[Foundation-l] Board statement of responsibility

[Mike Godwin]

Anthony writes:

>> It's not really a matter of what I consider to be a personal  
>> criticism
>> or a personal attack. I think it's really a matter of what the Board
>> members judge to be a personal criticism or attack, and they are the
>> ones who ultimately will interpret this provision.
>
> What recourse does the board have against a board member that violates
> this agreement?  Expulsion from the board?

There are other legal remedies as well, including (for example)  
enjoining the publication of confidential information.

> A majority of the board
> already has the right to remove any board member, with or without
> cause.

Right. And this agreement goes further in outlining what might be  
cause. (For example, if a Board member refuses to participate in Board  
meetings or fulfill other Board requirements, that might be cause.)

> What recourse does the board have against a *former* board member that
> violates this agreement?

As I said, above, injunction is a remedy.

> As stands the agreement is far too ambiguous.  At least fix up the
> ambiguities so it says what you claim it means, and get back to us.
> One thing that I'd insist upon personally is that the agreement makes
> it clear that it does not restrict sharing of non-confidential
> *information*, but merely certain means of sharing that
> non-confidential information.  Maybe that line (slightly tweaked)
> could even be included.

It doesn't seem ambiguous to me, but if you want to suggest some  
wordsmithing, feel free to take a stab at it.

> Of course, I personally wouldn't enter into a confidentiality
> agreement without adequate consideration, but I guess I can see how
> others might disagree with me on that point.

It depends on what you count as "adequate consideration."  The fact  
that the draft tries to prevent service on the Board from becoming a  
suicide pact is couched in terms of mutual promises, and it is a  
longstanding feature of contract law that in an exchange of promises,  
each promise is consideration for the other.

> I'm not trying to help you, Mike, as you haven't presented me with a
> problem worthy of my help.

Thank you for your e-mail.

> But that does bring up another point.  General principles apply to
> everyone.  If personal attacks are the only things you're trying to
> restrict from the non-disparagement clause, why limit the restriction
> to only certain people?

It's not, actually.  Employees have already signed such an agreement.  
And I was bound to nondisparagement of the Foundation even before I  
signed, as a function of my legal duties.

>  Do you think it's OK, for instance, for Sue
> Gardner to personally attack Danny Wool, calling him a "disgruntled
> former employee" on CNET?  Would you consider that a personal attack?
> Was it ethical because you think Danny attacked someone first, or
> because Danny wasn't a current employee, or because he wasn't high
> enough in the organization before leaving?

I think that in a properly constructed professional relationship,  
Danny's attacks after he resigned wouldn't have occurred, and Sue  
wouldn't have felt compelled to respond to them. The fact that our  
employment and post-employment agreements were not adequately  
professionalized until after Danny chose to depart is one of the  
issues that we have already addressed.  I do of course think there is  
an ethical obligation to establish a framework in which, going  
forward, the Foundation and its employees and Board undertake to treat  
one another professionally, as all well-run companies do.

> Am I now
> attacking Sue?  I did mention her name, after all.  I *am*
> *criticizing* her actions.  Is it wrong for us to even be discussing
> this?  Should we engage in cryptic allusions via hypothetical
> situations which certain people know how to decode and others don't?

So far as I can tell, you're not attacking anyone, although you are  
conflating (1) ethical questions with (2) questions about Board  
obligations and (3) questions about employer-employee relationships.  
(This may help Florence, as you say you are trying to do, but I think  
mixing up three subject areas probably is less helpful than you  
imagine.)

>  I'm "chilled" from contributing on this list because I
> know if I say certain things I'm going to get this barrage of public
> personal attacks calling me a troll and asking me to leave.

Please understand me when I say I feel your pain.

> I'm all for developing a set of principles, as a community, for
> reducing the personal attacks.  But I think you're going about this
> all wrong.  If you want my help, then let's throw out the
> non-disparagement clause in the current agreement, and work together
> as a community to come up with a set of general principles that we
> *all* can agree on and that we can apply to *everyone*.

I'm sorry to have given you the impression that the goal of the Board  
draft agreement is to fix the personal-attack issue for the community  
at large. I think it is much narrower than that, and meant to apply  
only to Board members, in response to their request for a  
comprehensive agreement.


--Mike