Tim Starling wrote:
Gerard Meijssen wrote:
I am amazed that you suggest that an officer of
the Wikimedia Foundation
would be personally liable for the work done as an officer. I would
expect that an officer of an organisation speaks for the organisation
and as a consequence the organisation is liable for the actions of its
personnel. Normally someone employed by an organisation is liable only
when gross incompetence can be proven or in cases where the law has been
violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee
is personally liable for his actions as an employee of the Wikimedia
Foundation.
Well, firstly IANAL and secondly most of my legal knowedge comes from studying
Australian law rather
than US law. But my understanding is that civil liability for the action of employees
rests with the
corporation or individual employing them. This is called vicarious liability.
Gerard's response on this seemed naïve. No-one wants to go into a
situation where there is a high risk of liability, But these things do
happen, and there are situations where the law needs to pierce the
corporate veil when the corporate structure is there to assist in the
perpetration of a scam. In some cases liability insurance can be
purchased, but that too can be expensive. It's also important to
remember the level of litigiousness that is found in US society. A
plaintiff will often cast a wide net in the hopes of catching the right
victim with deep enough pockets to pay for the wrongdoings of a
penniless associate. This can be a frightful experience when people
with only marginal involvement find themselves put through the expense
of defending themselves in court.
Members of the Board of Directors are not ordinary
employees though, and I think Danny's implication
was that the Board is responsible for the actions of the corporation. At common law, the
civil
liability is limited to the assets of the corporation, that's the major difference
between a
corporation and a partnership. The threats to the Board of Directors then fall into three
categories:
* Statuatory -- many countries have laws making the Board of Directors liable for gross
mismanagement, or other forms of misconduct.
Here in Canada the directors of a company can be held personally liable
for failing to remit employee deductions to the tax department.
* Contractual -- for example, some wholesale suppliers
require that the Board of Directors accepts
liability for debts accrued.
Banks especially ask directors to co-sign for a company's loans.
* Criminal -- limitation of liability and vicarious
liability do not apply in criminal cases.
Enron!
I don't know whether vicarious liability extends to
officers. Their legal position is less clear
than, say, Kyle's (an outsider employed by the Foundation).
Anthere has already referred to an ambiguity in the use of the term
"officer".
Let's just say that I for one wouldn't be
deterred from accepting a position of responsibility
within the foundation by legal liability. We all live in a world ruled by law. That should
be an
impetus to educate ourselves about the issues, and to seek advice where appropriate, not
to hand
over the keys to the lawyers and let them run the place.
I would feel the same way. As an organization gets bigger it needs to
consider startegies for risk management. From a lot of the discussion
that I've read since I've been here I can observe that very few bother
to educate themselves about the legal issues. Having an organization
overrun by lawyers is just another risk that needs to be managed.
Ec