Drepende rapport fra kommisjonsleder
Laurence Burgers rapport levner Kim Andersen liten ære
Kim Andersen og hans advokater lyktes langt på vei å holde den avgjørende rapporten fra etikk kommisjonens Laurence Burger i sak nummer tre mot ham utenfor publikums oppmerksomhet før presidentvalget i World Sailing i oktober. Likevel ble han ikke gjenvalgt for fire nye år, og Andersen er nå ute av det internasjonale seilforbundet.
Klagen mot ham, som i stor grad er basert på en serie artikler i Seilmagasinet, gikk på at Andersen ikke hadde meddelt styret om et større oppdrag til PR selskapet TSE som hadde bistått han ved valgkampen i 2016.
Laurence Burger bekreftet ikke bare Seilmagasinets påstander, men gikk også lenger i å dømme Andersen. Her er hennes rapport:
Report of the Ethics Officer
COMPLAINT DATED 20 JULY 2020 ALLEGING VIOLATIONS OF THE CODE OF ETHICS OF WORLD SAILING BY MR KIM ANDERSEN
29 October 2020
I. EXECUTIVE SUMMARY
At the outset, the Ethics Officer wishes to thank the staff and members of World Sailing for their help and support in investigating the complaint of Mr George Wossala against Mr Kim Andersen (the “Complaint”; Exh. 1) alleging violations of the Code of Ethics of World Sailing by Mr Andersen, President of World Sailing. In summary, the Complaint alleges that Mr Andersen, once elected President, signed an agreement with TSE (the “TSE Agreement”), a company who had worked on his campaign, without disclosing the previous relationship to the Board and without proper approval from the Board.
The Ethics Officer was appointed on 18 August 2020. After a first delay, she was able to start her work on 25 August 2020. On 16 September 2020, the Ethics Officer was told to suspend again her work pending re-confirmation of her appointment. She was able to resume her work on 22 September 2020.
The Ethics Officer interviewed the members of the Board, a former member of the staff of World Sailing, as well as some third parties (see Exh. 34). Unfortunately, Mr Andy Hunt, CEO at the time of the facts, declined an invitation to be interviewed. She asked some questions by email (see Exh. 27). The list of documents reviewed is available at paragraph 37 of the present report (the “Report”).
On 15 October 2020, the Ethics Officer interviewed Mr Andersen. At the end of this interview, Mr Andersen’s lawyer asked that Mr Andersen be able to file a written submission to answer the complaint lodged against him. With a view to preserve the fairness of the proceedings, the Ethics Officer authorized Mr Andersen to file such a complaint, with a request not to file any documentary evidence that had previously been obtained by the Ethics Officer. In order to avoid doubles, the Ethics Officer forwarded to Mr Andersen and his lawyers the documentation she had already collected. As a result of Mr Andersen being able to file a written statement, Mr Wossala was also permitted by the Ethics Commission to update his complaint.
It is undisputed that Mr Andersen entered into an agreement with TSE in December 2016. The issue, however, is whether Mr Andersen had a private or personal interest in relation to TSE that detracted him from performing his function with integrity in an independent and purposeful manner. If this is the case, then the conclusion must be that Mr Andersen had a conflict of interest. The final question is then whether Mr Andersen properly disclosed this conflict and was cleared of it.
Based on the conducted interviews and reviewed documents, including Mr Andersen’s submission and Mr Wossala’s additional note, the Ethics Officer finds that the irregular signing, the lack of approval of the TSE Agreement by the Board and the extension of the TSE Agreement much past the deadlines initially foreseen, taken together with the evidence showing that TSE worked mostly in support of Mr Andersen, lead her to conclude that Mr Andersen did not perform his function with integrity or independence. Moreover, the amounts involved evidence, in general, a lack of regard for the best interests of World Sailing. Consequently, the Ethics Officer finds Mr Andersen in breach of Sections 1.9(a), 1.9(b) and 1.9(c) of World Sailing’s Code of Ethics and decides to charge him for such violations.
II. THE COMPLAINT
On 20 July 2020, Mr George Wossala sent to Mr David Graham, CEO of World Sailing, a Complaint alleging violations of the Code of Ethics of World Sailing by Mr Andersen, President of World Sailing. Annexed to the Complaint was an extract of the World Sailing Register of Interests and the minutes of the Board meeting of December 2016.
In the Complaint, Mr Wossala alleged that Mr Andersen committed violations of the Code of Ethics of World Sailing by entering into a contract with TSE on 24 November 2016 without properly informing the Board and not putting the contract out for public tender whilst TSE had allegedly assisted Mr Andersen in his presidential election campaign in 2016.
The alleged violations were based on the allegations set forth in the Complaint that are reproduced below from page 2 of the Complaint (these allegations mostly arise from articles written by Mr Mikkel Thommessen, a journalist with seilmagasinet.no):
- TSE helped Mr. Andersen work on the election campaign that ended with him getting the presidential post. To the knowledge of Seilmagasinet, TSE was hired and the work was paid for by the Danish Sailing Union (or Danish Sailing Association / DSA) and the Danish Olympic Committee.
- Mr. Andersen, at the first World Sailing Board meeting of 10/11 December 2016 as President, requested all attendees to declare what possible sources of conflicts of interest they may have. Mr. Andersen did not disclose his above direct or indirect relationship to TSE or any other information on direct or indirect supporters to his presidential campaign. Furthermore, he expressly stated in his conflict of interest declaration that he has no connection to the Danish Sailing Union.
- In addition, it has later emerged that before the Board meeting in December 2016, Mr Kim Andersen and former CEO Mr Andy Hunt have contracted TSE, this time to assist World Sailing with communication tasks. The contract was concluded without the members of the World Sailing Board being informed, and the task would rather not be sent out in tenders, which is normal practice. According to Mr. Thommessen's sources, information about the deal first came to light when the World Sailing Audit Committee became aware of the spending in 2017 and investigated the matter.
- On a direct question from delegate David Sprague during a 30 June 2020 World Sailing digital ‘Townhall’ meeting, Mr. Andersen confirmed that TSE was part of the Danish delegation that worked to get him elected President of World Sailing at the General Assembly in Barcelona. According to Mr. Andersen, TSE assisted the Danish Olympic Committee and the Danish Sailing Union as ‘coordinator’ and ‘translator’ in Barcelona and the costs were paid by them.
III. PROCEDURE 1. NOMINATION OF THE ETHICS OFFICER
On 27 July 2020, Mrs Laurence Burger was contacted by Mr Dieter Neupert, Chairman of the Ethics Commission, with a request to act as ethics officer in the aforesaid Complaint.
Mr Neupert conducted a phone interview with Mrs Burger on 30 July 2020, following which Mr Neupert forwarded Mrs Burger’s CV to the Ethics Committee.
On 12 August 2020, Mr Neupert informed Mr Andersen that Mrs Burger had been appointed as ethics officer (hereafter, the “Ethics Officer”).
On 13 August 2020, Mr Tiran Gunawardena, an attorney representing Mr Andersen, asked the Ethics Officer to confirm that she was independent and impartial to the parties in the case at hand, including Mr Wossala. By return email, the Ethics Officer confirmed her independence and impartiality.
On 18 August 2020, in an email to Mr Andersen and the Ethics Commission, Mr Neupert confirmed that the nomination of the Ethics Officer was welcome by all the parties involved.
On the same date, the Ethics Officer asked for the payment of a retainer for her services. Her professional rules require her to be paid a retainer before starting to work.
However, payment was delayed within World Sailing so that the Ethics Officer could only start working on 25 August 2020, when it arrived.
2. TIMELINE OF THE INVESTIGATION
On 25 August 2020, the Ethics Officer contacted Mr David Graham, CEO of World Sailing, with a request for information.
Mr David Graham forwarded on 1 September 2020 several documents.
On 2 September 2020, the Ethics Officer sent a letter to all Board members asking for their collaboration and requesting an oral interview.
The Ethics Officer stated with interviews of Mrs Jan Dawson and Mrs Ana Sanchez.
On 16 September 2020, the Ethics Officer was told by World Sailing’s legal department that she had to suspend her work following a complaint that her nomination had not been properly executed.
Consequently, the Ethics Officer postponed the scheduled interviews except for that of Mr Perry, who was difficult to reach.
On 22 September 2020, the President of the Ethics Commission asked the Ethics Officer to resume her work without delay.
On 28 September 2020, the Ethics Officer finished interviewing all the Board Members and set out to interview other parties involved in the matter.
On 1 October 2020, the Ethics Officer sent a letter to Mr Andersen and his lawyers to request an interview during the week of 5 to 9 October.
On 2 October 2020, Mr Andersen’s lawyers informed the Ethics Officer that they had concerns about the actions of the Ethics Commissions and were exploring whether these concerns had any impact on the Ethics Officer’s nomination, so that Mr Andersen would be in a position to set a date for the interview only after these concerns were cleared.
Upon reply on the same day by the Ethics Officer that she had not been informed to suspend her work, Mr Andersen’s lawyers informed the Ethics Officer that Mr Andersen would be available for an interview on 15 October but that the nomination of the Ethics Officer was again being questioned so that this date was pending clearing of the nomination issue.
On 6 October 2020, Mr Andersen’s lawyers acknowledged that the Ethics Officer appointment was confirmed on 22 September 2020 and confirmed the interview of Mr Andersen on 15 October 2020.
On 15 October 2020, the Ethics Officer interviewed Mr Andersen. At the end of this interview, Mr Andersen’s lawyer asked that Mr Andersen be able to file a written submission to answer the complaint lodged against him. With a view to preserve the fairness of the proceedings, the Ethics Officer authorized Mr Andersen to file such a complaint, with a request not to file any documentary evidence that had previously been obtained by the Ethics Officer. In order to avoid doubles, the Ethics Officer forwarded to Mr Andersen and his lawyers the documentation she had already collected.
As a result of Mr Andersen being able to file a written statement, Mr Wossala was also permitted by the Ethics Commission to update and expand his complaint.
On 23 October 2020, Mr Wossala filed the following written comments (Exh. 31):
1. In the minutes from the first board meetings in November and December 2016 any mention of the TSE contract are missing, and also no mention was made in the minutes of the February 2017 Dubai meeting. In fact agenda attachment 2(g) to the minutes of the Dubai meeting does not show the contract as existing nor as under discussion. As President Kim is responsible for the accuracy of the minutes (as per WS policy) this is a grave oversight as he signed the contract and bound WS to a large expense and then seems to have not properly recorded it in the board minutes. However it seems he did cause Worls Sailing to pay the bills he incurred.
2. The amount of the contract exceeds the authority granted the president in the undated World Sailing authorizations proposal, which are clear that unbudgeted contract awards of 10,001 Pounds and above must be authorized by the board. In his mail of 10 October 2017 to Garry Jobson (Cc: Jan Dawson), Scott Perry clearly confirms the above: „The approval limit has to be within the Budget agreed by the Board. This, in fact, was the big issue
with the TSE contract as it was never brought before the Board.”
Scotts other letter (attached, to Jan Dawson) contradicts the statement of Kim’s defence claiming that the contract was signed beside him by the CEO as well.
I would consider it important to compare the total £ 192,613 invoiced by TSE until November 2018 with market prices, in particular the price calculation for the "SURVEY". Taking into account the offers available on the Internet, an over-invoicing of up to ten times can be identifiable.
I believe that since WS had more than 30 highly educated staff and a sea of potential volunteers at the time, it was completely unnecessary
to seek outside help.
5. Finally I miss any references to Kim’s conflict of interest. 32. On 24 October 2020, Mr Wossala sent the Ethics Officer another email with the
following content (Exh. 32):
Reconsidering my comments of yesterday, I feel point 5 of it deserves some more justification. Allow me to justify it in a little more detail below, dare i hope i don't overburden you with it.
Based on the evidences the appointment by Kim of TSE was done in indecent haste after TSE helped to get Kim elected as President.
A very significant expense was committed to by Kim with no knowledge of the Board and it appears even before there was a formal Board meeting of the new Board.
It was done for his personal assistance (see contract language) and only peripherally for WS benefit yet paid 100% by WS.
Both these points were done with no disclosure to the Board and in contravention of 3.1(a) of the WS Conflict of Interest Policy. Personal interest to Kim which may conflict with WS interests and is paid by WS. By doing this he violated COI Policy 5.1, 5.2 and most likely 8.10 as it was an obvious potential conflict to negotiate for services for himself personally, and to sign the contract, to arrange that the contract be paid and to not make the Board aware of such a contract until significant sums were committed to and in fact paid.
It was hidden from official documents given to the Board ( it was not listed in the February supporting list of contracts that covered the time frame the contract was conceived, negotiated and consummated, which listed other contracts smaller that the one he clandestinely signed to commit WS) [ Board SP 2(g) ]. At no point did Kim avail himself of the COI Policy procedure of 7 “Managing Conflicts”.
This is not Kim’s only transgression of Ethics. He was warned about his actions causing WS to be brought in to disrepute in the July 31, 2020 warning from the Ethics Officer (decision paragraphs 83 to 99). In particular paragraphs 94-96 should have been a strong warning to Mr. Andersen yet two weeks later in mid August he sent out on WS stationary and using WS resources the attached“Statement by the World Sailing President” where he attacked the Ethics Commission processes and the Ethics Officer assigned to his case.
These actions show a pattern of complete disregard for norms of Conflict of Interest handling.
On 26 October 2020, Mr Andersen’s lawyers filed a Written Submission in Ethics Complaint together with a set of new exhibits (Exh. 33). For the most part, the submission repeated what Mr Andersen had told the Ethics Officer during the interview.
Of the eight exhibits attached without any numbering, only five are new to the Ethics Officer.
The Ethics Officer conducted interviews of Mr Andersen, of the Members of the Board of World Sailing, of former World Sailing staff member Mrs Helen Fry, of Mrs Line Markert and Christian Lerche of the Danish Sailing Federation, and of Mr Mikkel Thommesen, journalist with Seilmagasinet.
The non-verbatim transcripts of these interviews are produced as Exhibit 34.
2. DOCUMENTARY EVIDENCE REVIEWED
37. The Ethics Officer has reviewed the following documents that were forwarded by various members of the Board and the staff of World Sailing.
Agreement dated 24 November 2016 between World Sailing and TSE (Exh. 2)
Minutes of the Annual General Meeting and General Assembly of World Sailing held on 13 November 2016 (Exh. 3)
Chart World Sailing – TSE overview of collaboration Nov-Dec 2016 (Exh. 4)
Minutes of the Board meeting held in November 2017 (Exh. 5)
The final draft of the World Sailing Scheme of Delegation (Exh. 6)
MNA Survey dated May 2017 (Exh. 7)
New contracts report from 12 November 2016 to 9 February 2017 (Exh. 8)
World Sailing 2016 Induction Booklet (Exh. 9)
World Sailing Register of Interests (Exh. 10)
Minutes of Board meeting held in December 2016 (Exh. 11)
Chain of emails from 24 to 30 November 2016 (Exh. 12)
Reflections on Board meeting in Dubai (Exh. 13)
Chain of emails from 14 to 21 December 2016 (Exh. 14)
Minutes of the Board meeting of February 2017 (Exh. 15)
Minutes of the Board meeting of November 2017 (Exh. 16)
Chain of emails from 9 to 11 September 2017 (Exh. 17)
Chain of emails from 9 and 10 October 2017 (Exh. 18)
Email of 2 November 2017 (Exh. 19)
Email of 30 November 2017 (Exh. 20)
Email of 3 May 2020 (Exh. 21)
Table of amounts paid to TSE (Exh. 22)
Minutes of Board meeting of 6 May 2017 (Exh. 23)
TSE time-sheets for January - February 2017 (Exh. 24)
TSE December 2016 to April 2017 invoices (Exh. 25)
Email of Mrs Anna Harboe of 9 October 2020 (Exh. 26)
Email of Mr Lars Haue-Pedersen of 8 October 2020 (Exh. 27)
Minutes of the Board meeting of July 2017 (Exh. 28)
bb. Minutes of the Board meeting of December 2017 (Exh. 29) cc. Minutes of the Board meeting of September 2017 (Exh. 30)
3. ANALYSIS OF THE DOCUMENTARY EVIDENCE A. TSE Agreement
The agreement between TSE and World Sailing was entered into on 24 November 2016.
It was signed by Mr Lars Haue-Pedersen, as Managing Director of TSE, and Mr Kim Andersen, as President of World Sailing.
Under Article 1, “Appointment”, the agreement provides that “World Sailing appoints TSE to assist them in helping Kim Andersen in his role as World Sailing President. Being new to the position, it is important to use the positive momentum created by his election to unite the MNAs around the world and further strengthen his role and that of World Sailing within the international sport community.”
Under Article 3, “TSE’s obligations”, the agreement provides that “TSE will continue to assist world sailing by adding Kim Anderson in his new role as world sailing president. It is important to use the positive momentum created by his election to unite the MNAs around the world and further strengthen his role and that of World Sailing within the international sport community.”
The agreement commenced in mid-November 2016 and was due to continue until the end of June 2017 (Article 2).
The agreement provides for communication services such as providing content for Mr Andersen’s presidential priorities, coordinating interview requests, managing Twitter, Facebook, LinkedIn and “Presidential Newsletters efforts”, answering all Presidential exchanges including formulating email responses, drafting of content of Presidential related press releases, speeches and presentations, development of a targeted IOC/IPC and MNA outreach strategy, activation of strategic messaging, preparation and coordination of key meetings, and meet & greets, as well as strategic advice and evaluation survey (Article 3).
44. Mrs Tanya Heimlich-Ng Yuen was to have overall responsibility for the project.
45. The fees are an hourly rate of CHF 250/hour, for an estimate of 50-60 hours per month from mid-November 2016 to the end of June 2017, which amounts to CHF 12,500 to CHF 15,000 per month.
B. Minutes of the 13 November 2016 Annual General Meeting and General Assembly
46. Mr Andersen was elected at this meeting (Exh. 3).
C. 24 to 30 November 2016 emails
From 24 November to 30 November 2016, Mrs Heimlich-Ng Yuen sent emails to parties external to World Sailing using Mr Andersen’s World Sailing email address (Exh. 12).
On 30 November 2016, Mr Hunt raised the issue with Mr Andersen, stating:
One thing I forgot to discuss with you last night and perhaps we can pick up when next speak on the phone, but I am concerned about Tanya from TSE sending emails from a World Sailing email account looking as though she is a World Sailing employee when World Sailing have no direct relationship or contract with TSE. This clearly exposes World Sailing from a legal perspective and perhaps until there is a direct World Sailing contract with TSE for specific services Tanya should refrain from doing this or may be Tanya could operate from one of your personal email accounts so it is clear to recipients she is not an employee of World Sailing or state (Consultant to the President) and remove the email footer?
Mr Andersen replied on the same date:
I have the contract and the job specifikation agreed, - so on that I will get you up to speed when we med i in Dubai. The contract is signed from TSE but not from me or World Sailing!
About exposing World Sailing lets discuss, - but I see this as a minor risk, - right now we have major issues at hand in World Sailing.
The email exchange ends with Mr Hunt asking Mr Andersen to send the contract.
D. Minutes of the 10 – 11 December 2016 Board meeting
51. At the Board meeting, at the time of the register and declaration of conflicts of interest, Mr Andersen indicated that he had no connections with the Danish Sailing Association and that he was the chairman of the nominating committee for the Royal Danish Yacht Club (Exh. 11).
The Board decided that “[o]n specific items, the President and Vice-President must declare their various conflicts of interest (if any) and Board will decide case by case whether the Vice-President should take part in the discussion or be asked to leave the room during that particular item”.
The minutes do not reflect that the TSE Agreement was discussed at this Board meeting.
This fact is confirmed by the testimonies of the Board members (see Exh. 34).
Board members and staff members have confirmed that contracts entered into by World Sailing have to be registered into a file and the original kept in a safe, but this was never done with the TSE Agreement (see Exh. 34).
E. Follow-up from the Board meeting and circulation of the TSE contract (Exh. 14)
On 14 December 2016, Mr Andersen sent the Board members a document entitled “Reflections from our board meeting in Dubai” (Exh. 13).
This document read, in its last part:
Budget 2017 – Just before leaving there was a question regarding the costs for the TSE consulting cost`s. I have signed up TSC for the following reasons/work until mid 2017:
Supporting me in the role as president for WS to build and strengthen World Sailing within the internationally sports community and to strengthen WS connection to IOC on the political level rebuilding contacts to IOC members witch has not been maintained during the past 10 years. (I have to note that Andy is having excellent contacts on the operational level.)
Development and activation of an outreach Para Olympic strategy for IOC members.
Communication services – Secure and coordinate interviews across international sports and social media. On a monthly basis to send out newsletters from the WS president reaching out to MNA`s.
Preparation and coordinating of key meetings, - letters, speeches, preparation contacts, - etc.
Advice on relations and international contacts.
Upon receipt of this email, Mrs Dawson replied (Exh. 14):
Thanks for your note. I have one comment/concern regarding the contract with TSE an the budgeted amount of GBP 100,000. I understand that you have initiated this contract and there has been no oversight by the previous Board.
In my experience, it is a good practice and a protection for the President, Board and management, that any material contracts, commitments or expenses that the Chair/President wants to incur or sign should be signed off by either the full Board or the Chair of the Audit Committee. I consider that a contract with TSE, with the proposed spend, would fall into a material commitment for the organization.
I have had the Delegation Policy, included in the Induction booklet and it needs to be more structured and complete in these areas as the focus is a delegation on signing expenses up to GBP 5000.
Irrespective of this I consider that given the nature of the contract and in the spirit of transparency the full contract should come to the Board for approval.
59. On 21 December 2016, Mr Andersen sent an email to the Board members forwarding the TSE Agreement and a table summarizing the hours charged by TSE in November and December 2016, which amounted to CHF 22,500. The email read as follows:
Please find attached the agreement with TSE.
As outlined in the “Reflections on our board meeting in Dubai” the agreement is to support a positive transition for the president of World Sailing and continue an open dialog for World Sailing with the stakeholders of the sport. The cost of the agreement is depending on the support calculate on an hourly basis ,- the period of the agreement is till end of June 2017. The budgeted figure is calculated on 40- 50 hours a month basis.
As you can imagine the first period into the new position has bee very busy and TSE has been a super professional support and the service appreciated by our stakeholders. For the period November and December the house used have been a total of 90 , - for 114 letters, 11 interviews, 4 speeches and arranging meetings with 7 IOC members.
Just to be clear there were never any secret about the contract, - it's a professional way of dealing with the transition period. The goal must be to have the same level of professionalism and agility within World Sailing going forward and I am sure we will, - but right now the focus must be to support Andy in developing a strong organization and at the same time to deal with the challenge of relocation.
60. Mr Jobson was the only one to react to this email, thanking Mr Andersen for it.
F. The discussions about the TSE Agreement in 2017
i. Board documents and minutes
The TSE Agreement is not mentioned in a New Contracts Report for the period 12 November 2016 to 9 February 2017 (Exh. 8), nor in the minutes of the Board meeting held in Cape Town, South Africa, in February 2017 (Exh. 15).
It was not mentioned either in the Board minutes of March and April 2017.
In May 2017, the CEO presented the MNA survey prepared by TSE.
From June to October 2017, the Board minutes do not mention TSE.
In the November 2017 board minutes, Mr Andersen reported that a new contract had been signed with TSE but that once the new staff member came onboard the relationship would be reduced to the levels agreed at the Madrid board meeting in September 2017 (Exh. 16).
Starting in September 2017, emails were exchanged regarding TSE.
In an email of 9 September 2017 (Exh. 17), Mr Perry wrote to Mr Andersen:
Very discreetly I have asked both Gary and Mrs Dawson what their understanding of the TSE conversation we had at our closed board meeting in Madrid. Both believe that we agreed you would engage with TSE to have a new contract going forward until the end of the year. The new TSE contract would cover the World Sailing, and your, relationship with the IOC and related parties (ASOIF etc). Tasks involving social media and other secretarial matters (drafting of statements etc ) would be handled in house.
If you agree with the above statement I would suggest that we pay TSE’s latest invoice covering the July/August period and await the outcome of your negotiations with TSE before we pay any further bills.
Mr Andersen replied on 11 September 2017:
I don't believe you have to ask “discreetly” as we have nothing to hide. The fact are as you are mentioning.
But we have to be clear that at the meeting we were not happy with the service level of the office, we have concerns on the lack of knowledge of the CEO and the lack of ability for the
Executive team to actually fulfill the roles you would expect from an executive team. On top the recruitment to support the president and the CEO that not been hired yet, - this will at the earliest happen starting 1st of November,- I am sure we are doing everything we can to make it happen.
We are already reducing the hours from TSE, - but when Gazprom, the Asso-Lasser, EU legislation issues, IOC enquiries are coming it's not really under control until we have an organized office.
So as agreed I will talk with TSE to make a contract till year end,- but we cannot stop communication!
69. On 9 October 2017, Mr Jobson wrote to Mr Perry and Mrs Dawson asking about the new TSE contract (Exh. 18):
Scott, Mrs Dawson: have we received the proposal from TSE for continuing public relations work?
The last we left it we were due to receive a modified plan for PR services relative to IOC. The social media portion, speech writing and press releases where to revert to the staff.
The cost of TSE is very high, and we will be difficult to sustain. Remind me what the limit of funding is without Board approval ?
We paid their invoices through May, and, I believe, we extended TSE for June and July.
70. Mr Perry answered Mr Jobson on 10 October 2017:
The last TSE invoice I approved was for Swiss francs 24,250 (approx. US $ 26,000 ) covering the July/August period. My understanding was that Kim would seek a new deal with TSE for the remainder of the year along the lines you describe. I don't know if this had been done.
The approval limit has to be within the Budget agreed by the Board. This, in fact, was the big issue with the TSE contract as it was never brought before the Board.
From memory area managers like Alistair on Ellen can individually approve up to GBP 300, from GBP 300 to GBP 3,000 it needs the approval of a manager and the CEO. Anything over GBP 3,000 must be approved by any of two of the CEO, the President and a Vice President (usually myself but it can be any VP).
71. On 2 November 2017, Mr Andersen sent an email to the whole Board (Exh. 19):
I would like to give you an update on the agreement with TSE, as agreed on our meeting in Madrid I have had a meeting with TSE outlining the plans for the World Sailing office to service the president going forward and for TSE only to be used for advice and support regarding IOC matters.
As informed on the last board call we have finally hired a candidate for the support function to the president and CEO,- her name is Niva Shrestha, Canadian with and excellent background and experience. Niva has short notice and right now is the work permit for UK which is not making it possible to set a date for Niva to join the team in London.
It's agreed that TSE will support until we have the organization in place, and they are informed that we have hired the candidate and that she is awaiting work permit for the UK. We have made an agreement for up to 40 hours pr. month vs up to 60 hours in the old contract reflecting the transition.
The plan is as soon as Niva is in place to transfer order contacts and communications from TSE.
I hope this is in line with what agreed at the Madrid meeting.
72. On 30 November 2017, Mrs Dawson sent an email to Mr Hunt copying Mr Andersen as well as the Board, entitled November Board minutes (Exh. 20). This email read as follows:
I have said below some comments and questions on these minutes.
1 (d) iii I am not sure we want this TSE contact details in the minutes but I think it is appropriate to record the details of what we agreed on this arrangement.
I am very conscious that there is no budget for TSE in the remainder of 2017 or 2018 budget. I believe that we agreed that TSE would be used on a very restricted basis for very specific tasks only and not on a retainer or monthly basis.
The arrangement has cost a significant amount in the first year while we rebuild the marketing/comms and support team and the relationship with IOC, but now these resources are in place, the task such as social media and news letters, etc should carried out by the Executive team. Any specific one off work that is proposed to be completed by TSE should be costed and pre approved.
73. On 3 May 2020, Mr Perry sent an email to Mrs Dawson (Exh. 21):
Precisely the point. The contract was:
- NOT discussed or presented to the Board BEFORE it was signed on 24th November. - NOT signed by the CEO as claimed by Kim. Any contract of that size required two signatures.
Finally no tender process was carried out which would be normal for contract of that size.
I wrote to Kim making the above points. Today he apologized, in writing, and said that we can talk about it at the Tuesday board meeting. My only point is that I personally don't want anybody to think that I approved the TSE contract which, as you know, I was very much against it from the moment I learned about it.
4. DISCUSSION AND FINDINGS
The Ethics Officer has been appointed pursuant to Regulation 36 of the Rules of Procedure of the World Sailing Ethics Commission. Regulation 36.4 of such Rules provides that an ethics officer is responsible to investigate a violation of the Code.
The Complaint alleges the following infringements of the Code of Ethics: violation of sections 1.1(a), 1.3(d) and (e), 1.6(c), 1.8(a) and 1.9(a), (b) and (c) of the Code of Ethics.
Section 1.1(a) provides as follows:
World Sailing and each of its members, any candidate for election to a World Sailing office or MNA office, members of its Council and its Committees, Commissions and working parties, World Sailing Race Officials, or any person, official or body subject to the World Sailing Constitution or World Sailing Regulations, all other World Sailing Representatives, Organising committees of any World Sailing events and World Sailing Classes (hereinafter “World Sailing Parties”) should be bound by, respect and comply with the World Sailing Code of Ethics.
Section 1.3(d) provides as follows:
World Sailing Parties should respect any applicable rules concerning conflicts of interests affecting the behavior of World Sailing Parties.
Section 1.3(e) provides as follows:
World Sailing Parties should use due care and diligence in performing any function for World Sailing. They must not act in a manner that will or is likely to tarnish the reputation of World Sailing.
Section 1.6(c) provides as follows:
World Sailing Parties shall endeavor to protect the environment on the occasion of any events they organise and to uphold generally accepted standard for environmental Protection.
Section 1.8(a) provides as follows: Implementation:
(a) World Sailing Parties should ensure that the principles and the rules of the code of ethics are always applied.
Section 1.9(a) provides as follows:
World Sailing Parties before being elected or appointed to any World Sailing office shall disclose any personal interests (as defined by section 1.9(b) below) to the Chief Executive Officer who may publish the same if they may be linked or be relevant to such election or appointment.
Section 1.9(b) provides as follows :
World Sailing Parties shall avoid any situation that could lead to a conflict of interests. Conflicts of interests arise if World Sailing Parties have private or personal interests that detract from their ability to perform their function with integrity in an independent and purposeful manner. Private and personal interests include gaining any actual or possible advantage for a person, their family, relatives, friends or acquaintances, or business associates or partners. [...]
Section 1.9(c) provides as follows:
World Sailing Parties shall not perform their functions where there is an existing or potential conflict of interest unless it has been disclosed and those with the appropriate authority within World Sailing have confirmed in writing they may perform such function.
In their submission, Mr Andersen’s lawyers also refer to Sections 3.1 and 4.1 of World Sailing’s Policy on Conflicts of Interests (the “Policy”).
85. Section 3.1 identifies two types of conflict:
(a) A conflict of interest - this is where a party has an interest personal to them (which may be financial or non financial) which conflicts, or may conflict, with the best interests of World Sailing.
(b) Aconflictofduties-thisiswhereapartyowesadutytoanotherbody(such as being an employee, elected official, shareholder, trustee etc.) that conflicts, or may conflict where their duties to act in the best interests of World Sailing.
This type of conflict does not have to be personal or financial to the party.
Section 4.1 defines what a connected person is:
A conflict can still rise if it involves a payment or benefit being given to a third party connected to the party in question. A connected person is:
(a) any parent, grandparent, child, step child, grandchild, brother, sister or spouse of a party or any person living with the party as his or her partner ;
(b) a firm, company or Association in which the Party is a partner, officer, employee, consultant, director, member or shareholder (unless the Party owns no more than 1% of the issued shares on a recognized stock exchange) ;
(c) a firm or company in which an individual listed in ( a ) above is connected in new ways set out in (b).
The Policy does not refer to the Conflicts of Interests provisions set out in the Code of Ethics, or vice versa. Therefore, the relationship between the two sets of regulations is unclear. However, the Ethics Officer interprets the Policy to be the general rule, whilst the Code of Ethics pertain to the rules applicable before the Ethics Commission.
Of particular relevance in the matter at hand are Sections 1.9 (a), (b) and (c) of the Code of Ethics.
Pursuant to these Sections, World Sailing Parties must avoid conflicts of interest; if one arises, they must refrain from performing their functions until such conflict has been disclosed and cleared by the relevant authority. Conflicts of interests are private or personal interests that detract World Sailing Parties from their ability to perform their function with integrity in an independent and purposeful manner.
Therefore, the questions that arise here are as follows:
1) Did Mr Andersen have a private or personal interest that detracted him from his ability to perform his function with integrity in an independent and purposeful manner?
2) If so, did Mr Andersen properly disclose it?
It is undisputed that Mr Andersen entered into an agreement with TSE in December 2016. The issue, however, is whether the TSE Agreement reflected a private or personal interest of Mr Andersen in relation to TSE that detracted him from performing his function with integrity. If this is the case, then the conclusion must be that Mr Andersen had a conflict of interest. The final question is then whether Mr Andersen properly disclosed this conflict and was cleared of it.
A. DID MR ANDERSEN HAVE A PRIVATE OR PERSONAL INTEREST IN RELATION TO TSE THAT DETRACTED HIM FROM HIS ABILITY TO PERFORM HIS FUNCTION WITH INTEGRITY IN AN INDEPENDENT AND PURPOSEFUL MANNER?
i. Does Mr Andersen have a relation with TSE?
92. The question of the prior relationship of Mr Andersen with TSE has been raised in the Complaint as well as questioned in other instances.
93.In the townhall meeting whose recording link was included in the Complaint (https://www.youtube.com/watch?v=lbhbAvhrLeU&feature=youtu.be), the relevant part of which starts at about 1h25 minutes, Mr Andersen indicates that TSE was not involved in developing his campaign or the manifesto and was not at all close to his campaign. He continues by stating that TSE was part of the Danish delegation in Barcelona coordinating as translator and was paid by the Danish NOC and MNA.
In Board meetings or in declaration of interests (see paragraph 51 and Exh. 11), Mr Andersen has never disclosed holding an interest with TSE or with the Danish Sailing Federation. He has indicated being part of the nominating committee of the Royal Danish Yacht Club, a club which is a member of the Danish Sailing Federation.
In his written submission as well as during his Interview, Mr Andersen has confirmed that TSE had been hired by the Danish NOC, which has a long-term agreement with TSE. He provided the Ethics Officer with a copy of TSE’s invoice to the Danish NOC (Exhibit 2 to Mr Andersen’s submission). Mr Andersen also stated, as was confirmed in his submission, that he had a first contact with a person from TSE during the days leading to the Barcelona meeting.
Members of the Danish Sailing Federation, when interviewed by the Ethics Officer, indicated that TSE had been hired by the Danish Sports Association/NOC to support Mr Andersen at the election meeting with translation and assistance. The members of the Danish Sailing Federation indicated that the services of TSE were not required before the election and that Mr Andersen prepared his manifesto on his own (see Exh. 34).
Mr Lars Haue-Pedersen, head of BWC (formerly TSE), stated in an email (Exh. 27) that BCW was contracted by the Danish Olympic Committee to support Kim Anderson during the congress in Barcelona with logistics, translations and social media. BCW was hired by the Danish Olympic Committee a few weeks prior to the congress and the first contact with Mr. Andersen occurred a few days before arriving in Barcelona; thus BCW was not involved in the production of a manifesto or any campaign build up. Moreover, BCW stated that it did not discuss any future involvement with World Sailing if Mr Andersen won the elections.
Based on the above evidence, the Ethics Officer finds that TSE was involved in the campaign of Mr Andersen coming up to and during the meeting that lead to the election, but was hired by the Danish NOC. The Ethics Officer finds it plausible that Mr Andersen met on the phone with the representative of TSE, Mrs Tanya Heimlich-Ng Yuen, only shortly before the election.
TSE’s involvement in Mr Andersen’s campaign does however not, per se, lead to a finding that Mr Andersen had a private or personal interest in TSE that impaired his
ability to perform his function with integrity and purpose, and hence would lead to a conflict. These points are therefore examined below.
ii. Has Mr Andersen a private or personal interest in the services rendered by TSE?
100. Section 1.9(b) provides that “private and personal interests include gaining any actual or possible advantage for a person, their family, relatives, friends or acquaintances, or business associations or partners”. The distinction between private and personal interests is unclear to the Ethics Officer. Given, however, that theses notions are close in meaning, she chooses not to distinguish one from the other.
101. The wording of Section 1.9(b) is broad. According to this provision, actual or possible advantages can be gained not only for the conflicted party, but also for his or her circle of relatives and business partners. Moreover, Section 3.1 of the Policy specifies that the interest may be financial or non-financial.
102. The Ethics Officer considers that this broad language does not call for direct evidence only, but allows for other evidence, in particular of a circumstantial nature.
103. Two circumstances are in particular interest to the Ethics Officer: first, the role and involvement of Mrs Tanya Heimlich-Ng Yuen; second, are the types of services rendered under the TSE Agreement.
(1) Role and involvement of Mrs Tanya Heimlich-Ng Yuen
104. Mrs Heimlich-Ng Yuen was the person in charge of assisting Mr Andersen in Barcelona.
105. Mrs Helen Fry testified that Mrs Heimlich-Ng Yuen was present during the election in Barcelona. Mrs Fry indicated that she had been told that Mrs Heimlich-Ng Yuen was in charge of the social media presence of Mr Andersen. Therefore, Mrs Fry’s testimony confirms that the statement of Mr Haue-Pedersen that TSE was involved with the social media campaign of Mr Andersen (see paragraph 97).
106. In his written submission as well as in his interview, Mr Andersen confirmed that he was introduced to Mrs Heimlich-Ng Yuen in Barcelona, where she was present to assist him. He never mentions, however, that Mrs Heimlich-Ng Yuen was involved in his social media feed, contrary to Mr Haue-Pedersen’s statement.
107. Shortly after the election, Mrs Heimlich-Ng Yuen started supporting Mr Andersen. In fact, on the same date as the TSE Agreement was signed by TSE, Mrs Heimlich-Ng Yuen started sending emails from Mr Andersen’s email address (Exh. 12).
108. When asked about this fact during the interview, Mr Andersen replied that she was answering congratulations letters. However, Exhibit 12 shows that she was answering ASOIF’s president and proposing to arrange a meeting. Mr Andersen did not discuss this issue in his submission.
109. In the interview, Mr Andersen explains that Mr Hunt and himself had discussed his support at a meeting. Mr Andersen filed with his submission an email dated 17
November 2016, recapping what was said at that meeting (see Exh. 4 Mr Andersen’s submission). Item 15 of the email shows that it was Mr Andersen who was to propose requirements for presidential support.
110. Thus, there seems that Mr Andersen was quick to enroll Mrs Heimlich-Ng Yuen’s help, when the TSE agreement was not yet signed by World Sailing. Mrs Heimlich-Ng Yuen was entrusted with work for World Sailing that went beyond replying to congratulations letters, since she was trying to organize a meeting with ASOIF president, using Mr Andersen’s email address to do so (Exh. 12).
111. In addition, Mrs Fry testified that Mrs Heimlich-Ng Yuen was later invited personally by Mr Andersen at the SportAccord dinner in April 2017. Mr Andersen explained this circumstance by the fact that Mrs Heimlich-Ng Yuen had been drafting his speech. Mr Andersen chose not to explain this issue further in his submission.
112. From the above circumstances, the Ethics Officer understands that whilst it is probably correct that Mr Andersen did not know Mrs Heimlich-Ng Yuen before the Barcelona meeting, he decided to employ her services very quickly thereafter, without the TSE Agreement being signed by World Sailing, and for matters more involved that the mere reply of congratulations letters. Therefore, it seems that Mr Andersen was fast to use resources paid for by World Sailing for himself without the agreement of World Sailing.
(2) Types of services rendered under the TSE Agreement
113. The Ethics Officer noted the TSE Agreement states, under Article 3, that that “TSE will continue to assist world sailing by aiding Kim Anderson in his new role as world sailing president.” The remaining of the article repeats word for word Article 1 of the same agreement.
114. Mr Andersen explained during his interview that he did not know why the TSE Agreement was formulated in this fashion, that it was probably a matter of speaking. He did not address this particular issue in his submission.
115. During the townhall meeting, Mr Andersen said that an agreement with TSE was needed in order to ensure communication and cooperation with the MNAs. During his interview, Mr Andersen explained that the involvement of TSE in the context of the MNA cooperation started in January after it became obvious that the World Sailing office was not in a position to provide the service, whilst in his submission, Mr Andersen explains that the intention was to outsource it to TSE as of the time of the Dubai meeting in December 2016.
116. In his submission, Mr Andersen explains that, at the Dubai meeting, the Board discussed inter alia the need for other services such as the recovery of money from Gazprom and further assistance to assist the CEO and president in fulfilling their duties, and that these were eventually outsourced to TSE.
117. Whilst Mr Andersen has repeatedly explained that the agreement with TSE aimed at helping the relationship between World Sailing and the IOC, the work done with the IOC is not the post that costs the most on the TSE invoices. For instance, in
the details of the invoice for the period from January to February 2017, there are only 16 hours spent on the IOC/IPC/IF work, whilst hours spent on communication amount to 55 (Exh. 24). Other detailed invoices for March-April and May-June 2017 were requested by the Ethics Officer, but she was told by World Sailing staff that these documents were missing. The TSE hours provided by Mr Andersen also show that at least an equal amount of time is spent on external communication as on IOC, when it is not more (Exh. 5 of Mr Andersen’s submission).
118. Moreover, all Board members reported that they were never contacted by TSE. All early (December 2016 to April 2017) invoices bear a stamp with handwritten note “Mr Andersen’s/president’ expenses” (Exh. 25), which leads the Ethic Officer to think that the TSE services were in fact really targeted towards the support of Mr Andersen.
119. Consequently, it appears that although TSE did help with the MNA survey and the IOC, the bulk of the work was to support Mr Andersen. Moreover, the evidence shows that the TSE Agreement kept on being extended, costing a lot to World Sailing, although Board members questioned its purpose as TSE never did any work for them.
120. Whilst Mr Andersen explains that the necessity for TSE’s services “substantially decreased” towards the end of 2018, the graphic provided in his submission shows that amounts paid to TSE remained important at all times.
121. Therefore, the Ethics Officer finds that Mr Andersen had an actual, or at least possible, private or personal interest with respect to the TSE Agreement because this agreement was mostly entered into to assist him and, possibly, Mr Hunt. However, Mr Hunt declined the Ethics Officer’s invitation to be interviewed so that this could not be clarified by him.
iii. Was Mr Andersen detracted from his ability to perform his function with integrity in an independent and purposeful manner because of his relationship with TSE?
122. The question is then whether this interest amounted to a conflict because the possible interest gained by Mr Andersen detracted him from his ability to perform his function with integrity in an independent and purposeful manner.
123. Two instances are, in the Ethics Officer’s view, of particular importance when evaluating Mr Andersen’s integrity and independence in the performance of his function. First, the circumstances surrounding the signing of the Agreement, and second, the approval of the TSE Agreement by the Board. Both set of circumstances are analyzed below.
(1) Circumstances surrounding the signing of the TSE Agreement
124. Mr Andersen claimed during the interview that he had nothing to hide about the TSE Agreement. However, the Ethics Officer finds that the circumstances surrounding the signing of the TSE Agreement are not straightforward.
125. For one thing, Mr Andersen contradicted himself when interrogated about the TSE Agreement. At first, when questioned whether the TSE Agreement was discussed in Dubai, Mr Andersen answered that the Agreement was not discussed there, only to
admit that perhaps it was after the Ethics Officer showed him Exhibit 13, the document entitled “Reflections from our meeting in Dubai dated 14 December 2016”, where the TSE Agreement is mentioned. In his submission, Mr Andersen explained that he signed the TSE Agreement after the Dubai board meeting.
126. It is clear, however, that both Mr Hunt and Mr Andersen had decided prior to the Dubai meeting to enter into an agreement with TSE. In fact, this agreement was already in existence and signed by TSE before this meeting: World Sailing’s signature was the only one missing.
127. Mr Andersen provided evidence that although the TSE Agreement was dated 24 November 2016, it was signed by him on 14 December 2016, after the Dubai board meeting (Exhibit 3 of Mr Andersen’s submission). Yet, neither Mr Andersen nor Mr Hunt sought to have the TSE Agreement approved at the Board meeting, nor did they even show the draft during the meeting.
128. In his submission, Mr Andersen discusses at length the fact that Mr Hunt, as the CEO, had the power and competency to enter into agreements such as the TSE Agreement, and this is the reason why there was no need to put it to vote to the Board.
129. Mrs Dawson indicated that the regulations are silent with respect to who has the authority to enter into contracts, but that it is generally admitted that the President is competent to enter into commercial contracts (see Exh. 34).
130. The Ethics Officer has indeed not found anything in the Articles of Association pertaining to the President’s authority to enter into commercial contracts. However, even admitting that Mr Andersen had authority to sign the agreement, a further issue is whether he was within the monetary limits provided by the World Sailing Induction booklet to sign it on his own (Exh. 9).
131. In light of the above, the Ethics Officer finds that the circumstances surrounding the signing of the TSE Agreement show a lack of concern on the part of Mr Andersen for the proper procedures to be followed within World Sailing. These circumstances make it appear as though Mr Andersen was intent on having a professional support and was not ready to risk not obtaining it by following rules that might have led to a refusal by the Board.
(2) Approval of the TSE Agreement
132. The TSE Agreement provides for payments to TSE for 50 to 60 hours of work at a rate of CHF 250/hour, or of between CHF 12,500/ GBP 9,875 to CHF 15,000 / GPB 11,8501 a month (see paragraph 45 above). In fact, the services rendered by TSE ended costing World Sailing, for the period of December 2016 to November 2018, GBP 192,613.50 (Exh. 22).
133. At the time, expenditures above GBP 5000 needed the signatures of the CEO and either a Vice-President with finance responsibility or the President (see Exh. 9, World Sailing Induction booklet; see also testimonies of Mr Perry and Mr Jobson, and
1 Calculated with historical CHF/GBP rate in November 2016
email of 14 December 2016 of Mrs Dawson, reproduced at paragraph 58). GBP 5000 represents about 25 hours of work at TSE’s agreed rate.
134. Although the TSE Agreement did not provide for a set amount, the budgeted amount was well over the limit for a single signature. Hence, based on the contract budget already, the TSE Agreement should have been signed by another person in addition to Mr Andersen.
135. In his submission, Mr Andersen argues that the Authorization Policy was altered after the February 2017 Board meeting to delegate greater financial authority to the CEO.
136. It remains nevertheless that given the uncertainty, at the time of signing, about the amounts engaged and about the validity of the delegation of authority from the CEO to the President, proper governance would have called to secure a second signature.
137. Moreover, the TSE Agreement was never properly registered in the register of World Sailing (see testimony of Mrs Fry; this fact was also confirmed by Mrs Harris; Mr Perry confirmed that all contracts had to be registered), so that some Board members felt that it was a secret deal (see Mr Jobson’s interview, at Exh. 34).
138. During the interview, Mr Andersen stated the Board did not have the responsibility for hiring the resources and hence was also not competent to ratify it.
139. However, the interviews conducted with the Board members show that the Board members would have liked to know about the TSE Agreement in more details, and in particular regarding its financial implications. When the TSE Agreement was first discussed with the Board, the members were told that TSE was paid per hour. As a result, they were not alerted to the financial burden that the TSE Agreement represented. However, when invoices above 20,000 CHF started arriving, members of the Board reacted and questioned Mr Andersen and Mr Hunt.
140. No minutes of Board meeting show a formal approval of the TSE Agreement of 24 November 2016, nor of its reconductions in July 2017 (Exh. 28) and December 2017 (Exh. 29). Although Board members have testified that the TSE Agreement was discussed in Madrid, nothing appears in the minutes of the September Board meeting (Exh. 30).
141. Therefore, the Ethics Officer finds that the TSE Agreement was not properly approved, nor ratified.
142. Whilst Board members were repeatedly told that TSE would stop working as soon as the World Sailing staff was able to do the work, TSE invoices show that payments to TSE were made until November 2018 (Exh. 22), so that it can reasonably be assumed that TSE continued working until that date.
143. Mr Andersen shows, with the help of a graphic, that the costs of the TSE Agreement have significantly decreased. However, the total amount spent on TSE over the two years its services were used by World Sailing, remains high.
144. Mr Andersen should have been more forthright about the financial implications of the TSE Agreement and the fact that it was agreed upon, albeit not signed, prior to the first Board meeting. Moreover, Mr Andersen should have sought proper approval of the Agreement. Mr Andersen was mostly interested about his own support and showed disregard for World Sailing’s interests, in particular financial. The Ethics Officer finds that Mr Andersen did not show integrity for World Sailing when entering into the TSE Agreement.
145. Consequently, the Ethics Officer finds that Mr Andersen had a private or personal interest in relation to TSE that detracted him from his ability to perform his function with integrity in an independent and purposeful manner.
146. The Ethics Officer has not found any evidence showing that Mr Andersen disclosed any conflict of interest in relation to TSE. When asked by Board members, Mr Andersen did not disclose that TSE was doing a lot of work for him, as evidenced by the notes on the invoices (see paragraph 118).
147. The Ethics Officer finds that Mr Andersen did not disclose his conflict. V . DECISION
148. Pursuant to Article 36.10 of the Regulations, the Ethics Officer shall choose one of three options in furtherance of the investigation:
(a) Take no further action; or (b) Issue a warning to a Party in the report, and thereafter take no further action; or (c) Charge any Party with a breach of the Code.
149. The Code of Ethics does not indicate the circumstances that must be considered by an ethics officer when deciding between issuing a warning or charging a Party with a breach of the Code. In considering what action to take, the Ethics Officer pays particular attention to Articles 2.1 to 2.4 of the Conflicts of Interests Policy, that state as follows:
2.1 Parties have an obligation to act in the best interests of World Sailing and in accordance with the Constitution and Regulations. They are expected to act impartially and objectively and to actively take steps to avoid Conflicts.
2.2 Conflicts matter because they affect discussions and decision- making and may result in decisions being reached that are not in the best interests of World Sailing. They can give the impression – both internally and to the wider public – that improper conduct has occurred even when it has not.
2.3 Conflicts come in a number of different forms. It is primarily the responsibility of each Party to identify if there is a Conflict or potential Conflict that may affect them or someone connected to them.
2.4 This Policy is not intended to adversely affect normal decision making within World Sailing. It is intended to make it more
transparent, and to allow the management of Conflicts that will inevitably arise. It is important that management of a Conflict is proportionate to the risk that it poses to the best interests of World Sailing.
150. These articles illustrate the need for World Sailing parties to abide by the best interests of World Sailing, as well as the importance of transparency and the concern for the image to the wider public.
151. In his submission, Mr Andersen argues that he had no interest, financial or non- financial, in engaging the services of TSE, and that he owed no duty to TSE. He states that the TSE agreement was “just another consultancy contract” amongst others, for which no tender was required as no tender process is needed for consultancy agreements.
152. While it is true that Mr Andersen had most probably no financial interest and owed no duty to TSE, the articles of the Policy quoted above show that a conflict can exist in the absence of a financial interest or a duty owed. The fact remains that Mr Andersen negotiated an agreement with a consultancy firm prior to the first Board meeting, for amounts that could be, and ended up being, well-above the authorized threshold of a single signature, and that this Agreement was continued well past the time it was initially intended for. Although it appears that, as Mr Andersen alleges, contracts are not subject to tenders at World Sailing, it would have been well-advised, when a second extension of the agreement was discussed, to ask other firms to tender offers with a view to at least renegotiate the TSE agreement.
153. Hence, the Ethics Officer finds that proper governance as well as transparency concerns would have called for a disclosure of the potential conflict, to allow World Sailing to decide how to respond. The fact that this was not done, is further evidence to the Ethics Officer that Mr Andersen did not wish to play by the rules of World Sailing, but rather by his own rules.
154. This attitude was also apparent during the present Ethics proceedings, where many hurdles were thrown at the Ethics Officer in an attempt to stop or disturb the proceedings.
155. In light of the important financial costs incurred by World Sailing through the hiring of TSE, that show a disregard of the best interests of World Sailing, the Ethics Officer finds that Mr Andersen breached Sections 1.9(a), 1.9(b) and 1.9(c) of the Code of Ethics and decides to charge Mr Andersen with a violation of the Code of Ethics.
Geneva, 29 October 2020
Laurence Burger, Ethics Officer