First of all, a happy new year to everyone!

Thank you, James, for bringing at least some light into this blurriness. For some more light, all board members, please do me a favor and explain briefly how you see the relationship between transparency and our movement, especially in your work as board members. And of course, please include how this opinion is in line with your decision in James's case. I'd really like to know what each of you thinks about that. Thanks. :)

Th.

2016-01-02 1:31 GMT+01:00 James Heilman jmh649@gmail.com:

Dear all

I have been accused of three things:

Giving staff unrealistic expectations regarding potential board decisions. I have always stated to staff that I only represented 10% of the board and have never given assurances that I could convince other trustees. I would be interested in hearing staff weigh in on this accusation but I consider it unfounded.

Releasing private board information. I have not made public, private board discussions during my time on the board. I have however pushed for greater transparency both within the WMF and with our communities. I have made myself informed by discussing issues with trusted staff and community members and used independent judgement.

Publishing the statement about my removal on Wikimedia-l. I was not asked by other board members at any time before its publication to produce a joint statement or to delay publishing the statement I had put together a few days prior. The first proposal to collaborate I believe was by myself here

https://lists.wikimedia.org/pipermail/wikimedia-l/2015-December/080502.html I was also not informed that the meeting was going to continue for the purpose of producing such a statement.

I have always acted in what I believe are the best interests of the movement and the WMF.

-- James Heilman MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine www.opentextbookofmedicine.com _______________________________________________ Wikimedia-l mailing list, guidelines at: https://meta.wikimedia.org/wiki/Mailing_lists/Guidelines New messages to: Wikimedia-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l, mailto:wikimedia-l-request@lists.wikimedia.org?subject=unsubscribe

Hi all -

What concerns me as much as anything about James' removal is his final statement - "I have always acted in what I believe are the best interests of the movement and the WMF." James has been active in the movement for a long time in a variety of roles, and we have no reason to believe that this statement is not true - in fact, even public statements from other trustees so far have not contradicted it. If James statements is to be taken at face value, then he has in fact met his fiduciary duty to the WMF. Trustees don't have an inherent duty of confidentiality - they have inherent duties of loyalty, and inherent duties of care. They *often* have a derived duty of confidentiality, but that's a derived duty - disclosing information related to an ongoing lawsuit to another party in a way that would be harmful to WMF would violate the board member's duty of loyalty to WMF. Even though that's often spoken about as if it would be a problem because of an inherent duty of confidentiality, except in situations involving things like obligations to third parties (e.g., most issues of staff discipline, or explicitly private details of a contract with a thrird party,) the root issue in the theoretical situation I described would be breaking their duty of loyalty, not breaking their obligation to hold an issue confidential.

I don't believe that James' announcement of his dismissal from the board is potentially a broach of his fiduciary duty to the WMF. Given the other issues involved here, I find it reasonable - and I tend to agree with him - that having an open, prompt, and transparent conversation about his dismissal from the board and the reasons behind it is in the best interests of the Wikimedia Foundation. If he had been explicitly informed that the rest of the board was in the process of crafting a public, detailed statement about his dismissal, then this could potentially be an issue, but it seems like he wasn't informed that that was the case, so I don't understand how James' announcement of his own dismissal could be taken as a breach of his fidicuiary duties.

Without knowing what specific information was involved, it's hard to gauge whether James released confidential information in a way that was a breach of his fiducuiary duties. I will say that I've talked with James pretty often during his tenure on the board, and although he's been quite frank about his own opinions and about how he thought certain issues should be approached, I do not believe he disclosed a single piece of information that would reasonably be deemed confidential to me - and even if he had disclosed information the board believed should be held confidential (and I honestly don't believe he did,) unless there was a secondary obligation of confidentiality (e.g., a contract with a hosting provider with a nondisclosure clause,) doing so wouldn't inherently be a breach of his fiduciary duties - if he disclosed such information to me (or anyone else) because he thought that the benefit of our advice was outweighed by the chance of us disclosing the information further, it still wouldn't inherently represent a breach of his obligations to the board. But again - at least in conversations with me, he hasn't even gone that far. From time to time he has sought my opinion about particular issues, but he's done so in a way that hasn't made anything apparent except at the most his own personal opinion - in cases where he sought my advice, I wouldn't even have been able to make a clear guess as to whether he was asking for advice about an issue currently before the board, or an issue he was considering bringing up in six months.

Speaking with staff presents a trickier issue than the first two, but still isn't a black and white bad thing to do. Board members are generally encouraged to restrict their conversations to conversations with management (so that they don't end up accidentally interfering with management issues, since the primary role of board is governance,) but at the same time, if they believe that in order to fulfill their fidicuciary duties they need to have direct conversations with staff members, then legally, they would be breaking their fiduciary duties if they *didn't* have those conversations. While having them they should stress that they are interacting with the staff members as individual board members, not representing management or the BoT as a whole, and not trying to interfere with day to day management of the organization - but it sounds like James tried to follow those standards. There's also a secondary issue; if a staff member approached a board member with a concern that they believed could not be adequately addressed within their normal leadership chain, the board member would be absolutely remiss in not at least having a conversation with the staff member. If someone from fundraising had approached James with concerns that management had somehow embezzled $100m, and those concerns turned out to be at all plausible, he would be absolutely remiss in his duties as a board member in not following up on that conversation until he determined the veracity of the complaint (I'm making this an intentionally impossible situation to make it clear that I'm not basing this on any actual conversations James had with staff - because I'm unaware of what those conversations consisted of. For those missing it: embezzling $100m would be literally embezzling more than WMF's entire operating budget, and could only possibly happen if all WMF staff members, board members, and outside obsevers had literally been replaced with potatoes.)

If James believed that his conversations with staff members were reasonably necessary to fulfill his fiduciary duties, then although he should try to emphasize the role in which he was acting, he should have those conversations. Just so this whole email isn't drawn on my own knowledge{{cn}}, I want to point out that the WMF board manual - [1] - pretty soundly supports my interpretation of all three issues that James has seemingly been accused of. The manual makes it clear that WMF board members should not attempt to micromanage or task staff in most instances (with obvious exceptions like coordinating board travel,) and discourages board members from having substantive conversations with staff without informing the ED except in situations where the ED has a conflict - although I would point out that that section is guidance, rather than a description of a board member's legal obligations. If you look at the section of the board manual that specifically describes the fiduciary duties of board members - [2] - it stresses that board members must be as informed as they can in considering issues that come before the board, taking in to account all reasonable sources of information that come before them. In most cases (that don't involve the evaluation of the performance of management,) most of this information should be provided to board members by the ED or other senior management, but if a board member feels that their decision cannot be fully informed without consulting non-management staff members, then it is up to the board member's own judgement as to whether or not they should consult with non-management staff.

When I was on the board of a California-based organization, we had a director in his first year - we had a formalized performance review process for him that involved talking to non-management staff systemically. I don't know if WMF BoT has a similar process for Lila, but even if they don't, I can imagine staff members raising issues they perceive with Lila directly with a Trustee that they know. Nothing against Lila in saying that - it's just fairly typical to have things like that happen in the first year of a new ED's term. I don't know if that was what James' contact with staff was about, but if it was, I could see it being more than appropriate. In a movement that prioritizes openness as greatly as Wikimedia does, I could also see a great degree of contact between trustees and non-management staff being potentially appropriate.

I really hope that more information comes out to support the idea that James' removal from the board was necessary - he ran on a more active platform than most recent trustees has, won a pretty significant number of votes, I think I and many others will have significant confidence in his statement that he has always carried out his fiduciary duties (and doing so requires him doing what he views as best for WMF, and explicitly not subordinating his judgement to anyone else's, including other trustees,) and so far I'm not sure that any of the publicly expressed concerns about his actions justify his removal. I wouldn't expect every organization to justify the removal of a trustee publicly, but with a movement that values openness as much as ours does, I'd hope that the removal of a community-recommended trustee could be publicly justified pretty fully.

Best, KG

[1] https://meta.wikimedia.org/wiki/Wikimedia_Foundation_Board_Handbook [2] https://meta.wikimedia.org/wiki/Wikimedia_Foundation_Board_Handbook#Fiduciar...

On Fri, Jan 1, 2016 at 4:31 PM, James Heilman jmh649@gmail.com wrote:

Dear all

I have been accused of three things:

Giving staff unrealistic expectations regarding potential board decisions. I have always stated to staff that I only represented 10% of the board and have never given assurances that I could convince other trustees. I would be interested in hearing staff weigh in on this accusation but I consider it unfounded.

Releasing private board information. I have not made public, private board discussions during my time on the board. I have however pushed for greater transparency both within the WMF and with our communities. I have made myself informed by discussing issues with trusted staff and community members and used independent judgement.

Publishing the statement about my removal on Wikimedia-l. I was not asked by other board members at any time before its publication to produce a joint statement or to delay publishing the statement I had put together a few days prior. The first proposal to collaborate I believe was by myself here

https://lists.wikimedia.org/pipermail/wikimedia-l/2015-December/080502.html I was also not informed that the meeting was going to continue for the purpose of producing such a statement.

I have always acted in what I believe are the best interests of the movement and the WMF.

-- James Heilman MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine www.opentextbookofmedicine.com _______________________________________________ Wikimedia-l mailing list, guidelines at: https://meta.wikimedia.org/wiki/Mailing_lists/Guidelines New messages to: Wikimedia-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l, mailto:wikimedia-l-request@lists.wikimedia.org?subject=unsubscribe

James Heilman <jmh649@...> writes:

Dear all

I have been accused of three things:

Giving staff unrealistic expectations regarding potential board decisions. I have always stated to staff that I only represented 10% of the board and have never given assurances that I could convince other trustees. I would be interested in hearing staff weigh in on this accusation but I consider it unfounded.

Releasing private board information. I have not made public, private board discussions during my time on the board. I have however pushed for greater transparency both within the WMF and with our communities. I have made myself informed by discussing issues with trusted staff and community members and used independent judgement.

Publishing the statement about my removal on Wikimedia-l. I was not asked by other board members at any time before its publication to produce a joint statement or to delay publishing the statement I had put together a few days prior. The first proposal to collaborate I believe was by myself here https://lists.wikimedia.org/pipermail/wikimedia-l/2015-December/080502.html I was also not informed that the meeting was going to continue for the purpose of producing such a statement.

I have always acted in what I believe are the best interests of the movement and the WMF.

Hi - my name isn't familiar to most of you,* but I'm another community member and I spoke to James when he visited San Francisco a couple months ago. James was an early mentor of mine when I was editing medical topics a number of years ago, so it was natural for us to meet up for coffee.

As a nonvoting community member of the WMF Audit Committee, I get to see some privileged information and talk to the auditors once a year. If I recall correctly, James thought I might have been receiving emails about some sort of financial situation. When I said no, he didn't reveal any information about what the situation was, but if I recall correctly he said that the board wasn't letting him view some documents.

I'm not a lawyer, but the general rule, mostly codified in state statutes, is that all board members have an equally absolute right to inspect and copy all books and records. See Martin G. McGuinn Jr. 1966 which notes that "a large number of courts have ... termed this right absolute and unqualified". So I told him his rights. We've never talked about it since. The announcement of his dismissal came as a huge shock to me, but I imagine James asserted his rights to some of the board's discomfort.

I did come away with a question mark about what the situation might be and I figured I would bring it up at the next audit meeting (which hasn't happened), but as a nonvoting member I'm really not in a position to rock the boat or demand sensitive information. I can make gentle suggestions and ask questions, but I'm really just there as a courtesy. I imagine this message may spell the end of my tenure.

Commenting on the three points:

1. Putting a few pieces together, it appears that much of the dispute centers around staff relationships. According to https://meta.wikimedia.org/wiki/Talk:WMF_Transparency_Gap#Staff_communicatio... iscouraged staff were forbidden to communicate to board members, which implies that there was also an unwritten rule strongly discouraging board members from reaching out to staff as well. Yeah, it's a convention to funnel all communication through the ED, but it's not necessarily a good one. In any case, the board needs to survey staff (quantitatively and qualitatively) to effectively review the Executive Director's performance. Further, this makes WMF sound like a fear-driven organization ("fear is the mind-killer"). The best employees - especially the developers - can easily find other jobs. In any case, we in the community are free to talk to staff all we - and they - want. It's hard to keep things secret in the wiki-world, even if the WMF seems to have done a pretty good job so far. If necessary, the community can organize a group to conduct surveys of willing employees and send it to the board, although I hope that won't be necessary.

2. As far as releasing private information, if anyone got something private, you might think I would have gotten something juicy sitting across a table from James, but I didn't. If the WMF had good evidence of disclosing private information, you'd think they would have revealed it by this point. Also, while there is a convention that "what happens in the boardroom stays in the boardroom", my understanding is that non-executive session discussions are not confidential. Which is not to suggest that James was describing board meetings to people.

3. While James has a great rebuttal, his announcement about his dismissal came after the fact, and it isn't worth cluttering up the more important substantive conversations with it any more.

Incidentally, on the topic of director democracy and its rarity among nonprofits ,Dent (2014) concluded in the Delaware Journal of Corporate Law that "NPO boards are effectively self-perpetuating. If the director primacists are correct, the governance of NPOs should be a model of wise, long-term management effected by officers who are clearly subordinate to the board. In fact, however, a remarkable consensus of experts on NPOs agrees that their governance is generally abysmal, considerably worse than that of for-profit corporations". Just because a practice is common doesn't mean it is a best practice.

* I've been editing Wikipedia since 2007 under a pseudonym but joined the Wikimedia Audit Committee as a nonvoting community volunteer a year and a half ago. I monitor lots of RSS feeds so I noticed a solicitation by the chair Stu West and submitted an application detailing my accounting and board experience. I monitor but don't really too involved in administrative aspects of Wikipedia. If you connect the dots to my username, please keep it to yourself even tho it's not a big secret.

References: 1. Martin G. McGuinn Jr., Right of Directors to Inspect Corporate Books and Records, 11 Vill. L. Rev. 578 (1966). Available at: http://digitalcommons.law.villanova.edu/vlr/vol11/iss3/6

2. Dent, George W., Corporate Governance Without Shareholders: A Cautionary Lesson from Non-Profit Organizations (2014). Delaware Journal of Corporate Law (DJCL), Vol. 39, No. 1, 2014; Case Legal Studies Research Paper No. 2014-34. Available at SSRN: http://ssrn.com/abstract=2481646

Sincerely, Ben Creasy http://bencreasy.com/ (posted this through gmane so it might be a little funky. I use RSS to monitor the list - no way in hell am I letting a list like this clutter my pristine, nearly zero-item inbox)

Il giorno sab, 02/01/2016 alle 09.31 +0900, James Heilman ha scritto:

Dear all

I have been accused of three things: [...]

Does the board agree that these three are the things contested to James? * Giving staff unrealistic expectations regarding potential board decisions; * Releasing private board information; * Publishing the statement about his removal on Wikimedia-l. (the last one clearly cannot have had a role in his removal, so this leaves the first two)

Laurentius