[Foundation-l] Board statement of responsibility

[Nathan]

Perhaps a reason for why the draft agreement does not contain values in line
with the meta values page is contained in the opening of that page: values
are the sort of thing you can't bind upon someone. There are certain
principles Boards of non-profits are expected to abide by, including acting
in the interests of the organization and its mission. I'm not sure you can
get much more specific than that in an agreement you expect Board members to
sign.

I, too, would like to know how you can "personally criticize" the
Foundation. As far as wording of the quoted provision... I think its fine.
You can drive a truck through the hole left by repeating "personally" so
many times, but the point there seems to be to offer as much protection as
possible for valid and non-personal criticism. For future reference, if you
are going to quote a specific provision and then discuss it its best to
quote it both in context and in its entirety.

"The Board believes the free and open exchange of ideas and information
among Trustees, including criticism of internal policy and procedures and
other matters related to the conduct of business, is to be encouraged. To
ensure that such a free and open exchange occurs, both within Board meetings
and outside them, Trustees agree that, during their terms on the Board and
for three years thereafter, they shall not, in any communications with the
press or other media or any customer, client or supplier of the Foundation,
or any of the Foundation's affiliates, or in discussions on community
mailing lists, blogs, or other community forums, personally criticize,
ridicule or make any statement that personally disparages or is personally
derogatory of the Foundation or its affiliates or any of their respective
directors, trustees, or senior officers. Additionally, and in consideration
of Trustees' commitment to this agreement, no directory senior officer of
the Foundation or member of the Board of Trustees of the Foundation will,
during the same time period, personally criticize, ridicule or make any
statement that personally disparages or is personally derogatory of a
Trustee or former Trustee."

Including the whole thing changes the tenor of the provision significantly.

I do have some problems with other areas of the agreement, though. This
sentence: "Trustees must conduct their business in a manner that does not
result in adverse comments or criticisms from the public or in any way
damage our reputation." is problematic for obvious reasons. I think it
should be made clear which parts of the document are binding and which are
commentary, because particularly in this provision there is a big difference
between the clarity and specificity of what I would call "commentary" and
the meat of the agreement. Additionally, the "Gift Policy" should be
separate from the conflict of interests policy.

This sentence in the concluding numbered section: "4. I am responsible for
the health and wellbeing of this organization. As a Trustee, I pledge to
carry out my responsibilities with the highest degree of integrity, and to
avoid all real and perceived conflicts of interest in conjunction with the
Conflict of Interest policies as set forth by the organization." is a
problem because it uses language not contained in the COI section itself
(all real and perceived conflicts of interest) and could be seen as
conflicting, despite the "in conjunction with..." qualifier. Finally, I
think points 5 and 6 are too specific in their requirements. Board meetings
aren't college lectures - you should not need to specify that Board members
come to meetings "having read all supporting materials" and be ready to
"propound questions." 6 sets limits and requirements on the public
communication of Board members not specified elsewhere in the agreement -
again, saying "consistent with" after a contradictory statement is not
enough.

I'm not a lawyer, but these seem to be somewhat significant drafting
problems. I've signed a few such agreements in the past, and all have had
more sophisticated and clear wording and terms. Without intending any insult
to Mike, whose work in other areas I admire and respect, I suggest that
documents you wish all Board members to sign be reviewed (and drafted, if
possible) by an attorney with specific expertise and background in
employment law.

Nathan