Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Gregory Varnum]

Having worked with SPLC on records issues before, I feel it should be noted 
that their efforts are focused on government. Governments have legal 
protections that nonprofits (as corporations) do not, so the considerations are 
rather different.

I'm not commenting on the topics beyond that, just wanted to point out that 
important distinction. ;)

-greg

___
Sent from my iPhone - a more detailed response may be sent later.

> On May 10, 2016, at 12:00 PM, Ben Creasy  wrote:
> 
> Luis Villa  writes:
> 
>> 
>> tl;dr: the board did not effectively perform one of their most important
>> roles (managing the ED); the board (and board candidates) should be talking
>> about how they will fix that.
> 
> I think one of the key takeaways from this affair is that people should be 
> careful about talking the law. There are bright line rules 
> written in statute and then there are "duties" (duties of loyalty, duties of 
> care). In this case, it appears that the bright line rule of law (absolute 
> right of directors to inspect corporate books and records) was probably 
> violated while more tenuous legal rules were given heavier weight. I'm also 
> not sure that a few board members discussing something together unofficially 
> without the entire board is a "conspiracy" as Denny described it, although 
> I suppose that opens up a grey area about whether that's some sort of 
> official meeting and the rights of board members to know about 
> corporate business.
> 
> As far as I'm aware, there aren't too many bright line rules regarding 
> abstract 
> duties, although some statutes provide some good guidelines (e.g., Uniform 
> Prudent Investor Act). After spending several years as a fiduciary for a 
> couple different nonprofits and reviewing directors & officer's liability 
> insurance as a regulator, I've found that it's no joke that the business 
> judgment rule provides significant protection for board members from 
> liability. 
> Board members should be thinking more about right and wrong and what makes 
> sense rather than abstract legal notions.
> 
> Any good legal opinion should be written and cite specific statutes and case 
> law. And finding a case where a jury found someone, somewhere, in some 
> specific 
> situation was found to be liable for doing or not doing something is not 
> necessarily persuasive.
> 
> I winced a bit when I saw a while back that Anne/Risker responded to a 
> request 
> for more details on the Executive Director's performance by saying that such 
> information was basically sacrosant and something to the effect of how it 
> might 
> even be protected by some sort of UN human rights law. Maybe she knows 
> something
> more than me, and certainly it is typical for these to be kept private, but 
> many, many Americans have their performance evaluations subject to public 
> scrutiny. See 
> [http://www.splc.org/article/2015/04/accessing-personnel-records 
> Accessing personnel records: A balancing act between privacy, public’s right 
> to know] (2015) for some examples. It is true that California is 
> aggressive about employee rights; when I was looking at actuarial analyses 
> for 
> employer's liability, California received a multiplicative factor of 3 versus 
> the rest of the country.
> 
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Toby Dollmann]

Hoi,

> I think one of the key takeaways from this affair is that people should be 
> careful about talking the law.

An apt observation

In context of the 'absolute right of (individual) directors to inspect
corporate books and records', did the community director actually ask
to access the Foundation records and was his request formally denied ?

Director's right, are subject to exceptions and can be denied where a
disgruntled director shows intention to violate his or her fiduciary
duties to the corporation (TRITEK TELECOM INC v. SUPERIOR COURT),

Toby
www.cyberlegal.net

On 5/10/16, Ben Creasy  wrote:
> Luis Villa  writes:
>
>>
>> tl;dr: the board did not effectively perform one of their most important
>> roles (managing the ED); the board (and board candidates) should be
>> talking
>> about how they will fix that.
>>
>
> I think one of the key takeaways from this affair is that people should be
> careful about talking the law. There are bright line rules
> written in statute and then there are "duties" (duties of loyalty, duties of
> care). In this case, it appears that the bright line rule of law (absolute
> right of directors to inspect corporate books and records) was probably
> violated while more tenuous legal rules were given heavier weight. I'm also
> not sure that a few board members discussing something together unofficially
> without the entire board is a "conspiracy" as Denny described it, although
> I suppose that opens up a grey area about whether that's some sort of
> official meeting and the rights of board members to know about
> corporate business.
>
> As far as I'm aware, there aren't too many bright line rules regarding
> abstract
> duties, although some statutes provide some good guidelines (e.g., Uniform
> Prudent Investor Act). After spending several years as a fiduciary for a
> couple different nonprofits and reviewing directors & officer's liability
> insurance as a regulator, I've found that it's no joke that the business
> judgment rule provides significant protection for board members from
> liability.
> Board members should be thinking more about right and wrong and what makes
> sense rather than abstract legal notions.
>
> Any good legal opinion should be written and cite specific statutes and case
> law. And finding a case where a jury found someone, somewhere, in some
> specific
> situation was found to be liable for doing or not doing something is not
> necessarily persuasive.
>
> I winced a bit when I saw a while back that Anne/Risker responded to a
> request
> for more details on the Executive Director's performance by saying that such
> information was basically sacrosant and something to the effect of how it
> might
> even be protected by some sort of UN human rights law. Maybe she knows
> something
>  more than me, and certainly it is typical for these to be kept private, but
>  many, many Americans have their performance evaluations subject to public
>  scrutiny. See
> [http://www.splc.org/article/2015/04/accessing-personnel-records
>  Accessing personnel records: A balancing act between privacy, public’s
> right
>  to know] (2015) for some examples. It is true that California is
>  aggressive about employee rights; when I was looking at actuarial analyses
> for
>  employer's liability, California received a multiplicative factor of 3
> versus
>  the rest of the country.
>
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Ben Creasy]

Luis Villa  writes:

> 
> tl;dr: the board did not effectively perform one of their most important
> roles (managing the ED); the board (and board candidates) should be talking
> about how they will fix that.
> 

I think one of the key takeaways from this affair is that people should be 
careful about talking the law. There are bright line rules 
written in statute and then there are "duties" (duties of loyalty, duties of 
care). In this case, it appears that the bright line rule of law (absolute 
right of directors to inspect corporate books and records) was probably 
violated while more tenuous legal rules were given heavier weight. I'm also 
not sure that a few board members discussing something together unofficially 
without the entire board is a "conspiracy" as Denny described it, although 
I suppose that opens up a grey area about whether that's some sort of 
official meeting and the rights of board members to know about 
corporate business.

As far as I'm aware, there aren't too many bright line rules regarding abstract 
duties, although some statutes provide some good guidelines (e.g., Uniform 
Prudent Investor Act). After spending several years as a fiduciary for a 
couple different nonprofits and reviewing directors & officer's liability 
insurance as a regulator, I've found that it's no joke that the business 
judgment rule provides significant protection for board members from liability. 
Board members should be thinking more about right and wrong and what makes 
sense rather than abstract legal notions.

Any good legal opinion should be written and cite specific statutes and case 
law. And finding a case where a jury found someone, somewhere, in some specific 
situation was found to be liable for doing or not doing something is not 
necessarily persuasive.

I winced a bit when I saw a while back that Anne/Risker responded to a request 
for more details on the Executive Director's performance by saying that such 
information was basically sacrosant and something to the effect of how it might 
even be protected by some sort of UN human rights law. Maybe she knows something
 more than me, and certainly it is typical for these to be kept private, but 
 many, many Americans have their performance evaluations subject to public 
 scrutiny. See [http://www.splc.org/article/2015/04/accessing-personnel-records 
 Accessing personnel records: A balancing act between privacy, public’s right 
 to know] (2015) for some examples. It is true that California is 
 aggressive about employee rights; when I was looking at actuarial analyses for 
 employer's liability, California received a multiplicative factor of 3 versus 
 the rest of the country.

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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Gerard Meijssen]

Hoi,
Really? Doctors from Mexico?? That is very discriminating. The problem with
many medical publications from the USA is that they are not at all about
the best practices people should be treated with. Many best practices are
not practiced in the the USA eg Open Dialogue.
Thanks,
   GerardM

On 5 May 2016 at 23:50, David Emrany  wrote:

> Hi Doc
>
> Your sig
> > The Wikipedia Open Textbook of Medicine
> > www.opentextbookofmedicine.com
>
> McAfee Site advisor tags it as a dangerous phishing site trying to
> steal information.
> Ploughing through the link leads instead to "a" Wikipedia web book on
> "health care" which is edited mainly by you.
>
> "Book" has images from anonymous authors with dodgy histories (did
> they study medicine in Mexico ?) eg.
> https://commons.wikimedia.org/wiki/File:Herpes_esophagitis.JPG
>
> Misleading stuff.
>
> Dave
>
> On 5/5/16, James Heilman  wrote:
> > Agree Thanks Luis
> >
> > Many excellent suggestions.
> >
> > James
> >
> > On Thu, May 5, 2016 at 6:10 PM, Chris Keating <
> chriskeatingw...@gmail.com>
> > wrote:
> >
> >> > tl;dr: the board did not effectively perform one of their most
> important
> >> > roles (managing the ED); the board (and board candidates) should be
> >> talking
> >> > about how they will fix that.
> >> >
> >>
> >> Thanks Luis for the very thoughtful email.
> >>
> >> Managing a Chief Executive / ED isn't an easy task (ask anyone who's
> done
> >> it) but I think you have identified a lot of useful steps about how the
> >> WMF
> >> Board can do it better in future.
> >>
> >> Chris
> >> ___
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> >> 
> >>
> >
> >
> >
> > --
> > James Heilman
> > MD, CCFP-EM, Wikipedian
> >
> > The Wikipedia Open Textbook of Medicine
> > www.opentextbookofmedicine.com
> > ___
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Katherine Maher]

Hey Luis!

So, the good news is that a couple things you describe here are in the
works. I think others have been discussed but haven't reached consensus or
implementation, while still others are helpful new suggestions. I can't
speak to all of these suggestions, but I can talk about what we've got
going within the Foundation. You can also see some of my (very similar)
answer to Wittylama's question on governance on the Annual Plan:
https://meta.wikimedia.org/w/index.php?title=Talk%3AWikimedia_Foundation_Annual_Plan%2F2016-2017%2Fdraft=revision=15574845=15574808

> Some things that the board should do to change this situation:
> >
> >- *Make the board HR committee effective.* This would involve at
> least:
> >- Simply documenting *who is on the HR committee and how to contact
> > them*.
> >   Last fall, there was no way for staff to even know who was on the
> HR
> >   committee until my repeated questions to *four separate board
> > members*
> >   led to this edit
> >   <
> >
> https://wikimediafoundation.org/w/index.php?title=HR_Committee=revision=103767=95573
> > >.
> >   As of when I left, there was still no way to confidentially email
> the
> >   entire committee as a group.
> >   - Using of one of the board's appointed slots to appoint an *HR
> >   expert*, as has been done in the past with finance. (I assume Arnon
> >   was an attempt at this. If so, I'm very sorry it did not work out.)
> >   - Improving *policies* *on staff-board contact*. The whistleblower
> >   policy is not the right place for this, but it was all the staff
> > had. And
> >   for board members, the Handbook
> >   <
> >
> https://meta.wikimedia.org/wiki/Wikimedia_Foundation_Board_Handbook#Board_member_standard_of_conduct
> > >
> >   is unfortunately not clear on how to address HR issues. Better
> > policies,
> >   explaining roles and responsibilities, might have helped both
> groups.
> >- *Monitor organizational health*. This would involve at least:
> >- Conducting a *regular engagement survey* with (ideally) a trusted
> >   neutral reporting results to the board as well as the executive
> > team. This
> >   is now in place through HR, but was not done until monitoring of
> > office
> >   attendance indicated that people hated coming to the office, and
> > tends to
> >   break down in an executive crisis (since HR may not be trusted).
>

As presented at Metrics last week, the WMF has committed to doing regular
engagement surveys on a 6-month basis for the foreseeable future. When the
Board agrees, we will reduce to a yearly cycle, which is still more
consistent than in the past. I expect this drawdown will be sometime from
now, well into the permanent ED's term. The results will be presented to
the staff and Board by our current third-party engagement survey
contractor, CultureAmp, to ensure a neutral perspective. The top-level
results will continue to be presented at Metrics meetings (more detailed,
team-by-team or demographic breakdowns will not, due to issues around
personally identifiable information).

The next survey is scheduled for this month, with results due in June.
CultureAmp will present to the Board and staff. During the presentation of
the May 2016 results, CultureAmp will also re-present the November 2015
results, according to their interpretation of the findings. We will share
these top-line findings at Metrics, per usual.


> >   - *Exit interviews* with all departing executive staff. To the best
> >   of my knowledge, the current board did not do this, even after 9-10
> >   executives departed in the space of a year. This is good
> > practice even when
> >   the board has endorsed a "cleaning house" of the executive staff
> (as
> > may
> >   have occurred here), since those staff are still likely able to
> > provide
> >   insight into the performance of the ED that the board may not be
> > able to
> >   glean themselves.
>

The Board has agreed to regular c-level exit interviews by the HR
committee, per Patricio's comment here. Patricio's comment also discusses
the engagement surveys.
https://meta.wikimedia.org/w/index.php?title=Talk%3AWikimedia_Foundation_Annual_Plan%2F2016-2017%2Fdraft=revision=15578608=15578561

>
> > There are, of course, many other things a board can do to help with these
> > issues (leading on creation of a clear strategy; putting a staff rep on
> the
> > HR committee; regular contact with staff and executives; etc., etc.) But
> > these are the utter, utter basics that are still, to the best of my
> > knowledge, unresolved.
> >
> > Besides the points above, I'd like to see:
> >
> >- When I asked board candidates
> ><
> >
> https://meta.wikimedia.org/w/index.php?title=Affiliate-selected_Board_seats/2016/Questions=prev=15497994
> > >
> >what they thought the top responsibilities of the board were, I was
> > hoping
> >to see at least one person say "HR". 

Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Anna Stillwell]

Excellent ideas, Luis. I hope to see baby photos soon.
/a

On Thu, May 5, 2016 at 5:25 PM, Andreas Kolbe  wrote:

> On Thu, May 5, 2016 at 4:48 PM, Luis Villa  wrote:
>
> >- After I left, I did not sign a termination or contracting agreement
> >with the organization, so I did not become a contractor with the
> >organization.
> >
>
>
> Thanks, Luis.
>
>
>
> >- My baby was due yesterday, so I probably won't check the list again
> >for quite a while. :)
> >
>
>
> Here's hoping you are having a great time looking after the people that
> really matter now. :)
>
> Best,
> Andreas
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>



-- 
Anna Stillwell
Director of Culture and Collaboration
Wikimedia Foundation
415.806.1536
*www.wikimediafoundation.org *
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Andreas Kolbe]

On Thu, May 5, 2016 at 4:48 PM, Luis Villa  wrote:

>- After I left, I did not sign a termination or contracting agreement
>with the organization, so I did not become a contractor with the
>organization.
>


Thanks, Luis.



>- My baby was due yesterday, so I probably won't check the list again
>for quite a while. :)
>


Here's hoping you are having a great time looking after the people that
really matter now. :)

Best,
Andreas
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[David Emrany]

Hi Doc

Your sig
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com

McAfee Site advisor tags it as a dangerous phishing site trying to
steal information.
Ploughing through the link leads instead to "a" Wikipedia web book on
"health care" which is edited mainly by you.

"Book" has images from anonymous authors with dodgy histories (did
they study medicine in Mexico ?) eg.
https://commons.wikimedia.org/wiki/File:Herpes_esophagitis.JPG

Misleading stuff.

Dave

On 5/5/16, James Heilman  wrote:
> Agree Thanks Luis
>
> Many excellent suggestions.
>
> James
>
> On Thu, May 5, 2016 at 6:10 PM, Chris Keating 
> wrote:
>
>> > tl;dr: the board did not effectively perform one of their most important
>> > roles (managing the ED); the board (and board candidates) should be
>> talking
>> > about how they will fix that.
>> >
>>
>> Thanks Luis for the very thoughtful email.
>>
>> Managing a Chief Executive / ED isn't an easy task (ask anyone who's done
>> it) but I think you have identified a lot of useful steps about how the
>> WMF
>> Board can do it better in future.
>>
>> Chris
>> ___
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>> 
>>
>
>
>
> --
> James Heilman
> MD, CCFP-EM, Wikipedian
>
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Pine W]

Thank you, Luis, for the good suggestions.

Pine
On May 5, 2016 08:49, "Luis Villa"  wrote:

> tl;dr: the board did not effectively perform one of their most important
> roles (managing the ED); the board (and board candidates) should be talking
> about how they will fix that.
>
> [Also, see the very bottom for some relevant disclosures, since I've been
> asked after previous postings to this list.]
>
> On Tue, May 3, 2016 at 6:02 PM MZMcBride  wrote:
>
> > Tim Starling wrote:
> > >Board members have a duty to act in the interests of the WMF as a
> > >whole, but it does not follow that denying anonymity to whistleblowers
> > >is in the best interests of the WMF. In fact, I think this Lila/KF/KE
> > >case demonstrates the opposite.
> > >
> > >I would encourage the Board to extend the current whistleblower policy
> > >to provide protection to employees making anonymous complaints via
> > >certain intermediaries (such as active Board members), rather than
> > >requiring complaints to be made directly to the Chair of the Board;
> > >and to specify that the forwarding of such anonymous reports by Board
> > >members to the Chair would be permissible.
> > >
> > >If we want to avoid a repeat of this affair, then employees should be
> > >encouraged to communicate serious concerns to the Board as early as
> > >possible.
> >
> > https://wikimediafoundation.org/wiki/Whistleblower_policy
> >
> > You mention anonymous complaints and serious concerns, but the current
> > whistleblower policy seems to be pretty clear that it only applies to
> > laws, rules, and regulations. The text of the policy indicates, to me at
> > least, that even alleged violations of other Wikimedia Foundation
> policies
> > would not be covered by the whistleblower policy. Would you extend the
> > Wikimedia Foundation whistleblower policy to cover regular (i.e.,
> > non-legal and non-regulatory) grievances?
> >
> > My understanding is that the Wikimedia Foundation Board of Trustees
> sought
> > out and then appointed a tech-minded chief executive, who came from a
> tech
> > organization, in order to "transform" the Wikimedia Foundation from an
> > educational non-profit to be more like a traditional tech company. Many
> > employees of the Wikimedia Foundation disagreed with this decision and
> the
> > chief executive made a series of poor hires who ran amok (looking at you,
> > Damon), but I don't think anything rose to the level of illegal behavior.
> >
> > From my perspective, whether rightfully or wrongfully, the staff mutinied
> > and ultimately successfully deposed the appointed executive director. I
> > don't see how this whistleblower policy or most variations of it that a
> > typical non-profit would enact would really be applicable here.
> >
>
> As MZ says, the problem here is not the whistleblower policy. There should
> be other policies and processes to monitor and address non-legal
> performance problems with the ED/CEO. Creating and executing on these
> policies and processes is one of the key responsibilities of a non-profit
> board.
>
> Unfortunately, those policies and processes were not working during my last
> six months at the Foundation.
>
> Some things that the board should do to change this situation:
>
>- *Make the board HR committee effective.* This would involve at least:
>- Simply documenting *who is on the HR committee and how to contact
> them*.
>   Last fall, there was no way for staff to even know who was on the HR
>   committee until my repeated questions to *four separate board
> members*
>   led to this edit
>   <
> https://wikimediafoundation.org/w/index.php?title=HR_Committee=revision=103767=95573
> >.
>   As of when I left, there was still no way to confidentially email the
>   entire committee as a group.
>   - Using of one of the board's appointed slots to appoint an *HR
>   expert*, as has been done in the past with finance. (I assume Arnon
>   was an attempt at this. If so, I'm very sorry it did not work out.)
>   - Improving *policies* *on staff-board contact*. The whistleblower
>   policy is not the right place for this, but it was all the staff
> had. And
>   for board members, the Handbook
>   <
> https://meta.wikimedia.org/wiki/Wikimedia_Foundation_Board_Handbook#Board_member_standard_of_conduct
> >
>   is unfortunately not clear on how to address HR issues. Better
> policies,
>   explaining roles and responsibilities, might have helped both groups.
>- *Monitor organizational health*. This would involve at least:
>- Conducting a *regular engagement survey* with (ideally) a trusted
>   neutral reporting results to the board as well as the executive
> team. This
>   is now in place through HR, but was not done until monitoring of
> office
>   attendance indicated that people hated coming to the office, and
> tends to
>   break down in an executive crisis (since HR may not be 

Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[James Heilman]

Agree Thanks Luis

Many excellent suggestions.

James

On Thu, May 5, 2016 at 6:10 PM, Chris Keating 
wrote:

> > tl;dr: the board did not effectively perform one of their most important
> > roles (managing the ED); the board (and board candidates) should be
> talking
> > about how they will fix that.
> >
>
> Thanks Luis for the very thoughtful email.
>
> Managing a Chief Executive / ED isn't an easy task (ask anyone who's done
> it) but I think you have identified a lot of useful steps about how the WMF
> Board can do it better in future.
>
> Chris
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>



-- 
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
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Re: [Wikimedia-l] What should the board do *now*? [was Re: Account of the events leading to James Heilman's removal]

[Chris Keating]

> tl;dr: the board did not effectively perform one of their most important
> roles (managing the ED); the board (and board candidates) should be talking
> about how they will fix that.
>

Thanks Luis for the very thoughtful email.

Managing a Chief Executive / ED isn't an easy task (ask anyone who's done
it) but I think you have identified a lot of useful steps about how the WMF
Board can do it better in future.

Chris
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