Re: [gentoo-nfp] Re: Gentoo Foundation and Gentoo e.V. (Was: Gentoo Foundation Trustees nominations)

[Rich Freeman]

On Thu, Jul 13, 2017 at 10:14 AM, Roy Bamford <neddyseagoon@g.o> wrote:
>
> As you have said before (I don't have a quote handy) that regardless
> of the organisation we publish, US courts may see it that way anyway.
>

A US court would see the US org as the whole picture.  A DE court
would probably see the e.V. as the whole picture.  It isn't actually a
problem, IMO.

Legally the Foundation would basically be the universe in a US court,
and the Council wouldn't exist.  However, in reality the Foundation
would still be following the Council directives as long as they're
legal.

There wouldn't be any effort to explain the "real" org structure to a
US court.  The Foundation would just act as if it were the only org.
It would have no legal relationships with any of the other orgs.  If
the e.V. were called into a court it would also act as if it were the
only organization.  How we manage them really wouldn't matter legally.
The Foundation would be accountable for the Foundation's actions.  The
board would be elected by the members, though we'd probably want to
align those members with the larger distro or otherwise try to ensure
that the top-down model influences its operation.

Legal compliance within the laws of each jurisdiction would fall
inside each legal entity.  The US Foundation would ensure it follows
US laws.  The e.V. would ensure it follows DE/EU laws.  And so on.
Just putting them in an org chart doesn't change that reality.  It
just gives the overall community a framework for how we deal with all
this and how we might fit them into a larger strategy.  Property owned
by one of these entities would have to follow any compliance rules set
by the entity.  For example, an LDAP server owned by an EU entity
might have to follow EU privacy laws (with safe harbor/etc that tends
to be the reality everywhere anyway).

Distro-level projects like PR, KDE, etc would just operate under the
Council (with the usual hands-off-unless-there-is-a-problem approach).
If they needed to spend money or have access to hardware then they'd
talk to the appropriate lead (infra or the overall legal entity
project) and they would fit the request into the global strategy and
determine which legal entity should service the request and route it
to them.  If infra wanted the server in the EU and wanted the e.V. to
fund it then they'd hand it to them, etc.  There could be an overall
project that manages all these legal entities that coordinates their
actions, etc.  Of course we don't need much overhead while we only
have 1-2 legal entities.

Individual legal entities would be simplified.  They wouldn't really
initiative distro-level work.  They would just maintain the books and
evaluate requests for compliance and issue checks.  They would also
maintain their individual budgets, and coordinate with the
higher-level org or projects like infra so that they can come up with
an overall strategy for things like where we want our hardware owned,
or where we want to steer donors.  We can't force donors to send their
money to the org we prefer, but we could encourage it, because maybe
for whatever reason it would be better to have more money going into
the e.V. vs the Foundation.

Another downside to this model is that we can't really move money
around.  If all the orgs were legally related (subsidiaries) then
moving money would be straightforward as long as the right taxes get
paid.  With them being separate then money in one pot can't be moved
to another.  The flip side is that if one gets sued it will be much
harder to get at the others.

As far as the "two headed monster" issue goes, we present ourselves as
having the Council in charge.  Of course, in many cases outsiders
would interact at a lower level (such as with PR, or a particular
project).  When the time comes for money to be handed around we ask
the partner which entity they'd prefer to deal with, and then direct
them appropriately.  Other than not having a legal entity at the top
it isn't actually very different from how many companies operate.
When I deal with vendors at work all the time we talk about whether it
makes more sense for them to be paid by our US entity or one of our
subsidiaries.

-- 
Rich