Affiliations Committee/Bylaws Review Guidelines

The Legal Team of the Wikimedia Foundation for Affiliations Committee created these guidelines.

Guidelines from Legal to AffCom

Introduction

As part of its role in maintaining the Wikimedia movement affiliate system, the Affiliations Committee may review affiliates’ bylaws. This usually happens as part of the process of a user group incorporating as a non-profit organization in order to be eligible to become a chapter or ThOrg (ThOrg). AffCom conducts these bylaws reviews as part of the committee’s responsibility to guide and facilitate the creation and development of Wikimedia affiliates. This document contains guidelines, prepared by the Wikimedia Foundation legal team, that can help AffCom conduct bylaws reviews. The principle behind the guidelines is that AffCom should focus on the areas where it has the greatest expertise: affiliate recognition requirements and Wikimedia movement expectations. AffCom’s review should not require any specialized knowledge beyond those areas.

Key Principles

1. AffCom is not providing legal review

It is the group’s responsibility to ensure that they are following the local laws that apply to them. AffCom is not expected to be experts in the laws of the country where the group is incorporated. AffCom does not need to determine whether the group’s proposed bylaws comply with their local laws, or whether the provisions of the bylaws are enforceable as written. It is the group’s responsibility to ensure those things on their own.

A group may claim that they must include or cannot include particular provisions in their bylaws because of local legal requirements. AffCom does not need to independently verify these claims. However, AffCom can make it clear that misrepresenting the local legal requirements could be grounds for derecognition.

If something in the bylaws, or the group’s claims, seems legally questionable, AffCom may ask their liaison(s) from the Wikimedia Foundation legal team about them. The Foundation’s legal team does not have expertise in all local laws, but can help determine whether the issue is worth investigating further and can assist in doing so if necessary.

2. Not everything will be in the bylaws.

An organization’s bylaws create the structure for its functioning at the highest level. That generally includes how the organization’s board is selected and how the board operates and makes decisions. It also generally includes provisions related to contractual and financial authority. However, an organization’s bylaws will not necessarily explain every detail of how the organization operates.

There may be local laws that create rules that corporations and non-profit associations must follow regardless of what is in their bylaws. It can be useful, but not always necessary, to include these rules in an organization’s bylaws. Doing so can help someone reading the bylaws have a more complete understanding of what the rules are.

There may be additional policies that a group wants or needs to adopt to supplement the bylaws. Generally, an organization’s bylaws are more difficult to revise than other policies. If there is a policy or procedure that the organization might want to reconsider or revise on a somewhat regular basis, then they may not want to include it in their bylaws.

If AffCom has any questions about something that seems to be missing from a group’s bylaws, they can ask the group about it. The response may be that the missing piece falls under one of the categories mentioned above: it is not included in the bylaws because it is determined by a local law, or it is not included in the bylaws but it is included in a separate organizational policy.

3. The bylaws should be consistent with the requirements for affiliate recognition.

AffCom has established requirements and expectations that potential chapters, ThOrgs, and User Groups must meet in order to be considered for recognition. AffCom’s review of a group’s bylaws should primarily focus on whether the bylaws are consistent with the expectations for the group’s model of affiliation. Is there anything in the bylaws that conflicts with the expectations for affiliates?

Sometimes, a User Group may decide to incorporate as an NGO without their incorporation being connected to an application for chapter or Thematic Organization (ThOrg) recognition. Because there are fewer requirements for User Groups than for chapters or ThOrgs, there could be provisions of the group’s draft bylaws that are consistent with the expectations for User Groups but not consistent with the expectations for the other models of affiliation. AffCom should flag any such provisions to the User Group, and let them know that they would have to change those aspects of their bylaws if they want to apply to be a chapter or ThOrg in the future.

AffCom may wish to revise the requirements for the different models of affiliation from time to time. Before doing so, AffCom should consult with its staff liaisons to confirm that the proposed changes would not conflict with other goals, expectations, or legal requirements that the Foundation has for affiliates. It is best for any changes in requirements to apply to existing affiliates as well as new affiliates, in order to maintain consistent expectations. If the changes to the requirements are significant, AffCom may consider options for phasing in the new expectations for existing organizations over time. A more gradual approach would allow affiliates more time to prepare resources to change their bylaws.

4. The bylaws should be consistent with Wikimedia movement values.

Many important values and expectations shared within the Wikimedia movement are written into the affiliate requirements. However, the written requirements do not and cannot capture everything. The members of AffCom have years of experience as Wikimedians, and when reviewing a group’s proposed bylaws may encounter provisions that seem out of step with Wikimedia values or community consensus. AffCom’s instincts in this area are a valid basis for raising concerns about the bylaws to the group.

Not every element of the Wikimedia movement values is written down in a universally agreed-upon policy, so it may not always be possible to point to a written reference if there seem to be values-based issues with draft bylaws. In situations where there is no written reference but a member of AffCom has concerns about movement values, the committee should discuss the topic and aim to reach consensus based on their collective experience. There are written values and guiding principles for the Wikimedia Foundation. They do not necessarily encompass everything that matters in the movement as a whole, but they can still serve as a useful reference point. Affiliates sign agreements with the Foundation, and they should operate in a way that is compatible with the Foundation’s values.

Checklist

Do the bylaws align with the requirements for chapter/ThOrg recognition and with the organizational best practices?

The affiliate is operated as a non-profit organization / NGO
The affiliate’s stated mission is consistent with:

The affiliate is organized around serving the Wikimedia mission, and not around personally benefiting the affiliate leaders
The affiliate’s bylaws are consistent with their geographic (for chapters) or thematic (for ThOrgs) focus:

geographic: the affiliate is established in the country/region that it is serving/representing for the Wikimedia movement
thematic: the affiliate’s stated purpose in its bylaws is consistent with its thematic focus for the Wikimedia movement

The bylaws do not claim a dependence on the Wikimedia Foundation
The bylaws do not claim an authority over the Wikimedia projects
The bylaws allow the affiliate to operate transparently and share information about their activities and finances with the rest of the Wikimedia movement

An affiliate’s bylaws may not include every point on the checklist. That is okay; not all of the points on the checklist are necessarily appropriate to include in an organization’s bylaws in all jurisdictions. The key consideration is whether anything that is contained in the bylaws conflicts with any of the points on the checklist.

Procedure

1. The affiliate submits its draft bylaws to AffCom for review

2. AffCom reviews the bylaws

a. The goal of this review is to identify specific issues

b. The key principles and checklist above can help AffCom identify those issues

3. AffCom shares any issues they found with the affiliate

4. The affiliate responds to the issues identified by AffCom by either revising their draft bylaws or offering an explanation

5. AffCom reviews the revised bylaws

6. AffCom considers any explanations provided by the affiliate, and determines whether to grant an exception to standard requirements or expectations for that affiliates

a. Foundation staff are available to help AffCom make these determinations

b. Any exceptions that AffCom grants, as well as the reasons for granting the exceptions, should be documented for future reference and to help guide future decisions

7. AffCom informs the affiliate whether their bylaws are acceptable