[For those who are offended by the top posting, please accept my apologies.]
There has been mention on this list of specific concepts of vicarious liability and
employer/employee responsibility. Angela has scheduled an open IRC chat on the topic of
governance (broadly) which I hope to monitor and participate in if my schedule will allow.
I will address solely the point raised by Anthere below:
The initial starting point is "what law applies"; this would be the governing
law of the State of Florida, USA, and applicable statutory and controlling authorities in
state and US federal jurisdictions. "Who is the client?" I am a licensed
Florida lawyer with a private firm representing the Wikimedia Foundation, Inc. through its
Board. I do not represent "the community" in any technical legal sense, I
answer to the Board and provide advice to the Board.
Anthere (a board member) opines that Gerard's comments represent a
"dangerous" interpretation of things. I would like to clarify why I believe she
is correct for the most part.
Under Florida law (and US law generally), all actions taken by a corporation are done
through a series of delegations of authority, all of which have their origin with the
Board. The delegation of authority is hierarchical and drawn in an organizational chart
as a pyramid, with the Board at the top. [N.B.: to those who would reject this concept
out of hand, and insist there should be another way, you may stop reading now. Whether
you like it or not, or believe in it philosophically or not, or believe it is morally or
ethically superior or inferior to another alternative, I must observe such opinions are
_legally_ irrelevant. Under FL/US law, corporate authority is delegated, and this is the
law the Board is bound by today. Also, this is not the same as traditional US private
corporations with shareholders.]
To date, the Board has maintained tight control for itself in many respects, by which I
mean the Board makes many day-to-day decisions. Little is delegated. However, various
Wikipedia projects thrive through a community of users/admins/stewards/etc. Chapters also
exist and do various things, however, they are generally autonomous associations of users
and do not exist as a direct delegated authority of the Foundation. The point is that
there is a middle area between the "grassroots" user base and
"community" on the one hand, and the Board and those with strict delegated
authority on the other. Put another way, there exists the community and its culture,
operating norms, etc., and the Foundation and its legal structure, corporate governance,
and administrative day-to-day dealings.
Irrespective of name, title, or any other statement of authorization (or lack thereof), it
is the case that many people have taken it upon themselves to "act" believing
that they are doing so with the consent of WMF. Devolved responsibility _is_ clear in a
situation where the Board has directly and explicitly delegated authority to act to a
person with the intent that they act as a corporate officer. An example is Brion, the
CTO. Brion is tasked with running the technological side of the organization. He is a
paid employee of the Foundation and has as his defined job responsibility keeping things
up and running. It would be absurd to assume that if a server crashed, Brion would need
to get permission from the Board to bring them back up - he has been delegated the
authority to do so. It would be equally absurd to suggest that it would be best for the
organization to allow anyone who felt like it to have root access - to exercise no
restraint on delegation of authority. I ask rhetorically, how best to manage the middle
ground between volunteer and board member? That policy question (it is not merely a legal
one) implies attention to the fiduciary responsibilities a non-profit organization has to
conserve its resources and prevent against liability wherever possible.
From a corporate liability perspective (with due regard
to the fiduciary responsibility owed in this context), risk management is something which
requires constant attention and improvement in any organization. To properly obtain
insurance to guard against such risk, the question of delegated authority and the actions
undertaken by those who affiliate themselves with WMF must be clarified more than it has
been to date. That process is underway. It is not in the best interests of the
organization to deviate from a known fiduciary responsibility (for example, to decide
_not_ obtain director and officer and general liability insurance) but rather a challenge
of how best to do it. To comment publicly on what situations would or would not create
liability would be foolish and an invitation to those who would do the organization harm.
Suffice to say my responsibility to the Foundation is to provide such legal opinions when
they are required, within the bounds of attorney-client privilege.
I qualify all of this to the civil context only; if there is anything criminal it should
and must be dealt with immediately. As a not-for-profit tax-exempt organization under US
law, any situation of the kind is utterly intolerable and will be dealt with swiftly,
summarily, and with the fullest measure of cooperation with law enforcement. Political
pressure is being brought to bear in the US Senate that would create a level of public
scrutiny akin to Sarbanes-Oxley Act (SOX) in the not-for-profit sector. See today's
headlines re Enron for treatment in the for-profit context.
To sum up:
*all power to act derives from the Board
*the Board, each Board member, and officers must act consistent with their fiduciary
responsibilities under law
*the Board can delegate power to act to officers and committees of the Board, each with
defined authority
*the Board is obligated to act to avoid risk or to deal with risk consistent with its
fiduciary responsibilities
*specific questions require specific legal advice to the Board which is inappropriate for
public discussion
-Brad
-----Original Message-----
From: foundation-l-bounces(a)wikimedia.org [mailto:foundation-l-bounces@wikimedia.org] On
Behalf Of Anthere
Sent: Monday, January 30, 2006 2:01 PM
To: foundation-l(a)wikimedia.org
Subject: [Foundation-l] Re: Outsiders on the Board? (was Re: Poll forWikistandards)
Gerard Meijssen wrote:
Ray Saintonge wrote:
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.
As I understand things, there are two types of people in the Wikimedia
Foundation and its projects.
* There are the person with an official role; they are appointed or
chosen to their function.
* There are the persons with no official status as far as the WMF is
concerned. These include stewards, bureaucrats, admins and users.
Only the first two groups have any protection for what they do within
the Wikimedia Foundation. They have this protection as they represent
the Wikimedia Foundation in an official capacity. When something is
done on any of the projects that results in a legal situation, it is
the person who will be, when identified, be the one prosecuted.
Depending on the situation the Wikimedia Foundation or a chapter may
involve itself, this is not a given.
When a person in his official position gets into a legal situation, it
typically is the organisation, here the Wikimedia Foundation, who will
be prosecuted. It is only when a person is criminally negligent or
involved that there is a ground to prosecute an individual.
This is my understanding of how these things work. The consequence is
that officers of the WMF or of chapters have protection that all other
WMF volunteers lack. The fact that statutory laws exist for
'''gross'''
mismanagement is something that we should welcome. Typically it takes
some effort to qualify as gross mismanagement. Given the people that
we currently have in official positions this is unlikely to happen.
The only group of people for whom it is not entirely clear to me what
their status is, are the people who help out on OTRS. Yes, I do know
how careful these people try to do their job.. :)
Thanks,
GerardM
My apologies Gerard, but all this seems to me to be a misconception of the whole issue.
Not even erroneous, but dangerous actually.
I think it is incorrect to imply that those elected/appointed are somehow
"protected" by their position in the Foundation (ie, the Foundation will be
prosecuted rather than them as individuals) while "regular editors" lack
protection.
I would like to ask Brad here to clarify this issue publicly for you, and for all those
who read your statement. Brad, can you help ? Thanks in advance :-)
Anthere
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