[Foundation-l] Board statement of responsibility

[Anthony]

On Sun, May 18, 2008 at 10:31 AM, Mike Godwin <mgodwin at wikimedia.org> wrote:
> 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.
>
Mike, I'm not talking about the confidential information provision
here, I'm talking about the non-disparagement provision.

>> 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.)
>
But the board doesn't need cause to remove a board member, does it?

>> What recourse does the board have against a *former* board member that
>> violates this agreement?
>
> As I said, above, injunction is a remedy.
>
I can see how an injunction might be a remedy for not-yet-published
confidential information, but not for enforcement of an ambiguous
agreement not to engage in personal attacks (assuming that "criticize"
is changed to "attack").  I don't see a board member going to a judge
and saying "s/he was mean to me, make him/her stop", and I don't see
how making legal threats and taking people to court over personal
attacks can be very effective in the first place.  If the attacks
amount to slander or libel, OK, that's something the courts can maybe
deal with, but slander and libel are already prohibited by law.

Maybe an agreement not to slander or libel other members (defined
however) would be useful, as at least it could designate a
jurisdiction to handle any disputes (which otherwise might be
difficult to enforce due to the international nature of the project).

As it stands, the agreement uses the term "criticize", which is less
ambiguous than "attack", but is not something which I agree with.

>> 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.
>
I don't think there's a need for such an agreement at all, so I'm not
going to suggest alternative wording, except to eliminate the
"Confidentiality and Non-disclosure" section.  However, there are two
major problems which I'm referring to when I say it is ambiguous.  1)
It says "criticize", but you are interpreting it as meaning "attack".
These words do not mean the same thing.  Say what you mean.  2) The
phrase "personally criticize...the Foundation" makes no sense.  The
Foundation is not a person.  How can you "personally criticize" "the
Foundation"?

>> 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.
>
True.  There's clearly consideration, but I wouldn't consider it
adequate, certainly not in the case of a board member who is going to
be gone in a few months anyway, and therefore won't be subject to any
of the protections at that time (the non-disparagement clause does not
protect former trustees).

>> 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.
>
Employees have signed the agreement, but they are not all protected by
it.  Protected from non-disparagement is "the Foundation or its
affiliates or any of their respective directors, trustees, or senior
officers".  And there appears to be no protection at all for former
members of these groups.

>>  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.
>
So it seems like you're saying it's fine to attack someone if they
attack you first.  Maybe that should be included in the agreement, if
you feel that's the case.

>> 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 think that's an interesting allegation, and if you'd like to expand
on it (off-list or on-list) I'll be happy to consider it.  At the
moment, I really don't understand what you're saying (which suggests
to me that maybe you're right).

>>  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.
>
Fair enough.  I got thrown off by the reference to "the U.S.
Constitution or the Universal Declaration of Human Rights".  I also
got the impression that this agreement was something the staff was
trying to push on the board, and not something that the board had
requested for its own benefit.

Maybe a starting point is to see if all board members would agree to
change the term "criticize" to "attack".  Another improvement would be
to protect board members from such attacks during the three year
period following their departure, during which they are restricted
from making such attacks.

As for the non-disclosure clause, what is the point in including this?
 I suppose the benefit to the board members in including this is that
certain organizations will not do business with the foundation without
it?  If so, does the foundation currently have a policy describing
what constitutes confidential information?  That should probably be a
prerequisite.  And, plagiarizing from
http://www.npcenter.org/statements_of_ethical_standards.html,
shouldn't this be modified to say "confidential information belonging
to, or obtained through their affiliation with the Wikimedia
Foundation"?

Anthony