[Foundation-l] A train without destination?

[Geoffrey Plourde]

It was a saying to illustrate that the foundation does not have obey the law in every country. I highlighted the relevant portion.


----- Original Message ----
From: Ray Saintonge <saintonge at telus.net>
To: Wikimedia Foundation Mailing List <foundation-l at lists.wikimedia.org>
Sent: Monday, March 17, 2008 12:15:37 AM
Subject: Re: [Foundation-l] A train without destination?

Geoffrey Plourde wrote:
> Sorry, Charlie. According to the Charter, trustees are indemnified, no matter what the law in Zimbabwe is. 
>  
I can't see what indemnification has to do with anything, and even less 
how Zimbabwean law gets meaningfully into the picture. Indemnification 
often does not apply in cases of willful wrong or gross negligence. When 
we put someone on a Board we expect them to know that.  Nevertheless my 
post was about the need to delegate power, not about horror stories for 
what can go wrong if they don't do everything themselves.

Ec

> ----- Original Message ----
> From: Ray Saintonge 
>
> 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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