Friday, January 18, 2008

Foundation update

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?


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Foundation's charter having been revoked, that the Foundation has thus ceased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".

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 ( 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

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

  • 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

  • All Membership Resolutions (if your organization is a membership

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

  • 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

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 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
(, 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
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

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.

1 comment:

  1. imported comments

    Posted by nightmorph on Fri Jan 18 15:42:50 2008

    Thanks for writing this; much appreciated.

    Posted by Ryan Hill on Fri Jan 18 17:03:58 2008

    Posted by NeddySeagoon on Fri Jan 18 17:55:35 2008
    Thanks very much for all the hard work

    Posted by infinity9 on Fri Jan 18 18:09:14 2008
    thanks a lot for the post--it definitely clears some things up.

    Posted by bmichaelsen on Fri Jan 18 18:47:41 2008
    Hi Grant,

    thanks for this post and all the hard work. And yes, I think you are right: some things are rather independant issues, that should be discussed independantly:

    - the future (shortterm/longterm) of gentoos legal duties (topic includes trustees, foundation, SFC etc.)

    - the "direction" of gentoo, the chasm between devs and users (soft-skills at the gentoo project)

    - Daniel Robbins and gentoo

    Have Fun, Björn

    Posted by nihilo on Fri Jan 18 18:56:56 2008
    Thanks for clear explanations, Grant. This kind of transparency is much commended.

    On the topic of the foundation, I get the impression that it's been running with mostly awol/retired people for a while now. Is that accurate, or did the others all very recently resign?

    If that is the case, then it seems there must be some severe organizational issues in order for this to happen. A sane organization would have procedures for replacing people who are either lazy and don't do what they are supposed to be doing or who have formally resigned. What changes will occur to prevent this kind of thing from happening again?

    It's not fair to the remaining foundation people like yourself to get shouldered with all the work that should be shared by the entire foundation.

    I can think of two possible solutions:

    1) there is some kind of body that monitors the other bodies (dev council, trustees, etc.) and ensures they're active and on task; this is problematic though because who monitors them? It could be a strongly motivated individual like drobbins who is willing to accept responsibility for everything. I don't think this will happen though.

    2) you need to change the reward/feedback mechanism for being a trustee. Currently, I assume that being a trustee looks pretty good on the resume, gives one valuable experience running those aspects of an organization, etc. But what are the downsides for incompetence, being a flake and not doing what you are supposed to do? Without some kind of negative consequences to laziness, etc., many people will have no qualms about promising all kinds of things before election, and then delivering on none of them after election. If there were consequences -- easily googleable public shaming, for example -- I'm sure you'd still have 5 trustees, and they'd have helped you out much more.

    What I'm saying is that people are most motivated by self-interest, and so the organization must be set up in such a way that there are feedback mechanisms that ensure the self-interest of the trustees, for example, coincide with the self-interest of the Gentoo project as a whole.

    Posted by Daniel Drake on Sat Jan 19 06:55:47 2008
    Thanks for the update and all the work you are doing on the foundation front.

    Posted by Dirk Gently on Mon Jan 21 05:32:22 2008
    Thanks for the information about this Grant. Alot of us haven't overheard these details. By pointing out the role of the Foundation (legal/image matters) the developers (to support portage) and the huge void in between, I can see why website building (GWN, forums), organization tasks (meetings, choosing gentoo direction)... has not been able to be accomplished. As a Gentoo user, I believe Drobbins can accomplish these tasks.

    Posted by oren on Mon Jan 21 10:08:29 2008
    well done,

    that cleared up many questions.

    Though, I think you should consider drobbins proposal. He is not a dev or a member of the counsel and yet he is still passionate about gentoo and its future. Without his last blog I don't think we would even be reading this blog.

    Posted by David Huff on Mon Jan 21 19:21:20 2008
    If status quo is the end of the discussion then it is also the end of Gentoo. Look that the verbiage "I'd like to push off until Monday any actual decision" this type of motivation has been (not) pushing the project too long. Either a yes vote for Daniel Robbins to come back from the standing trustees or get out of the way.

    Thanks for your efforts but it shouldn't have come to this.

    Posted by Someone Who Used Gentoo Until Today on Tue Jan 22 00:31:38 2008
    Thanks for spewing nothing of any sense.

    The adage is true about those in power never wanting to give it up. Face it, you object to one person being in charge, yet you yourself have no problem being souly in charge now. Oh, I forgot, some other "interm trustee" was shat out of the woodwork. Very convenient timing. Next time bring a dancing pony too, most of us people leaving your crumbling distro could use it to ride on over to Sabayon.

    Posted by Someone Who Used Gentoo Until Today on Tue Jan 22 00:31:39 2008
    Thanks for spewing nothing of any sense.

    The adage is true about those in power never wanting to give it up. Face it, you object to one person being in charge, yet you yourself have no problem being souly in charge now. Oh, I forgot, some other "interm trustee" was shat out of the woodwork. Very convenient timing. Next time bring a dancing pony too, most of us people leaving your crumbling distro could use it to ride on over to Sabayon.

    Posted by aldraia on Tue Jan 22 02:02:47 2008
    Please, stop it.
    Accept now the Daniel Robbins offer.
    You're gonna mess the things more (if possible).
    I preffer legally weirdness to nothing

    Posted by Aron on Tue Jan 22 06:33:29 2008
    Grant, thanks for this post, and for all the work you're doing on behalf of Gentoo. Don't let the naysayers drag you down. :-)

    Posted by bitozoid on Tue Jan 22 16:51:52 2008
    It seems that the actual gentoo fundation model is not working, despite of your really hard work. Its philosophy is (from the results point of view) outdated and needs to be killed and re-born. Another guy is not the solution, neither you are.

    Another model is the solution. Imho, Gentoo is not about technologies. It is about passion. Let the passion flow.

    Posted by NorthGoingZax on Tue Jan 22 18:35:59 2008
    Yo Grant,

    Thank you for posting this information. There is nothing like the truth to dispel the histeria that I have been reading about.

    I very much appreciate your honesty and the way you make yourself accountibile for your actions; I also like the way you regard yourself as under the authority of the community, but still in charge as the 'someone' who has to be.

    It does seems that more communication would be the best antidote to histeria. In fact, I think, as trustee, you are under compulsion to better publicise the shortcomings or shortstaffings in project and call for discussion, so that those so interested can give input in a hopefully-solution oriented way.

    Blessings, and hearty thanks for running stuff in this community and for my benefit these niggling small points that we couldn't exist without.

    Posted by Kris Weston on Thu Jan 24 07:29:08 2008
    i think daniel should come back and i think you are disrespecting him for not getting back in time. naughty man....

    Posted by steveL on Thu Jan 24 15:32:10 2008
    "most of us people leaving your crumbling distro could use it to ride on over to Sabayon."
    Eh? You are aware Sabayon uses the Gentoo tree aren't you? So ride off all you want, you'll still be using Gentoo ebuilds.



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