Re: [gentoo-project] Formally have Council oversee the Foundation 2.0

[Rich Freeman]

On Sun, Jan 15, 2017 at 10:00 AM, Roy Bamford <neddyseagoon@g.o> wrote:
>
> I like the out of the box thinking.

Thanks for your comments.  They were very helpful.  I'll just respond
to one or two of them.

>
> Umbrella corporations remove some of the drudgery. They do not perform
> any of decision making nor decision vetting. Gentoo, somewhere, still
> needs to do that. We will still need to protect our trademarks ourselves
> with the umbrella being used for escalation.

Sort-of.  An umbrella org will provide a lot of the general compliance
policies.  For example, the procedures around reimbursement for travel
expenses or such is almost certainly the sort of thing that SFI would
have a policy on.  Now, they're going to look to us to set the general
guidelines on how much we want to spend on travel and who is eligible,
but when it comes down to what kinds of receipts you need and what
kinds of expenses do/don't qualify they're going to have their own
rules.

I wouldn't be surprised if they also have rules around conduct at
officially-sponsored conferences and such, written by lawyers.

I think the main benefit would be that people who are into such things
can spend more time on thinking about how we want to spend money and
asking people to donate for these causes, and less on the mechanics of
paying the rental fees.  Actually, today reimbursement itself isn't
the big problem, so much as figuring out how much money we have left
to spend and filing our taxes.

I suspect you're on the same page, but just wanted to comment on this
in general.  An umbrella org isn't a panacea but it could fix the
drudgery, and provide a lot of the benefits that distros with
commercial arms have without being subject to the whim of the
commercial arm.

>
> The corporate registration was renewed on time in 2007. New Mexico lost
> it after receipt. (That’s newish information to me)
>

Interesting.  As I recall at the time we were also running without a
full slate of Trustees.  I don't like to point my fingers at Trustees
in general because they're volunteers like the rest of us, and in this
case we didn't even have enough volunteers to fill all the slots.

I will note that it is usually a good compliance practice to not only
file your documents, but confirm the accuracy of your filings/etc,
especially if others are involved.  At work when we direct somebody to
file a government document under a power of attorney we make sure we
get copies of what was filed, and we try to obtain information about
our filings retrospectively from the government to compare them with
our records of what should have been filed (usually in electronic
format with a program doing the checking).  Of course, having a small
army of compliance professionals supported by IT helps, and while I
don't question that most of those on this list could do that sort of
thing it probably isn't what most sane people would choose to do.

>> [a] In case this is not legally possible for a New Mexico nonprofit, a
>> re-
>> incorporation in a different legal system (e.g., EU, where many Gentoo
>>
>> developers now reside) should be pursued.
>
> There is a way. The assets of the existing Foundation can be run down
> by paying the bills. They cannot be transferred. Its not clear what
> would happen with the registered marks.
> As the existing Foundation was run down, so a new entity could be
> ‘run up’ elsewhere.
>
> This is much the same as would happen if we joined an umbrella
> organisation and decided to leave again later.

I don't believe this is strictly necessary.

I know that SPI in particular will transfer your assets to another
501c3 of your choosing if you want to leave.  You don't have to spend
things down.  However, it does need to be a 501c3.  There might be
other caveats (and of course we should review all the caveats).

Right now our existing Foundation isn't even a 501c3 so it is even
less regulated.  As long as we pay our taxes I don't think the
government is going to care how we transfer our assets, and if we're
donating them to a 501c3 I think that also reduces the concern of
their valuation.  If a transaction were truly arms-length I'd think
that it would also be fine (such as if we decided to sell the name
"Gentoo" to Google for a billion dollars).  Obviously a lawyer/CPA
should be consulted on the details, and I suspect that an umbrella org
could also help with that.  (If they aren't acting as our own lawyer
we could also have them do the heavy work of drafting all the
paperwork, and then retain our own lawyer to confirm that it is all
legit, which would save on cost but give us an independent evaluation
of our compliance.)

Spending down might or might not be convenient for some of the assets
even so, though you can't spend down your trademarks and copyrights,
such as they are.

-- 
Rich