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

Florence Devouard Anthere9 at yahoo.com
Fri Apr 11 09:02:59 UTC 2008

Jussi-Ville Heiskanen wrote:
> On 4/11/08, Michael Snow <wikipedia at verizon.net> wrote:
>> 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
> I genuinely haven't read or thought much about how these
> non-disparagement things operate, but just for information,
> a point of order, if you may; how would the non-disparagement
> thing mesh with the thing we have in relation to whistle-blowers?
> Do I understand it correctly, that the whistle-blower  protection
> is in terms of immediate and confidential informing of somebody,
> (who?) of serious misdeeds, and not something that would
> protect someone who took their time to make their protestations
> and did it without confidentiality, in a manner that it would lead
> to a public out-cry that was harmful to the mission, but would
> not help to redress the issue itself in any way, because of
> the public nature of the speech and/or the time elapsed after
> the purported misdeed?
> Jussi-Ville Heiskanen, ~ [[User:Cimon Avaro]]

There are two main differences.

First, the whistleblower policy only applies to staff members. Not to 
board members.

Second, the whistleblower policy relates to violations of law and 
regulations, whilst disparagement is... a pretty vague term, which might 
encompass from nothing to everything.

The whistleblower policy is not strictly related to confidentiality. It 
essentially make it possible to a staff member to report law violations, 
or serious chances of law violation, and not fear being fired.

If I understood well, the staff already signed a non-disparagement 
agreement, though I did not see the precise terms of the agreement.
The whistleblower policy made it possible for them to report publicly 
law violations and not fear retaliation.
I guess that the addition of the non-disparagement agreement restrict 
their freedom, and make it mandatory for them to only report to ED, or 
Chair, or Audit Committee Chair (and prevent public reporting).


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