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1
2[WMPT-internal] Suspension of Wikimedia Portugal
3Gonçalo Themudo gethemudo gmail.com
4Terça-Feira, 17 de Julho de 2018 - 22:58:47 UTC
5
6    Mensagem anterior: [WMPT-internal] Nova inscrição na WMPT
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9
10Dear Members of AffCom,
11
12Thank you again for providing this roadmap. It is really helpful to get
13concrete objectives and dates in order to finish these issues.
14
15We apologize for not providing a timely Financial Report. As we mentioned
16before, we did not have access to the WMPT bank account before updating the
17account holder information, as defined by our last General Assembly. We are
18finishing the last step of this process, which we expect to be finished
19later this week. As soon as it is complete, we will be able to finish the
20financial report for 2017.
21
22We would like to ask you to clarify what you mean in your point 3.
23regarding “the Chapter did not advise the Foundation of change in the
24bylaws or status of the Chapter”. There has not been a change of either
25bylaws or status of the Chapter “...which might affect the Foundation or
26the continued existence or effectiveness of this contract.” or any other
27kind of changes. If you mean that we should have advised about the change
28of board, we did so on the Wikimedia-L, the AffCom-L, and a number of other
29mailing lists.  We will be happy to take this into account in the future,
30but we would like some more specific guidance on what you consider
31constitutes a breach of this section.
32
33About the meeting that took place at 14 December 2017, of which we have
34almost no information at all, in the little we could gather we have not
35found any evidence that it may be seen, even remotely, as a legitimate
36General Assembly, so we would like to abstain from commenting on it, unless
37further information appears.
38
39Concerning the 15th April General Assembly, we would like to make it clear
40that, to the length of our knowledge, and in the absence of any evidence to
41the contrary, we have in fact complied with the Portuguese law when calling
42that General Assembly, and in all its procedures. Therefore, the decisions
43made there are legal and valid, so currently standing. Of course any and
44all procedures could theoretically be questioned in court, with or without
45fundament, but no legal action has been put forth, nor we have any
46knowledge or information about anyone intending to take any matter related
47to the 15th April General Assembly to the courts.
48
49Concerning the “postal notice”: It has been alleged that our General
50Assembly was illegal because notices were sent to our associates by email
51instead of post. Although it is written on the Civil Code, on number 1 of
52article 174, that notices must be sent by post (“Aviso postal”), the
53Annotated Civil Code by Professors Pires de Lima and Antunes Varela (ISBN:
549789723200379) explains that “Postal notice can be replaced by any other
55form of notice that offers the same or greater assurances, such as personal
56communication. It is simply that in most cases only postal notices are
57viable” (“O aviso postal pode ser substituído por qualquer outra forma de
58convocação que ofereça a mesma ou maiores garantias, como seja a convocação
59pessoal. Simplesmente acontece que na generalidade dos casos só é viável a
60convocação pelo correio.” – Acórdão nº JTRP00038259 do Tribunal da Relação
61do Porto, 2005
62<http://www.dgsi.pt/jtrp.nsf/-/8EF8DD322CA972DD8025703E0047F22D>)
63
64It is the case that email was the only way to reach all of the associates,
65as even now, after asking associates to update their details, we still have
66postal addresses for only about half of the associates. As we updated the
67mailing list so that all associates became members of it, we effectively
68reached all of our associates and would have a log if a copy did not reach
69the destination. The procedures adopted resulted in benefits to all of the
70associates, and indeed if the Civil Code was followed as you suggested, it
71would have resulted detrimental to their rights. In our search through
72court decisions we found no ruling against procedures that would clearly be
73in the benefit of all associates.
74
75However, as this procedure, which we were using without any controversy or
76disagreement since the chapters inception, has been challenged by some
77associates at our last General Assembly, we took the necessary steps to
78use, instead, the formal method of a “postal notice” when calling for a
79future General Assembly, at least until the “email notices” are not
80formally passed into WMPT bylaws: We repeatedly asked the associates to
81update their information, especially the postal address (and continue doing
82so). All associates who do not complied with this mandatory request had
83their condition of associate temporarily suspended, effective until a valid
84postal address was provided.
85
86Concerning the “presential meeting”: We could not find anything in the
87Portuguese Civil Code forbidding remote participation on General
88Assemblies, or demanding General Assemblies to be held only with the
89presence of the participants in the same physical location, be it on its
90“relevant portion” - articles 167th to 184th, which cover the operations of
91associations - or anywhere else. On the contrary, the Commercial Society
92Code, in the case of Commercial Societies, explicitly allows General
93Assemblies held through telematics, provided that “the society assures the
94authenticity of declarations and safety in communications, makes a record
95of its content and of the people who intervene” (“As assembleias são
96efectuadas: a) Na sede da sociedade ou noutro local, escolhido pelo
97presidente da mesa dentro do território nacional, desde que as instalações
98desta não permitam a reunião em condições satisfatórias; ou b) Salvo
99disposição em contrário no contrato de sociedade, através de meios
100telemáticos, devendo a sociedade assegurar a autenticidade das declarações
101e a segurança das comunicações, procedendo ao registo do seu conteúdo e dos
102respectivos intervenientes.” – number 6 of article 377
103<http://lexit.informador.pt/biblioteca/0ECD.0762/Direito-Comercial/Codigo-das-Sociedades-Comerciais/Titulo-IV-Sociedades-Anonimas/Capitulo-V-Deliberacoes-dos-accionistas/Artigo-377-Convocacao-e-forma-de-realizacao-da-assembleia>).
104Additionally, we couldn’t find a single case in the available Portuguese
105jurisprudence of a General Assembly being challenged on the grounds of
106remote participation. We can further provide many instances of Portuguese
107associations, from First League soccer teams, to Police associations, where
108remote attendance is usual, in case you would like to see them.
109
110Therefore, we see no evidence that IRC meetings are not legal under the
111Civil Code, and the precautions we took to ensure authenticity of the
112people present in the meeting (as documented in the minutes, and whose
113records we are prepared to provide) would meet the requirements of the
114Commercial Societies Code for General Assemblies held via telematics. While
115the physical presence of as many associates as possible in the same room is
116to be preferred by us by obvious reasons whenever it is possible, we cannot
117exclude the possibility of remote participation, or even General Assemblies
118entirely held over videoconference or IRC, as that system is entirely
119compliant with the Portuguese law. It is worth noting that while the
120available jurisprudence favours the participation (in physical presence or
121remote, it doesn’t matter) of as many associates as possible at a Generally
122Assembly, representations, on the other hand, are specifically forbidden by
123article 180 of the Portuguese Civil Code: “Salvo disposição estatutária em
124contrário, a qualidade de associado não é transmissível, quer por acto
125entre vivos, quer por sucessão; o associado não pode incumbir outrem de
126exercer os seus direitos pessoais.” - The associate can’t ask another
127person to exert his own personal rights.
128
129Concerning your affirmation that you “have received reports that members of
130the Board of Wikimedia Portugal have sent each other legal threats, via
131e-mail and posted mail.”, we would like to stress that we are totally
132unaware of any evidence of any person other than João Vasconcelos, former
133president of the Board, sending threats, legal and otherwise. We would also
134like to stress that those threats were far from being limited to legal
135content. Instead, they included such serious and alarming words as “Waldir,
136por favor, poupa-me a ter que te dar cabo da vida por tão pouco. abre os
137olhos!” - “Waldir, spare me from ruining your life for so little. open your
138eyes!” (emphasis on the original) - message sent 2018-04-15 15:39
139GMT+01:00, from João Vasconcelos to Waldir Pimenta by email. All this was
140reported to you at the time.
141
142And while João Vasconcelos was indeed once a member of the board, elected
143as president of Wikimedia Portugal for 2016-2017, at the time those threats
144were sent his mandate had already expired, and João Vasconcelos had
145publicly stated himself he was no longer a working member of the board. He
146is not part of the current board, and was further removed from any position
147of responsibility he still held, so we don’t believe we can take any
148responsibility for his actions, which certainly do not reflect or represent
149any position of Wikimedia Portugal. If you believe we should take any
150further measures concerning that associate in order to avoid or diminish
151any negative impact of his actions on the Wikimedia movement, please tell
152us. In case you have knowledge of any other threats, legal or otherwise,
153that originated in any member of the board, or associate of Wikimedia
154Portugal, please let us know, so that we can investigate the issue.
155
156We are fully aware that there has been a lack of chapter activity in the
157last years, and we would not blame AffCom if it had de-recognized the
158chapter until October last year, when the Chapter had not shown any
159significant activity for 5 years. Nevertheless, the chapter has recently
160become more active, we have several partnerships being formed and
161activities occurring as our recent GLAM reports show (for exemple
162https://outreach.wikimedia.org/wiki/GLAM/Newsletter/May_2018/Contents/Portugal_report),
163so it would be extremely detrimental to the movement in Portugal and to the
164ongoing activites if this de-recognition occurred precisely when we were
165re-starting to show activity and not while we were dorment.
166
167Finally: if the current board resigns, or AffCom does not recognize the
168current governing bodies as legitimate, there is no automatic reinstatement
169of previous bodies. Bodies are elected for specific terms and end as soon
170as there is another Elective General Assembly. Waldir Pimenta could not
171legally call for another General Assembly as his term had expired.
172
173Despite all this, we are still willing to call for a new Electoral General
174Assembly in a physical location and send out postal notices to the
175addresses we have in addition to the email notice, but this will have to be
176run by the current President of the General Assembly Table (i.e. elected in
177April 2018), as this would be the only course of action with legal validity.
178
179We have recently submitted our tax form (Modelo 22) for the 2017 fiscal
180year and updated the names of the legal representatives of Wikimedia
181Portugal in the Revenue Services (Autoridade Tributária). We have attached
182copies of the receipts for these actions.
183
184After our teleconference of 11 June with Carlos Colina and Dumisani
185Ndubane, André Barbosa, Waldir Pimenta and myself have been discussing with
186other members of Wikimedia Portugal how we would proceed, and the proposed
187plan. We are aiming at a General Assembly in early September as August is a
188holiday month in Portugal. We will send you an action plan as soon as
189possible within your set deadline. We have also started a page on our wiki
190to collect signatures of chapter members who meet your criteria and that
191support the continued existence of the chapter (
192https://pt.wikimedia.org/wiki/Utilizador:GoEThe/Página_de_apoio_à_Wikimedia_Portugal).
193We will work on that plan for active contributor involvement and improved
194chapter capacity.
195
196With best regards,
197
198Gonçalo Themudo
199
200Gonçalo Espregueira Themudo
201
202*Postdoc*
203*Institute of Biological Psychiatry*
204Mental Health Centre Sankt Hans
205Capital Region of Denmark
206*Email: *gethemudo  gmail.com
207*Personal website: *https://sites.google.com/view/themudo (updated)
208
209
210
211Maor Malul <maor_x  zoho.com> escreveu no dia domingo, 15/07/2018 à(s) 03:40:
212
213>
214>
215>
216>
217> * July 15, 2018 To the members of Wikimedia Portugal, This is to notify
218> you and Wikimedia Portugal that the Wikimedia Foundation is officially
219> suspending some of Wikimedia Portugal’s benefits in Wikimedia Foundation
220> programs. We have  concerns with the Wikimedia Portugal's non-compliance
221> with the Chapter Agreement dated February 1, 2011 and continued failure to
222> fully remediate issues and community concerns despite multiple prior
223> notices. While Wikimedia Portugal is suspended, it 1) will not be eligible
224> for new grants, 2) will not be eligible to participate in the Wikimedia
225> Conference, and 3) will not be eligible as fiscal sponsor for community
226> member scholarships. To be in compliance with the Chapter Agreement,
227> Wikimedia Portugal must address the following issues: *
228>
229>
230>
231> * 1. The Chapter has not supplied a written Financial Report in English at
232> least once a year to the Foundation, within four months of each chapter
233> year end (Chapter Agreement, Section 8.1). The Chapter has one outstanding
234> Financial Report covering activities from January 2017 through December
235> 2017, which should have been published by April 2018. 2. We have concerns
236> that the Chapter engaged in activity that might negatively impact the work
237> or image of the Wikimedia Foundation and the Wikimedia movement (Chapter
238> Agreement, Section 6.2). There have been public reports of the Chapter's
239> conflict happening publicly, risking a negative impact on other
240> Wikimedians' work and reputation. Additionally, the Chapter's issues with
241> properly calling a general assembly and selecting members of its board have
242> undermined the legitimacy of the Chapter's work and ongoing activity and
243> interfered with its ability to carry out its obligations under the chapter
244> agreement. 3. The Chapter did not advise the Foundation of change in the
245> bylaws or status of the Chapter (Chapter Agreement, Section 7.2). *
246>
247>
248>
249>
250>
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253>
254>
255>
256>
257>
258>
259>
260>
261>
262>
263>
264> * The Wikimedia Foundation also has also received reports on the following
265> issues: - We have been told that the Chapter has organized General Assembly
266> meetings that do not comply with the relevant portions of the Chapter's
267> bylaws and applicable local laws. Wikimedia organizations are expected to
268> fulfill all of their legal and organizational governance requirements.
269> These reports do not give us confidence that the organization is
270> effectively stewarding the trust and reputation of the Wikimedia movement.
271> In particular, we have received concerning reports about the following
272> meetings: - IX General Assembly (held on December 14, 2017): We have been
273> told that the call for the Chapter's assembly did not follow the guidelines
274> of the Chapter's bylaws and the relevant portions of the Portuguese Civil
275> Code. We have been told that the call was not sent to most of the members
276> of the chapter; those who received the notice did so on the very day of the
277> General Assembly and did not receive the required 7-days advance notice.
278> Additionally, we have been told that the Board of the Chapter has not
279> presented a plan of activities, ineligible people were allowed to vote at
280> the meeting, and the minutes from the meeting were not properly recorded on
281> the Chapter's website, available
282> at:https://pt.wikimedia.org/wiki/Reuni%C3%B5es
283> <https://pt.wikimedia.org/wiki/Reuni%C3%B5es> - X General Assembly (held on
284> April 15, 2018):  We have been told that the call for the assembly was sent
285> to the members of the chapter via e-mail and not by post mail, as specified
286> by the relevant portions of the Portuguese Civil Code. - We have been told
287> that the Assembly was held over IRC, which did not meet the relevant
288> portion of the  Portuguese Civil Code. - We have received reports that
289> members of the Board of Wikimedia Portugal have sent each other legal
290> threats, via e-mail and posted mail. Threatening legal action is not
291> consistent with Wikimedia values of openness and collegiality. If there are
292> disputes among members of the Board, we ask that they be resolved civilly
293> and without invoking any behavior that would not reflect positively on the
294> Wikimedia movement. - There has been a lack of regular chapter programmatic
295> activity. This lack of activity points to a lack of capacity to support the
296> organization to achieve its goals and meet the basic compliance commitments
297> that the organization has made to the Wikimedia movement. For the reasons
298> above, Wikimedia Portugal’s chapter benefits have been suspended. At this
299> time, for Wikimedia Portugal to comply with the Chapter Agreement, the
300> chapter must undertake the following steps: 1. Submit an Action Plan. By
301> August 15, 2018 the Chapter must submit an updated Action Plan to the
302> Affiliations Committee and Wikimedia Foundation, including a timeline with
303> dates for calling a new meeting and elections to ensure the Chapter has a
304> valid Board by September 15, 2018. We ask that the chapter provide an
305> explanation of how the Board was selected in a manner that meets the
306> organization's bylaws, relevant local laws and regulations, and the
307> Wikimedia Organizational Best Practices, available at:
308> https://wikimediafoundation.org/wiki/Resolution:Organizational_best_practices
309> <https://wikimediafoundation.org/wiki/Resolution:Organizational_best_practices>.
310> 1. Submit a plan for active contributor involvement and improved chapter
311> capacity. By October 15, 2018 the chapter must submit a plan, via email or
312> posted online, demonstrating how the chapter meets the two specific chapter
313> requirements listed below. If your chapter does not currently meet the
314> requirements below, you may alternatively provide a plan and timeline for
315> how you will correct these issues by October 15, 2018. - Active Contributor
316> Involvement. Chapters are expected to involve at least 20 active Wikimedia
317> contributors (individuals with at least 300 contributions to a Wikimedia
318> project under a registered account that has existed for at least 6 months
319> and is in good community standing). We would like to see at least 20 active
320> Wikimedians who are chapter members sign an on-wiki page to indicate their
321> support of the chapter. - Capacity. Chapters are expected to demonstrate
322> capacity to meet future responsibilities and expectations (such as
323> organizing programs and activities; recruiting volunteers and obtaining
324> funding; maintaining compliance with legal obligations, chapter and grant
325> agreements, and movement best practices; and so on). In your plan, we would
326> like to see an an outline of how the chapter will support programmatic
327> activities and reporting to avoid future compliance issues. The chapter's
328> reports should meet the requirements in your Chapter Agreement as well as
329> other applicable local regulations. 1. Complete and submit the required
330> overdue chapter financial reporting. By September 15, 2018 the chapter must
331> post the required financial reports to its meta reports page
332> <https://meta.wikimedia.org/wiki/Wikimedia_chapters/Reports>:- 2017
333> Financial report (to reflect all accounts and funds for the fiscal year
334> January - December 2017) If Wikimedia Portugal fails to address these
335> issues by the dates described above, in accordance with terms of the
336> Chapter Agreement, we will send a notice of revocation by October 30, 2018.
337> for the Chapter Agreement and Wikimedia Portugal will cease to be a
338> recognized Wikimedia chapter after termination of the Chapter Agreement on
339> February 1, 2019.  However, if Wikimedia Portugal fully and completely
340> resolves the issues and requirements listed above and is otherwise in
341> compliance with the Chapter Agreement and board resolution on
342> organizational best practices
343> <https://wikimediafoundation.org/wiki/Resolution:Organizational_best_practices>,
344> the suspension will be lifted. We hope that you are able to complete the
345> necessary actions to resolve these issues identified in this letter so that
346> Wikimedia Portugal may be returned to good standing and continue as a
347> recognized chapter. However, if you do not believe your organization is
348> able, or willing, to meet these commitments, please consider the
349> alternative option to reorganize your group as a less formal Wikimedia user
350> group instead.    Please reach out to your Affiliations Committee lead,
351> Maor Malul via affcom  lists.wikimedia.org <affcom  lists.wikimedia.org>, or
352> your Affiliations Committee Liaison, Jaime Anstee (janstee  wikimedia.org
353> <janstee  wikimedia.org>), if you have any questions, or if you would like
354> to set a call time to communicate further about these issues or
355> requirements. On behalf of the Affiliations Committee, Maor Malul *
356> --
357> *"Jülüjain wane mmakat ein kapülain tü alijunakalirua jee wayuukanairua
358> junain ekerolaa alümüin supüshuwayale etijaanaka. Ayatashi waya junain."*
359> Maor Malul
360> Socio, A.C. Wikimedia Venezuela | RIF J-40129321-2 | www.wikimedia.org.ve
361> Member, Wikimedia Israel | www.wikimedia.org.il
362> Member, Wikimedia Foundation Affiliations Committee
363> Phone: +972-52-4869915
364> Twitter: @maor_x
365>
366>
367> <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient> Libre
368> de virus. www.avast.com
369> <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=emailclient>
370> <#m_-5357413720079320631_DAB4FAD8-2DD7-40BB-A1B8-4E2AA1F9FDF2>
371>
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390    Mensagem anterior: [WMPT-internal] Nova inscrição na WMPT
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