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To: neddyseagoon@g.o
From: Ferris McCormick <fmccor@g.o>
Subject: Re: Draft Foundation By Laws
Date: Tue, 15 Apr 2008 23:16:02 +0000
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On Tue, 15 Apr 2008 22:57:20 +0100
Roy Bamford <neddyseagoon@g.o> wrote:

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> All, 
> 
> Danger Will Robinson, Long Rambling Post Ahead.
>  
> The story so far. The Foundation Bylaws have been through several 
> drafts for several reasons. There is a set 
> http://www.gentoo.org/foundation/en/bylaws.xml which were drafted for 
> the original incorporation in New Mexico.
> 
> Subsequently rl03 (and maybe others?) modified this draft to be 
> suitable for incorporation in Delaware. At this time there was also 
> some good work done to update the Bylaws to reflect the way Gentoo 
> really works.
> 
> Incorporation in Delaware was not followed through as the incumbent 
> trustees began examining the options with umbrella organisations like 
> the SFC.
> 
Bylaws are probably state neutral.
> Now we are in the process of restoring our good standing in New Mexico 
> and the Bylaws need more work to complete that.
> 
> As I'm not familiar with US law, I have taken the Draft Bylaws produced 
> by rl03 and pasted in some of the New Mexico statutes from  
> http://xrl.us/bjevt. This is a 30 page work in progress available as a 
> Open Office or PDF document in my dev space.
> 
> Reading through this combination document, looking at the law and the 
> Bylaws, I have the following questions:-
> 
> Meetings of Members.
> The various statutes, (which are quite old) infer physical meetings. 
> e.g. 53-8-13. Meetings of members. 
> A.     Meetings of members shall be held at such place, either within 
> or without New Mexico as may be provided in the bylaws. In the absence 
> of any such provision, all meetings shall be held at the registered 
> office of the corporation in New Mexico.    
> 
> How does the concept of an Annual Meeting to elect Trustees sit with 
> our voting process?

You vote like we do now (analogy, send in your proxy), and the vote at
the meeting is a formal counting of the votes and announcing the
results.

As for "place", I'd maintain that IRC is a "place."

> Would we get away with opening the meeting, calling for nominations 
> then adjourning for a month to allow the two week nomination process and
> 
> two week vote process to happen? 
> 

Do it like corporations do it now.  Nominate people, have a voting
period (stockholders make their choices and send in their proxies), and
announce the results at the meeting (directors vote their proxies).  So
the "election" is the tellers' formal report.

> 53-8-16. Quorum.
> With virtual meetings, and virtual voting how can we demonstrate we 
> have a quorum. At physical meetings, attendees are counted entering the 
> meeting room. They may not vote later in the meeting but their presence 
> is all that matters for a meeting to be quorate.
> 
On IRC, they show up as present and not away.

> The draft bylaws state  Section 3.10 and 3.11:-
> "A member may vote either in person or by proxy executed in writing by 
> the member or his or her duly authorized attorney-in-fact."
> We need to disallow proxies unless someone knows how it could be 
> enforced with our voting system and/or on IRC.
> 
I'd simply change that to describe how we want to do it.

> "Section 4.2. Full Members. To be eligible for membership as a full 
> member, a person must hold full developer privileges and remain in good 
> standing with the project for a probationary period of no less than one 
> calendar year."
> Needs to be clarified - what is "full developer privileges"?
> Do non ebuild developers qualify ?
> This is important to me personally as I am not an ebuild developer.
> 

Yeah, this is the interesting part.

> Section 5.4. Number. ... fix this section to include the original 13 
> Trustees as we are back in New Mexico.
> 
New Mexico doesn't care.  The number of trustees is determined by the
bylaws.  We don't need 13 trustees, do we?  We had 13 incorporators in
NM, but the actual board size is specified in the bylaws.

Remember, the papers being filed now call out specifically the current
5 trustees.  That's why the lawyer needed our addresses.

> Section 7.1. Books and Records.
> The law requires "Each corporation shall keep at its registered office 
> or principal office in New Mexico a record of the names and addresses 
> of its members entitled to vote."
> Our Bylaw says 
> "The foundation shall keep at its registered office or principal place 
> of business, or at the office of its transfer agent or registrar, or in 
> the custody of the Secretary a record of the name, address, telephone 
> number, and electronic mail address of each member, together with the 
> date of any withdrawal or termination of such member's membership"
> Why telephone number?
> "or in the custody of the Secretary" is not permitted by the law.
> 
The revised bylaws are boilerplate taken from something else (Renat
told me but I don't recall). At this point, they are just a proposal for
us to tailor to our specific needs.

> 9. Article IX
> Corporate Seal
> The law says  "failure to have or to affix a corporate seal does not 
> affect the validity of any instrument or any action taken in pursuance 
> thereof or in reliance thereon"
> 

Most questions concerning NM statutes & bylaws are best addressed by a
NM lawyer.  We don't really know what the law is because courts
interpret the statutes and the end result is what counts.  Fortunately,
we have a NM attorney.  I'd suggest collecting questions and asking
him.  True, this costs us a bit of money.  But I'd rather spend it and
get things right quickly than try to figure out what NM law really is.

This gives us advice on how NM really works as opposed to what the
statutes (some of them over 20 years old) say.  Those two things are
not always the same.
> So we don't need a corporate seal, so why have one?
> 
It's a historical anachronism.  We don't need one.  You have one
because it looks impressive when affixed to a document, I guess.

> My other concerns, expressed earlier appear to have been addressed in 
> this draft.
> 
> Other points for discussion.
> I'm not overly happy with the complex way Foundation membership is tied 
> to being a developer in good standing.
> 
> I would like to see the Foundation membership period after resignation 
> extending for a year. Really until the next Trustee elections. Trustees 
> are hard to come by and I would not not to lose one mid term will 
> little handover. That's just features for discussion.
> 
> Longer Term - after the Bylaws are adopted
> <dons flameproof jacket>
> I would like to see Gentoo community members from outside the developer 
> pool serving the Foundation. That's possible under the law now, as 
> Officers can be appointed by Trustees and Officers of the Foundation 
> need not be Foundation members.
> 
> To ensure continuity when Trustees are rotated I would like to see that 
> only half the Trustees are replaced at any election.
> </dons flameproof jacket>
> 

I agree.  Typically, if you think of the Trustees as the Board of
Directors of a corporation (which we are), you would expect the same
ones to be reelected over and over anyway.  There is little merit in
change as long as things are going well.

Here's the analogy.  Trustees must be Foundation members (typically,
directors are stockholders).  The officers (like CEO) are chosen by the
trustees (directors) because they are believed to be competent for the
job, which has nothing to do with being a member of the Foundation
(stockholder).

> Anyway, that's a few ideas for later ...
> 
> - -- 
> Regards,
> 
> Roy Bamford
> (NeddySeagoon) a member of
> gentoo-ops
> forum-mods
> treecleaners
> trustees
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Hope this doesn't confuse things too much,
Regards,
Ferris

- -- 
Ferris McCormick (P44646, MI) <fmccor@g.o>
Developer, Gentoo Linux (Sparc, Devrel, Userrel, Trustees)
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References:
Draft Foundation By Laws
-- Roy Bamford
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