[Foundation-l] Re: Outsiders on the Board? (was Re: Poll for Wikistandards)

[Anthere]

Anthony DiPierro wrote:

> It seems to me that he is basically right.  The doctrine is
> [[respondeat superior]], and it typically applies only to people
> working in an official capacity.
> 
> Anthony


I looked at the article [[respondeat superior]]. It typically applies 
only to people in a relationship of employer/employee.

"is a legal doctrine which states that an employer is responsible for 
employee actions performed within the course of the employment."

The problem is that there are only two people in that type of situation. 
Others are not a relationship of employer/employee. Neither the board 
members, nor the officers (except possibly Danny, but he is not employed 
  as an officer).

So, I am not sure how this doctrine exactly applies to us.
But let's imagine that for some reason, it actually applies to us.

What is missing is Gerard argument (which is to claim that board members 
and officers are better protected than volunteers) is the field of 
application of the protection.

What would be the field of application ? it would be the activities 
directly in relation with the Foundation itself. And only those 
activities. So, I do not see where the comparison stands.

Editorial field : If a board member edits an article and adds defamatory 
content, he is responsible just as a regular volunteer. This activity is 
unrelated to the Foundation activities and I doubt much the board member 
(or the officer) will be more protected than any one else. This is his 
own responsability to add defaming content to an article imho.

However, if a board member makes a real bad decision in terms of 
allowing expenses, it is normal that he holds a certain responsability. 
A volunteer not involved in the Foundation can *not* take that decision, 
so there is no reason why he would be held responsable. Hence, the first 
may be protected by the Foundation, but there is no reason to protect 
the second person from a decision he can not be involved. There is no 
lack of equality or unfairness, since the field of application only 
applies to the first person.

Now, what I think bother Gerard is this : what if a volunteer answers in 
OTRS and does so in the name of the Foundation, even though he has 
received no authority/delegation to do so? Will he be protected ? 
Probably not. He is even liable to the Foundation and should the 
Foundation be threatened by the answer given by the volunteer, the 
Foundation could indeed defend itself by suing the volunteer. In that 
sense, yes, the volunteer is *less* protected than the board 
member/officer. But here, I think the volunteer must use common sense 
and not "imply" he is talking in the name of the Foundation when he is 
not. Or if he does so, it is best he be careful of his answer.

And... for those of you who do not have access to OTRS, any message sent 
through info-en contains at its bottom the following message :

Disclaimer: all mail to this address is answered by volunteers, and 
responses are not to be considered an official statement of the 
Wikimedia Foundation. For official correspondence, you may contact the 
site operators at <http://www.wikimediafoundation.org>.

So, the risk is very limited indeed. It mostly relies on common sense 
and good faith from both parties.

ant