Re: [gentoo-nfp] Trustee nomination: Aaron Bauman (bman)

[Aaron Bauman]

On Tue, Jul 17, 2018 at 07:01:18PM +0100, Roy Bamford wrote:
> On 2018.07.16 22:21, Aaron Bauman wrote:
> > On Thu, Jul 12, 2018 at 10:18:47PM +0200, Michał Górny wrote:
> > > I'd like to nominate Aaron Bauman (bman).
> > >
> > > --
> > > Best regards,
> > > Michał Górny
> >
> > As many may be aware I had run for council in the recent election. My
> > intent was simply to further the items I had outlined on the -project
> > mailing list. While I was not elected, those items remain unchanged
> > and
> > my intent is to continue working those items from the Foundation. I
> > have
> > experience working with United States based non-profits both from a
> > legal
> > and fundraising perspective. I do not *enjoy* it, but I am willing to
> > do
> > it again if required for Gentoo. For clarity, I will outline those
> > items here.
>
> >
> > Tax issues: The tax issues should be apparent to all following the
> > -nfp
> > mailing list. Gentoo did not obtain their not-for-profit IRS tax
> > exemption following the one year self-declaration period.  This of
> > course, has led to many years of contributions being accepted, but no
> > taxes being paid. Thus, we owe the United States Government back taxes
> > for those years. While this is bad, it is not a show stopper for the
> > Foundation. It can be rectified and a proposal has been written and
> > the
> > current trustees should have some informaiton regarding it soon.
> >
> > There have been several courses of action presented by various members
> > of the community to address this. The most recently discussed option
> > is
> > to join an umbrella organization such as SPI. This is a viable option
> > should we be accepted for representation. As of now, the financial
> > conundrum is a show-stopper for acceptance.
> >
> > Another option which I have explored is beginning a new incorporation
> > in
> > a different U.S. State (Indiana). This would allow us to gain a
> > not-for-profit status and proper IRS tax exemption. Upon forming the
> > incorporation we would redirect all of Gentoo's contributions to this
> > new organization.  From there we would begin moving assets from the
> > New
> > Mexico based foundation to the new. This would be in the form of gifts
> > which allows a zero-sum transaction to occur given that the
> > organizations both address the same not-for-profit mission. This would
> > require a significant amount of money (approximately $30-40k dollars)
> > be
> > left in the NM foundation to deal with the IRS debt.
>
> That sounds risky for the trustees that vote to approve that. My
> understanding of NM law is that they would be personally liable for
> any shortfall as it could be seen as moving funds to avoid liability.
>
> Also, we would need to operate two NFPs when at this election
> we only secured enough candidates to staff one ... if they are all
> ranked above _reopen_nominations in the poll.
>
> Its actually worse than that, as ideally, trustees and officers should
> be separate individuals, except for the chairman of the board, who
> needs to be a board member.
>

We are not attempting to avoid liability. The move is to ensure that
future contributions are properly protected while the old "non-profit"
is dissolved. Properly protected is meaning that they are indeed
non-taxable contributions to Gentoo vice continuing to bleed out.

The sad state is, and don't take this personally, that operating even one
should have been a simple task.  Here we are though.

The laws you speak of are the criterion such as "de facto merge", "mere
continuation", etc. As stated though, this is not the case as we are
still properly dissolving the NM based non-profit.

> >
> > There are multiple benefits to this approach. The first is that Gentoo
> > will begin accepting tax-deductible contributions (for Gentoo and
> > their
> > contributors) immediately. This is beneficial to not only Gentoo, but
> > our contributors as they may now claim the contribution on their
> > annual
> > taxes. Additionally, it will allow Gentoo to seek formal fundraising
> > and
> > give our contributors comfort that we are being good stewards.
> >
> > Second, a new incorporation will allow us to address concerns of how
> > the
> > council and foundation interact through proper by-laws.  Many of the
> > current by-laws are boilerplates texts simply modified. I am currently
> > working these by-laws to address the following:
> >
> > The council is and will remain the leadership within Gentoo. The
> > by-laws
> > will constrain the trustees to legally execute the direction in which
> > the council votes. The few exceptions are any legally compromising
> > matters or financial.  This also ensures that council members will
> > *not*
> > be forced to legally seek permission from their employers.  It will,
> > however, not remove the requirement that trustees are legally
> > obligated
> > to the foundation.
> >
> > e.g. The council votes that all developers will be supplied with a
> > Nitrokey to address 2FA concerns.  The trustees will execute this
> > matter
> > legally and financially.  There will be no choice as the "technical
> > board" has voted and it is final.
>
> The technical board currently has no duty to ensure fhaf their
> decisions offer value for money. Which body would perform
> 'due dillegence'?
> To follow on your example, there are several competing 2FA
> solutions with differing feature sets. While Nitrokey may be
> selected for <reasons> the comparative value assesment still
> needs to be performed or the trustees would be neglecting their
> duty by rubber stamping council decisions.
>
> The council can do this today. I'm sure other groups/individuals
> already do this work before they submit funding requests.
>

Yes, the intent of the example was not to "rubber stamp" anything and as
mentioned those legal obligations still remain for the trustees. I used
Nitrokey in the example unwittingly. The trustees would still be
required due diligence etc.  The example would work though as Nitrokey
meets the foundation's mission statement (FOSS etc).  Point taken
though.  Other's would not even if cheaper due to proprietary
technology.

> >
> > e.g. The council votes to adopt the FHS as a standard of which all
> > Gentoo developers must adhere within the Gentoo distribution.  The
> > trustees will enact this by amending the by-laws.
> >
> > e.g. The council votes to require all developers to sign commits using
> > their @gentoo.org email address and key.  Once again, the trustees
> > will
> > enforce this by amending the by-laws. Any failure to adhere will be
> > addressed through the proper channels and developers warned/banned for
> > failing to do so.
> >
> > Third, a new incorporation will address the short-falls we have seen
> > in
> > the current situation. The by-laws will require the proper CPA, Tax
> > lawyers, etc to be contracted quarterly, annually, or as-needed to
> > prepare and finalize required documents.  Once again, the trustees
> > will
> > be legally obligated to address these matters and can and will be held
> > accountable should they fail to do so.
>
> Why does this need a new legal entity, we have to fix the existing one
> anyway.
>
> Such bylaws would make me nervous ... what happens if the new
> legal entity has insuffcient funds to pay these people. I suppose it
> just goes bankrupt, like any other legal entity.
>

That is a valid point and I cannot disagree that it should be a concern.
I don't think risks outweight the benefits though. Non-profits always
risk this chance when starting up.  The fact is that a few hours a
quarter to reconcile monies is not expensive to pay a CPA.  Furthermore, the income
in Gentoo is so little that the form 990 etc can be completed by an
individual willing to do it.  It really isn't that complex.

We also take a risk with an umbrella for this as well. As many have
stated, one concern SPI has is that they cannot take us on due to their
current workload (verified over the phone with them).  They also
contract their CPA's, etc.

> >
> > While umbrella organizations can address these matters it is not
> > likely
> > that we will be accepted anytime soon even if we address the financial
> > matters.  This does not mean I am opposed to such a solution, but only
> > lends to why I have suggested a new incorporation.
> >
> > As I have stated, I am currently working a set of proposed by-laws and
> > will send them to the community once complete. From there we can begin
> > discussion and fine-tuning of the proposal. It will take approximately
> > 1-2 months at most for a new incorporation to be stood up once the
> > by-laws are codified.  My intent is to open it for discussion to all,
> > but should it become a bikeshed it will simply be left to the trustees
> > and council to finalize.
> >
> > The trustees and current council will be adopted by the new
> > incorporation. These are the individuals the community has voted for.
> > As
> > such, I find it important that we adhere to their choice.
> >
> > Standing by for questions...
> >
> > --
> > Cheers,
> > Aaron
> >
>
> I welcome any and all proposals to move things forward.
> If I'm asking questions that will be addressed by your more
> detailed proposal, a response to that effect is fine.
> Don't be doing more work to answer questions that will be addressed
> with the passage of time anyway.
>

All valid questions.  Thank you for asking them.

> --
> Regards,
>
> Roy Bamford
> (Neddyseagoon) a member of
> elections
> gentoo-ops
> forum-mods

-- 
Cheers,
Aaron