File talk:Wikimedia Movement Charter Global Council and Decision-Making - Public Review.pdf

Independent Legal Assessment

Thank you for transparently sharing the legal review commissioned by the Wikimedia Foundation. WMDE fully recognizes the accountability the Wikimedia Foundation has to Florida law and to the US taxpayer. We are aware of the responsibility of the BoT, as part of their legal and fiduciary duties, to assure that the governance structures currently designed pose minimum risk to the WMF’s charitable status.

The review clearly states that from the WMF perspective the Global Council should not be a “legal entity”. It should be an advisory committee to the WMF Board of Trustees, and the WMF should retain power and authority over most of the functions it currently fulfills.

The current MCDC draft on the Global Council aligns with this perspective, in that it creates an advisory committee without its own decision-making authority, with very few exceptions.

According to the WMF review, the GC as an entity would result in complex legal relationships and overlapping responsibilities. That may be true, however, it is not an unprecedented situation, and there are examples of US nonprofits having effectively regulated relationships with their international movement partner organizations. This can be done through written agreements, as well as through strategic integration of governance bodies. The WMF has just structured a similar relationship between itself and the Wikimedia Endowment.

Clearly there are functions that must remain with the WMF, and under its full authority, such as trademarks, including the enforcement of their responsible use, the WMF’s own budget, and much of the technical infrastructure. Other movement functions, such as resource distribution, capacity building, and movement strategy, to name a few, in our opinion are better positioned with an international decision making body representing and working for an international movement.

The establishment of a global council in the form of a General Assembly, supported by an International Secretariat would be most faithful to the intention of equity in decision making and democratically legitimized decisions about movement-wide matters. We would suggest that ultimately, it would lead to better decisions and less conflict than our current situation.

We would urge the stakeholders, and at the forefront the MCDC in the governance design process not to take the WMF legal review as the last and only source of legal information. Instead we should do our due diligence and further investigate legal scenarios and precedents that make the collaborative structure possible with minimum legal risk to the parties.

The authors of Recommendation 4 of Movement Strategy had anticipated a situation such as this. Therefore the text states :

Design an independent and transparent process, along with an independent legal assessment, to transfer those responsibilities and authorities to the appropriate Movement-led bodies.

So far, as movement stakeholders we have not determined how and when the independent legal assessment should take place. It should probably take the form of a legal briefing, including the review of precedents and possible scenarios. There are reputable law firms in the US that bring the necessary expertise in designing inter-nonprofit legal relationships, and that have not had WMF as a client previously. WMDE suggests that it may be time to figure out together how we can commission this expertise, so that we can have a fuller and more neutral understanding of what is actually possible – to ultimately arrive at a governance structure that does justice to our movement and its diverse stakeholders and lets us move towards the strategic direction. Nicola Zeuner (WMDE) (talk) 10:56, 14 August 2023 (UTC)