[Foundation-l] A train without destination?

[Geoffrey Plourde]

Sorry, Charlie. According to the Charter, trustees are indemnified, no matter what the law in Zimbabwe is. 



----- Original Message ----
From: Ray Saintonge <saintonge at telus.net>
To: Wikimedia Foundation Mailing List <foundation-l at lists.wikimedia.org>
Sent: Sunday, March 16, 2008 12:35:54 PM
Subject: Re: [Foundation-l] A train without destination?

Thomas Dalton wrote:
>> Having a two elected bodies making binding decisions sounds like a
>>  very bad idea to me.
>>    
> You mean the council and the board? Working out which body will have
> power over which decisions would be essential. There would also need
> to be a strict rule about which body takes precedence in the case of
> disputed jurisdiction (almost certainly, the board). As long as their
> jurisdictions are clearly separated, I don't see any problem with them
> both making binding decisions.
I couldn't agree more, but there will always be grey areas, or other 
areas that were never considered when the line was drawn.  In that it 
will be most important to maintain a friendly working relation between 
Board and Council to avoid having these issues become turf wars.  The 
Provisional Council should be able to identify the most obvious areas of 
Council jurisdiction, and they alone will give the Council more than 
enough work for the foreseeable future.

A Board of seven people cannot decide everything, no matter how 
democratic or willing it may be to do so.  If they all worked at it 24/7 
it would still be impossible.  It must delegate all but the most 
important decisions.  If it had to deal directly with only a few of the 
cases that come before Arbcom it would immediately become paralyzed and 
unable to do anything else. If it establishes staff to do tasks such as 
hiring or paying bills it must allow that staff to operate within 
specified parameters, and interference should be limited to exceptional 
circumstances.  The legal right to interfere always remains, because the 
Board has the ultimate legal responsibility in relation to the outside 
world.  If the Executive Director fires someone, and the person sues for 
wrongful dismissal it is the organization as a whole through the Board 
that must pay the costs.  If the staff fails to make and submit 
appropriate tax deductions in some jurisdictions Board members can be 
held personally liable.  Yet staff must be allowed to do its job without 
being micromanaged by the Board.

There are similar models that can be applied in relation to a Council 
with decision making powers.  The Board need to retain limited oversight 
powers, especially as regards to real legal threats.  Real legal threats 
do not include speculative musings of unaffected parties, but it must be 
prepared to take protective measures when it receives notice from 
someone that his own rights have been violated.  Failing to see the more 
egregious illegalities may seem to be terribly boneheaded, but anything 
else implies control by the WMF as an ISP.  If the WMF can do that, so 
can your local ISP or your local telephone service provider.

The WMF has no members.  It was incorporated that way.  The Board could 
sell it, but the implications of that kind of move are absolutely 
mind-boggling.  It can be argued that the Board has no legal authority 
whatsoever over the one or the several communities, but equally well it 
can be argued that the one or the several communities have no legal 
authority over the WMF.  It's bad enough if we are dealing only with US 
law, but things can get much stranger when the international aspects are 
thrown in.

I suppose that I could argue that the Council doesn't need Board 
authority at all to get started, and that it would be enough for 
interested persons to just set one up, but, legally permissible as that 
may be, I seriously doubt that it would be a constructive strategy.  So 
whatever structure the Council will have it must be able to work 
together with the Board, and not in confrontation with it.  Those 
individuals who would become members of the Council must be capable of 
coming to terms with the inherently contradictory nature of these 
structures.

Ec

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