[Foundation-l] The fallacy of power

[Mike Godwin]

Samuel writes:

>  What is the scope of these responsibilities?  I have heard the term
> "fiduciary responsibilities" used in Wikimedia circles as a way of  
> shutting
> down conversation -- thought not for some time -- and as a result I  
> would
> appreciate a proper definition.

See for example <http://en.wikipedia.org/wiki/Fiduciary_duty>.

> Trusting someone to give good topical advice and trusting them to  
> make good
> long-term decisions and remain true to their principles are rather
> different.

Well, sure, but that's why the law imposes fiduciary responsibilities  
on the Board of Trustees (even the appointed ones). The checks and  
balances you are concerned about are built into the law itself.

> As long as we are using extra quotation marks... the Board is in a  
> position
> to attempt to "optimize fundraising" by taking on advertising, tying  
> the
> brand[s] to specific companies, or starting a  
> censorship^B^B^Bcontent safety
> campaign to make the sites more friendly to potential donor groups.

The Board has always been in the position of taking action that would  
destroy the community responsible for making the projects as vital and  
rich as they are. No Board has been stupid enough to do so, and I  
can't see how the restructured Board would suddenly become stupid  
enough to do so.

> Of particular concern to me is that there is no mechanism for passing
> extraordinary measures or referenda, no matter how overwhelmingly  
> desired by
> the collected Wikimedians; and that there is no trusted eminence  
> that could
> veto board actions in extraordinary circumstances.  A simple  
> majority of
> board members could alter the bylaws however they saw fit, and then do
> anything at all.

This has always been the case. Nothing about the restructuring changes  
this.

> You have been around for longer than I have, but I have seen my  
> share of
> good governing bodies that fail to prepare for a future in which  
> they are
> replaced by not-so-good boards, and regret the results.  The way to  
> avoid
> this is to prepare checks and balances, not to give everyone the  
> benefit of
> the doubt until something goes wrong -- by when it is often too late.

As a constitutional lawyer, I think about "checks and balances" as a  
feature of government, not of a nonprofit corporate board.  In a  
government, there are strong arguments for checks and balances (this  
is a primary topic in the Federalist Papers), but with corporate  
governance, the checks are primarily external ones (corporate law, the  
legal system, etc.).  If you want to paralyze a non-profit (and almost  
all of my entire career has been working for nonprofits), by all means  
ensure that every single action the entity takes is subject to a  
referendum.

> You suggested no limits on what is acceptable for the board to carry  
> out
> without explicit notice.

Is there a legal restriction that I'm overlooking? Please advise.  The  
Board certainly has to operate within the constraints of the law.

>  By this reasoning, a future board, after a general
> discusion about structural change, could alter its composition by  
> 30%, with
> an arbitrary reshuffling of community, external, voted and appointed  
> seats.

There's a difference between "could" and "is likely to."  No one can  
make policy based on the worst imaginable cases. You have to assume  
most people will act well most of the time, or this whole enterprise  
collapses.


--Mike