Anthony writes:
>>>
>>> What recourse does the board have against a board member that
>>> violates
>>> this agreement? Expulsion from the board?
>>
>> There are other legal remedies as well, including (for example)
>> enjoining the publication of confidential information.
>>
> Mike, I'm not talking about the confidential information provision
> here, I'm talking about the non-disparagement provision.
Well, since you referred to "this agreement," I understood you to be
referring to the whole thing, not just to a particular clause. I hope
you can see why I read it that way.
> But the board doesn't need cause to remove a board member, does it?
It's not required, but it's helpful to the Board to have a shared
understanding of why they might remove a Board member. Otherwise, that
process might be seen as arbitrary and capricious. It's important for
the Board to have a framework for judging when to take such action.
> It says "criticize", but you are interpreting it as meaning "attack".
> These words do not mean the same thing.
I do, however, believe the locutions "personally criticize" and
"personally attack" are synonymous. This does not entail that I
believe "criticize" and "attack" are synonymous. (Similarly, I don't
believe that "lightning" means the same thing in "lightning storm" and
"lightning bug.")
> True. There's clearly consideration, but I wouldn't consider it
> adequate, certainly not in the case of a board member who is going to
> be gone in a few months anyway, and therefore won't be subject to any
> of the protections at that time (the non-disparagement clause does not
> protect former trustees).
That's incorrect. The Foundation agrees to not to personally criticize
a Board member "during the same time period," which is defined earlier
in the provision as "during their terms on the Board and for three
years thereafter." The provision defines a coterminous mutual
obligation.
>> It's not, actually. Employees have already signed such an agreement.
>> And I was bound to nondisparagement of the Foundation even before I
>> signed, as a function of my legal duties.
>>
> Employees have signed the agreement, but they are not all protected by
> it. Protected from non-disparagement is "the Foundation or its
> affiliates or any of their respective directors, trustees, or senior
> officers". And there appears to be no protection at all for former
> members of these groups.
Sorry I was unclear. When I said "such an agreement," I did not mean
to be understood as saying "the same agreement." Employees have
signed another agreement with similar provisions, including a
coterminous mutual obligation.
>> I think that in a properly constructed professional relationship,
>> Danny's attacks after he resigned wouldn't have occurred, and Sue
>> wouldn't have felt compelled to respond to them.
>>
> So it seems like you're saying it's fine to attack someone if they
> attack you first. Maybe that should be included in the agreement, if
> you feel that's the case.
You misunderstand me. Danny's attacks and Sue's response to a
reporter's question about them occurred in the absence of any
agreement. I think that in the absence of any agreement, nothing can
be construed as being outside the agreement, since the agreement
itself doesn't exist. My point was that, going forward, an agreement
lays out the shared understanding of the parties, including forgoing
personal attacks and obviating the need to respond to such an attack.
Obviously, of course, if one party violates an agreement of this sort,
it's widely understood that the other party can defend himself or
herself.
>> So far as I can tell, you're not attacking anyone, although you are
>> conflating (1) ethical questions with (2) questions about Board
>> obligations and (3) questions about employer-employee relationships.
>> (This may help Florence, as you say you are trying to do, but I think
>> mixing up three subject areas probably is less helpful than you
>> imagine.)
>>
> I think that's an interesting allegation, and if you'd like to expand
> on it (off-list or on-list) I'll be happy to consider it. At the
> moment, I really don't understand what you're saying (which suggests
> to me that maybe you're right).
I'm sorry if I was unclear. I think the Board Statement of Obligations
and Responsibilities draft is different from anything having to do
with Danny because Danny was not a member of the Board. I think
Danny's situation is different from that of current employees, and
more recent former employees, because new hires since Danny resigned
have agreed to a mutual nondisparagement document. I think the third
subject area you raise -- ethics -- is an interesting one, and
probably deserves discussion, but the ethics of someone who's never
signed a nondisparagement agreement is a subject analytically distinct
from the ethics of someone who has done so.
As to your suggested changes in wording, feel free to make those
recommendations to the Board. Again, it's worth keeping in mind that
the drafting of this Statement was done at Board request.
---Mike
