[Foundation-l] Future board meeting (5-7 april 08)

[Florence Devouard]

Dan Rosenthal wrote:
> And yet, a contract is a pledge of sorts, but its enforceability is  
> supported by law.  However, to gain that enforceability, the contract  
> must be sufficiently certain. Given that the key focus of that non- 
> disparagement agreement is "disparagement", it would seem critical  
> that disparagement be defined. And yet, it's not. It's suitably vague.  
> That's hurting the value of what a pledge is: a promise that something  
> will (or will not) happen. If that act or omission is not actually  
> defined (such as in this case, with disparagement being the act), then  
> you simply cannot make that kind of promise. On top of that, for a  
> promise like this to be worthwhile, it must be equitably applied to  
> members of the group (i.e. all members of the board, or all members of  
> the staff, or all of both). Picking and choosing who falls underneath  
> the pledge/contract diminishes its value by allowing loopholes. For  
> instance, suppose all the staff and board signed this agreement, and  
> one member (board or staff, doesn't matter) leaves disgruntled. Under  
> the text of that agreement, that member does not have any assurances  
> that an independent contractor for the foundation won't slam them  
> (since said people wouldn't be covered under the agreement). Given  
> this discrepancy, it's feasible to see a situation where this  
> agreement as written works far more to the benefit of the foundation  
> than to the benefit of an employee/trustee who leaves. And that's not  
> a good thing.
> 
> -Dan

Nod.

Regarding (who gets) benefits of the agreement, it seems frequent that 
the non-disparagement agreements are typically signed at the moment when 
an employee quits an organization (be it because he resigns or is fired).
The future-ex-employee can choose to sign the agreement or not. 
Agreement to sign may come with a financial compensation for the employee.

Ant


> On Apr 14, 2008, at 1:43 PM, Brion Vibber wrote:
> 
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>> Florence Devouard wrote:
>>> Last, you mention adulthood. Would not it be more "adult" precisely  
>>> to
>>> pledge to respect others and their activity, to pledge to always  
>>> try to
>>> have our mission in mind, to follow common values shared by the  
>>> group;
>>> to respect a code of conduct and promise to inform in conflict of
>>> interests you might be submitted to;
>>> as opposed to be maintained under a legal threat ?
>> In a civilized society, the legal system is where we go to resolve our
>> disputes when we find we *couldn't* work them out amicably in person
>> like we would prefer to.
>>
>> Contracts are a formal way to make agreements -- pledges -- written
>> down, so that *if* a dispute occurs in the future, we can all sit down
>> and point at the agreement, reason about it, and if it ends up needing
>> to be decided with assistance from the law, the judge will have a  
>> chance
>> of figuring out what it is the parties agreed to.
>>
>> Being an adult is about responsibility, and that means planning for
>> contingencies.
>>
>> That's why we put our money in banks instead of under the mattress,  
>> why
>> we get health insurance instead of hiding from the doctor, and why we
>> write down contracts instead of making all agreements under the table.
>>
>> - -- brion
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