Conflict of interest policy/2021 updates

Introduction

Background

In June 2021, the Wikimedia Foundation’s General Counsel committed to preparing an update to the Wikimedia Foundation’s conflict of interest policy. The current version of the policy can be found on Foundation Wiki. This policy describes the rules and processes regarding times when a member of the Foundation’s Board or staff leadership may have interests outside the Foundation that conflict with their duties to the Foundation. It is not about paid or conflict of interest editing of the Wikimedia projects, which are governed by separate policies.

This draft update to the policy was written based on model conflict of interest policies, best practices for handling conflicts of interest, guidance from outside legal experts on non-profit governance, and points raised in the community discussion of conflicts of interest earlier this year.

Summary of updates

Many elements of the existing conflict of interest policy are rewritten and rearranged in this update. The goal of these changes is to add detail and improve clarity regarding when the policy applies and the procedures it requires. The key substantive changes are:

• Expanding the application of the conflict of interest policy to potential transactions with former trustees and executives for 12 months following their departure from their roles
• Prohibiting the Board from approving transactions that involve hiring trustees as employees or contractors for 6 months following their departure from the Board
• Adding the “Assessing Conflicts of Interest” step for the Board to clearly determine whether there is an actual conflict of interest

Feedback requested

The goal of this feedback period is to answer these questions:

• Are there any aspects of the draft policy that are unclear?

• Is any of the language confusing?
• Is the procedure described in the policy confusing?

• Are there any gaps in the policy?

• What types of conflict of interest situations are you concerned about?
• Does the policy cover those situations?

Next steps

This feedback period will run until 22 November 2021.

Following this feedback period, revisions to the policy in response to community feedback will be reviewed by the Foundation’s legal team and the Governance Committee of the Wikimedia Foundation’s Board of Trustees.

After the policy is reviewed by the Governance Committee, it will go before the full Board to be officially adopted.

The exact timing of these steps depends on the schedules and other responsibilities of the Board and the Governance Committee. However, it should all be completed by the end of March 2022.

Draft policy

Purpose

The Wikimedia Foundation is a charitable organization dedicated to serving the public by pursuing its free knowledge mission. The individuals in leadership positions at the Foundation have a duty to conduct the affairs of the Foundation in a manner consistent with that mission, and not to advance their personal interests or the interests of any third parties. This policy is intended to provide guidance to help Wikimedia Foundation Trustees, officers, executives, and key employees identify instances when they may have a personal interest that might call into question their duty of undivided loyalty to the Foundation, and to define the procedure for evaluating and addressing any such conflicts of interest if they arise.

Definitions

Conflict of Interest.

A conflict of interest arises in situations where:

• the outside interests of a Covered Person compete with the Foundation’s interests;
• the Foundation enters into a Covered Transaction with a Covered Person or a Related Party; or
• a Covered Person has divided loyalties.

Covered Person.

An individual currently serving as a Trustee, officer, executive, or key employee of the Wikimedia Foundation, or having served in such a role at some point during the preceding 12 months. “Key employee” is used here in accordance with its definition for the US Internal Revenue Service Form 990.

Covered Transaction.

A transaction, agreement, or other arrangement between:

• the Foundation and a Covered Person;
• the Foundation and a Related Party; or
• a Covered Person and another party, if the transaction could reasonably be expected to have a material adverse impact on the Foundation.

Examples of Covered Transactions include employment agreements, grant agreements, contracts or payment for services, trademark licensing agreements, and affiliate agreements. Reimbursement for reasonable expenses for Foundation business is not a Covered Transaction, but it is subject to the Foundation’s standard expense reimbursement approvals and procedures.

Interested Person.

A Covered Person whose outside interests and loyalties, including due to a Significant Relationship, give rise to the actual or potential Conflict of Interest that is at issue in a given situation.

Related Party.

A person or entity with which a Covered Person has a Significant Relationship.

Significant Relationship.

A significant relationship arises from:

• a close familial relationship, including as a spouse, parent, sibling, child, stepchild, grandparent, grandchild, great-grandchild, in-law, or domestic partner;
• a material financial interest, such as an aggregate ownership stake of more than 10% in an entity; or
• a role as an officer, director, Trustee, partner, or employee.

Identifying Conflicts of Interest

The first step in addressing Conflicts of Interest is to identify instances where there is a conflict or where there may be a conflict. This step should err on the side of over-inclusion in order to ensure that all conflicts of interest are identified.

Questionnaire

In order to assist the Foundation in identifying potential Conflicts of interest, each Covered Person shall complete a Conflict of Interest Questionnaire provided by the Foundation once per year, and shall update their Questionnaire as necessary to reflect changes during the course of the year. Questionnaires shall be submitted to the Foundation's legal counsel who shall be responsible for their custody. Completed Questionnaires shall be available for inspection by any Trustee, the Chief Executive Officer, and the Chief Financial Officer, and they may be reviewed by the Foundation’s legal counsel.

Disclosure

As soon as a Covered Person becomes aware of a proposed Covered Transaction or any other potential Conflict of Interest, they have a duty to disclose its existence and circumstances in writing to the Board of Trustees, Chief Executive Officer, and General Counsel. A Covered Person must report all potential Conflicts of Interest that they become aware of, even if they are not an Interested Person. Where there is doubt regarding whether a situation involves an actual or potential conflict of interest that requires disclosure, the matter must be resolved by the Chair of the Board of Trustees (or the Vice Chair(s) if the Chair is an Interested Person).

Assessing Conflicts of Interest

After a potential Conflict of Interest is reported to the Board of Trustees, the Board must gather information and determine whether there is an actual Conflict of Interest. The Board may designate a subcommittee to gather evidence and make recommendations, but the final determination must be made by the full Board.

Recusal of Interested Persons

Interested Persons must make themselves available to the Board of Trustees to answer questions and provide information, to the extent permitted by law, relevant to the potential Conflict of Interest. Interested Persons must otherwise recuse themselves from any discussions regarding the Conflict of Interest. Interested Persons may not observe, be present for, or participate in any Board or committee discussions regarding the Conflict of Interest, except as needed to answer questions. Interested Persons must refrain from using their personal influence to encourage the Board to reach any particular conclusion. These obligations continue to apply to Interested Persons throughout the Board’s assessment, review, and approval of the potential Conflict of Interest.

Board Determination

The Board of Trustees, without the involvement or participation of any Interested Persons, shall review the evidence and determine whether a Conflict of Interest exists. In making its determination, the Board should consider whether:

• a Covered Person or a Related Party would receive a benefit (financial or otherwise) from the proposed Covered Transaction;
• a Covered Person would be in two conflicting roles; or
• a proposed Covered Transaction might be perceived to be a conflict of interest by parties outside the Foundation.

The discussion shall be documented in Board minutes, and the determination shall be documented as a Board resolution. A majority vote is required for the Board to determine that there is no Conflict of Interest. If the Board determines that there is no Conflict of Interest, then the Conflict of Interest review process concludes and any affected transactions may proceed as usual.

Addressing Conflicts of Interest

After determining that a Conflict of Interest exists, the Board of Trustees must decide whether to approve any proposed Covered Transactions. The Board must also address any violations of this policy.

Board Approval

The Board of Trustees may approve a Covered Transaction by majority vote. In order to approve a Covered Transaction, the Board must conclude that:

• it is aware of all material facts concerning the Covered Transaction and all Interested Persons’ interests in the Transaction;
• the Covered Transaction is not an act of self-dealing or otherwise legally impermissible;
• the Covered Transaction would benefit the Foundation and is in the Foundation’s best interests;
• the cost to the Foundation is fair and reasonable, based on comparable market data;
• it is not reasonably possible for the Foundation to enter into a more advantageous arrangement to achieve the same benefit that would not produce a Conflict of Interest; and
• the Covered Transaction does not involve the Foundation hiring as an employee or contractor an individual who had been a Wikimedia Foundation Trustee within the preceding 6 months.

The Board may consult legal counsel and other outside advisors as part of its determination. The Board’s discussion and the basis for its approval shall be documented in Board minutes, and the Board’s approval shall be documented as a Board resolution.

Policy Violations

In the course of fulfilling its duties under this policy, the Board of Trustees (or one of its committees) may learn of information that gives it reasonable cause to believe that a Covered Person has failed to disclose an actual or potential Conflict of Interest, or otherwise violated this policy. In such circumstances, the Board shall inform the Covered Person of the basis of its belief and provide an opportunity for the Covered Person to explain the alleged violations. The Board shall investigate further as warranted by the circumstances, determine whether there was a violation of this policy, and take appropriate disciplinary and corrective action.

Policy Administration

This policy shall be administered by the Board of Trustees. The Board is responsible for the following:

• receiving disclosures of proposed Covered Transactions;
• reviewing proposed Covered Transactions to determine whether they meet the criteria for approval;
• maintaining documentation as may be necessary and appropriate to document its review of Covered Transactions, including meeting minutes, resolutions, and pledges of personal commitment; and
• reviewing the operation of this policy and making changes from time to time as may be appropriate.

Acknowledgement

Each Covered Person shall be required to acknowledge that they have read this policy and are in compliance with it. They shall be required to sign the pledge of personal commitment and fill out a conflict of interest questionnaire when they accept the role that makes them subject to this policy. They shall be required to update and renew these written commitments at least once per year.