Current state of affairs

With help from Renat Lumpau (rl03), I spent some time this week talking to the Foundation's lawyers, collecting documents, and sifting through old e-mails. As I posted on gentoo-nfp a couple of days ago, the state of New Mexico did, indeed, revoke the charter for the Gentoo Foundation, Inc. in October of 2007. It's still not entirely clear why, since I mailed a check along with the (then) current and past-due annual reports to the state of NM way back in July. Since the check never cleared, it seems a good guess that the paperwork went astray, but we won't know until Renat's request (and $5) are processed by NM and they get back to him.

In any event, having the Foundation's charter revoked is exceptionally embarrassing, but not catastrophic. The state of NM has a straightforward procedure for reinstating a revoked charter, as long as the request to do so is filed within two years of the charter's revocation. This morning I sent by USPS Express Mail (tracking number EO 943 358 815 US for those who want to play follow-the-paperwork from home) an envelope to the New Mexico Public Regulation Commission, Corporations Bureau containing an application for reinstatement, copies of the missing annual reports, and a check for $60.

Does the Foundation currently exist?

Yes.

Many, many people have assumed, quite understandably, that with the Foundation's charter having been revoked, that the Foundation has thus ceased to exist. That's not really true. You can see this by looking at the NM statutes, but it's simplest to see by looking at what happens when NM receives the application for reinstatement. The New Mexico public regulation commission will determine if all of our paperwork is in order. If it isn't, they'll let us know what we need to do to complete it. Once it is, the commission will cancel the certificate of revocation and file a certificate of reinstatement that takes effect "as of the effective date of the administrative revocation and the corporation resumes carrying on its business as if the administrative revocation had never occurred".

http://tinyurl.com/2v6qtl

Who is in charge here, anyway?

Well, for the moment, I am. Of course, since I'm one of the people who let the Foundation's charter get revoked, that's probably not a good thing, but that's what we have right at the moment. Who am I? I'm one of the two Trustees who hasn't resigned. (The other is pauldv.) I'm also one of the original Trustees from when the Foundation was incorporated. During that initial period I was made the Secretary of the Foundation so that I could establish banking (which requires that the Secretary sign the forms), and in 2005 I was chosen by the then-newly-elected Trustees to be the President of the Foundation. The important part from the above is that I had the legal authority to sign the application for reinstatement that I mailed earlier today.

Could somebody else be in charge?

Yes, but it would take some time.

The Foundation has members. Those members could set up an election, vote out the current bums, and choose new, more dedicated folks to run things. Who are these members? It's anybody who voted in a previous Trustee election, and all current Gentoo devs who have been a developer for one year at the closing of the election poll and actually vote in the election. The Gentoo Foundation has a _lot_ of members.

An alternative is for the existing Trustees to appoint new trustees to fill the gaps left by those Trustees who have left. That would take less time, but I'd feel much better doing that if new elections were scheduled to occur within a reasonable amount of time.

What happened to the SFLC?

Weren't we going to consider joinging the Software Freedom Law Center's Software Freedom Conservancy (http://conservancy.softwarefreedom.org/)? Yes, and the SFC was, and still is, interested (as of just a few days ago, anyway), although they have some concerns about managing the legal aspects of an entire distribution. (Gentoo would be larger, by far, than any of their current member projects.) I still think that's the right way to go, although it's ultimately going to depend on what the Foundation's members want. The bottleneck right now is the assembly of documents that the SFC needs to go forward:

• Certificate of Incorporation (or analogous document for your org)

• Existing By-Laws for the Organization

• List of Directors (and historical list of previous directors, if available)

• List of Officers (and historical list of previous officers, if available)

• Minutes from all Board meetings for the last three years

• All Board Resolutions passed by the Directors

• Membership meeting minutes (if your organization is a membership organization)

• All Membership Resolutions (if your organization is a membership organization)

• All annual reports (published, or filed with any state or federal agency)

• All audited annual finanicals (if any were audited and/or filed)

• All financial reports of any kind for the last three years

• Copy of all state and/or federal filings (particularly including but not limited to tax-related filings) for the last three years. In particular, be sure to include:

  • the IRS determination letter for the status of your filing
  • Your IRC Form 1023 filing

• List of any ongoing threats of litigation, or other disputes, and documentation of any resolved past litigation

• A list of all assets currently held by the organization (including backup documentation, such as copy of bank statements, etc.)

  • Include a copy of all bank statements for the last year

• Any contracts that the organization has executed in the last three years (plus any older than that if they remain active)

• A list of any outstanding loans, leans, or other debts held by the Organization

Much of this stuff needs to be assembled by me (because I have most of the docs), and I got rather busy the last six months and didn't do any of it. I'm going to try to pull together as much as possible this weekend, but I could use help on a couple of items. Our sponsored ads on www.gentoo.org presumably constitute contracts of some sort, so if we have anything in writing I could use a copy. Our major tangible assets are the various gentoo boxes that we have, so a list of those would be helpful. I vaguely remember that once upon a time we fired a dev who then threatened to sue us (but never did, fortunately). Nonetheless, we'd best include that info as well. Help from devrel on that one, please? I'd like to have all of this stuff sent to the SFC on Monday, if at all possible.

Looking forward

So, what's next?

We need new Trustees. I don't think anybody will disagree there.

We need to decide (again) what the role of the Foundation should be. Currently, the Foundation exists to handle Gentoo's financial matters, protect and defend Gentoo's trademarks and other intellectual property, and provide ownership of various "hard" assets, such as the various Gentoo server boxes. The Foundation has almost no influence right now over actual Gentoo (the OS) development. The only caveat there is that Gentoo needs to satisfy the requirements of a non-profit organization, and it's the Foundation's job to let the Council know if something is happening that might threaten the Foundation's non-profit status. I believe that this role is what the majority of the Foundation's members actually want, and it's one that I believe would be even better served by having the SFC handle it instead of us. That said, there has been a lot of support for what drobbins has proposed (http://blog.funtoo.org/2008/01/here-my-offer.html), which would make the Foundation responsible for the health and direction of Gentoo as a whole. That's a discussion that's certainly worth having, and gentoo-nfp@gentoo.org is standing by.... Let's try not to take forever having this discussion, so consider Monday, 23:59 UTC, to be a deadline for your electronic voice to be heard.

What about drobbins' proposal?

I'd like to push off until Monday any actual decision, so that the above discussion can happen first. I don't think drobbins will mind the delay, although he's not around right now for me to check first.