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

[Jussi-Ville Heiskanen]

On 4/14/08, Erik Moeller <erik at wikimedia.org> wrote:
> There's a difference between "speaking out" and making insinuations
> and personal attacks. The non-disparagement agreement begins an
> important conversation about this difference, and leads it towards a
> social and legal agreement. I'm sure you agree that none of us have
> the desire to trash talk each other in public; when we criticize, we
> want to be judicious and fair, and we want to be treated in the same
> way. The agreement puts this into clearer language that we can all
> commit to. This is the relevant section from the agreement signed by
> staff members:
>
> - begin quote -
> NON-DISPARAGEMENT AND CONSIDERATION. Both Employer and Employee
> agree that the free and open exchange of ideas and information among
> employees,
> contractors, and agents of the Foundation is to be encouraged.
> Employee agrees that, during the term of employment and for three
> years thereafter, Employee shall not, in any
> communications with the press or other media, or any customer, client
> or supplier of
> company, or any of company affiliates, ridicule or make any statement
> that personally
> disparages or is derogatory of Employer or its affiliates or any of
> their respective directors,
> trustees, or senior officers. Additionally, and in consideration of
> Employee's covenants in
> this agreement, no directory senior officer of Employer or member of
> the Board of Trustees
> of the Employer will, during the same time period, personally
> criticize, ridicule or make any
> statement that personally disparages or is derogatory of employee.
> - end quote -
>
> I think that's a reasonable definition. I'm sure it could be improved
> further. But we should not excuse malicious attacks as a "free speech
> issue". They are not; they are simply inappropriate behavior that
> nobody associated with the organization should engage in. Furthermore,
> as has been pointed out, this agreement works both ways; it protects
> both parties to it.

I am curious how closely the definition matches some usual
standard formulation of similar agreements.

As to the very text itself, I do have some very strongly felt
questions I would love to see clarified. For if I read it closely,
and take it to mean what it would clearly seem to imply; that
though working both ways, there is a significant imbalance
to it.

Now it may be that the imbalance is intentional, perhaps
mandated by law, or custom, or just simply the standard
way those agreements are formulated. And in fact, in the
case of people who are payed employees, I do in fact
think it may not be unreasonable there is a this imbalance
(which some one who would wish to be more blunt, might
call "unfairness"), because there is this old Finnish saying
that you sing the songs of the person whose bread you eat.

To my mind though, the case is very very different in the
case of people who volunteer their time, and are doing the
work out the love for our cause only, without recompense
for the burden of responsibility and time expended.
Personal sacrifices made. In that situation this lack of
balance is very troubling to me.

Let me spell out the imbalance I see.

Let us use generic terms "organisation" and "individual"
here, even though of course in practise in the organisation
naturally the hypothetical disparaging would of course
come from the mouth of an indvidual, but an individual
still in the organisation, nevertheless.

On the individual side, let us say hypothetically a removed
or resigned board member (which the case would be, does
not really signify in illustrating my point), went and spoke
to any of the proscribed audiences in a manner not
allowed by it, what entity that person is directed not
to offend against, is very sweeping, clearly any
functionaries or the organisation as a whole, I really
cannot see how the text can be parsed any way.

It reads very differently, when the roles are reversed.
In that case the only party protected is defined as narrowly
as a laser beam. And I quote:

"..ridicule or make any statement that personally
disparages or is derogatory of employee."

This leaves a loophole wide as a barn door. Let us again
hypothesize a problem, small or large. In that case
nothing would preclude the organisation issuing a
statement to the effect of for instance: "there have
been mistakes made, this and that occured, we
cannot give any details, but rest assured the people
responsible are no longer with the organisation",
provided of course that the statement was phrased
in a way that it obscured who the responsible
person was.

But in that situation, though nothing in the agreement
had been breached, and infact the situation would have
repaired much of the image of the organisation, *all*
the people who no longer were with the organisation
but could by the obscurational nature of the statement
conceivably have been the guilty party, would be under
a dark cloud.

I really cannot express quite how strongly I feel this
would be unfair to some person who had poured their
heart and soul, their lifeblood into making the work
happen in the organisation, and this is regardless
of whether problem had been unintentional or by
intent, the imbalance, frankly, is abominable.

>
> Having agreements like this in place, beyond stimulating conversation,
> is also a matter of organizational scalability. We went from zero to
> 15 employees in three years; the Board itself has expanded and may
> continue to do so. We're not a small club that can be run primarily by
> internal consensus -- policies, procedures and agreements exist to
> mitigate risks.

I hope do not think I am critisizing you personally. I genuinely have no
idea from whose hand the document is, whether is is taken from some
standard template, whether it was written by a staff member, a board
member or an outside contractor. I just feel I had to bring that out there.

And I repeat, I do not see anything egregious about applying this kind
of agreement to those who are given money for the work they do, and
could imagine something very close like it might be fairly standard.
Even if there might be a cloud that the employees who no longer
were foundation employees, might be under, psychologically, the
vital thing for them, would be that their employability would not be
harmed, and that is what is often the import of such agreements
from their point of view.

Jussi-Ville Heiskanen, ~ [[User:Cimon Avaro]]