OPW mentor agreement (was Re: Call for OPW project ideas)

["Bradley M. Kuhn" <bkuhn ebb org>]

Germán Poo-Caamaño asked:
> Will the mentors still be required to sign a document that makes them
> legally liable?

> On Sat, 2014-09-27 at 11:45 -0400, Marina Zhurakhinskaya replied:
> > Yes. The legal liability is only for gross negligence, recklessness or
> > intentional wrongdoing. This is covered on
> > https://wiki.gnome.org/OutreachProgramForWomen#Contracts

> > This is not unique to OPW. GSoC has similar terms mentors have to agree
> > to, which are much more broad -
> > http://www.google-melange.com/gsoc/document/show/gsoc_program/google/gsoc2014/org_admin_agreement

Germán further noted:
> The difference is that the GSoC agreement is between the organization and
> Google, no mentor becomes legally liable

That might not protect you as much as you think.  For example, I agreed to
Conservancy's GSoC agreement on behalf of Conservancy mentors.  Now, I'm an
officer of Conservancy, and as such, if Conservancy is deemed liable,
officers/directors can be on the hook.  Conservancy of course has D&O
insurance, but IIRC Conservancy's policy doesn't protect me *anyway* if I
engage in gross negligence, fraud, etc.

So, ultimately, a promise of Conservancy not to engage in gross
negligence is a promise for me not to do so anyway.  It'll come right
back to me in a lawsuit if I've actually engaged in gross negligence.
Conservancy won't help me out of the situation (remember, in this
hypothetical scenario, I'm guilty, so why would Conservancy help?).  The
D&O insurance policy that Conservancy has will be useless to me, too.
Thus, what difference does it make if I agree not to commit gross
negligence?  I'm not going to do it anyway! [0]

Germán further added:
> For 100% volunteers, it is just taking a risk for free.

As opposed to all the times you take that risk and *pay* the entity you
take that risk for?  I suppose most people don't realize this in our
"just click agree" culture, but many of those ToS/TaC one agrees to on a
regular basis -- be it for renting a car or hotel room, using Facebook,
or a hundred other things -- cause you to agree you're liable for your
own gross negligence and reckless behavior.

Not only that, but most gross negligence and reckless behavior that
results in real harm is likely criminally prosecutable anyway, and/or
would be actionable in civil court by the intern against the mentor
directly.  So, *not* signing doesn't protect you from much, anyway.

BTW, if a mentor didn't sign this, all it would mean is that *both* GF
and the mentor could be sued for the mentor's bad actions, and the GF
has no easy defense to get off the hook.  But, is it really better for
mentor (regardless of whether the accusations are false) to have GF
stuck as a litigant with you?  (It's not like they'd be required to pay
for *your* defense in that case.)  I played out some of those scenarios
in my head just now, and I don't see how any outcome is better.  In
fact, I can think of scenarios where one is falsely accused and it's
much better *for the accused* that GF isn't named in the suit.

IANAL and TINLA, of course.

[0] And, no, failing to answer your intern's email in a timely fashion
    (yes, we've all done it) is *not* gross negligence.  If, somehow,
    you end up standing with your intern right on the edge of a giant
    cliff, and you encourage your intern to get closer than is allowed
    by the park service because "the view is totally better", and your
    intern falls, you're probably in trouble.  But, I don't think visits
    to the Grand Canyon are part of OPW, though, nor do I think we'll
    encourage our interns to jump the guard rail if we do plan such a
    trip.
-- 
   -- bkuhn