Random thoughts on this.
In most countries the law can obligate many things, but it simply cannot obligate a person to forcibly continue at an employment (or to offer services as an employee or consultant) when they do not wish to. An employee who says to their employer "I have a conflict of interest and cannot continue my role" or the like, or "I need to resign for unspecified reasons" or "on the advice of my lawyer", is unlikely to be legally out of line - especially if their contract includes emphasis on trust and reputation damage.
(Crossref recent news that HSBC is closing down many diplomatic bank accounts - however prestigious, key to networking, and profitable - due to reputation risk. We have reputation risk here no less, and a lot more.)
Legally there could be ways it might be possible to implement it in contract despite concerns in this thread.
For example, an employment/engagement contract clause might be added to state that an employee should be prepared to (and is expected to always) resign in the event that they are unable to act in the interests of the movement due to conflict of interest or other personal or external obligation, and that at the discretion of the board they may be recompensed for this if the board's finding is of genuine conflict and good cause, and this would be done in order to encourage the highest standard of ethical compliance within the foundation and in all matters, and exercise of discretion would be based on a decision by the board or such persons as the board delegates, to fact-find the matter.
This is wide enough to act as a general ethical mandate, and is not targeted at any one cause or concern. It has freedom for discretion of bona fide situations, and in the event that a person feels unable to discuss a matter with any arbitrary director, it allows a person to be chosen whom they can discuss with and will form a view, which seems legally safe in any case where COI impacts employment conduct (not just this one issue).
Informally there are other options. For example a "consensus discovering exercise" or common employee understanding that was endorsed "round robin" style (look up the origins of the expression) by individuals that had no formal policy or employment obligation might be on fairly solid ground. Specifically it would be hard to demonstrate that an employee/contractor common culture/understanding was a policy or the deed of the organization. It's much closer in nature to a set of personal views expressed personally and generally by various employees, related to a speculative non-imminent future area of personal conflict, which individuals are free to seek polled feedback on, and which has the positive effect of leaving individuals free to act as they see fit but allows them to gain an appreciation of the prevailing view of their fellows towards any of the different actions they might take. If such an event occurred, the law may not allow them to ask this kind of feedback from colleagues, so knowing that 80% of your peers would agree that in a conflict they would personally see it as okay to do X or Y, is useful information whose mere public polling in advance by individuals motivated to do so, would be hard to categorize as a wrongful act in law.
FT2
On Mon, Aug 5, 2013 at 4:43 AM, John Vandenberg jayvdb@gmail.com wrote:
Only resigning makes it illegal for the person served to comply with the govt order, thereby rendering the order invalid I presume. Or the possibly in contempt of court.
The person who has resigned could go on working for another Wikimedia organisation; e.g. WMDE.
John Vandenberg. sent from Galaxy Note On Aug 5, 2013 1:38 PM, "James Salsman" jsalsman@gmail.com wrote:
What would make resigning more legal than requesting a transfer to a different department?
On Sun, Aug 4, 2013 at 9:36 PM, John Vandenberg jayvdb@gmail.com wrote:
Resigning before complying is the only way to keep the WMF from being 'crippled' in the trust department. Or maybe WMF has a different set of values.
Any WMF employee who complies with a NSA request to facilitate capturing programs has already broken the privacy policy in the extreme, and
should
probably be fired. So resigning before being forced to comply seems the ethical choice in my opinion. Of course the government may serve
someone
else, but they may stop after a few people have resigned. Even the ED is replacable. But trust lost is much harder to replace.
John Vandenberg. sent from Galaxy Note
On Aug 5, 2013 11:49 AM, "Luis Villa" lvilla@wikimedia.org wrote:
On Fri, Aug 2, 2013 at 3:37 PM, James Salsman jsalsman@gmail.com
wrote:
Luis,
Would it be legal to adopt a policy that any individual served with a National Security Letter must immediately request a transfer to a
department
headed by a different C-level officer?
If so, is the Foundation willing to adopt such a policy?
Hi, James-
It's not clear to me what the purpose of such a policy would be. I can think of two possible goals, neither of which really work.
If the goal is "frustrate the purpose of the NSL by depriving the recipient of the authority to respond to the NSL", then the FBI simply continues to send NSLs to whoever we hire as a replacement, until we
have no
one left in ops. At that point, they start working their way up the
chain
and we're left with (1) a crippled organization and (2) eventually a
letter
to the ED, who is legally compelled to make the thing happen anyway.
Or, if
the policy is public, they just start with the ED.
If the goal is "alert the community that NSLs are being sent" (or if
that
alerting happens accidentally, as a result of public knowledge of the policy, + goal #1) then that's probably a violation of the relevant
law,
which allows disclosure only to "those to whom such disclosure is
necessary
to comply with the request or an attorney to obtain legal advice or
legal
assistance with respect to the request" (18 USC 2709(c)(1), http://www.law.cornell.edu/uscode/text/18/2709).
Note that the statute was updated a few years back to make it quite
clear
that you're allowed to talk to your lawyer about these when you get
them,
recent disclosed letters appear to refer clearly to that permission,
and if
our legal department got one, we'd be eager to fight. (That said, it
does
probably make sense to remind our employers that if they get an NSL,
they
are clearly entitled to speak to LCA; we'll look into how best to do
that.)
Luis
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