James Heilman jmh649@gmail.com wrote:
All boards members of the WMF are required legally to represent the interests of the WMF no matter how they arrived on the board. However,
when
I was on the board I viewed the best interests of the foundation and community as inseparable as neither can succeed without the other.
Could we please have a lawyer explain how that works? If a Board member believes that the interests of their community electorate and the Wikimedia Foundation as it currently exists are at odds, are they allowed to vote in favor of the community? If not, why not?
(not a lawyer but I have a decent grasp of how this works in common law countries)
Board members are required to always vote in the best interests of the organisation they are on the board of. More specifically, for nonprofits, they are required to vote in the best interests of the mission of the organization. This is because a nonprofit has no interests except the pursuit of the goal that the nonprofit has.
There is no real definition of what 'best interests' represents. Board members have very wide discretion and judgement about how to interpret that. The income, assets, staffing etc of the organization all exist towards the organization's goal - and while there is a presumption that having money, assets, staff etc is a good thing, boards are perfectly free to make choices that result in having less money/assets/staff (or indeed to e.g. merge or wind up the whole organisation) if they see reasons that will be better for the organization's mission.
It's quite legitimate to have a Board member who views the interests of the WMF and 'the community' as inseparable. Just so long as the person concerned has arrived at that conclusion themselves and not due to undue influence from somewhere, or conflicting financial interests, or similar. However, if a Board member perceives that 'the community' and the WMFs mission are in conflict, they must prioritise fulfilling the WMF's mission.
To apply this to the Movement Charter situation, there are 2 ways the Board could fail to comply with their duties. [Just to be clear, I think they are complying with their duties fine, even if I disagree with the decision they end up making, these are just illustrative examples]
1) Board members could look at the MCDC's draft charter and think they are obliged to say yes because the MCDC drafted it. This would be failing in the Board's duty to apply independent judgement in the best interests of the WMF's mission. 2) Board members could look at the draft charter and think that, because it costs money the WMF could spend elsewhere and potentially restricts the WMF's own scope, they are barred from saying yes to it. This would be failing to look at the whole context of the WMF's ability to fulfull its mission.
Essentially the Board members have to look at the facts and the context and make a decision about what they think is the best path to achieving the WMF's mission. So long as they do that, they are behaving correctly and legally as Board members.
Regards,
Chris
On Wed, Jun 26, 2024 at 2:33 PM Robert Levenstein rlev2022@gmail.com wrote:
James Heilman jmh649@gmail.com wrote:
All boards members of the WMF are required legally to represent the interests of the WMF no matter how they arrived on the board. However,
when
I was on the board I viewed the best interests of the foundation and community as inseparable as neither can succeed without the other.
Could we please have a lawyer explain how that works? If a Board member believes that the interests of their community electorate and the Wikimedia Foundation as it currently exists are at odds, are they allowed to vote in favor of the community? If not, why not?
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Thanks for your explanation, Chris.
This sounds like enlightened absolutismhttps://en.wikipedia.org/wiki/Enlightened_absolutism, and deeply undemocratic. There's no such thing as "the organization's interests", as the organizations are not sentient beings and don't have will. Organizations are made of people, and, in this case, even inside the US absurd pseudo-democratic jargon, the "organization's interests" are determined by the Board of Trustees, who is the maximum authority to determine which are the WMF's interests. Arguing that the BoT should vote X because they can't decide another thing is undermining the power of the BoT to determine what is better for the organization they represent. There's nothing preventing the BoT to vote for or against the MC, because there's nothing above the BoT itself to dictate them what they shouldn't be doing.
That said, I would understand that some members of the board vote against sharing power. In a world where power is limited, sharing it requires someone to leave a bit of their own power. And you need a deep commitment with your community in order to give them something that you feel belongs to you. There are tons of books and films about this, it is well known.
However, there are members of the BoT that were elected with a purpose. It is not something that I'm trying to convince you: it is written in the elections. Every candidate presents what they would like the BoT to make, and what is their goal once they are elected. If this is completely trivial, we shouldn't have elections, we could choose whoever randomly, because there's some kind of "organization's interest" that should be fulfilled no matter who is a member of the BoT. Like some rules written in stone that no one can change. At least one of the members elected by the community stated that their goal was to create a Global Council. Now, the recommendation for the BoT is to do exactly the opposite. I think that explaining why their mind changed is relevant, as there may be some insight that the community is missing.
Moreover, there are other two members of the BoT (Shani and Mike) who were elected by the affiliates. What is the sense of electing someone from the affiliates if they can't represent nor the affiliates nor their own views. Because there is something called "the organization's interest" that is above the organization itself, and no one knows what it is. There are only two possible outcomes: accept that "the organization's interests" are or presenting a resignation. No change for changing anything. You are claiming that change is impossible.
If the BoT wants to dictate (a benevolent dictator) what is better for the community, even above the community's voice, it's up to them. However, I would suggest not to make more elections, as it doesn't matter who we elect: they will betray their electorate whatever they do, because they own points are futile against "the organization's interest".
I'm ending. The contradiction is so evident. You claim that "Essentially the Board members have to look at the facts and the context and make a decision about what they think is the best". No. That's not true. The board members can't make decisions of any kind, because there's "the organization's interest" that is above their will. How can we justify the Board making deliberations if they can't decide anything different from those called "interests"? What is the point of having a Board? ChatGPT could govern everything just giving those "interests": there's no chance for taking any decision. Honestly, I voted for humans, not for robots.
Best
Galder
________________________________ From: Chris Keating chriskeatingwiki@gmail.com Sent: Wednesday, June 26, 2024 8:31 PM To: Wikimedia Mailing List wikimedia-l@lists.wikimedia.org Subject: [Wikimedia-l] Re: Board requirements
(not a lawyer but I have a decent grasp of how this works in common law countries)
Board members are required to always vote in the best interests of the organisation they are on the board of. More specifically, for nonprofits, they are required to vote in the best interests of the mission of the organization. This is because a nonprofit has no interests except the pursuit of the goal that the nonprofit has.
There is no real definition of what 'best interests' represents. Board members have very wide discretion and judgement about how to interpret that. The income, assets, staffing etc of the organization all exist towards the organization's goal - and while there is a presumption that having money, assets, staff etc is a good thing, boards are perfectly free to make choices that result in having less money/assets/staff (or indeed to e.g. merge or wind up the whole organisation) if they see reasons that will be better for the organization's mission.
It's quite legitimate to have a Board member who views the interests of the WMF and 'the community' as inseparable. Just so long as the person concerned has arrived at that conclusion themselves and not due to undue influence from somewhere, or conflicting financial interests, or similar. However, if a Board member perceives that 'the community' and the WMFs mission are in conflict, they must prioritise fulfilling the WMF's mission.
To apply this to the Movement Charter situation, there are 2 ways the Board could fail to comply with their duties. [Just to be clear, I think they are complying with their duties fine, even if I disagree with the decision they end up making, these are just illustrative examples]
1) Board members could look at the MCDC's draft charter and think they are obliged to say yes because the MCDC drafted it. This would be failing in the Board's duty to apply independent judgement in the best interests of the WMF's mission. 2) Board members could look at the draft charter and think that, because it costs money the WMF could spend elsewhere and potentially restricts the WMF's own scope, they are barred from saying yes to it. This would be failing to look at the whole context of the WMF's ability to fulfull its mission.
Essentially the Board members have to look at the facts and the context and make a decision about what they think is the best path to achieving the WMF's mission. So long as they do that, they are behaving correctly and legally as Board members.
Regards,
Chris
On Wed, Jun 26, 2024 at 2:33 PM Robert Levenstein <rlev2022@gmail.commailto:rlev2022@gmail.com> wrote: James Heilman <jmh649@gmail.commailto:jmh649@gmail.com> wrote:
All boards members of the WMF are required legally to represent the interests of the WMF no matter how they arrived on the board. However, when I was on the board I viewed the best interests of the foundation and community as inseparable as neither can succeed without the other.
Could we please have a lawyer explain how that works? If a Board member believes that the interests of their community electorate and the Wikimedia Foundation as it currently exists are at odds, are they allowed to vote in favor of the community? If not, why not?
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On Wed, Jun 26, 2024, 3:14 PM Galder Gonzalez Larrañaga < galder158@hotmail.com> wrote:
That said, I would understand that some members of the board vote against
sharing power.
This is a non-sequitur, as Nat's letter was not a vote against sharing power. It proposed first steps to share power, however incomplete, and ways to address concerns with other steps laid out in the current charter text.
But the letter was certainly *confusing*, as you illustrate. I hope someone will clarify how the Board envisions a progression of power-sharing and capacity-building (likely in the form of a Council) to be able to take on more and more complex decisions.
What is the point of having a Board?
Chris said it well: to provide their independent judgement in the best interest of the mission. Including, on occasion, not rubber-stamping proposals put before them, bu sending them back for further revision..
Sam.
Hi Galder,
You claim that "Essentially the Board members have to look at the facts and the context and make a decision about what they think is the best". No. That's not true. The board members can't make decisions of any kind, because there's "the organization's interest" that is above their will. How can we justify the Board making deliberations if they can't decide anything different from those called "interests"?
Just wanted to respond to this, because evidently my explanation was lacking!
So the Board must act in the best interest of the WMF (which is the same as the WMF's mission).
However, they are really the only people who define what this means. The Board can agree even very radical proposals so long as they are sure it's the best way to further the WMF's mission. There is no-one looking over their shoulders.
In a sense it is a bit odd. Board members have a duty to do exactly one thing, which is further the organization's mission. But there are very few rules for how to interpret that one thing - they have to assess facts and apply judgement about how to do it. They can agree very radical proposals if they believe that is the best thing to do.
You are very right, however, that the WMF is not a democracy. When the WMF was set up, those involved chose not to make it a membership organisation. "Democracy" is a challenging concept to apply to the Wikimedia movement - after all we do not want decisions made mainly by the very large number of people who contribute to the English Wikipedia - but we can do a lot better than what we presently have...
Chris
Chris Keating chriskeatingwiki@gmail.com schrieb am Do. 27. Juni 2024 um 12:21:
When the WMF was set up, those involved chose not to make it a membership organisation.
Greetings! I will emerge from the shadows to point out that WMF *was* originally incorporated as a membership organization, with criteria for membership, public pages about membership and discussions about how to implement the details. However, its articles of incorporation were later changed under very likely illegal circumstances (through a vote made without informing their membership). It's very possible that the many original members still have the standing to remedy this unfortunate situation of a self-appointing Board—if they can organize such a push.
The long story: https://meta.wikimedia.org/wiki/Wikimedia_Foundation_membership_controversy
Regards, [[mw:User:Adamw]]
Greetings
I can not wait to see how history of "current days" related to the "Wikimedia Summit, last modifications to the Wikimedia Movement Charter proposition, and voting period" will be dealt with in 18 years in the future. It promises to be stimulating.
In any cases, interesting "return in the past" Adam.
The initial bylaws were **extremely poorly made** and fully mis-adapted to our context. Anyone reading Article III would realize that. I am not impressed by the lawyer who wrote them, he did not do us a favor (not naming names on purpose)
Flo
Le 27/06/2024 à 12:51, Adam Wight a écrit :
Chris Keating chriskeatingwiki@gmail.com schrieb am Do. 27. Juni 2024 um 12:21:
When the WMF was set up, those involved chose not to make it a membership organisation.Greetings! I will emerge from the shadows to point out that WMF /was/ originally incorporated as a membership organization, with criteria for membership, public pages about membership and discussions about how to implement the details. However, its articles of incorporation were later changed under very likely illegal circumstances (through a vote made without informing their membership). It's very possible that the many original members still have the standing to remedy this unfortunate situation of a self-appointing Board—if they can organize such a push.
The long story: https://meta.wikimedia.org/wiki/Wikimedia_Foundation_membership_controversy
Regards, [[mw:User:Adamw]]
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Thought it was worth adding a suggestion...
In the bylaws set-up at inception, WMF was an organisation with members. Irrelevant to the complexity of the initial broken membership structure (1), the members had only "one right". Which was to be allowed to cast a vote to select a representative to join the board of Trustees. That was IT. Nothing more. Members had to pay a due... and were able to cast a vote for the board election. That was it.
The Wikimedia Foundation does not have WMF members nowadays. But the community members still have the right to cast a vote to select a representative to join the board (yes... it must be followed by the approval by the active board) There is a process to cast this vote, with an election committee, a technical solution to cast the vote, a verification process of the candidates, places to run campaign, a voting system etc. The cast of vote for board members works, regardless of the fact the voters might be called community members rather than WMF members.
The main difference is that in the original bylaws, voters had to pay dues :)
In many membership based organizations though, the "rights" of the members of an organization extend beyond "casting a vote to get a representant on the board". Often, the "rights" of the members include 1. voting for board members 2. approving the annual plan and the associated high level budget 3. at the end of the fiscal year, approving the annual report (including the associated high level financial report). 4. eventually voting for super high level decisions
What is currently happening ? WMF does apply 1 (election of board members) and eventually 4 (such as code of conduct).
Why would WMF not also implement 2 and 3 ? Why would WMF not also implement asking community members - once a year, to vote for the annual plan and high level budget ? - and once a year, to vote to "gratefully accept" the annual report of the last fiscal year ? - and every now and then, to vote for an add-on... such as the Wikimedia Foundation 2030 strategy plan ? or Terms of Use. or Code of Conduct. Or similar.
I do understand the hesitation of the current board to approve the Wikimedia Charter proposition, because this is a huge change to assimilate in one mouthful, with many imperfections, and some potential deep pitfalls. But after so many years, for a mix of community volunteers AND board representative working on the Charter, spending hundreds of hours on it... not being able to come with "an agreement of some sort", is quite unspeakable.
The WMF needs to come up with some baby steps, which would be less scary, not overly complicated to implement, and with limited damage if it really fails. Some steps that would restore some faith in the process and in the relationship.
So instead of simply ASKING the community to comment on the Annual Plan... why not actually also implement a vote to GET the plan approved ? All the elements already exist. The plateform to vote, the prior commenting system, the mettings to explain and justify, the voting process, the "list" of voters etc. all of that exists already. The calendar certainly would need to be reworked. But all elements are in place.
Why not considering getting out of the confort zone then ?
Flo
(1) https://foundation.wikimedia.org/w/index.php?title=Bylaws&oldid=620#ARTI...
Le 28/06/2024 à 20:30, Florence Devouard a écrit :
Greetings
I can not wait to see how history of "current days" related to the "Wikimedia Summit, last modifications to the Wikimedia Movement Charter proposition, and voting period" will be dealt with in 18 years in the future. It promises to be stimulating.
In any cases, interesting "return in the past" Adam.
The initial bylaws were **extremely poorly made** and fully mis-adapted to our context. Anyone reading Article III would realize that. I am not impressed by the lawyer who wrote them, he did not do us a favor (not naming names on purpose)
Flo
Le 27/06/2024 à 12:51, Adam Wight a écrit :
Chris Keating chriskeatingwiki@gmail.com schrieb am Do. 27. Juni 2024 um 12:21:
When the WMF was set up, those involved chose not to make it a membership organisation.Greetings! I will emerge from the shadows to point out that WMF /was/ originally incorporated as a membership organization, with criteria for membership, public pages about membership and discussions about how to implement the details. However, its articles of incorporation were later changed under very likely illegal circumstances (through a vote made without informing their membership). It's very possible that the many original members still have the standing to remedy this unfortunate situation of a self-appointing Board—if they can organize such a push.
The long story: https://meta.wikimedia.org/wiki/Wikimedia_Foundation_membership_controversy
Regards, [[mw:User:Adamw]]
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