter


>
>
> Regards
> Grant
>
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> legal-talk at openstreetmap.org
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