[Foundation-l] Re: Outsiders on the Board? (was Re: Poll for Wikistandards)

Mon Jan 30 00:02:29 UTC 2006

Gerard Meijssen wrote:
> I am amazed that you suggest that an officer of the Wikimedia Foundation
> would be personally liable for the work done as an officer. I would
> expect that an officer of an organisation speaks for the organisation
> and as a consequence the organisation is liable for the actions of its
> personnel. Normally someone employed by an organisation is liable only
> when gross incompetence can be proven or in cases where the law has been
> violated to an extend where criminal intend can be proven.
> 
> I am sure that someone can and will explain to what extend an employee
> is personally liable for his actions as an employee of the Wikimedia
> Foundation.

Well, firstly IANAL and secondly most of my legal knowedge comes from studying Australian law rather
than US law. But my understanding is that civil liability for the action of employees rests with the
corporation or individual employing them. This is called vicarious liability.

Members of the Board of Directors are not ordinary employees though, and I think Danny's implication
was that the Board is responsible for the actions of the corporation. At common law, the civil
liability is limited to the assets of the corporation, that's the major difference between a
corporation and a partnership. The threats to the Board of Directors then fall into three categories:

* Statuatory -- many countries have laws making the Board of Directors liable for gross
mismanagement, or other forms of misconduct.
* Contractual -- for example, some wholesale suppliers require that the Board of Directors accepts
liability for debts accrued.
* Criminal -- limitation of liability and vicarious liability do not apply in criminal cases.

I don't know whether vicarious liability extends to officers. Their legal position is less clear
than, say, Kyle's (an outsider employed by the Foundation).

Let's just say that I for one wouldn't be deterred from accepting a position of responsibility
within the foundation by legal liability. We all live in a world ruled by law. That should be an
impetus to educate ourselves about the issues, and to seek advice where appropriate, not to hand
over the keys to the lawyers and let them run the place.

-- Tim Starling