[Foundation-l] Board statement of responsibility

[Nathan]

Sometimes it seems like only if you are harshly critical or make direct
attacks on individuals do you get detailed responses on this list, even when
the point of the thread is to discuss problems with the statement and that
is precisely what my post attempted to do. I'm also still hoping for a
response in the thread about the privacy policy, although the prospect of
new activity seems dim. I appreciate that people get burned out by
argumentative posts, but if that is all that gets attention then that sort
of post is essentially being promoted above other sorts that would generally
be seen as more constructive.

Nathan

On Sun, May 18, 2008 at 6:43 PM, Nathan <nawrich at gmail.com> wrote:

> 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
>