Anthony writes:
And why should the board members include personal attacks/criticisms of outside parties in the first place? Your other comments have clarified that the agreement of employees is separate from the agreement among board members. So why should personal attacks/criticisms of anyone but current/former board members be included in the agreement?
The idea here is that no one who does business with the Foundation should be subject to a public personal attack from Board members as the consequence of having done so. *This doesn't mean that the Board members can't criticize such an entity in other ways, and it certainly doesn't mean anything with regard to the community, which continues to be able to launch any personal attack it wishes.* Please note my emphasis of the preceding sentence. In short, it obligates us to treat other entities professionally and with respect even when we disagree.
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.
Touche. Upon rereading this, you are indeed correct.
Thanks.
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.
That definitely surprises me. How exactly did the Board make such a request?
I think this question is best directed to Board members themselves and not to me.
--Mike
Mike Godwin wrote:
Anthony writes:
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.
That definitely surprises me. How exactly did the Board make such a request?
I think this question is best directed to Board members themselves and not to me.
--Mike
Originally, Sue suggested she would be happy to have the board sign such a document. I suppose it follows the fact staff was asked to sign such a document.
As a result, at the last board meeting, Mike showed with a (first) draft document, which purely contained 1) non disparagement agreement and 2) confidentiality agreement.
Following the statement that this document was not okay on several important points, Mike accepted to work again on the document. I asked that be added to it references to the duties of board members. 1) fiduciary duties (see my mail on the topic: http://lists.wikimedia.org/pipermail/foundation-l/2008-May/042475.html) 2) values (see the current reference: http://wikimediafoundation.org/wiki/Values)
The board agreed for the document to be reworked in a draft.
The resulting second draft 1) did not bring much changes to the non-disparagement agreement 2) appropriately addressed issues related to confidentiality obligations 3) rather appropriately addressed issues related to fiduciary duties 4) added a new COI policy, with obligations to not only disclose COIs, but to actually avoid them entirely, and get approval from the board in case there is a conflict 5) does not mention anywhere the values I was thinking of.
Ant
Perhaps a reason for why the draft agreement does not contain values in line with the meta values page is contained in the opening of that page: values are the sort of thing you can't bind upon someone. There are certain principles Boards of non-profits are expected to abide by, including acting in the interests of the organization and its mission. I'm not sure you can get much more specific than that in an agreement you expect Board members to sign.
I, too, would like to know how you can "personally criticize" the Foundation. As far as wording of the quoted provision... I think its fine. You can drive a truck through the hole left by repeating "personally" so many times, but the point there seems to be to offer as much protection as possible for valid and non-personal criticism. For future reference, if you are going to quote a specific provision and then discuss it its best to quote it both in context and in its entirety.
"The Board believes the free and open exchange of ideas and information among Trustees, including criticism of internal policy and procedures and other matters related to the conduct of business, is to be encouraged. To ensure that such a free and open exchange occurs, both within Board meetings and outside them, Trustees agree that, during their terms on the Board and for three years thereafter, they shall not, in any communications with the press or other media or any customer, client or supplier of the Foundation, or any of the Foundation's affiliates, or in discussions on community mailing lists, blogs, or other community forums, personally criticize, ridicule or make any statement that personally disparages or is personally derogatory of the Foundation or its affiliates or any of their respective directors, trustees, or senior officers. Additionally, and in consideration of Trustees' commitment to this agreement, no directory senior officer of the Foundation or member of the Board of Trustees of the Foundation will, during the same time period, personally criticize, ridicule or make any statement that personally disparages or is personally derogatory of a Trustee or former Trustee."
Including the whole thing changes the tenor of the provision significantly.
I do have some problems with other areas of the agreement, though. This sentence: "Trustees must conduct their business in a manner that does not result in adverse comments or criticisms from the public or in any way damage our reputation." is problematic for obvious reasons. I think it should be made clear which parts of the document are binding and which are commentary, because particularly in this provision there is a big difference between the clarity and specificity of what I would call "commentary" and the meat of the agreement. Additionally, the "Gift Policy" should be separate from the conflict of interests policy.
This sentence in the concluding numbered section: "4. I am responsible for the health and wellbeing of this organization. As a Trustee, I pledge to carry out my responsibilities with the highest degree of integrity, and to avoid all real and perceived conflicts of interest in conjunction with the Conflict of Interest policies as set forth by the organization." is a problem because it uses language not contained in the COI section itself (all real and perceived conflicts of interest) and could be seen as conflicting, despite the "in conjunction with..." qualifier. Finally, I think points 5 and 6 are too specific in their requirements. Board meetings aren't college lectures - you should not need to specify that Board members come to meetings "having read all supporting materials" and be ready to "propound questions." 6 sets limits and requirements on the public communication of Board members not specified elsewhere in the agreement - again, saying "consistent with" after a contradictory statement is not enough.
I'm not a lawyer, but these seem to be somewhat significant drafting problems. I've signed a few such agreements in the past, and all have had more sophisticated and clear wording and terms. Without intending any insult to Mike, whose work in other areas I admire and respect, I suggest that documents you wish all Board members to sign be reviewed (and drafted, if possible) by an attorney with specific expertise and background in employment law.
Nathan
Sometimes it seems like only if you are harshly critical or make direct attacks on individuals do you get detailed responses on this list, even when the point of the thread is to discuss problems with the statement and that is precisely what my post attempted to do. I'm also still hoping for a response in the thread about the privacy policy, although the prospect of new activity seems dim. I appreciate that people get burned out by argumentative posts, but if that is all that gets attention then that sort of post is essentially being promoted above other sorts that would generally be seen as more constructive.
Nathan
On Sun, May 18, 2008 at 6:43 PM, Nathan nawrich@gmail.com wrote:
Perhaps a reason for why the draft agreement does not contain values in line with the meta values page is contained in the opening of that page: values are the sort of thing you can't bind upon someone. There are certain principles Boards of non-profits are expected to abide by, including acting in the interests of the organization and its mission. I'm not sure you can get much more specific than that in an agreement you expect Board members to sign.
I, too, would like to know how you can "personally criticize" the Foundation. As far as wording of the quoted provision... I think its fine. You can drive a truck through the hole left by repeating "personally" so many times, but the point there seems to be to offer as much protection as possible for valid and non-personal criticism. For future reference, if you are going to quote a specific provision and then discuss it its best to quote it both in context and in its entirety.
"The Board believes the free and open exchange of ideas and information among Trustees, including criticism of internal policy and procedures and other matters related to the conduct of business, is to be encouraged. To ensure that such a free and open exchange occurs, both within Board meetings and outside them, Trustees agree that, during their terms on the Board and for three years thereafter, they shall not, in any communications with the press or other media or any customer, client or supplier of the Foundation, or any of the Foundation's affiliates, or in discussions on community mailing lists, blogs, or other community forums, personally criticize, ridicule or make any statement that personally disparages or is personally derogatory of the Foundation or its affiliates or any of their respective directors, trustees, or senior officers. Additionally, and in consideration of Trustees' commitment to this agreement, no directory senior officer of the Foundation or member of the Board of Trustees of the Foundation will, during the same time period, personally criticize, ridicule or make any statement that personally disparages or is personally derogatory of a Trustee or former Trustee."
Including the whole thing changes the tenor of the provision significantly.
I do have some problems with other areas of the agreement, though. This sentence: "Trustees must conduct their business in a manner that does not result in adverse comments or criticisms from the public or in any way damage our reputation." is problematic for obvious reasons. I think it should be made clear which parts of the document are binding and which are commentary, because particularly in this provision there is a big difference between the clarity and specificity of what I would call "commentary" and the meat of the agreement. Additionally, the "Gift Policy" should be separate from the conflict of interests policy.
This sentence in the concluding numbered section: "4. I am responsible for the health and wellbeing of this organization. As a Trustee, I pledge to carry out my responsibilities with the highest degree of integrity, and to avoid all real and perceived conflicts of interest in conjunction with the Conflict of Interest policies as set forth by the organization." is a problem because it uses language not contained in the COI section itself (all real and perceived conflicts of interest) and could be seen as conflicting, despite the "in conjunction with..." qualifier. Finally, I think points 5 and 6 are too specific in their requirements. Board meetings aren't college lectures - you should not need to specify that Board members come to meetings "having read all supporting materials" and be ready to "propound questions." 6 sets limits and requirements on the public communication of Board members not specified elsewhere in the agreement - again, saying "consistent with" after a contradictory statement is not enough.
I'm not a lawyer, but these seem to be somewhat significant drafting problems. I've signed a few such agreements in the past, and all have had more sophisticated and clear wording and terms. Without intending any insult to Mike, whose work in other areas I admire and respect, I suggest that documents you wish all Board members to sign be reviewed (and drafted, if possible) by an attorney with specific expertise and background in employment law.
Nathan
--- On Tue, 5/20/08, Nathan nawrich@gmail.com wrote:
From: Nathan nawrich@gmail.com Subject: Re: [Foundation-l] Board statement of responsibility To: "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Tuesday, May 20, 2008, 5:59 PM Sometimes it seems like only if you are harshly critical or make direct attacks on individuals do you get detailed responses on this list, even when the point of the thread is to discuss problems with the statement and that is precisely what my post attempted to do. I'm also still hoping for a response in the thread about the privacy policy, although the prospect of new activity seems dim. I appreciate that people get burned out by argumentative posts, but if that is all that gets attention then that sort of post is essentially being promoted above other sorts that would generally be seen as more constructive.
My read of this thread is that some people find the language in the "disparagement" part to loosely defined. Mike Godwin argues that they are wrong it and that finds language rather narrow. Neither side backed up their belief with anything substantial. Someone asked if for an example of similar language in a similar agreement from another organization; no one has produced such a thing. All and all I don't know what to make of that issue; maybe Mike is correct, maybe not. I do know I wouldn't personally sign such a thing until I was sure Mike was correct. But since there is no prospect of me being asked to sign such a thing; I am not sure my hesitation is a strong enough feeling to be worth sharing.
On the COI issue which didn't seem to receive as much attention; I find the document to be out of line. I can't imagine why someone might think it appropriate to require board members to gain approval for their outside activities unless it is a reaction to something specific. I highly doubt we would ever learn if such speculation is true on this list, or that such a discussion could be productive in any way. Whether there were any past problems or not, I believe the board would be better off just ousting any members who do not take their duty to the WMF seriously or are too conflicted for whatever reason than to try micro-manage conflicts in such way. If a board member is willing to put themselves in a conflict that would be worth denial under this policy; I am certain they will find a way to game the policy. Either the conflicts will be minor and easily dealt with by recusing from an occasional vote and the policy is tedious oversee and insulting to the board members as well as unnecessary. Or else the conflicts are a major problem that is interfering with the operation of the board and the board would be much better off without such conflicted trustees rather than with a tedious and insulting policy *and* undedicated trustees.
It is hard to really comment on these things productively when there are such obvious undercurrents that I cannot read clearly. I am not sure where either Florence nor Mike is coming from. Maybe she wanted comment on an entirely different aspect of the draft. Maybe he is having the parts we dislike highly recommended by lawyers experienced in these issues. So it is hard to have much confidence in my own opinion when the context is so murky. And the less confident I am in it, the less I share it. But since you asked so plaintively for more opinions the above is my *soft* opinion on the thread.
Birgitte SB
Birgitte SB wrote:
--- On Tue, 5/20/08, Nathan nawrich@gmail.com wrote:
From: Nathan nawrich@gmail.com Subject: Re: [Foundation-l] Board statement of responsibility To: "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Tuesday, May 20, 2008, 5:59 PM Sometimes it seems like only if you are harshly critical or make direct attacks on individuals do you get detailed responses on this list, even when the point of the thread is to discuss problems with the statement and that is precisely what my post attempted to do. I'm also still hoping for a response in the thread about the privacy policy, although the prospect of new activity seems dim. I appreciate that people get burned out by argumentative posts, but if that is all that gets attention then that sort of post is essentially being promoted above other sorts that would generally be seen as more constructive.
My read of this thread is that some people find the language in the "disparagement" part to loosely defined. Mike Godwin argues that they are wrong it and that finds language rather narrow. Neither side backed up their belief with anything substantial. Someone asked if for an example of similar language in a similar agreement from another organization; no one has produced such a thing. All and all I don't know what to make of that issue; maybe Mike is correct, maybe not. I do know I wouldn't personally sign such a thing until I was sure Mike was correct. But since there is no prospect of me being asked to sign such a thing; I am not sure my hesitation is a strong enough feeling to be worth sharing.
On the COI issue which didn't seem to receive as much attention; I find the document to be out of line. I can't imagine why someone might think it appropriate to require board members to gain approval for their outside activities unless it is a reaction to something specific. I highly doubt we would ever learn if such speculation is true on this list, or that such a discussion could be productive in any way. Whether there were any past problems or not, I believe the board would be better off just ousting any members who do not take their duty to the WMF seriously or are too conflicted for whatever reason than to try micro-manage conflicts in such way. If a board member is willing to put themselves in a conflict that would be worth denial under this policy; I am certain they will find a way to game the policy. Either the conflicts will be minor and easily dealt with by recusing from an occasional vote and the policy is tedious oversee and insulting to the board members as well as unnecessary. Or else the conflicts are a major problem that is interfering with the operation of the board and the board would be much better off without such conflicted trustees rather than with a tedious and insulting policy *and* undedicated trustees.
It is hard to really comment on these things productively when there are such obvious undercurrents that I cannot read clearly. I am not sure where either Florence nor Mike is coming from. Maybe she wanted comment on an entirely different aspect of the draft. Maybe he is having the parts we dislike highly recommended by lawyers experienced in these issues. So it is hard to have much confidence in my own opinion when the context is so murky. And the less confident I am in it, the less I share it. But since you asked so plaintively for more opinions the above is my *soft* opinion on the thread.
Birgitte SB
Hello,
I appreciate being asked "where I come from". My view regarding signing such a document are pretty clear. I would not sign it. And the reasons why are exactly the ones you outlined. I am in agreement more or less with the concept of non-disparagement, however, the language is so-phrased that I think it lets door open to all possibilities of intimidation of the board member who wishes to speak up his mind.
Regarding the COI part, you have it exactly right. It is tedious oversee and insulting. But at least, regarding this part, I am rather confident that other board members would not approve signing such a text.
However, I think it best that community members be involved, or at least aware of the existence of such discussions. Nathan is probably right that it might be too difficult to insert values in such documents, and I can follow him on this path after thinking about that. However, it is quite obvious to me that the non-disparagement part is collecting a significant amount of support amongst board members... but would have a serious impact on the sharing allowed to take place between board members and community. With regards to the COI part, I am still trying to understand what are the basis to make such a proposition to the board.
Angela very appropriately forwarded the inforamtion to the advisory board. 3 answers were provided.
One person points out that he has never seen such a detailed pledge in a non profit. Another second that, and adds that COI policies typically requires disclosure rather than authorization. And a third also clarifies that he has never seen such an elaborate and restrictive policy in a non profit.
Sue was exactly right when she pointed out that the main interest of such a document was to discuss the attitude expected from board members. That's correct. However, I would point out that limited feedback came from board members, which may mean that the default attitude of a board member might indeed be expected to be the one described in the document.
Ant
--- On Wed, 5/21/08, Florence Devouard Anthere9@yahoo.com wrote:
However, it is quite obvious to me that the non-disparagement part is collecting a significant amount of support amongst board members... but would have a serious impact on the sharing allowed to take place between board members and community.
Granting that there is a lack of clarity on the sort of criticism is forbidden here, it seems to me this would effectively solidify the sort of coded information that is shared with the community currently. Where silence is the new criticism in a message praising specific people and what they have done. Where what part is *not* commented on is the most important information in an email about a proposal. I think it is all a bit silly, as I can decipher these things pretty well. But it is probably rather frustrating for those who cannot and likely leads to unnecessary misunderstandings.
Overall I don't think it a good idea, but I don't see it being all that far from the status quo. I don't think it will stop the gossip which is the real problem. I imagine people will still rant and and rave about each other in backwater chat rooms because it is the nature the insular groups to generate a false sense of privacy and human nature relieve frustration by disparaging others. Overall I think it will slightly inhibit public communication to the community and have no effect on the semi-private communications which are the real problem for WMF. Mostly though I think the communication with the community has been negatively impacted by the whole "one voice" nonsense to a degree that makes this policy a bucket of water in the ocean. Fighting this policy on the grounds of "community communications" seems to me to be like splinting the broken arm of someone who is bleeding to death from their leg. A little irrelevant.
Birgitte SB
Birgitte SB wrote:
Granting that there is a lack of clarity on the sort of criticism is forbidden here, it seems to me this would effectively solidify the sort of coded information that is shared with the community currently. Where silence is the new criticism in a message praising specific people and what they have done. Where what part is *not* commented on is the most important information in an email about a proposal. I think it is all a bit silly, as I can decipher these things pretty well. But it is probably rather frustrating for those who cannot and likely leads to unnecessary misunderstandings.
Overall I don't think it a good idea, but I don't see it being all that far from the status quo. I don't think it will stop the gossip which is the real problem. I imagine people will still rant and and rave about each other in backwater chat rooms because it is the nature the insular groups to generate a false sense of privacy and human nature relieve frustration by disparaging others. Overall I think it will slightly inhibit public communication to the community and have no effect on the semi-private communications which are the real problem for WMF. Mostly though I think the communication with the community has been negatively impacted by the whole "one voice" nonsense to a degree that makes this policy a bucket of water in the ocean. Fighting this policy on the grounds of "community communications" seems to me to be like splinting the broken arm of someone who is bleeding to death from their leg. A little irrelevant.
We seem to agree significantly in these matters, but if the only medical equipment available is arm splints that's what they're going to use.
Policies regarding disparagement, confidentiality or conflict of interest do not work unless those terms are clearly defined in the first place. Some kinds of issues must necessarily be discussed in camera. There is a need to define exactly what that includes, and in the interest of maintaining a transparent operation anything not on that list is public.
A controversial policy with no consequences creates more heat than light. It is one thing to have Board members sign an agreement, but it is an exercise in futility when that agreement extends three years beyond one's term of office without any idea about what will happen if a person is found in breach.
Ec
--- On Wed, 5/21/08, Ray Saintonge saintonge@telus.net wrote:
A controversial policy with no consequences creates more heat than light. It is one thing to have Board members sign an agreement, but it is an exercise in futility when that agreement extends three years beyond one's term of office without any idea about what will happen if a person is found in breach.
I agree with that. I was just trying to focus on the effect the policy would have on the wider community rather than the trustees who might sign it. So I was ignoring the reasons why it might be a bad idea for individual to sign such an agreement.
However I definitely understand why someone would not want to sign such a thing for their own part. In reality such individual concerns probably just become a starting point for a negotiation. Offer a proposal of what you would be willing to sign and then receive a counter proposal. And find the line where WMF agrees that trying to oust a board member or disqualify an election winner will bring more trouble than the differences between the drafts. And that is the arena of lawyers not the peanut gallery.
Birgitte SB
I wonder what the rest of the Board thinks about this? I personally would prefer and ask that no document be signed by any board members without the unanimous consent of the Board, and that this not be presented as a requirement for any new Board members. Are there alternative versions of this statement? Are Mike and Sue open to reviewing alternative versions presented?
Nathan
On Wed, May 21, 2008 at 1:28 PM, Birgitte SB birgitte_sb@yahoo.com wrote:
--- On Wed, 5/21/08, Ray Saintonge saintonge@telus.net wrote:
A controversial policy with no consequences creates more heat than light. It is one thing to have Board members sign an agreement, but it is an exercise in futility when that agreement extends three years beyond one's term of office without any idea about what will happen if a person is found in breach.
I agree with that. I was just trying to focus on the effect the policy would have on the wider community rather than the trustees who might sign it. So I was ignoring the reasons why it might be a bad idea for individual to sign such an agreement.
However I definitely understand why someone would not want to sign such a thing for their own part. In reality such individual concerns probably just become a starting point for a negotiation. Offer a proposal of what you would be willing to sign and then receive a counter proposal. And find the line where WMF agrees that trying to oust a board member or disqualify an election winner will bring more trouble than the differences between the drafts. And that is the arena of lawyers not the peanut gallery.
Birgitte SB
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--- On Wed, 5/21/08, Nathan nawrich@gmail.com wrote:
From: Nathan nawrich@gmail.com Subject: Re: [Foundation-l] Board statement of responsibility To: birgitte_sb@yahoo.com, "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Wednesday, May 21, 2008, 12:57 PM I wonder what the rest of the Board thinks about this? I personally would prefer and ask that no document be signed by any board members without the unanimous consent of the Board, and that this not be presented as a requirement for any new Board members. Are there alternative versions of this statement? Are Mike and Sue open to reviewing alternative versions presented?
"Some time ago, the board received a new draft of its future "board statement of responsibility".[1]
"It is worth noting that this is a very preliminary draft"[2]
"What Florence has now shared is the first draft of that document. We're not at a stage of voting on or signing this either."[3]
I interperted all the emphasis on "draft" to mean that it is negotiable. And of course my speculation about about how things might work and the approach I might try is, as always, just speculation. I think I failed to fill up that last email with all the "I imagine" and "seems" that I normally go back and add.
Brigitte SB
[1]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/042984.html [2]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/042997.html [3]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/043026.html
Birgitte SB wrote:
--- On Wed, 5/21/08, Nathan nawrich@gmail.com wrote:
From: Nathan nawrich@gmail.com
Are Mike and Sue open to reviewing alternative versions presented?
"Some time ago, the board received a new draft of its future "board statement of responsibility".[1]
"It is worth noting that this is a very preliminary draft"[2]
"What Florence has now shared is the first draft of that document. We're not at a stage of voting on or signing this either."[3]
I interperted all the emphasis on "draft" to mean that it is negotiable.
Absolutely, that's correct.
As I said before, much of the value of these kinds of agreements lies in the conversation that precedes them. The conversation we're all having now (board + staff + here on this list) is precisely the point. What do we consider to be personal disparagement versus constructive disagreement. What do we consider to be a conflict of interest, and how do we want to handle them. In an organization that prizes transparency, what do we feel needs, nonetheless, to remain confidential - e.g., to what extent do we want to talk publicly about donor names, staff salaries, internal board discussions, etc. For each of those (and other) questions, there are legal/regulatory considerations, and there are also important values-oriented considerations. It's a good conversation to have.
I would characterize the agreement -as given to the board- as a straw proposal. It's a draft, on paper, intended to get the conversation started. It may stay 99% the same, or 80% or 50%. It's intended to get us started.
Having said that, I do feel for Mike. I don't think it's possible to craft a document that will fully satisfy every single person :-)
[1]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/042984.html [2]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/042997.html [3]http://lists.wikimedia.org/pipermail/foundation-l/2008-May/043026.html
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On Wed, May 21, 2008 at 3:33 PM, Sue Gardner sgardner@wikimedia.org wrote:
Having said that, I do feel for Mike. I don't think it's possible to craft a document that will fully satisfy every single person :-)
Certainly it is his job to fully satisfy every single person being asked to sign the document. If that's not possible, then the document shouldn't be crafted in the first place.
On 21/05/2008, Nathan nawrich@gmail.com wrote:
I wonder what the rest of the Board thinks about this? I personally would prefer and ask that no document be signed by any board members without the unanimous consent of the Board, and that this not be presented as a requirement for any new Board members.
I would agree with that. It doesn't seem a good idea to have some of the board bound by an agreement and others not, and the only way to avoid that is the require unanimity.
Birgitte SB wrote:
--- On Wed, 5/21/08, Ray Saintonge saintonge@telus.net wrote:
A controversial policy with no consequences creates more heat than light. It is one thing to have Board members sign an agreement, but it is an exercise in futility when that agreement extends three years beyond one's term of office without any idea about what will happen if a person is found in breach.
I agree with that. I was just trying to focus on the effect the policy would have on the wider community rather than the trustees who might sign it. So I was ignoring the reasons why it might be a bad idea for individual to sign such an agreement.
However I definitely understand why someone would not want to sign such a thing for their own part.
In reality such individual concerns probably just become a starting point for a negotiation. Offer a proposal of what you would be willing to sign and then receive a counter proposal. And find the line where WMF agrees that trying to oust a board member or disqualify an election winner will bring more trouble than the differences between the drafts. And that is the arena of lawyers not the peanut gallery.
Birgitte SB
Hmmm. Agree. I actually forwarded to Sue a sample of a document I felt roughly confortable with, and it seems that Mike used that document to improve the second draft significantly (which is cool). However, there was no significant change on the non disparagement part and the COI suddenly appeared expanded. So, I am all for your suggest Birgitte, but I can not really comment from draft 1 to draft 2 if no significant change has been made.
Also, as Ec points out completely properly, besides the lack of clarify to describe what disparagement means, there is no clarification of what would happen IF the agreement was breached.
In a rather humourous point, this is something I noted and told Mike some months ago: similarly, the COI policy requires from members to disclose information, but there is no outlined procedure to deal in case of an abuse.
I do not think the agreement is the arena of lawyers. I am no lawyer myself, I do not have the money to pay a lawyer to provide me counselling, and still, I would be the one to sign. When a HUMAN must sign a document involving himself and his family, for several years, I think it is not only a lawyer business...
Ant
--- On Wed, 5/21/08, Florence Devouard Anthere9@yahoo.com wrote:
From: Florence Devouard Anthere9@yahoo.com Subject: Re: [Foundation-l] Board statement of responsibility To: foundation-l@lists.wikimedia.org Date: Wednesday, May 21, 2008, 4:10 PM Birgitte SB wrote:
--- On Wed, 5/21/08, Ray Saintonge
saintonge@telus.net wrote:
A controversial policy with no consequences
creates more
heat than light. It is one thing to have Board members sign
an
agreement, but it is an exercise in futility when that agreement
extends
three years beyond one's term of office without any idea
about what
will happen if a person is found in breach.
I agree with that. I was just trying to focus on the
effect the policy would have on the wider community rather than the trustees who might sign it. So I was ignoring the reasons why it might be a bad idea for individual to sign such an agreement.
However I definitely understand why someone would not
want to sign such a thing for their own part. In reality such individual concerns probably just become a starting point for a negotiation. Offer a proposal of what you would be willing to sign and then receive a counter proposal. And find the line where WMF agrees that trying to oust a board member or disqualify an election winner will bring more trouble than the differences between the drafts. And that is the arena of lawyers not the peanut gallery.
Birgitte SB
Hmmm. Agree. I actually forwarded to Sue a sample of a document I felt roughly confortable with, and it seems that Mike used that document to improve the second draft significantly (which is cool). However, there was no significant change on the non disparagement part and the COI suddenly appeared expanded. So, I am all for your suggest Birgitte, but I can not really comment from draft 1 to draft 2 if no significant change has been made.
Also, as Ec points out completely properly, besides the lack of clarify to describe what disparagement means, there is no clarification of what would happen IF the agreement was breached.
In a rather humourous point, this is something I noted and told Mike some months ago: similarly, the COI policy requires from members to disclose information, but there is no outlined procedure to deal in case of an abuse.
I do not think the agreement is the arena of lawyers. I am no lawyer myself, I do not have the money to pay a lawyer to provide me counselling, and still, I would be the one to sign. When a HUMAN must sign a document involving himself and his family, for several years, I think it is not only a lawyer business...
Just to clarify (in case anyone is confused) I would classify the back and forth negotiations about the ways which an individual trustee is willing to bind herself as within the arena of lawyers, leaving plenty of other things for the peanut gallery to comment on.
Frankly Anthere, if I were being asked to sign something like this I *would* retain a lawyer. Granted I am much more cautious than most people, but I would not consider signing such a contract without the advice of a lawyer whose duty is to look after my interests. It would be nice if people didn't have pay lawyers to advise them, but it is not worth the risk, in my opinion, to sign something just because you trust that the guy who wrote it is a good lawyer that will protect his client (and the client is not *you*).
I am not qualified to evaluate such a document. I trust Mike to do a great job looking out for WMF, but the interests of the WMF are not necessarily the interests of her trustees nor should they be. If I were a trustee and the WMF presented me with this draft (ignoring for this thought exercise all the community and value issues worth discussing) I would say, "Thank you I will pass this on to my lawyer." If WMF tried to discuss it I would say "Here's my lawyer's number." And after the lawyers hashed out something I was advised by my own personal lawyer to sign, I would sign it. I agree that signing such a document is serious and would involve me and my family for years, so I would take it seriously. Plus I wouldn't want to risk poisoning any working relationships by taking on the dirty work of protecting myself. So that means leaving it in the arena lawyers in my book. But that is me, and I'm paranoid about signing my name. :)
And I'm not a trustee, so I won't have lose sleep over how to pay the lawyer ;)
Birgitte SB
besides the whole lawyer issue, there is also a more fundamental issue. How much are you prepared to give up. I think that ought to be discussed first, before ending up with lawyers.
br, lodewijk
2008/5/22 Birgitte SB birgitte_sb@yahoo.com:
--- On Wed, 5/21/08, Florence Devouard Anthere9@yahoo.com wrote:
From: Florence Devouard Anthere9@yahoo.com Subject: Re: [Foundation-l] Board statement of responsibility To: foundation-l@lists.wikimedia.org Date: Wednesday, May 21, 2008, 4:10 PM Birgitte SB wrote:
--- On Wed, 5/21/08, Ray Saintonge
saintonge@telus.net wrote:
A controversial policy with no consequences
creates more
heat than light. It is one thing to have Board members sign
an
agreement, but it is an exercise in futility when that agreement
extends
three years beyond one's term of office without any idea
about what
will happen if a person is found in breach.
I agree with that. I was just trying to focus on the
effect the policy would have on the wider community rather than the trustees who might sign it. So I was ignoring the reasons why it might be a bad idea for individual to sign such an agreement.
However I definitely understand why someone would not
want to sign such a thing for their own part. In reality such individual concerns probably just become a starting point for a negotiation. Offer a proposal of what you would be willing to sign and then receive a counter proposal. And find the line where WMF agrees that trying to oust a board member or disqualify an election winner will bring more trouble than the differences between the drafts. And that is the arena of lawyers not the peanut gallery.
Birgitte SB
Hmmm. Agree. I actually forwarded to Sue a sample of a document I felt roughly confortable with, and it seems that Mike used that document to improve the second draft significantly (which is cool). However, there was no significant change on the non disparagement part and the COI suddenly appeared expanded. So, I am all for your suggest Birgitte, but I can not really comment from draft 1 to draft 2 if no significant change has been made.
Also, as Ec points out completely properly, besides the lack of clarify to describe what disparagement means, there is no clarification of what would happen IF the agreement was breached.
In a rather humourous point, this is something I noted and told Mike some months ago: similarly, the COI policy requires from members to disclose information, but there is no outlined procedure to deal in case of an abuse.
I do not think the agreement is the arena of lawyers. I am no lawyer myself, I do not have the money to pay a lawyer to provide me counselling, and still, I would be the one to sign. When a HUMAN must sign a document involving himself and his family, for several years, I think it is not only a lawyer business...
Just to clarify (in case anyone is confused) I would classify the back and forth negotiations about the ways which an individual trustee is willing to bind herself as within the arena of lawyers, leaving plenty of other things for the peanut gallery to comment on.
Frankly Anthere, if I were being asked to sign something like this I *would* retain a lawyer. Granted I am much more cautious than most people, but I would not consider signing such a contract without the advice of a lawyer whose duty is to look after my interests. It would be nice if people didn't have pay lawyers to advise them, but it is not worth the risk, in my opinion, to sign something just because you trust that the guy who wrote it is a good lawyer that will protect his client (and the client is not *you*).
I am not qualified to evaluate such a document. I trust Mike to do a great job looking out for WMF, but the interests of the WMF are not necessarily the interests of her trustees nor should they be. If I were a trustee and the WMF presented me with this draft (ignoring for this thought exercise all the community and value issues worth discussing) I would say, "Thank you I will pass this on to my lawyer." If WMF tried to discuss it I would say "Here's my lawyer's number." And after the lawyers hashed out something I was advised by my own personal lawyer to sign, I would sign it. I agree that signing such a document is serious and would involve me and my family for years, so I would take it seriously. Plus I wouldn't want to risk poisoning any working relationships by taking on the dirty work of protecting myself. So that means leaving it in the arena lawyers in my book. But that is me, and I'm paranoid about signing my name. :)
And I'm not a trustee, so I won't have lose sleep over how to pay the lawyer ;)
Birgitte SB
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Birgitte SB wrote:
--- On Wed, 5/21/08, Florence Devouard Anthere9@yahoo.com wrote:
Hmmm. Agree. I actually forwarded to Sue a sample of a document I felt roughly confortable with, and it seems that Mike used that document to improve the second draft significantly (which is cool). However, there was no significant change on the non disparagement part and the COI suddenly appeared expanded. So, I am all for your suggest Birgitte, but I can not really comment from draft 1 to draft 2 if no significant change has been made.
Also, as Ec points out completely properly, besides the lack of clarify to describe what disparagement means, there is no clarification of what would happen IF the agreement was breached.
In a rather humourous point, this is something I noted and told Mike some months ago: similarly, the COI policy requires from members to disclose information, but there is no outlined procedure to deal in case of an abuse.
I do not think the agreement is the arena of lawyers. I am no lawyer myself, I do not have the money to pay a lawyer to provide me counselling, and still, I would be the one to sign. When a HUMAN must sign a document involving himself and his family, for several years, I think it is not only a lawyer business...
Just to clarify (in case anyone is confused) I would classify the back and forth negotiations about the ways which an individual trustee is willing to bind herself as within the arena of lawyers, leaving plenty of other things for the peanut gallery to comment on.
Frankly Anthere, if I were being asked to sign something like this I *would* retain a lawyer. Granted I am much more cautious than most people, but I would not consider signing such a contract without the advice of a lawyer whose duty is to look after my interests. It would be nice if people didn't have pay lawyers to advise them, but it is not worth the risk, in my opinion, to sign something just because you trust that the guy who wrote it is a good lawyer that will protect his client (and the client is not *you*).
That's an important observation. We too often sign things without paying any attention to the wording, much of which can be in very fine or half-screen print. We don't even read the part that acknowledges reading and understanding. I consider my language skills excellent, but wading through some of this stuff is not easy. I don't know how those with poor language ability can manage.
I am not qualified to evaluate such a document. I trust Mike to do a great job looking out for WMF, but the interests of the WMF are not necessarily the interests of her trustees nor should they be. If I were a trustee and the WMF presented me with this draft (ignoring for this thought exercise all the community and value issues worth discussing) I would say, "Thank you I will pass this on to my lawyer." If WMF tried to discuss it I would say "Here's my lawyer's number." And after the lawyers hashed out something I was advised by my own personal lawyer to sign, I would sign it. I agree that signing such a document is serious and would involve me and my family for years, so I would take it seriously. Plus I wouldn't want to risk poisoning any working relationships by taking on the dirty work of protecting myself. So that means leaving it in the arena lawyers in my book. But that is me, and I'm paranoid about signing my name. :)
Most of these agreements do not lead to disputes, because the majority tend to act in good faith even without the agreement. I could say, I'll sign it because I know it means nothing and cannot be enforced, but there's a fundamental dishonesty about that approach that makes me uncomfortable. When it comes down to the agreement Mike cannot represent both the Foundation and the individual trustee about this since that would be a conflict of interest.
Ec
Ec
--- On Thu, 5/22/08, Ray Saintonge saintonge@telus.net wrote:
From: Ray Saintonge saintonge@telus.net Subject: Re: [Foundation-l] Board statement of responsibility To: birgitte_sb@yahoo.com, "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Thursday, May 22, 2008, 4:22 AM Birgitte SB wrote:
Plus I wouldn't want to risk poisoning any working
relationships by taking on the dirty work of protecting myself. So that means leaving it in the arena lawyers in my book. But that is me, and I'm paranoid about signing my name. :) Most of these agreements do not lead to disputes, because the majority tend to act in good faith even without the agreement. I could say, I'll sign it because I know it means nothing and cannot be enforced, but there's a fundamental dishonesty about that approach that makes me uncomfortable. When it comes down to the agreement Mike cannot represent both the Foundation and the individual trustee about this since that would be a conflict of interest.
The other aspect which I did a poor job clarifying is the problem with the trustees being on both sides of the contract. I would not want risk either failing my personal interests or those interests I would have a duty to. I find it a far better arrangment to assign the "personal interests" hat to my lawyer and focus on being a trustee. I also agree that I have a problem with the dishonesty of signing "in good faith without full understanding". The act of signing is an acknowledgement of understanding.
Birgitte SB
Birgitte SB wrote:
My read of this thread is that some people find the language in the "disparagement" part to loosely defined. Mike Godwin argues that they are wrong it and that finds language rather narrow. Neither side backed up their belief with anything substantial. Someone asked if for an example of similar language in a similar agreement from another organization; no one has produced such a thing. All and all I don't know what to make of that issue; maybe Mike is correct, maybe not. I do know I wouldn't personally sign such a thing until I was sure Mike was correct. But since there is no prospect of me being asked to sign such a thing; I am not sure my hesitation is a strong enough feeling to be worth sharing.
I note your use of the expression, "I wouldn't personally sign such a thing." I say this less because of the what it says then because of the phrasing. Mike seemed to take pride in the fact that the word "personally" appears three times in the document, and that it would somehow refer to the making of personal attacks. I would be more inclined to use the word in the manner that you have used it in reference to the subject of the verb rather than the object.
The biggest problem with these documents is that they purport to impose discretion, and discretion cannot be embodied in the signature that flows from one's pen.
Ec
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