Anthony writes:
It's not really a matter of what I consider to be a personal criticism or a personal attack. I think it's really a matter of what the Board members judge to be a personal criticism or attack, and they are the ones who ultimately will interpret this provision.
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.
A majority of the board already has the right to remove any board member, with or without cause.
Right. And this agreement goes further in outlining what might be cause. (For example, if a Board member refuses to participate in Board meetings or fulfill other Board requirements, that might be cause.)
What recourse does the board have against a *former* board member that violates this agreement?
As I said, above, injunction is a remedy.
As stands the agreement is far too ambiguous. At least fix up the ambiguities so it says what you claim it means, and get back to us. One thing that I'd insist upon personally is that the agreement makes it clear that it does not restrict sharing of non-confidential *information*, but merely certain means of sharing that non-confidential information. Maybe that line (slightly tweaked) could even be included.
It doesn't seem ambiguous to me, but if you want to suggest some wordsmithing, feel free to take a stab at it.
Of course, I personally wouldn't enter into a confidentiality agreement without adequate consideration, but I guess I can see how others might disagree with me on that point.
It depends on what you count as "adequate consideration." The fact that the draft tries to prevent service on the Board from becoming a suicide pact is couched in terms of mutual promises, and it is a longstanding feature of contract law that in an exchange of promises, each promise is consideration for the other.
I'm not trying to help you, Mike, as you haven't presented me with a problem worthy of my help.
Thank you for your e-mail.
But that does bring up another point. General principles apply to everyone. If personal attacks are the only things you're trying to restrict from the non-disparagement clause, why limit the restriction to only certain people?
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.
Do you think it's OK, for instance, for Sue Gardner to personally attack Danny Wool, calling him a "disgruntled former employee" on CNET? Would you consider that a personal attack? Was it ethical because you think Danny attacked someone first, or because Danny wasn't a current employee, or because he wasn't high enough in the organization before leaving?
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. The fact that our employment and post-employment agreements were not adequately professionalized until after Danny chose to depart is one of the issues that we have already addressed. I do of course think there is an ethical obligation to establish a framework in which, going forward, the Foundation and its employees and Board undertake to treat one another professionally, as all well-run companies do.
Am I now attacking Sue? I did mention her name, after all. I *am* *criticizing* her actions. Is it wrong for us to even be discussing this? Should we engage in cryptic allusions via hypothetical situations which certain people know how to decode and others don't?
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'm "chilled" from contributing on this list because I know if I say certain things I'm going to get this barrage of public personal attacks calling me a troll and asking me to leave.
Please understand me when I say I feel your pain.
I'm all for developing a set of principles, as a community, for reducing the personal attacks. But I think you're going about this all wrong. If you want my help, then let's throw out the non-disparagement clause in the current agreement, and work together as a community to come up with a set of general principles that we *all* can agree on and that we can apply to *everyone*.
I'm sorry to have given you the impression that the goal of the Board draft agreement is to fix the personal-attack issue for the community at large. I think it is much narrower than that, and meant to apply only to Board members, in response to their request for a comprehensive agreement.
--Mike
On Sun, May 18, 2008 at 10:31 AM, Mike Godwin mgodwin@wikimedia.org wrote:
Anthony writes:
It's not really a matter of what I consider to be a personal criticism or a personal attack. I think it's really a matter of what the Board members judge to be a personal criticism or attack, and they are the ones who ultimately will interpret this provision.
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.
A majority of the board already has the right to remove any board member, with or without cause.
Right. And this agreement goes further in outlining what might be cause. (For example, if a Board member refuses to participate in Board meetings or fulfill other Board requirements, that might be cause.)
But the board doesn't need cause to remove a board member, does it?
What recourse does the board have against a *former* board member that violates this agreement?
As I said, above, injunction is a remedy.
I can see how an injunction might be a remedy for not-yet-published confidential information, but not for enforcement of an ambiguous agreement not to engage in personal attacks (assuming that "criticize" is changed to "attack"). I don't see a board member going to a judge and saying "s/he was mean to me, make him/her stop", and I don't see how making legal threats and taking people to court over personal attacks can be very effective in the first place. If the attacks amount to slander or libel, OK, that's something the courts can maybe deal with, but slander and libel are already prohibited by law.
Maybe an agreement not to slander or libel other members (defined however) would be useful, as at least it could designate a jurisdiction to handle any disputes (which otherwise might be difficult to enforce due to the international nature of the project).
As it stands, the agreement uses the term "criticize", which is less ambiguous than "attack", but is not something which I agree with.
As stands the agreement is far too ambiguous. At least fix up the ambiguities so it says what you claim it means, and get back to us. One thing that I'd insist upon personally is that the agreement makes it clear that it does not restrict sharing of non-confidential *information*, but merely certain means of sharing that non-confidential information. Maybe that line (slightly tweaked) could even be included.
It doesn't seem ambiguous to me, but if you want to suggest some wordsmithing, feel free to take a stab at it.
I don't think there's a need for such an agreement at all, so I'm not going to suggest alternative wording, except to eliminate the "Confidentiality and Non-disclosure" section. However, there are two major problems which I'm referring to when I say it is ambiguous. 1) It says "criticize", but you are interpreting it as meaning "attack". These words do not mean the same thing. Say what you mean. 2) The phrase "personally criticize...the Foundation" makes no sense. The Foundation is not a person. How can you "personally criticize" "the Foundation"?
Of course, I personally wouldn't enter into a confidentiality agreement without adequate consideration, but I guess I can see how others might disagree with me on that point.
It depends on what you count as "adequate consideration." The fact that the draft tries to prevent service on the Board from becoming a suicide pact is couched in terms of mutual promises, and it is a longstanding feature of contract law that in an exchange of promises, each promise is consideration for the other.
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).
But that does bring up another point. General principles apply to everyone. If personal attacks are the only things you're trying to restrict from the non-disparagement clause, why limit the restriction to only certain people?
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.
Do you think it's OK, for instance, for Sue Gardner to personally attack Danny Wool, calling him a "disgruntled former employee" on CNET? Would you consider that a personal attack? Was it ethical because you think Danny attacked someone first, or because Danny wasn't a current employee, or because he wasn't high enough in the organization before leaving?
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.
Am I now attacking Sue? I did mention her name, after all. I *am* *criticizing* her actions. Is it wrong for us to even be discussing this? Should we engage in cryptic allusions via hypothetical situations which certain people know how to decode and others don't?
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 "chilled" from contributing on this list because I know if I say certain things I'm going to get this barrage of public personal attacks calling me a troll and asking me to leave.
Please understand me when I say I feel your pain.
I'm all for developing a set of principles, as a community, for reducing the personal attacks. But I think you're going about this all wrong. If you want my help, then let's throw out the non-disparagement clause in the current agreement, and work together as a community to come up with a set of general principles that we *all* can agree on and that we can apply to *everyone*.
I'm sorry to have given you the impression that the goal of the Board draft agreement is to fix the personal-attack issue for the community at large. I think it is much narrower than that, and meant to apply only to Board members, in response to their request for a comprehensive agreement.
Fair enough. I got thrown off by the reference to "the U.S. Constitution or the Universal Declaration of Human Rights". I also got the impression that this agreement was something the staff was trying to push on the board, and not something that the board had requested for its own benefit.
Maybe a starting point is to see if all board members would agree to change the term "criticize" to "attack". Another improvement would be to protect board members from such attacks during the three year period following their departure, during which they are restricted from making such attacks.
As for the non-disclosure clause, what is the point in including this? I suppose the benefit to the board members in including this is that certain organizations will not do business with the foundation without it? If so, does the foundation currently have a policy describing what constitutes confidential information? That should probably be a prerequisite. And, plagiarizing from http://www.npcenter.org/statements_of_ethical_standards.html, shouldn't this be modified to say "confidential information belonging to, or obtained through their affiliation with the Wikimedia Foundation"?
Anthony
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