Tuesday, December 18, 2007

The other shoe drops

As I'm sure you're all well-aware now, Erik Moeller has resigned his board membership in order to take up the role of "deputy director" of the Foundation. (See Erik's smarmy acceptance note here.)

This situation brings up a number of issues, but I think trying to talk about all of them in one blog post is a bad idea. So we'll drag this out over a few days, just so people don't get too confused. Let's start with process.

Deputy director? There was no listing on the Wikimedia Foundation wiki for this position. Apparently nobody, outside of Erik and Sue, knew that the Foundation was looking for a deputy director. My contacts in the Board tell me that the Board (except for Erik, and maybe Jimmy) was not aware that the Foundation was looking for a deputy director, and so far as far as I can find no specific authorization exists to hire for this role or to fund the position. The conclusion is that Sue has elected to staff this role herself and to fund it out of the Office of the Executive Director's budget, without consulting anyone except, presumably, Erik. This is perhaps within her discretion, but it certainly seems like a bad idea to go about this process in such a nontransparent way. Closed hiring processes are not a good way to comply with equal opportunity laws, and there are aspects of her announcement that raise at least yellow flags in the EOE sense. I also can't see how she can show compliance with immigration regulations; before she can hire Erik—who, as a German national, needs a work visa to work in the United States—she has to prove that she searched exhaustively for an American who could perform the role, and was unable to find one. With no public posting for the position, it beggars belief that she can honestly make the required affirmations for the visa application. Especially troubling was Sue's decision (as reportedly indicated in an email to the Foundation's "internal" mailing list) to make "preferably not an American" a qualification for this position; not only does that violate the Foundation's own EOE policy, but several aspects of the law as well. Earth to Mike Godwin? Hello? Are you listening?

There's also the appearance of impropriety issue. There's always inurement concerns when a nonpaid member of the board of a nonprofit organization is hired by that organization into a paid role, because there's the possibility that the board member influenced the decision to hire himself or herself, which would be an disallowed inurement under nonprofit law. In this case, I don't believe that Erik actually used his formal power as a Board member to influence the decision; as I stated above, the Board appears to not have been involved in the decision at all. However, there is still the appearance of impropriety, and given the Foundation's long history of playing hard and loose with such principles of governance, that's exactly not the sort of thing that the Foundation needs.

All in all, I find this entire episode remarkably ironic, given the near-total lack of transparency surrounding Moeller, who has run twice for the Board promising both times to increase transparency. I suspect the only reason the weight of all the irony hasn't crushed Erik outright is that his own ultraexpansive ego exactly counterbalances it.

Erik's departure does mean that the Board needs a new secretary. We can only hope that the new secretary will be more open about the Board's minutes. Perhaps now that our advocate for transparency is gone, we can actually get some transparency in the operation of the Foundation.

Update: I'm advised that the Foundation, as a "small employer", is not subject to EOE regulation, and that some of the immigration rules don't apply to them either. Doesn't change the fact that they have an internal policy that prohibits discriminatory behavior. So they're legal here -- just not terribly ethical.