Re: [gentoo-nfp] [Discussion] Refiling as a tax-exempt nonprofit.

[Rich Freeman]

On Mon, Jul 20, 2020 at 8:11 PM Alec Warner <antarus@g.o> wrote:
> On Mon, Jul 20, 2020 at 4:49 PM Rich Freeman <rich0@g.o> wrote:
>>
>> IMO this is a really bad idea.  This basically hands legal control
>> over Gentoo to outsiders (at least in part).  If we need their
>> expertise, why not have them do the work, but not place them on the
>> board?  They could be made officers if necessary, since officers
>> legally don't have the final say over decisions.
>>
>>
>> IMO it would be better still to just hire them as employees and not
>> even make them officers.  An officer merely needs to certify that
>> certain things were done correctly to the state - the officer doesn't
>> need to do them personally.
>
>
> From my perspective Gentoo was incorporated in 2004 and we didn't file taxes until 2019; 15 years later. My conclusion is that this is a problem. Maybe we can at least agree on that much. I would prefer to have confidence that in future, this problem will not recur. I'd nominally like to not be Foundation President forever as I keep a small corporation from imploding until I die. Maybe that's just me being selfish.
>
> So yes I think a solution to this problem is to find more board members; because ultimately the "business of the foundation" is the thing the board members are *accountable* for. If we don't file taxes it's *on the board*. If we don't defend the trademark it's *on the board*.

Keep in mind that a Foundation that is mostly non-functional isn't
actually a huge impediment to the operation of the distro.

Don't get me wrong - a well-working Foundation could be more of an
asset than it is today.

However, a well-working Foundation that is hostile to the contributors
could cause a LOT of harm.

>> >  - We could try to recruit or modify the way individuals are recruiter as Gentoo Developers, to make it easier to attract board members.
>> >
>> > I'd like to also discuss whatever foundational changes we might make in a new set of bylaws besides simply board membership.
>>
>> I feel like we're having the tail wag the dog here.  We're talking
>> about basically diluting the control of everybody who is recognized as
>> a contributor to bring in more outside people, in the hope that these
>> outsiders will file some paperwork.
>
> So for clarity, I'm suggesting that board members need not be foundation members. They would still be elected by the foundation members I'm not really following how this dilutes control...members had the same control as before?

You do realize that the Trustees can cast a single vote and remove
membership from every member except themselves, right?  They can also
change anything in the Bylaws, including how they get elected, with a
simple vote.

They are limited to what is allowed by New Mexico law.  However,
non-profits generally are legally run by the board for the most part.

For the members to override the board a great deal of effort is
required.  For the board to strip all power from the members simply
requires a majority vote.  Then if the members want to try to fight
they they would need to do so in court at their own expense, while the
Foundation would legally take the board's side and be able to use its
money to fight in court.

Such a battle is in practice fairly painful and not necessarily easy
to win.  The board might be held to whether they're furthering the
stated mission of the Foundation, but that is relatively generic.

Have you ever seen a US corporation shareholder ballot?  If there are
7 offices to be filled the board puts 7 names on the ballot and a
convenient box to vote for all of them, though you could vote for less
than all of them if you want to be a rebel.  Forcing a name on the
ballot against the board's wishes is rather difficult.

And in a for-profit corporation the shareholders at least have a legal
property interest in their share of the profits, which makes it hard
to take away their shares without buying them out.  In a non-profit no
such right to profits exists, which means that membership has no real
legal value, which reduces .

>> If all you care about is paperwork just dissolve the Foundation
>> entirely, because in the US we have thousands of corporations that all
>> file their paperwork on time.  Lots of paperwork will still get done
>> without Gentoo.  Plenty of it will be done by FOSS-oriented
>> non-profits too.
>>
>>
>> Gentoo doesn't exist to get paperwork done.  The Foundation and the
>> necessary paperwork exist to facilitate the operation of the distro.
>
>
> I've no idea what you mean to convey here.

My point is that if Gentoo files all its taxes perfectly, and doesn't
serve the interests of the contributors, or actively works against
them, then the Foundation is useless or even harmful.

The paperwork exists to serve the distro, not the other way around.

>> Right now everybody the community recognizes as a significant
>> contributor automatically is eligible for membership in the
>> Foundation.  If we're not recognizing significant contributors with
>> the "Developer" label then this should of course be fixed.  However,
>> if somebody isn't contributing enough to be recognized as a regular
>> contributor then why would we want them to have a say in how the
>> distro is run?
>
> The Council runs the distribution, not the Foundation (or so I was led to believe ;))

Legally the Foundation has the ability to make things very difficult
for a non-compliant distribution, if they should be at odds.

Much of infra is the legal property of the Foundation.  The name
"Gentoo" is as well.  The Foundation can legally force infra and the
Council to cease and desist from using these, at least in the US, and
all the places where the US controls internet infrastructure (which is
basically everywhere in practice).

>> Also, if an "outsider" is really that interested in volunteering to
>> help Gentoo they really aren't an outsider anyway, and if they're
>> seriously contributing they can be designated as a developer, as the
>> ebuild quiz is not required to become a Developer.  Just let
>> themselves immerse themselves in the community first before putting
>> them in charge.
>
> I think my second suggestion was this, so we agree on that as a possibility?
>

I don't think anybody around here has a problem with getting more
people to contribute, whether via commits or in other ways.  People
who are invested as contributors are already allowed to vote for and
run for Trustee positions.

Really my goal is to make sure we don't end up with a dichotomy where
the Foundation is governed by business-types and the Council is
governed by technical experts.  That would have a lot of potential for
conflict, and often this results in the technical aspects of the
project becoming subservient.

What large FOSS non-profit has the technical leaders ultimately in
charge?  Heck, the FSF ousted its founder and prophet not long ago.
If the people you hire to write press releases and pay your taxes can
boot out RMS, what hope does a typical Gentoo council member have?
Don't get me wrong - they always have really good reasons for doing
it, and they'll have good reasons for doing it here as well.

Yes, we do need to pay our taxes.  Nobody disputes that.  However, we
really need to make sure that the tail isn't wagging the dog.

-- 
Rich