Talk:2012-13 Fundraising Agreement (Master)

Introductory Language (FIDAL Recommendation)

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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FIDAL recommended that we add at the beginning of the fundraising agreement a paragraph to give more context to the agreement (generalities such as 1) what is wmf 2) what are wikimedia chapters 3) what are their respective missions 4) what are wikimedia projects 5) why does it matter to French language, French people, French culture and so on. Nothing terribly questionnable overall, but would be very helpful with regards to establishing a general good trail for the review for the French fiscal administration (since the fundraising agreement would be one of the primary document it would study to establish their opinion on tax deductibility).

Would you be willing to work with us to establish such a section and would it be problematic for you to have a fundraising agreement with WM FR that would be similar to the three other chapters but for that general introductory background that would be specific to our situation ?

Anthere (talk) 22:44, 17 May 2012 (UTC)

Hi Anthere, I look forward to working with you and Thierry on this. This will not be a problem. Maybe FIDAL can propose the language; if not, I can give it a shot with Olivier Hugot. I would be looking for something that we could simply insert near the beginning. Obviously, I'm trying to avoid one-offs to minimize the work for us, but I have always made exceptions pour la France in my life. :) Geoffbrigham (talk) 14:04, 18 May 2012 (UTC)

France deserves exceptions :) But I agree, it would need to be something standalone that we could put typically at the beginning of the agreement and that would not mix with the rest of the doc. What I am going to do is to contact again FIDAL on the matter, with this draft proposition to see where we can go.

FIDAL may have another suggestion in particular for the paragraph As a result, the Chapter will give serious consideration, if permitted by local laws, to the transfer all fundraising revenues received pursuant to this agreement to WMF for redissemination to the Wikimedia movement as determined and approved by the WMF Board of Trustees. Such approval by the WMF Board of Trustees may be preceded by recommendations from the Funds Dissemination Committee. In the case of Wikimedia France, the Chapter will give serious consideration to the transfer of 50% (fifty percent) of all fundraising revenues received pursuant to this agreement to WMF for redissemination to the Wikimedia movement as approved by the WMF Board of Trustees. which could be okay for you guys and make our life easier with the tax administration.

Anthere (talk)

As I understand, Anthere will get us the recommended langauge from FIDAL. I anticipate no problem including it in the agreement as described if it is a French financial requirement/preference. It may be useful to the other chapters, so we will post it here as well. Geoffbrigham (talk) 15:33, 27 May 2012 (UTC)

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Audits

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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After a quick read (and before having received any comment from a lawyer), I see a problem with the way the audits are described:

WMF may, in its discretion, audit (or have its auditors audit) the financial and fundraising operations of the Chapter upon reasonable notice to the Chapter, but no more then once a year, unless there is a reasonable suspicion of misappropriation of donations or improper disclosure of donor information (in which case there is no limitation on the number of audits).

Performing such an audit would mean giving access to accounting data to the WMF or its auditors, something that is likely not compatible with data protection laws. Such an audit should probably be done by an independent Swiss auditor (in the case of Wikimedia CH), under terms that would have to be discussed -- but basically, the auditor would get the fundraiser agreement and other documents, it would work with WM CH to perform the audit, and then provide a short summary indicating any potential problem (if any). This would provide the control that is requested by the WMF, while safeguarding privacy. (again, to be discussed when we have comments from our lawyer). Schutz (talk) 11:23, 22 May 2012 (UTC)

This is a valid point. Including terms in the donor privacy policy that capture this issue is probably the easiest solve. Under the donor privacy policy, we now say: "To provide donors the best possible experience, we work with service providers and may share Donor Data and other information with, or have it transmitted through, them. Such service providers include, for example, collocation facilities and bandwidth providers as well as organizations that help non-profit organizations with fundraising." We could include explicit terms that say something like: "We also may share your personal data with third-party auditors, including auditors for Wikimedia CH and Wikimedia Foundation, to ensure proper financial controls and that your donations are appropriately used to further the Wikimedia movement." Geoffbrigham (talk) 16:30, 23 May 2012 (UTC)

This would still mean giving access to private data to entities that are not subject to (in our case Swiss) data protection law, or laws that offer an equivalent protection (e.g. EU). Making sure that the auditors are actually subject to the relevant law would make the problem disappear. Or is there any reason why it should be the WMF itself or a non-local company which should actually perform the audit ? Schutz (talk) 18:42, 23 May 2012 (UTC)

If WMF were to do this type of audit, no access to identifiable personal or employment data is required to perform this type of audit. It my understanding that as long as personal or employment data is not involved or identifiable, then access to accounting data is permitted and not covered by the "Swiss Data Protection Act". If we request KPMG, our audit firm, to conduct the audit they are listed as an independent Swiss auditor and conduct independent audits of non profit organizations in Switzerland.--Gbyrd (talk) 21:51, 23 May 2012 (UTC)

Then I must admit I am not exactly sure about what "this type of audit" means. If the goal is to look at control and procedures, then I can understand that there would be little need to access private data. But as soon as you need to look at any financial information, we may have a problem: all donor information actually comes printed on our bank statements [or in the relevant electronic files], for example. So maybe I need a bit more detail (although, it goes without saying, but it should probably be specified, that the audit applies only to operations related to the fundraiser and use of money as distributed by the FDC, and not to the whole operation of the chapter).

It's indeed convenient if your auditor has a branch in Switzerland, as this would solve many issues. Is there anything that prevents this to be specified in the agreement ? Schutz (talk) 06:18, 25 May 2012 (UTC)

Our auditor would likely be KPMG, which is a worldwide institution; in practice, these firms are sensitive to local data protection laws and adhere to them. We can consider specifying in the agreement that all audits will comform with local data protection law, but would you also be willing include in your donor privacy policy a provision that makes clear that data may be released to third party audit firms ensuring proper usage of donations? In any case, I think we will find a solution here either way. Geoffbrigham (talk) 15:28, 27 May 2012 (UTC)

We use UHY a major accountancy firm registered under all the UK and European laws imaginable. Surely this evidence should satisfy? Jon Davies WMUK (talk) 15:11, 30 May 2012 (UTC)

Note that the 'UHY' that Jon refers to is UHY Hacker Young. Mike Peel (talk) 16:38, 31 May 2012 (UTC)

Making sure that auditors have access to the donor data from the privacy policy is not a problem -- our current auditors need to check our financial statements, and basically have access to all our accounting and thus all donor data. As long as all entities that access this data are subject to Swiss data protection law (or equivalent), this should be ok with us. I am not sure if that is what you mean above ? Schutz (talk) 14:41, 31 May 2012 (UTC)

I have edited the agreement to make it clear that the audit will either be conducted in a manner that does not disclose personal information of donors or will be done in compliance with applicable EU privacy regulations. Kkay (talk) 11:46, 4 June 2012 (UTC)

Since your auditor is one of the big firms which has a local branch about everywhere, would it be possible to specifiy that the entity performing the audit must be subject to Swiss privacy laws (or EU). That would mean that no data would ever leave its current legal framework, and it would make everything much easier (that the audit is done in compliance with applicate EU privacy regulations is a good step, but if some data is stored outside of CH/EU following the audit, the legal protections would disappear). Since Geoff indicate above that you would indeed use an auditor that has a Swiss branch, that should not be a problem. Schutz (talk) 13:27, 13 June 2012 (UTC)

Also, I realize that the audit is for "financial and fundraising operations of the chapter". I guess this was not intended to be this wide, as it should only cover the money raised through WMF sites (and not money raised from other sources). Could it be modified accordingly ? Schutz (talk) 13:27, 13 June 2012 (UTC)

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Insurance

The following discussion is closed. Please do not modify it. Subsequent comments should be made in a new section. A summary of the conclusions reached follows.

This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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As discussed before (but, again, to be checked with our lawyer). Insurance should not be an end in itself; if the legal situation makes insurance not needed (e.g. because the chapters and its officers are already protected enough -- which seems to be the case in Switzerland), then it should not be required. Doing so would be a waste of donor money, something that none of us want. Schutz (talk) 11:23, 22 May 2012 (UTC)

I look forward to discussing. Geoffbrigham (talk) 16:53, 23 May 2012 (UTC)

We also need to discuss this. After the issue was raised I sought advice from Lloyds and our insurance broker. Our brokers advised that we were not covered for loss of data in the way that the Foundation had suggested but that this was not seen as a normal UK insurance policy: 'It was something that was done in the U.S." I persevered and found a quote from a specialist Lloyds broker. They quoted £1700.

As a board we discussed whether this represented value for money. In effect protecting staff data, the names, addresses and emails of 70,000 donors and the same for 350 WMUK members. The data is password protected etc in line with our government office of Data Protection, none of the data refers to financial information and it is all backed up in several ways. The cost of informing people, should there be a data breach, is simply the cost of sending out an email. The legal risk is of having someone's address and email revealed, which in reality is surely unlikely to attract compensation as long as we are seen as being diligent. We felt this was not value for money. Jon Davies WMUK (talk) 15:29, 30 May 2012 (UTC)

1700 pounds is not much. If that is the only cost, I would get the insurance. Geoffbrigham (talk) 13:30, 31 May 2012 (UTC)

I have edited the insurance section based upon our discussions to tier the amount of coverage required by each Chapter based upon anticipated fundraising volumes and relevant risks. Kkay (talk) 11:42, 4 June 2012 (UTC)

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Chapter's obligations

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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Under point 3d: "Providing to WMF the Chapter's tax authority determination letter issued by appropriate authorities". What is exactly meant here ? (and in particular: how is it different from 3c) ? Schutz (talk) 18:43, 23 May 2012 (UTC)

Item 3d is a request for verification that the chapter has registered with their tax authorities as an employer or business to pay any required employment or business taxes in their country. For example in the United States we have both our IRS determination letter for our 501(c)(3)(Not for profit)status (Item: 3c) and our EIN (Employment Identification Number)for paying employment taxes.(Item: 3d).--Gbyrd (talk) 21:16, 23 May 2012 (UTC)

Ok. I was confused because for us, this is going to be only one letter: the tax authorities determined that we are a not-for-profit organization that is exempted from paying tax, and this status automatically means that donations made to such an organization are themselves tax deductible for donors. Thanks ! Schutz (talk) 06:22, 25 May 2012 (UTC)

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Syntax

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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I've edited the document to simplify the wiki syntax used. This was primarily so that I could set up a private copy of the agreement that I could add annotations to. If this simplification is not useful to others, then please feel free to revert my edit. But I have to say, it would be nice if MediaWiki could somehow support the different types of bullet points via the standard WikiCode. :-) Thanks. Mike Peel (talk) 19:02, 26 May 2012 (UTC)

I appreciate the effort here, but I will ask that we revert the edits since the present numbering is difficult to follow. It is normal for numbering of paragraphs and sub-paragraphs to vary between numbers and letters in legal documents to facilitate the identification and location of sub-paragraphs. The changes also make the appendix at the end out of synch. Thanks. Geoffbrigham (talk) 14:33, 27 May 2012 (UTC)

Hi Geoff, I fixed your fix, you undid Philippe's edit instead of Mike's. I've also converted some external links to the Foundation wiki to internal wiki links, so that they are protocol relative (http:// or https://) and don't look like true external links. I imagine this is okay as I haven't changed the substance of the document, just made the links better. Hope this helps, The Helpful One 14:58, 27 May 2012 (UTC)

We were cross-posting at the same time. :) I just finished leaving you a thank you note on your talk page for this. I had noticed the error and went back to correct it, only to find that Thehelpfulone was already on it (as usual). Many thanks. BTW I understand Michael's concerns and appreciate his bringing the issue up, but the sub-paragraph lettering serves legal purposes and consistency with the timeline in the appendix. Much appreciated. Geoffbrigham (talk) 15:16, 27 May 2012 (UTC)

OK, sorry for the problems this caused. There must be a way to do this more elegantly in wikicode, but I can't figure out how. :-( Thanks. Mike Peel (talk) 21:06, 31 May 2012 (UTC)

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Symmetry

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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Naturally, the majority of the obligations put onto Wikimedia chapters should also be obligations undertaken by the WMF. That is particularly the case since the WMF is putting forth requirements that are based on US law, whilst similar law is also present in the countries that the chapters operate in. Unfortunately, this document does not appear to follow this principle. As such, I personally think that this agreement needs significant revision to ensure that the obligations are symmetric, and follow all applicable laws, before any party agrees to it. Thanks. Mike Peel (talk) 19:20, 26 May 2012 (UTC) (personal opinion)

Our goal is to reach an agreement quickly and to sign it in a timely manner. Both sides, including WMF, are required, for example, to comply with all laws, to ensure financial transparency with each other, and to meet organizational best practices. See Mutual Obligations, sec. 6, 11-13. Under the agreement, WMF is allowing use of its site and trademark for local payment processing and data collecting, so it makes sense from a contractual viewpoint that it asks the local chapter for verification of compliance with local laws and governance. (As a side note, WMF is already subject to audit by a Big Four auditing firm and has a strong legal department in place.) More importantly, I believe the provisions in this agreement address the concerns of the Board about local payment processing with respect to the four chapters. Stu has signed off, which gives me comfort there. I want to show the Board that working with the chapters on local payment processing is not a time consuming process, that we do not need to spend much time on negotiating a document that addresses the Board concerns, and that we can get on with a fundraiser without issues of the past. So I would not favor "significant revision" here. Geoffbrigham (talk) 14:55, 27 May 2012 (UTC)

I am generally a proponent of symmetry, and have argued for it in the past in fundraising language. I also second Geoff's last few sentences above. –SJ talk  22:10, 31 May 2012 (UTC)

I'm fairly sure that I agree with SJ's perspective here. And I also don't want there to be significant time spent on negotiating the document (but, of course, there should be sufficient time spent to ensure that it is a good agreement). I do think that the WMF could easily go further than it currently does here, though - e.g. surely it's trivial for the WMF to provide proof of tax-deductable status (3c), to participate in the FDC process (4a), to comply with its own trademark policy (4c), to ensure that it doesn't violate intellectual property or other rights of any third party (4d), to follow most of (5), etc. There's lots of low-growing fruit here, and as such it should be really easy for the WMF to demonstrate good faith and to commit to following some of the same principles it's asking chapters to follow. Thanks. Mike Peel (talk) 22:20, 31 May 2012 (UTC) (personal opinion)

Some specific ideas on simple changes to improve symmetry:

"Obligations" (below numbers w/ letters ["3a"] refer to chapter obligations, bare numbers ["3"] refer to wmf obligations)

• 3a, c, d : these documents can be published, not provided privately, as a mutual obligation. A single consolidated 3a could be to provide WMF with a link to those three docs by sept 1, to leave in the specific deadline
• 4a : this seems covered by mutual obligation 4; and can be a mutual obligation. Perhaps a single sentence that is chapter-specific remains
• 4d : this feels out of place -- what's the relevance to fundraising? drop or make mutual
• 5c : this seems covered by mutual obligation 6, and most of it (or all but a sentence) can be made mutual.
• 5f, g: these read like mutual obligations
• 6b,c,d,e: these can be moved to mutual obligations
• 7b : this can use the same language as 7 -- with both saying either "should" or "may".

"Other legal considerations"

• 8.(3): replace "failure of Chapter" w "failure of either party"
• 9. : I don't understand this clause, and it seems too vague to provide useful guidance for chapters. That's especially a red flag for me because it references "Board of Trustee decision[s] or resolution[s]". This should be clarified, merged with 8., or dropped.

–SJ talk  09:30, 2 June 2012 (UTC)

I have gone through and in the interests of symmetry and goodfaith made many of the "mutual" requests where it made sense. I hope this addresses a majority of the items that Michael raised and we can agree to move forward.  :-)

• There were a few items such as the requested clarification to section 9 on the board resolutions and decisions that I did not change, as I think we can discuss the concept here on the talk pages. This section is a little vague on purpose. Since the Board's processes as they will relate to the FDC and the underlying decision making process are still being determined, it is hard to state specifically what might arise under this section. In a worse case scenario [totally an example for illustrative purposes], lets say the board decides based upon FDC recommendations that Germany only receives $2.5 million Euro, but Germany asked for $3 million. Germany decides to withhold the difference of $500k (not for legal/regulatory reasons) from its transfer to WMF. In this case, this provision would allow WMF to terminate the agreement because Germany was not abiding by the FDC recommendation as approved by the board. The unknown at this time is if the board will be passing resolutions to approve FDC recommendations or just posting its decisions or other form of board activity that serves to communicate the decisions. Kkay (talk) 12:00, 4 June 2012 (UTC)

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Copyedits

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This conversation precedes the final agreement of the document. Please begin new sections for future conversations. Thank you. --Maggie Dennis (WMF) (talk) 18:56, 27 June 2012 (UTC)

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I made a few copyedits: diff. –SJ talk  09:41, 2 June 2012 (UTC)

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