[Foundation-l] Future board meeting (5-7 april 08)

[Michael Snow]

Delirium wrote:
> Michael Snow wrote:
>   
>> In the meantime, with or without a 
>> non-disparagement agreement, board members still have a fiduciary 
>> obligation to always act in the best interests of the organization.  
>>     
> What is actually the point of all of this legal posturing? Does the 
> Wikimedia Foundation seriously intend to ever sue a member of its Board 
> of Directors solely for saying disparaging things about it? Would that 
> *ever* be the right thing to do? I can think of very few cases where a 
> decision to do so would not itself be a breach of fiduciary duty, 
> basically sinking the organization by destroying its public goodwill and 
> donation stream.
Disparagement and breach of fiduciary duty could well overlap, that was 
exactly my point. But that doesn't help with a situation where somebody 
has left the organization and the fiduciary obligation has ended. The 
agreement would be designed to remain in force for a time after the 
period of service has ended.

I agree that in most cases the foundation would not want to enforce this 
in court. The odds of any given contract becoming the basis of a lawsuit 
are very slim. But the fact that it would be a contract belies the 
one-sided analysis I'm seeing so far. Contracts, of course, require a 
mutual obligation, so the idea is that Wikimedia would not be allowed to 
disparage former board members either. That as much as the reverse is 
the reason officers and employees might sign such an agreement, since it 
allows them to protect their personal reputation and future 
employability. I trust people don't want the foundation to have that 
kind of threat hanging over those who decide to move on.

--Michael Snow