[Foundation-l] Provisional Volunteer Council - proposal sent to the Board
mgodwin at wikimedia.org
Wed Apr 2 06:32:23 UTC 2008
> Can you give us a little bit of feedback on the issue ?
> Let's say... if the board was to decide on a dual governance between a
> "board of trustees" and a "program council", what would the legal
> comment you would provide ?
I'd have to research the issue at some length to give you a full and
reliable answer. That could take a significant amount of time. But,
speaking very generally, I can give you some worst-case scenarios, if
you're worried about risks. For example, American corporation law
commonly prohibits boards of directors (or boards of trustees) from
delegating certain board-specific functions and duties outside of the
board. Alternative structures are sometimes possible (especially if
designed into the corporation at the beginning). But to transmute the
current Foundation governance along the lines Florence suggests might
require dissolution and/or reincorporation of the Foundation, transfer
of assets to the new entity, and other complications, including
reapplication for tax-exempt non-profit status (perhaps in another
state). It might also affect long-term gift commitments (the new
entity might have to reapply for grants already committed to the
former entity, for example). I'm not saying all this (or any of this)
would necessarily happen, but I believe the risks of fundamental
governance change deserve serious legal study in addition to
All of the risks may be worthwhile, of course, to craft a new
governance structure if it is generally believed that the Foundation's
current governance structure is fundamentally broken. But
corporations, including NGOs and charities, are essentially legal
creations, so the legal questions *always* need to be addressed if
you're trying to figure out what is possible, or how to fix a broken
corporation, or if you're trying to solve any other corporate problem.
I think the best place to begin, when one is considering corporate
governance issues, is to precisely define the problem you want to
solve. Once you define the problem (or problems), you then research
what solutions are legally possible in the corporate-law framework
you're working with. It may be possible that the problem is fixable
without any governance structure changes (e.g., by electing or
appointing new Board members to replace current ones, or in addition
to current ones), or by relatively minor bylaws changes. Or they may
require a fundamental restructuring of the corporation (which, as I
said, is carries certain risks).
At the beginning of these discussions on foundation-l, I assumed that
the upcoming meeting in Amsterdam was aimed at defining what problems,
if any, exist. But now the discussions seems to have shifted to an
assumption that there's a problem that requires a governance-structure
change to fix. If that is the case, then we need to begin work now on
making sure the problem is fully defined, so that the Board can
consider whatever structural changes may be required to address the
problem, in full compliance with the law.
I could say more, but I feel that have gone on at (somewhat boring)
length already, so I'll do the prudent thing and end this e-mail.
Thanks for listening.
More information about the foundation-l