Mike, Thank you for the elaborated response, and the pointer to [[fiduciary
duty]]. I was hoping for specific examples of what that means in the case
of Wikimedia, from people who care about it, or who feel bound by it as
Board members.
On Tue, Apr 29, 2008 at 11:09 AM, Mike Godwin <mgodwin(a)wikimedia.org> wrote:
Trusting
someone to give good topical advice and trusting them to
make good long-term decisions and remain true to their principles are
rather
different.
Well, sure, but that's why the law imposes fiduciary responsibilities
on the Board of Trustees (even the appointed ones). The checks and
balances you are concerned about are built into the law itself.
This is a rather omnipotent view of the law. Is there legal remedy for a
Board member who makes poor decisions in good faith?
I don't think the remedies offered by the law have much overlap with the
sorts of checks I have in mind.
A board of sensible, misguied people could easily decide that the best way
to pursue the foundation's stated goals is to disallow anonymous
contributions, filter all untrusted edits through a phalanx of professionals
and long-time members, and require new contribs to be in english and then
translate them into other languages after proper vetting and citation.
The Board has always been in the position of taking
action that would
destroy the community responsible for making the projects as vital and
rich as they are. No Board has been stupid enough to do so, and I
can't see how the restructured Board would suddenly become stupid
enough to do so.
I doubt any board would /knowingly/ destroy the community. They would
believe that they were pursuing a greater good that the 'important' parts of
the community respected, while destroying the generativity of the community
or the consensus and trust that have allowed us to go without significant
forks for such a long time.
Of particular
concern to me is that there is no mechanism for passing
extraordinary measures or referenda, no matter how overwhelmingly
desired by
This has always been the case. Nothing about the restructuring changes
this.
This is simply an extra reason why having a majority of community-selected
members on the board is important. Such popular members may have many
faults, but leading the community astray in the hopes of a brighter unwiki
future isn't one of them.
You have been
around for longer than I have, but I have seen my
share of
good governing bodies that fail to prepare for a future in which
they are
replaced by not-so-good boards, and regret the results. The way to
avoid
this is to prepare checks and balances, not to give everyone the
benefit of
the doubt until something goes wrong -- by when it is often too late.
As a constitutional lawyer, I think about "checks and balances" as a
feature of government, not of a nonprofit corporate board. In a
government, there are strong arguments for checks and balances (this
is a primary topic in the Federalist Papers), but with corporate
governance, the checks are primarily external ones (corporate law, the
legal system, etc.).
Wikimedia is not a normal nonprofit. It is unique. It helps steward the
work of hundreds of thousands of people producing the modern world's
greatest informational masterwork. As noted in another thread, Wikimedia is
somewhere between an unassuming non-profit and a small municipality in terms
of its the scope of its projects and responsibilities, and the level of
direct participation of the project contributors.
So I use the phrase "checks and balances" with governmental models firmly in
mind. I recommend rereading the Federalist Papers with Wikipedia in mind.
(I gave them to a fellow Wikipedian not two years ago with a similar
thought; they have only become more appropriate).
If you want to paralyze a non-profit (and almost
all of my entire career has been working for
nonprofits), by all means
ensure that every single action the entity takes is subject to a
referendum.
"Paralyze" is a strong term. Governments are just large, particularly
important non-profits, often with military, activist, or frontier origins.
Referendum policy is normally set up to avoid spurious efforts... One could
require, say, 1000 signatories to initiate one and 80% agreement for it to
pass. If this seems like too much bureaucracy, modifications of Board
voting procedure allowing for minority blocks to veto decisions in extremis
also seem like good ideas. Modifications of the bylaws should /definitely/
require more than the same minimum majority required to pass any
resolutions.
At the moment, the lack of oversight of the board's actions (see my
comments above on their fiduciary duties being insufficient to deter all but
the most outrageously poor judgement) is notable.
You suggested no limits on what is acceptable for the
board to carry
out
without explicit notice.
Is there a legal restriction that I'm overlooking? Please advise. The
Board certainly has to operate within the constraints of the law.
So it does. My emphasis is on the "without explicit notice". Legally, the
board can do anything it pleases with an announced meeting and ten days'
notice. Socially, there should be better layered and more nuanced policies
to avoid rash decisions. For instance, a new foundation guideline on how
board membership may expand or change in the future, or at least how chanegs
will be suggested an announced, would be welcome; and an existing guideline
that the Board be composed of a majority of community representatives seems
to be eroding, and should be reinforced or explicitly replaced.
By this
reasoning, a future board, after a general
discusion about structural change, could alter its composition by
30%, with
an arbitrary reshuffling of community, external, voted and appointed
seats.
There's a difference between "could" and "is likely to." No one
can
make policy based on the worst imaginable cases.
This is not the worst imaginable case. This is simply what happened last
week. (reversing position on the stated use of two seats in order to meet a
particular allocation into seat classes, including two new classes of board
seats, seems pretty arbitrary to me.)
You have to assume most people will act well most of
the time, or this
whole enterprise collapses.
I do! Catastrophes rarely occur because people act intentionally poorly.
My concerns, even those tagged with the brush of 'corruption', are for
failure modes in which everyone is acting in good faith, perhaps stubbornly,
but are out of touch with what matters to our projects, and corrupted by the
promise that reverting to some stable traditional model is just the panacaea
that the problem du jour needs. I have heard such suggestions time and
again from many Wikipedia fans and foes alike. I can easily imagine a
random cross-section of wikipedia-loving experts holding such misguided
ideas. Since Board decisions rarely involve exercising ones own opininos on
such matters, a bad mistake might remain just a possibility.
There is a real occurrence of self-selection, especially when a board with
some philosophical founder effect selects 40% of its successors; and there
are real failure modes favored by such self-selection. Specifically,
choosing board members for "non-profit governance" and "fundraising"
skills,
skillsets similar to those for which many new Foundation staff are being
chosen, makes it more likely that the Foundation will develop a blind spot
to those changes that would be good for a traditional non-profit or
fundraising-seeking org but quite bad for Wikipedia and its sister projects
(or their communities).
SJ