Here's an update. It's the same as on my blog.
Current state of affairs
With help from Renat Lumpau (rl03), I spent some time this week talking
to the Foundation's lawyers, collecting documents, and sifting through
old e-mails. As I posted on gentoo-nfp a couple of days ago, the state
of New Mexico did, indeed, revoke the charter for the Gentoo Foundation,
Inc. in October of 2007. It's still not entirely clear why, since I
mailed a check along with the (then) current and past-due annual reports
to the state of NM way back in July. Since the check never cleared, it
seems a good guess that the paperwork went astray, but we won't know
until Renat's request (and $5) are processed by NM and they get back to
In any event, having the Foundation's charter revoked is exceptionally
embarrassing, but not catastrophic. The state of NM has a
straightforward procedure for reinstating a revoked charter, as long as
the request to do so is filed within two years of the charter's
revocation. This morning I sent by USPS Express Mail (tracking number
EO 943 358 815 US for those who want to play follow-the-paperwork from
home) an envelope to the New Mexico Public Regulation Commission,
Corporations Bureau containing an application for reinstatement, copies
of the missing annual reports, and a check for $60.
Does the Foundation currently exist?
Many, many people have assumed, quite understandably, that with the
Foundation's charter having been revoked, that the Foundation has thus
ceased to exist. That's not really true. You can see this by looking
at the NM statutes, but it's simplest to see by looking at what happens
when NM receives the application for reinstatement. The New Mexico
public regulation commission will determine if all of our paperwork is
in order. If it isn't, they'll let us know what we need to do to
complete it. Once it is, the commission will cancel the certificate of
revocation and file a certificate of reinstatement that takes effect "as
of the effective date of the administrative revocation and the
corporation resumes carrying on its business as if the administrative
revocation had never occurred".
Who is in charge here, anyway?
Well, for the moment, I am. Of course, since I'm one of the people who
let the Foundation's charter get revoked, that's probably not a good
thing, but that's what we have right at the moment. Who am I? I'm one
of the two Trustees who hasn't resigned. (The other is pauldv.) I'm
also one of the original Trustees from when the Foundation was
incorporated. During that initial period I was made the Secretary of
the Foundation so that I could establish banking (which requires that
the Secretary sign the forms), and in 2005 I was chosen by the
then-newly-elected Trustees to be the President of the Foundation. The
important part from the above is that I had the legal authority to sign
the application for reinstatement that I mailed earlier today.
Could somebody else be in charge?
Yes, but it would take some time.
The Foundation has members. Those members could set up an election,
vote out the current bums, and choose new, more dedicated folks to run
things. Who are these members? It's anybody who voted in a previous
Trustee election, and all current Gentoo devs who have been a developer
for one year at the closing of the election poll and actually vote in
the election. The Gentoo Foundation has a _lot_ of members.
An alternative is for the existing Trustees to appoint new trustees to
fill the gaps left by those Trustees who have left. That would take
less time, but I'd feel much better doing that if new elections were
scheduled to occur within a reasonable amount of time.
What happened to the SFLC?
Weren't we going to consider joinging the Software Freedom Law Center's
Software Freedom Conservancy (http://conservancy.softwarefreedom.org/)?
Yes, and the SFC was, and still is, interested (as of just a few days
ago, anyway), although they have some concerns about managing the legal
aspects of an entire distribution. (Gentoo would be larger, by far,
than any of their current member projects.) I still think that's the
right way to go, although it's ultimately going to depend on what the
Foundation's members want. The bottleneck right now is the assembly of
documents that the SFC needs to go forward:
* Certificate of Incorporation (or analogous document for your org)
* Existing By-Laws for the Organization
* List of Directors (and historical list of previous directors, if
* List of Officers (and historical list of previous officers, if
* Minutes from all Board meetings for the last three years
* All Board Resolutions passed by the Directors
* Membership meeting minutes (if your organization is a membership
* All Membership Resolutions (if your organization is a membership
* All annual reports (published, or filed with any state or federal
* All audited annual finanicals (if any were audited and/or filed)
* All financial reports of any kind for the last three years
* Copy of all state and/or federal filings (particularly including but
not limited to tax-related filings) for the last three years. In
particular, be sure to include:
+ the IRS determination letter for the status of your filing
+ Your IRC Form 1023 filing
* List of any ongoing threats of litigation, or other disputes, and
documentation of any resolved past litigation
* A list of all assets currently held by the organization (including
backup documentation, such as copy of bank statements, etc.)
+ Include a copy of *all* bank statements for the last year
* Any contracts that the organization has executed in the last three
years (plus any older than that if they remain active)
* A list of any outstanding loans, leans, or other debts held by the
Much of this stuff needs to be assembled by me (because I have most of
the docs), and I got rather busy the last six months and didn't do any
of it. I'm going to try to pull together as much as possible this
weekend, but I could use help on a couple of items. Our sponsored ads
on www.gentoo.org presumably constitute contracts of some sort, so if we
have anything in writing I could use a copy. Our major tangible assets
are the various gentoo boxes that we have, so a list of those would be
helpful. I vaguely remember that once upon a time we fired a dev who
then threatened to sue us (but never did, fortunately). Nonetheless,
we'd best include that info as well. Help from devrel on that one,
please? I'd like to have all of this stuff sent to the SFC on Monday,
if at all possible.
So, what's next?
We need new Trustees. I don't think anybody will disagree there.
We need to decide (again) what the role of the Foundation should be.
Currently, the Foundation exists to handle Gentoo's financial matters,
protect and defend Gentoo's trademarks and other intellectual property,
and provide ownership of various "hard" assets, such as the various
Gentoo server boxes. The Foundation has almost no influence right now
over actual Gentoo (the OS) development. The only caveat there is that
Gentoo needs to satisfy the requirements of a non-profit organization,
and it's the Foundation's job to let the Council know if something is
happening that might threaten the Foundation's non-profit status. I
believe that this role is what the majority of the Foundation's members
actually want, and it's one that I believe would be even better served
by having the SFC handle it instead of us. That said, there has been a
lot of support for what drobbins has proposed
(http://blog.funtoo.org/2008/01/here-my-offer.html), which would make
the Foundation responsible for the health and direction of Gentoo as a
whole. That's a discussion that's certainly worth having, and
email@example.com is standing by.... Let's try not to take forever
having this discussion, so consider Monday, 23:59 UTC, to be a deadline
for your electronic voice to be heard.
What about drobbins' proposal?
I'd like to push off until Monday any actual decision, so that the above
discussion can happen first. I don't think drobbins will mind the
delay, although he's not around right now for me to check first.
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