Hi all -

What concerns me as much as anything about James' removal is his final
statement - "I have always acted in what I believe are the best interests
of the
movement and the WMF."  James has been active in the movement for a long
time in a variety of roles, and we have no reason to believe that this
statement is not true - in fact, even public statements from other trustees
so far have not contradicted it.  If James statements is to be taken at
face value, then he has in fact met his fiduciary duty to the WMF.
Trustees don't have an inherent duty of confidentiality - they have
inherent duties of loyalty, and inherent duties of care.  They *often* have
a derived duty of confidentiality, but that's a derived duty - disclosing
information related to an ongoing lawsuit to another party in a way that
would be harmful to WMF would violate the board member's duty of loyalty to
WMF.  Even though that's often spoken about as if it would be a problem
because of an inherent duty of confidentiality, except in situations
involving things like obligations to third parties (e.g., most issues of
staff discipline, or explicitly private details of a contract with a
 thrird party,) the root issue in the theoretical situation I described
would be breaking their duty of loyalty, not breaking their obligation to
hold an issue confidential.

I don't believe that James' announcement of his dismissal from the board is
potentially a broach of his fiduciary duty to the WMF.  Given the other
issues involved here, I find it reasonable - and I tend to agree with him -
that having an open, prompt, and transparent conversation about his
dismissal from the board and the reasons behind it is in the best interests
of the Wikimedia Foundation.  If he had been explicitly informed that the
rest of the board was in the process of crafting a public, detailed
statement about his dismissal, then this could potentially be an issue, but
it seems like he wasn't informed that that was the case, so I don't
understand how James' announcement of his own dismissal could be taken as a
breach of his fidicuiary duties.

Without knowing what specific information was involved, it's hard to gauge
whether James released confidential information in a way that was a breach
of his fiducuiary duties.  I will say that I've talked with James pretty
often during his tenure on the board, and although he's been quite frank
about his own opinions and about how he thought certain issues should be
approached, I do not believe he disclosed a single piece of information
that would reasonably be deemed confidential to me - and even if he had
disclosed information the board believed should be held confidential (and I
honestly don't believe he did,) unless there was a secondary obligation of
confidentiality (e.g., a contract with a hosting provider with a
nondisclosure clause,) doing so wouldn't inherently be a breach of his
fiduciary duties - if he disclosed such information to me (or anyone else)
because he thought that the benefit of our advice was outweighed by the
chance of us disclosing the information further, it still wouldn't
inherently represent a breach of his obligations to the board.  But again -
at least in conversations with me, he hasn't even gone that far.  From time
to time he has sought my opinion about particular issues, but he's done so
in a way that hasn't made anything apparent except at the most his own
personal opinion - in cases where he sought my advice, I wouldn't even have
been able to make a clear guess as to whether he was asking for advice
about an issue currently before the board, or an issue he was considering
bringing up in six months.

Speaking with staff presents a trickier issue than the first two, but still
isn't a black and white bad thing to do.  Board members are generally
encouraged to restrict their conversations to conversations with management
(so that they don't end up accidentally interfering with management issues,
since the primary role of board is governance,) but at the same time, if
they believe that in order to fulfill their fidicuciary duties they need to
have direct conversations with staff members, then legally, they would be
breaking their fiduciary duties if they *didn't* have those conversations.
While having them they should stress that they are interacting with the
staff members as individual board members, not representing management or
the BoT as a whole, and not trying to interfere with day to day management
of the organization - but it sounds like James tried to follow those
standards.  There's also a secondary issue; if a staff member approached a
board member with a concern that they believed could not be adequately
addressed within their normal leadership chain, the board member would be
absolutely remiss in not at least having a conversation with the staff
member.  If someone from fundraising had approached James with concerns
that management had somehow embezzled $100m, and those concerns turned out
to be at all plausible, he would be absolutely remiss in his duties as a
board member in not following up on that conversation until he determined
the veracity of the complaint (I'm making this an intentionally impossible
situation to make it clear that I'm not basing this on any actual
conversations James had with staff - because I'm unaware of what those
conversations consisted of.  For those missing it: embezzling $100m would
be literally embezzling more than WMF's entire operating budget, and could
only possibly happen if all WMF staff members, board members, and outside
obsevers had literally been replaced with potatoes.)

If James believed that his conversations with staff members were reasonably
necessary to fulfill his fiduciary duties, then although he should try to
emphasize the role in which he was acting, he should have those
conversations.  Just so this whole email isn't drawn on my own
knowledge{{cn}}, I want to point out that the WMF board manual - [1] -
pretty soundly supports my interpretation of all three issues that James
has seemingly been accused of.  The manual makes it clear that WMF board
members should not attempt to micromanage or task staff in most instances
(with obvious exceptions like coordinating board travel,) and discourages
board members from having substantive conversations with staff without
informing the ED except in situations where the ED has a conflict -
although I would point out that that section is guidance, rather than a
description of a board member's legal obligations.  If you look at the
section of the board manual that specifically describes the fiduciary
duties of board members - [2] - it stresses that board members must be as
informed as they can in considering issues that come before the board,
taking in to account all reasonable sources of information that come before
them.  In most cases (that don't involve the evaluation of the performance
of management,) most of this information should be provided to board
members by the ED or other senior management, but if a board member feels
that their decision cannot be fully informed without consulting
non-management staff members, then it is up to the board member's own
judgement as to whether or not they should consult with non-management

When I was on the board of a California-based organization, we had a
director in his first year - we had a formalized performance review process
for him that involved talking to non-management staff systemically. I don't
know if WMF BoT has a similar process for Lila, but even if they don't, I
can imagine staff members raising issues they perceive with Lila directly
with a Trustee that they know.  Nothing against Lila in saying that - it's
just fairly typical to have things like that happen in the first year of a
new ED's term.  I don't know if that was what James' contact with staff was
about, but if it was, I could see it being more than appropriate.  In a
movement that prioritizes openness as greatly as Wikimedia does, I could
also see a great degree of contact between trustees and non-management
staff being potentially appropriate.

I really hope that more information comes out to support the idea that
James' removal from the board was necessary - he ran on a more active
platform than most recent trustees has, won a pretty significant number of
votes, I think I and many others will have significant confidence in his
statement that he has always carried out his fiduciary duties (and doing so
requires him doing what he views as best for WMF, and explicitly not
subordinating his judgement to anyone else's, including other trustees,)
and so far I'm not sure that any of the publicly expressed concerns about
his actions justify his removal.  I wouldn't expect every organization to
justify the removal of a trustee publicly, but with a movement that values
openness as much as ours does, I'd hope that the removal of a
community-recommended trustee could be publicly justified pretty fully.


[1] https://meta.wikimedia.org/wiki/Wikimedia_Foundation_Board_Handbook

On Fri, Jan 1, 2016 at 4:31 PM, James Heilman <jmh...@gmail.com> wrote:

> Dear all
> I have been accused of three things:
>    1.
>    Giving staff unrealistic expectations regarding potential board
>    decisions. I have always stated to staff that I only represented 10% of
> the
>    board and have never given assurances that I could convince other
> trustees.
>    I would be interested in hearing staff weigh in on this accusation but I
>    consider it unfounded.
>    1.
>    Releasing private board information. I have not made public, private
>    board discussions during my time on the board. I have however pushed for
>    greater transparency both within the WMF and with our communities. I
> have
>    made myself informed by discussing issues with trusted staff and
> community
>    members and used independent judgement.
>    1.
>    Publishing the statement about my removal on Wikimedia-l. I was not
>    asked by other board members at any time before its publication to
> produce
>    a joint statement or to delay publishing the statement I had put
> together a
>    few days prior. The first proposal to collaborate I believe was by
> myself
>    here
> https://lists.wikimedia.org/pipermail/wikimedia-l/2015-December/080502.html
>    I was also not informed that the meeting was going to continue for the
>    purpose of producing such a statement.
> I have always acted in what I believe are the best interests of the
> movement and the WMF.
> --
> James Heilman
> MD, CCFP-EM, Wikipedian
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com
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