Talk:Wikimedia Chapters Association/Bylaws

AffCom

Have you been in touch with the Affiliations Committee regarding those Bylaws? I think they are the people in the movement who have profound knowledge and experience in drafting bylaws for Wikimedia related entities and can probably support the WCA by reviewing theirs. Thanks, --Nicole Ebber (WMDE) (talk) 21:44, 10 December 2012 (UTC)

No, for the moment it's just a basic adaptation of the charter to be compliant with the swiss law. The modification have been done with the help of the CAGI, an organism dedicated to help NGO in Geneva.--Charles Andrès (WMCH) 09:24, 11 December 2012 (UTC)

Good idea. By the way, I assume we will need to sign an agreement with the WMF (at least for using the name "Wikimedia Chapters Association" :-) ), even if the WCA does not seem to fit into any of the four models of affiliation (chapters, thematic associations, partners, user groups). - Laurentius (talk) 21:46, 11 December 2012 (UTC)

Elect/appoint Secretary General

I believe the board of the Chapter's Association should be elected. The staff should be 'appointed' The risks are of complete instability.Jon Davies (WMUK) (talk) 10:54, 11 December 2012 (UTC)

I agree, I think this part of the charter is outdated, and no longer required in the bylaws. We may keep some restriction about who cannot be appointed (board member of a chapter for example).--Charles Andrès (WMCH) 15:34, 11 December 2012 (UTC)

Yes, and thanks for looking some things up. Ziko (talk) 19:12, 11 December 2012 (UTC)

Secretariat

It's not clear to me the reason for having the "secretariat" section in the bylaws (and in the charter before it). As someone said, it is just another name for staff, and it is unusual to have staff positions defined in the bylaws. There are some point in that section which we may want to spell out explicitly, like the two year term (with the fixed compensation) and the incompatibility with other positions, but they can also be defined by internal rules, without need to write them in the bylaws. - Laurentius (talk) 22:10, 11 December 2012 (UTC)

The actual bylaws are direct adaptation of the charter, we remove nothing because it wasn't our duties to do things like this, we just add what it's need and now we can discuss it. About the secretariat, it's the same remark than Jon, and definitively we should remove staff information from the bylaws. Also, with the swiss law the two year term is useless.--Charles Andrès (WMCH) 17:03, 12 December 2012 (UTC)

(I know, of course you were right to do as few changes as possible). Why the two year term is useless with swiss law? - Laurentius (talk) 20:23, 12 December 2012 (UTC)

Hello, I agree that the secretariat section is dated and can be deleted, with regard to the situation in Switzerland. I believe that a board section is necessary, otherwise it would not be clear who has the legal responsibility (only the board, all council members, etc.). Ziko (talk) 20:30, 12 December 2012 (UTC)

The Secretariat isn't staff. As to the purpose of this section, I'd like to refer you to Chapters_Council where the structure found in the charter was discussed extensively. Considering that the agreement of the chapters to participate in WCA was bassed on the structural compromises made in Berlin, I think that whatever changes are made now for registration in Switzerland need to be as small and as inconsequential as possible. Removing the secretariat and turning the council into a board fundamentally changes the setup of the entire organization. sebmol ^? 18:37, 19 December 2012 (UTC)

@Laurentius, in switzerland it's quite easy to stop a working contract, so unless we really want that the SG change every two year, we do not need to put a fix term

@Sebastian, about turning council in board, it's really just wording, everything depend in what we intend by "board" or "council" but changing the word is not changing what this body is. about the Secretariat, I agree but since Berlin all the discussion about the SG are about a paid position, so in the fact we already give up this section, no?--Charles Andrès (WMCH) 09:24, 20 December 2012 (UTC)

Regarding the fixed term: the point was to have an SG a DSG who would be elected for two years with possible renewal. Renewal may be the normal case, unless the council feels the SG should be replaced by someone else after the term has ended.

Regarding the Secretariat: the members of the Secretariat were meant to be paid for their service from the beginning of the conversation. The model discussed and approved in Berlin does distinguish between regular staff (i.e. hired employees and contractors) and the executive (i.e. the members of the Secretariat), with the latter taking on specific responsibilities set out in the charter and not subject to any single council decision. There was to be somewhat of a set of checks and balances between Council and Secretariat. The new bylaws, even if not intentional, eliminate most of that by reducing the members of the Secretariat to employees and elevating the Council chair to head of the organization. Is that really something Swiss law requires? Or is it rather a substantial change in the organizational arrangement based on preference? sebmol ^? 11:57, 20 December 2012 (UTC)

Checks and balances need a board of volunteers, as opposed to a paid secretary. Why is a secretary not "staff", if he is paid? Ziko (talk) 21:50, 20 December 2012 (UTC)

I'm not sure I understand the first part. Why would it be that checks and balances need a board of volunteers? And what do you mean by "paid secretary"?

As regards your second question, perhaps the word "staff" is ambiguous in this context. When I use the term "staff", I refer to people who are hired for a specific job under legal arrangements typical for employees, which often include things like limited liability, termination protection, indefinite contract lengths, sick and vacation days and which are often based on external legal requirements such as statutes (e.g. labor law), union contracts, etc. Independent contractors don't fall into that definition, and neither do (most) volunteers, board members, auditors, etc. And neither does the chief executive of an organization whose contract, typically at least from what I've seen in most Western countries, is based on different principles than labor law. The most striking differences are that chief executives do indeed carry personal liability for the activities of the organization. They also have to answer to the board directly, which no other staff does.

The WCA charter states that the executive powers of the organization are performed by a secretariat, consisting of a secretary general, a deputy, and additional people. SG and deputy are elected by the board for fixed terms, have to answer to them, and are held accountable for the activities of the association. That does not square with the aforementioned definition of "staff".

If, on the other hand, "staff" is merely a designator for the fact that someone is paid for their work, a separate distinction is still needed to differentiate between people whose work arrangement is organized like typical employees, and those people where it is not.

So, perhaps the question is, what do you mean by "staff" and how is it different from the definition above. sebmol ^? 11:01, 21 December 2012 (UTC)

Sebastian, there is probably an ambiguity in the term indeed. By "staff" I mean "it is paid and it is not required to be a community member". If you see a word that fits better this meaning I will use it.

The hiring process is on the way; the question is whether that role should be written in the bylaws. I see that it may be worth to mantain some of those points: for instance, the two-year term, as I understand it, also on one hand pushes the Council to reconsider the Secretary General appointment each two year, and on the other hand tells to the secretary general that he can expect to hold that position for (at least) two years. However, I believe that it is more appropriate to have it as internal rules, instead of writing it in the bylaws.

About the renaming "Council" in "Board": associations are required to have a board; this is true in Switzerland and, I presume, in most country. Making a board from the council seems to be the smallest possible modification. I prefer the name "Council", but I doubt it can be used instead of "board". - Laurentius (talk) 20:40, 22 December 2012 (UTC)

Language of the bylaws

Bylaws (and official documents) can be in English or need to be in a local language (French?)? - Laurentius (talk) 22:16, 11 December 2012 (UTC)

All the official documents can - and in my opinion should - be in English. But if we want to have a tax exemption, we have to give a french version of the bylaws to the state of Geneva Chantal.ebongue (talk) 08:27, 13 December 2012 (UTC)

Minor corrections

There are a number of minor grammar and other errors. I'm assuming that there is no problem in me going ahead and correcting these, changes will be per the history of the page, so it can be rolled back if needed for any reason. Once there is an agreed version, we will need to take care to have change notices pointing to the review records. Cheers --Fæ (talk) 10:33, 19 December 2012 (UTC)

Some more minor things:

1. it is written both that "The General Assembly appoints the members of the board" and "this representative is elected by the chapter"; does it work?
2. there is a conflict between "appoints the members of the board and elects at a minimum the President, the Secretary and the Treasurer" and "Chair: The Board elects from its own members a chair, a secretary and a treasurer. This election must be approved by the General Assembly." (we have a Chair or a President? and who elects him?)
3. "for the Organization's accounts": to be replaced with "for the Association's accounts"
4. capitalization of "association" and "board" should be uniformized.
5. there is still to replace some "council" with "board"
6. in the last lines, "those of the organisation benefiting from tax exemption": is it correct or it should be replaced by "those of the Association"?
7. "by a paper letter of a pdf file": is it correct or it should be "by a paper letter or a pdf file"?
8. In the "The General Assembly" list, the first point says "shall" while the others use an ordinary simple present form. Maybe they should be uniformized? - Laurentius (talk) 21:51, 22 December 2012 (UTC)

New organization

This change, quite frankly, sets up a new organization that has little in common with the WCA as discussed or established in Berlin. I'd really like to see the rationale for all these changes in light of actual Swiss legal obligations. If they aren't derived from Swiss law then it would be good to see the arguments in favor of the changes. sebmol ^? 10:42, 21 December 2012 (UTC)

Hi Sebastian, I don't really see in what these bylaws describe something so far of the WCA discussed in Berlin, the proposed bylaws are really simple and the minimum required in Switzerland. Things like the secretariat have been removed from the bylaws just because it doesn't need to be defined here. --Charles Andrès (WMCH) 23:46, 23 December 2012 (UTC)

Here's a comparison of the substantial chances I've quickly thrown together using this diff. For these points in particular I'd like to see clear and unequivocal reasoning for why they are required by Swiss law.

1. In the charter, the WCA council has specific, limited responsibilities. In the bylaws, these responsibilities are split between the General Assembly and the Board which, the way the bylaws are worded, are likely to be the same group of people just operating under slightly different rules. By then making the GA the "supreme authority" and leaving the bylaws amendment process entirely in its hands as well, there are in fact no limits on what the Board/GA can do.
2. The charter placed the executive powers in the Secretariat and provided for the Council to mainly be a deliberative, rule-setting, and representative body. There was a separation of powers with checks between Council and Secretariat (such as a fixed term, removal only for cause, separate responsibilities in passing the budget, reporting requirements by the Secretariat to the Council). By eliminating the Secretariat in the bylaws, there is no such separation of powers. If in fact WCA hires someone under the bylaws, they would be completely subordinated to the Board, again with no recourse since the GA as "supreme authority" is likely to be just the same people.
3. Under "Members", there's a new subsection called "Compliance" that subjugates internal chapters regulations to the rules and decisions of the WCA. There's no process to compensate this power grab as Board/GA are both the group that makes these rules and decisions and the group that has supreme authority over how to handle them. In the charter, only the charter itself was binding on members chapters.

It may very well be that these changes are indeed required by Swiss law, i.e. that there's not a way in Swiss law to have an association that is not strictly hierarchical and majoritarian in its decision-making. If that is the case, however, I have to severely wonder whether it's a model that is appropriate and practical for the mission for which WCA was founded.

If, on the other hand, there are less drastic changes possible that make the document compliant to Swiss law, then why not do that? I'm no expert in Swiss law so I can't really propose an alternative. Perhaps someone else can without personal bias for any particular organizational structure but using the charter as agreed in Berlin as the basis. But beforehand, I'd really like to understand why the changes I listed above as 1, 2, and 3 are actually required by Swiss law. sebmol ^? 11:43, 26 December 2012 (UTC)

Anything is set in a stone. Frankly the model of Berlin has generated only several months of blocks to look for something that is not crucial for the setup of the WCA. In addition there is no sense to have something unrelated with the legal system of the place of registration. I remember to have always said that the place of registration is really important before deciding the organization, a group of people said something differently. At the moment the process of registration is moving faster because the place of registration has been selected. I think that the adaptation to the legal system is mandatory to don't block the process. --Ilario (talk) 08:26, 26 December 2012 (UTC)

I'm not sure I can follow. Are you saying that the "months of blocks" derive from the organizational model of the WCA? If that is so, what about the proposed bylaws would have made a difference there exactly? I'd rather say that the slow process is a consequence of a severe lack of courage/boldness/fortitude to Get Things Done coupled with an excess of focus on Doing Things Right. It's of course easy to place the blame for slow progress on structural problems and using the charter as a scapegoat. It's not particularly honest though.

"In addition there is no sense to have something unrelated with the legal system of the place of registration." - The WCA is an organization by all member chapters for all member chapters (and others who will be so excited by WCA's activities that they can't wait to join when it's time). Its charter and organizational structure needs to be something that can be understood by everyone, regardless of what they know about the laws of the place where the organization is registered. That's why the charter is at some places more verbose than it would be if drafted entirely within the context of the governing law. That's not a fault, though, if it's supposed to primarily serve the members of the chapter, not the legal authorities.

Finally, I have no problem with adjustments to the charter based on actual requirements placed upon the association by the law of the place of registration. I do have a problem though when these adustments aren't narrowly tailored to fulfill just these requirements, but rather go beyond them to include other things someone might find preferable. My personal impression is that the proposed bylaws do exactly that. It seems like the unfortunate incident of having to adjust the charter for registration is used as an opportunity to reform a structure that has not even had any chance of proving itself. sebmol ^? 11:43, 26 December 2012 (UTC)

Thank you for explaining you points, Sebastian. The Wikimedia Chapters Association is (will be) indeed an association. Usually association needs to have at least a General Assembly (representing all members) and a board of directors (usually elected by the GA). The General Assembly is the supreme body; usually it takes only a small part of the decisions, but, among them, the most important ones, like amending the bylaws. This is true in Switzerland, in Italy, in Belgium, and I expect it is true in almost any country.

The Charter we agreed on in Berlin didn't take this into account, but that was unrealistic. Indeed, even during the Wikimedia Conference I remember someone saying that we would probably have to create a Board, since it is usually required by the law. I was a supporter of Belgium as a country of registration; but again, if we had chosen Belgium, we would have had the same problem, and, moreover, in Belgium the board can't have the same number of members of the General Assembly (which is very reasonable. I find strange the Swiss law, which does not have this requirement) (but, on the other hand, there is no need of a Swiss resident in the board to have tax exemption...). In Switzerland we can have the same people in the General Assembly and in the board, which is an unhoped luck. The current proposal seems to be a most reasonable one.

Going into your points:

1. As said, we must have a General Assembly and a Board; "splitting" the Council among them is a way to accomplish this. Of course the bylaws can be amended, but that was already true for the Charter (with the same majority). I don't see anything easily avoidable here.
2. Any specificity of the secretariat can be implemented as an internal regulation, without writing it in the bylaws. For instance, we can easily set the fixed term and the removal only for cause as an internal regulation.
3. That's something we can discuss; however, only the bylaws of the chapter is considered in that section, and not any other aspect of the chapter (not any internal regulation). - Laurentius (talk) 12:42, 26 December 2012 (UTC)

Thank you for your quick response. If the only point is that there needs to be a board according to Swiss law, what is stopping us from making the secretariat the "board according to Swiss law"? That option would retain the separation of powers and responsibilities between council and executive and also have the benefit of leaving most of the charter untouched. And could the Council not be the "general assembly according to Swiss law"? Why wasn't that considered as a much less invasive option? sebmol ^? 13:16, 26 December 2012 (UTC)

I see a good number of disadvantages; but, anyway, as far as I know, in Switzerland board members cannot be paid. - Laurentius (talk) 14:48, 26 December 2012 (UTC)

Do you have a reference for that? This is a discussion we've had a few years ago in Germany regarding paying the CEO as the official board of the association. Since German and Swiss Vereinsrecht share a lot of commonalities and since it was said repeatedly that the Swiss civil code places few restrictions on the setup of associations (with most being replaceable by appropriate sections in the statutes), I'm surprised that such a strict rule would exist. Is there any evidence for it?

Either way, my point doesn't necessarily lie in the details but rather that these bylaws make significant rather than just formal changes to WCA's organizational structure. WCA itselt was only approved by the founding chapters after long and difficult negotiations on purpose, composition, structure, and decision-making processes. In light of this, it was said fairly consistently by the supporters (of both the bylaws and Geneva as place of registration) in recent discussions that registration would be simple and the charter would hardly have to be touched to get going. Yet, what we have here is quite the opposite. How does that fit together? And what is the likelihood that these drastic changes will garner the required 2/3 majority vote to support? sebmol ^? 15:11, 26 December 2012 (UTC)

Of course not, but I hope Charles or another one of the WM CH people will be able to either confirm or deny that :-) I remember someone saying that, but I have no reference.

If your problem is that some chapter will disagree, well, this talk page is here for discussing. However, I don't see these as drastic changes, and I don't expect such huge disagreements. As for me, I think WM CH is doing a good job. - Laurentius (talk) 20:45, 26 December 2012 (UTC)

I don't see anything really drastic here, too. :-) Ziko (talk) 21:03, 26 December 2012 (UTC)

Can you elaborate on your assessment? How are the three points I listed above not significant? sebmol ^? 21:07, 26 December 2012 (UTC)

I would like to come back to Sebastian’s point, which I feel has not been fully addressed: The removal of the Secretariat from the bylaws is indeed more than just a minor change. So if this is required by Swiss law, could someone with a good understanding of that law explain the meaning and the background of this? And how can we make sure (under Swiss law), that the spirit of the original bylaws are kept intact? Because it was agreed in Berlin that the Secretariat would not simply be a name for "staff" or "executive staff", but would act more like a Board of Directors, reporting to a Supervisory Board. At least, that was my understanding?
Regarding the question whether the SG is "staff" or not, let me point out how we handle this at Wikimedia Deutschland: Under our bylaws, there is the Supervisory Board (not paid, elected by the Members Assembly), and then there is the Executive Board. Together with the Members Assembly, these three are considered the "Bodies of the Association". Currently, I am the only member of the Executive Board, I report to the Supervisory Board, which in turn directs me on what I have to do. Our bylaws point out my responsibilities as follows:

"The Executive Board shall be particularly responsible for:

• managing the association's operations;
• implementing the measures, strategies, and goals set by the Members Assembly or the Supervisory Board;
• presenting the annual plan through the Supervisory Board to the Members Assembly for approval;
• submitting changes to the current annual plan to the Supervisory Board for approval;
• preparing the annual financial statements and submitting them to the Supervisory Board for deliberation and approval;
• reporting to the Supervisory Board all significant facts and developments;
• reporting to the Members Assembly on its activities.

These, together with the fact that I / the Executive Board are mentioned in the bylaws as the "Bodies of the Association" are clear indicators that I am not "just staff", but a legal organ of Wikimedia Deutschland. As such, I am personally liable for any fraud or mismanagement, I do not fall under regular labor law, and so on. And it was always my understanding of the bylaws of the WCA that were approved in Berlin that this was more or less what the SG / Secretariat of the WCA should be, as well--Pavel Richter (WMDE) (talk) 20:12, 2 January 2013 (UTC)

Hello Pavel, thanks for the explanation. I see two problems:

• For tax exemption, a board member cannot be paid. see here.
• Also, there must be one Swiss resident on the board.

You talk about an executive board and a supervisory board, which one were the board according to the law? --Ziko (talk) 13:02, 3 January 2013 (UTC)

It seems to be more a question of naming, not of substance? As long as we agree that there is a good reason to establish the SG as a legal organ of the WCA itself (alongside with the Supervisory Board and the Auditors) , and do not see the SG as just another staff. I do not know how to get this done in accordance to Swish law, but I am sure a good Swiss lawyer could come up with a solution that does not alter what we have agreed upon in Berlin.--Pavel Richter (WMDE) (talk) 18:12, 3 January 2013 (UTC)

Merging

Hello Chantal, Charles, thank you for "merging" the requirements from Swiss law and our current charter. If I understand it all well, the real life Council meeting once a year, which we wanted to have anyway, will be called General Assembly and there will some extra requirements. For the rest of the year, the Council will remain the Council, being the board under Swiss law (including the Swiss member). Similar to some constructions in NL, the Council will be the "general board" and a smaller group could be, under the name Executive Committee, the "day-today"-board. Part of the Executive Committee will be the chair, the secretary and the Treasurer.

My suggestion for the titles: the board should have the name Council, for the sake of continuity, with an explanation in the bylaws that that is the board. Then, in the General Assembly, the Council votes on several committees, among them the Executive Committee (Committee members do not have to be Council members, as now). The Council, sorry, the General Assembly, elects the Chair (of the WCA), the secretary, the treasurer and 1-2 more members of the Executive Committee. The Executive Committee installs a chief employee, called the Director. (As there will be a secretary in the Executive Committee, we should't call that person Secretary General). Ziko (talk) 14:45, 22 December 2012 (UTC)

If I'm not too tired and miss something, I totally agree :-D--Charles Andrès (WMCH) 23:34, 23 December 2012 (UTC)

+1 on the suggestions, if they are feasible (I prefer "council" over "board", but it is not important). - Laurentius (talk) 10:47, 24 December 2012 (UTC)

New "Compliance" provision

The second paragraph of the "Members" section appears to be something new introduced in this draft, and I'm not entirely sure what the provision is intended to mean:

2. Compliance : The chapter’s legally valid statutes shall be enclosed with the application for membership and shall always to comply with the bylaws, regulations and decisions of WCA.

If the meaning is that individual chapters' governing documents are subject to the decisions of the WCA, then that's obviously a tremendous expansion of the WCA's authority from the current charter. If the meaning is something else, then perhaps the wording needs to be clarified. Kirill Lokshin ^[talk] 15:06, 24 December 2012 (UTC)

Timetable

Hello, I would like to suggest that we try to have a proposal of the bylaws ready on January 15th. The week after, the CMs vote. Then, we need to elect a chairman, a secretary and a treasurer. FInally, possibly around February 1st, we can register at the Chamber of Commerce in Geneva. Ziko (talk) 22:03, 28 December 2012 (UTC)