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

[Gerard Meijssen]

Ray Saintonge wrote:
> Tim Starling wrote:
>
>> Gerard Meijssen wrote:
>>  
>>
>>> I am amazed that you suggest that an officer of the Wikimedia 
>>> Foundation
>>> would be personally liable for the work done as an officer. I would
>>> expect that an officer of an organisation speaks for the organisation
>>> and as a consequence the organisation is liable for the actions of its
>>> personnel. Normally someone employed by an organisation is liable only
>>> when gross incompetence can be proven or in cases where the law has 
>>> been
>>> violated to an extend where criminal intend can be proven.
>>>
>>> I am sure that someone can and will explain to what extend an employee
>>> is personally liable for his actions as an employee of the Wikimedia
>>> Foundation.
>>>   
>> Well, firstly IANAL and secondly most of my legal knowedge comes from 
>> studying Australian law rather
>> than US law. But my understanding is that civil liability for the 
>> action of employees rests with the
>> corporation or individual employing them. This is called vicarious 
>> liability.
>>
> Gerard's response on this seemed naïve.  No-one wants to go into a 
> situation where there is a high risk of liability,  But these things 
> do happen, and there are situations where the law needs to pierce the 
> corporate veil when the corporate structure is there to assist in the 
> perpetration of a scam.  In some cases liability insurance can be 
> purchased, but that too can be expensive.  It's also important to 
> remember the level of litigiousness that is found in US society.  A 
> plaintiff will often cast a wide net in the hopes of catching the 
> right victim with deep enough pockets to pay for the wrongdoings of a 
> penniless associate.  This can be a frightful experience when people 
> with only marginal involvement find themselves put through the expense 
> of defending themselves in court.
As I understand things, there are two types of people in the Wikimedia 
Foundation and its projects.

    * There are the person with an official role; they are appointed or
      chosen to their function.
    * There are the persons with no official status as far as the WMF is
      concerned. These include stewards, bureaucrats, admins and users.

Only the first two groups have any protection for what they do within 
the Wikimedia Foundation. They have this protection as they represent 
the Wikimedia Foundation in an official capacity. When something is done 
on any of the projects that results in a legal situation, it is the 
person who will be, when identified, be the one prosecuted. Depending on 
the situation the Wikimedia Foundation or a chapter may involve itself, 
this is not a given.

When a person in his official position gets into a legal situation, it 
typically is the organisation, here the Wikimedia Foundation, who will 
be prosecuted. It is only when a person is criminally negligent or 
involved that there is a ground to prosecute an individual.

This is my understanding of how these things work. The consequence is 
that officers of the WMF or of chapters have protection that all other 
WMF volunteers lack. The fact that statutory laws exist for '''gross''' 
mismanagement is something that we should welcome. Typically it takes 
some effort to qualify as gross mismanagement. Given the people that we 
currently have in official positions this is unlikely to happen.

The only group of people for whom it is not entirely clear to me what 
their status is, are the people who help out on OTRS. Yes, I do know how 
careful these people try to do their job.. :)

Thanks,
   GerardM