[Foundation-l] bylaws (second call)

[Erik Zachte]

Anthere:
> http://meta.wikimedia.org/wiki/Bylaws_update
>
> It is still here.
> Summary : we need to update the bylaws. On the page mentionned above, a
> new text is proposed. Please comment.
>
> This text, amongst other things, removes the notion of membership. If
> you do not comment, nor propose another way to handle membership, the
> Foundation will not legally have members. You will not be Foundation
> members.
>
> Another issue I think matters is making it even clearer what our mission
> is. I think we all agree we are working so that our content stays
> available to the largest number of people on earth. We aim at lowering
> the barriers of language (in being multilingual) as well as financial
> barriers. And we seek reusability as a dogma.
>

**Board involvement**

I would like to thank Anthere for all the time she spends on keeping the
community involved in foundation issues. One of the reasons that she is so
busy may well be that some other board members are less involved in this.

I wholly concur with GerardM's statement that there is always more to do for
a board member than time allows. Not the least to keep communication
channels open in both directions, to the community at large, to committees,
projects, external organisations (with others of course).

Being part of the community, instead of just overseeing it from a distance,
takes time, a whole lot of it. This is different from normal spare-time
Wikimedia involvement of any volunteer: many of those discussions will be
from the perspective of a board member, explaining decisions and I would
hope proposals for decisions, asking for input and feedback. How can one
honestly expect a person to be part of and represent the community if he or
she spends just a few hours a week on that task? Somehow people seem to
think that organising a global movement at our scale can be done as a
pasttime?

**Purpose of Bylaws**

About the Bylaws: can someone explain to me what the Bylaws are for? I would
think laws, and bylaws for that matter, serve at least two purposes:

1 Serve as binding guidelines for conduct, in other words communicate wanted
and unwanted behaviour a priori.
2 Act as a final frame of reference a posteriori for how to resolve
conflict, when disputes arise over these guidelines.

A lawyer can certainly improve on these impromptu definitions.

1 Is always useful, even when all affairs are conducted in harmony. If we
decide on wanted behaviour lets put it down to writing.
2 Is what laws tend to be associated with in the first place. They give
guidance in times of conflict, be it between nations, an individual and a
state, a board and a community, etc. They form a frame of reference that
(hopefully) is still recognized by contesting parties a posteriori, and if
not, at least serves to show that the party in power is consistent in its
behaviour.

**Solidity of proposed Bylaws**

So I ask myself: for whom are these guidelines in the Wikimedia Bylaws and
to whom are they binding?

Parts of the Bylaws are very detailed. For example article IV section 4
about board meetings is the longest section and deals in detailed legalistic
terms with how board members can not get around each other.

I can't help but smile when I read:

"Notice of any special meeting shall be given at least ten (10) days before
the meeting by written notice delivered personally, or by email, chat, or
fax to each Trustee at his business address, unless in case of emergency,
the chair of the Board of Trustees or the vice-chair of the Foundation shall
prescribe a shorter notice to be given personally or by communicating to
each Trustee at his email address, residence or business address in like
manner."

Of course 'state of emergency' leaves plenty of room for interpretation.
Lawyers thrive by the unavoidable ambiguities of language.

Now the bylaws really come to life when a serious dispute occurs, let us say
for arguments sake, between the board and the community. As I said earlier
on several occasions: that is a hypothetical question, but of immense
relevance, and to be discussed before the situation arises, in other words
now.

When a serious dispute occurs the community is pretty much powerless. They
may have voted only for a minority of the board, as they effectively did up
till now. This does not change with the proposed amendments to the Bylaws.
Although the Bylaws allow for more than two community elected members
(Article IV section 3) they give no guarantees, they don't even specify
which proportion of the (possibly enlarged) board should be true
representatives, it is all at the discretion of the board.

Pretty much anything is at the discretion of the board: the bylaws allow the
board to act as they please most of the time: they can fire anyone they
appointed at will, instantaneous, without community discussion, or written
notice 10 days in advance, etc etc. Not only whom they appointed though:
"Any officer or agent elected or appointed by the Board of Trustees may be
removed by the Board of Trustees whenever, in its judgment, the best
interests of the Foundation would be served thereby." (Article V Section 3)

Finally when things heat up the board should not feel restricted in any way
by these bylaws, and the community should not feel either too reassured or
worried by these bylaws, because they are pretty volatile, they can be
changed on short notice by a simple majority in the board. If bylaws stand
in the way of what a majority of the board thinks is best, well it takes a
week or two delay only and the same minimal majority can have its way. For
those of us that think these bylaws give any long term assurance and or
guidance, this is not the case. Relevant section is article X, section 1, I
quote:

"These bylaws may be altered, amended or repealed and new Bylaws may be
adopted by a majority of the entire Board of Trustees at any regular meeting
or special meeting, provided that at least ten days written notice is given
of intention to alter, amend or repeal or to adopt new Bylaws at such
meeting."

Oh just a minor oddity: at the time of writing these new proposed bylaws
have only been added and edited by anonymi. Probably an oversight.

Erik Zachte