I strongly agree that whatever standards of governance the movement
develops should be adhered to consistently. I think it's entirely
understandable if folks are angry if WMF holds affiliates to a
different standard than itself. A symmetrical waiting period for Board
members seeking paid positions for staff members seeking trusteeship
seems like a reasonable governance standard to apply across the board.
The WMF Board did discuss waiting periods previously, both when I was
a member [1] (I was in support of a symmetrical 6 month waiting
period) and after [2]. WMF ultimately did not implement such a policy,
nor did it adhere to one informally when it hired me after I left the
Board in late 2007. (I've had no involvement with the org since 2015,
nor have I sought it.)
I don't know if the implementation of a waiting period was discussed
again by the Board in subsequent years. It's not surprising to me if
the organization is not adhering to it now, since it appears to still
lack such a policy in 2021.
At least in my understanding, this thread conflates a good practice
(waiting periods) with violations of COI policies. As I understand it,
WMF adhered to its existing COI policy through the usual measures
(recusal & resignation from the Board).
The primary purpose of COI policies is to prevent self-dealing.
Typical scenarios described in COI guidelines written from a US
perspective like [3] [4] [5] [6] [7] focus on Board members hiring
relatives, or securing contracts for their own business. They
generally do not _prohibit_ even such transactions outright but
describe how they must be managed. WMUK's 2012 governance review was,
in part, triggered by a trustee's Wikimedia-related consulting
activities while on the Board.
Waiting periods (symmetrical or in one direction) are sometimes
explicitly included in COI policies, but as far as I can tell, at
least for US 501(c)(3)s, they are far from common, and I did not find
them in COI guidelines for organizations in our space that are
publicly available (Mozilla, OSI, Software Freedom Conservancy, etc.).
They may be more common in specific sectors (e.g., academia) and are
certainly widely used in revolving door provisions in the context of
political lobbying. IANAL (nor are most of the people commenting
here), and corrections and insights and citations from lawyers or
nonprofit governance experts would certainly be helpful.
I will note that, as Chris pointed out, even WMUK's current policies
would permit a transaction like the one we're discussing if approved
by the Board ("no trustee may _without the consent of the board_"
[8]), and Wikimedia Austria's Good Governance Kodex would permit it if
approved by the Gremium ("bedarf diese Anstellung der ausdrücklichen
Genehmigung durch das Good-Governance-Gremium" [9]).
If such transactions are sometimes viewed as permissible, as part of
harmonizing governance standards, it would be good to enumerate
examples: would this transaction qualify? If the emerging consensus is
to enforce waiting periods at all times, clauses which permit Boards
to overrule them should perhaps be revised as part of harmonization
efforts.
Because this is not nearly as bright a line as some commenters are
suggesting, at least in my understanding, there is no compelling
argument for reversing this decision if it is otherwise in the best
interests of the organization. But there is certainly a strong
practical and ethical argument for harmonizing policies and practices
(and for issuing an apology if inconsistent standards have been
applied).
Warmly,
Erik
[1] https://foundation.wikimedia.org/wiki/Minutes/2007-10-07
[2] https://foundation.wikimedia.org/wiki/Minutes/2007-12-11
[3] https://www.councilofnonprofits.org/tools-resources/conflicts-of-interest
[4]
https://www.boardeffect.com/blog/conflict-of-interest-policy-for-nonprofit-boards/
[5]
https://nonprofitrisk.org/resources/articles/coi-candor-inhibition-managing-conflicts-interest/
[6] https://www.501c3.org/avoiding-conflicts-of-interest/
[7]
https://boardsource.org/resources/private-benefit-private-inurement-self-dealing/
[8] https://wikimedia.org.uk/wiki/Trustee_Conflict_of_Interest_Policy
[9] https://mitglieder.wikimedia.at/Good_Governance_Kodex
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