Re: [gentoo-nfp] Questions For Gentoo Foundation Trustee Candidates

[Aaron Bauman]

On Sun, Jul 14, 2019 at 12:29:11AM +0000, Robin H. Johnson wrote:
> On Sat, Jul 13, 2019 at 01:18:29PM +0100, Roy Bamford wrote:
> > On 2019.07.13 13:12, Roy Bamford wrote:
> > > Team,
> > >
> > > This is a meta topic to collect Questions For Gentoo Foundation
> > > Trustee Candidates together.
> >
> > We have several candidates with a declared platform of dissolving
> > the Gentoo foundation.
> >
> > 1. Will all candidates make their position on the future of the
> > Foundation clear.
> Firstly, I want a special vote for the electorate to vote on what they
> feel the outcome should be. The main question should be a ranked vote,
> and also carries the significance of being the mandatory general vote
> for dissolution.
>
> Before the vote is undertaken, extensive research with comparative costs
> should be prepared. They should include costs of ongoing state, costs to
> being an Umbrella member, costs to joining the umbrella (e.g. many of
> the options will need to pay for trademark & copyright [1] transfers).
>

This has been discussed amongst the trustees for a bit, but no one has pursued
their research of the umbrellas. It is important to note that those supporting
such a course of action should conduct this research. No, this is not a matter
of "due diligence" for members of the baord who do not support such a move to
undertake.

> Specifically relevant to this, I'd like to remind those reading this
> email that while New Mexico considers the Foundation to be a non-profit
> entity, the IRS considers the Foundation to be a for-profit corporation.
> Subject to New Mexico law and really IANAL, I think there's a chance we
> could make multiple choices on what to convert into.
>
> I think that the questions in the vote should somewhat like the
> following. I know votify doesn't support multiple questions, so we'd
> need to find another platform for this vote.
>
> Question 1:
> - Should the Foundation do voluntary OPTIONAL backfiling to the IRS?
> Yes, No
> This is the filing beyond the present 4 years that we are presently
> required to do. If the outcome of a later question makes it mandatory,
> then we'd be doing it anyway.
>

I am not sure why we would propose this to the general membership? This is a
matter for those elected to consider. Of course, the general membership should
be notified of how these things are being handled, what the significance is, and
how each course of action was considered.

> Question 2, ranked choices:
> What do you feel should be done with the Foundation entity? If an option
> turns out to be disallowed by law, it will be discounted after the poll.
> I'm not certain all of the options will be possible, but I want to be
> open in possibilities.
>
> - Remain a for-profit entity

"remaining" a for-profit entity is antithetical to the original intent and
purpose of the foundation. While there were failures of individuals to file the
appropriate federal tax paperwork to gain tax-exemption status, this does not
change how we should proceed nor set a precedent for "remaining" a in a
for-profit status.

> - Apply to convert from for-profit to non-profit 501(c)(3)

This is dependent on filing the additional 6 years.

> - Apply to convert from for-profit to non-profit 501(c)(6)

We have discussed this before, a 501c6 does not match our purpose, does not
support charitable donations being tax-exempt for the donator, and we have no
intent of lobbying/supporting politics.

The 501c6 idea justs needs to go away.

> - Dissolve the existing entity AND create a new non-profit 501(c)(3)
> - Dissolve the existing entity AND create a new non-profit 501(c)(6)
> - Dissolve the existing entity AND Join Umbrella: Software in the Public Interest (SPI)
> - Dissolve the existing entity AND Join Umbrella: Software Freedom Conservancy (SFC)
> - Dissolve the existing entity AND Join Umbrella: Linux Foundation (LF)
> - Dissolve the existing entity AND Join Umbrella: ... (list of every umbrella that is compatible with us joining)
> - Dissolve the existing entity AND donate the assets to some non-profit

I am not sure why we would even consider dissolving the foundation with a
follow-on action of donating the money elsewhere. While I support donations to
similar non-profits, the money currently held by the foundation was raised under
the premise of supporting Gentoo.

How that that grew to $100k is troubling...

> - Reopen research & voting
>
> Question 3:
> As required by New Mexico law, do you approve of the trustees dissolving
> the existing Foundation, to change per question 2?
> Yes, No
>

The dissolution proposal needs to come from the Trustees and be:

1. direct with purpose (e.g. we will go under an umbrella)
2. a well laid out plan to inform the membership of where
assets/trademarks/monies will go

Asking the general membership to support a dissolution with multiple endstates
is not proper or responsible.

> > 2. Will all candidates explain the reasoning supporting their position
> > on their future plans for the existence (or otherwise) of the Foundation.
> On the above questions, my answers:
> Q1:
> No voluntary backfiling [I don't have the time for it, another person will need to work with the CPA on it]
>

Unless I am missing something here, the intent is to retain the CPA for such
book keeping permanently. The trustees will simply interact with them to make
purchases etc. 

e.g. buy a thing, send receipts to CPA.  Done.  This is not complex, as they
crunch the numbers.

> Q2:
> - Dissolve & join SPI
> - Dissolve & join SFC
> - Dissolve & join LF
> - (maybe other umbrellas here)
> - Convert to 501(c)(6)
> - New 501(c)(6)
> - Reopen research & voting
> - (all other options)
>
> Q3: Yes
>
> Why these choices?
> As the others have noted, even with the present manpower, we have a bus
> factor problem. If I wasn't around doing the financials, we'd be in much
> worse state. Not that it would be impossible to fix, just significantly
> more expensive (one rough book-keeping quote to "fix" data was $250 per
> calendar month of backlog, including end-of-year financial statements).
>

As I stated above, the CPA should be retained by the board. Also, "expensive" is
relative considering the current state of the foundations finances. We have
money... lots of it relative to our needs.

> To that end, I feel we should offload the work to an umbrella as much as
> possible, that is ALREADY handling the type of stuff we want to do for
> other open-source projects.
>

Let's pretend the CPA is that umbrella?  This is an important distinction as
many are presenting umbrellas as a panacea, but are failing to understand (as
Roy pointed out in another thread) the potential impact of *another* board
impacting Gentoo in a way we may not agree with. This is possible through the
same by-laws and Articles of Incorporation from umbrella $X.

*No*, a contract will not fix this.

> Furthermore, I feel that unless our income were to grow significantly,
> the costs of being in an umbrella are less than doing it on our own.
>
> If the electorate is against Umbrellas as a whole, AND understands the
> ongoing costs to outsource all of our needed management, then we can
> certainly consider it.
>
> The exact Umbrellas we might join are another matter for debate. I think
> the Linux Foundation has the most corporate power, but I'm not as
> certain of their motives as SPI & SFC.
>

How have you found certainty in their motives?

-- 
Cheers,
Aaron