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

[Roy Bamford <neddyseagoon@gentoo.org>]

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Team,

Andreas,
I like the out of the box thinking.

On 2017.01.14 21:43, Andreas K. Huettel wrote:
> Hey all, 
> 
> I wrote this text up some months ago when Ian Delaney and Roy were
> making first 
> noises that the Gentoo foundation should be in overall control of the 
> distribution. At that time I didn't know about SPI and umbrella
> corporations yet. 

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.

> Now, I see an umbrella organization as e.g. SPI as the better
> choice, 
> since it relieves us from the jobs that noone (not even the trustees)
> want to do. 

Not totally but it could help. It was seriously examined as an option 
around 2009.
> 
> Mostly I am sending this text (slightly edited) now out as alternative
> 
> proposal for the unfortunate case when (for whatever reason) working
> with an 
> umbrella organization such as SPI were not possible. 

I think the setup we have now, where when the distro screws up, the 
Foundation gets the blame is suboptimal.  Any proposal for change 
deserves to be examined on its merits.

> 
> I've shown the text to a few people in the meantime, so don't be
> surprised if 
> it has text overlap with other e-mails or reorganization proposals.
> 
> Cheers, Andreas
> 
> ------------
> 
> Motivation: In recent vivid debates the Gentoo metastructure and the 
> responsibilities of its organs have been called into question by a
> vocal 
> minority. Compared with how the distribution has been running over the
> last 
> years, most of the proposals aim to adapt reality to organizational 
> structures. This proposal instead aims - in a very similar way as
> Michael's 
> SPI proposal - to adapt organizational structures to reality.
> 
> Letters [z] are textual footnotes, numbers [9] point to web links as
> source 
> material.

Before continuing, the Foundation has an immutable constraint it 
must operate within.
https://wiki.gentoo.org/wiki/Foundation:Articles_of_Incorporation
The NM Statues for non Profit Organisations.
http://www.sos.state.nm.us/Business_Services/Corporation_Statutes.aspx
Just Art 8.
There is flexibility where the statues point to the bylaws.

> 
> Proposal: [a]
> The Gentoo Foundation bylaws are amended such that:
> * Gentoo Foundation trustee positions are appointed by the elected
> Gentoo Council via majority vote, for a fixed term. Each appointed 
> person has to be 
> confirmed by a yes/no vote of the Foundation members. 
How does that sit with the requirements of 53-8-18 (on page 45) of 
the NM statutes?
It sounds rather like the democracy in the former Iron Curtain 
countries.  Here’s a list of candidates ...
Perhaps I'm just old and cynical and it really doesn't matter.

What happens in the event of a 'no' vote of Foundation members, or 
that council cannot find sufficient people that they are prepared to 
nominate and who are willing to stand?
Council pick up the jobs – after all, we have seen what happens when 
the Foundation activities are not performed.

What of Foundation Officers?
The trustees are the directors ... they provide direction.
The officers  do the actual work.  With a small NPO, there is little
distinction but it has worked well in the past when we have
been able to separate trustees and officers. 


> A non-quorate
> member vote 
> (less than 1/3 member participation) counts as confirmation.
A simple majority vote by foundation members fine. Its worked since 2008.
The reality is if you wait for a quorum of members, you (legally) adjourn
the meeting and the adjourned session is automatically quorate.

> * The Gentoo Council acts as independent, voter-appointed review and
> oversight 

Won’t this need GLEP 39 to be amended?
The council is a ‘go to’ disputes resolution body. This proposal requires 
it to actively manage the Foundation. 

> … body for the Gentoo Foundation and has full access to Gentoo
> Foundation data.

Probably not. The council are not trustees, nor officers of the Foundation.
Some Foundation data is lawyer/client privileged. The client here is the 
board and officers that need to know. That excludes council, unless
they happen to be officers that need to know.
Nothing, at present, excludes individuals serving on council and being 
Foundation officers concurrently.

> It can require regular status updates from Gentoo Foundation trustees
> and officers.
Everything that can be public has been made public along the way.

> * The Gentoo Council can dismiss Gentoo Foundation trustees before
> their term 
> runs out by unanimous vote of Gentoo Council members.
The holes thus created need to be filled, How?
Council will step in?

... and officers, who may be different individuals?


> 
> Implementation:
> While changing the role of the Gentoo Council requires changes to GLEP
> 39 and 
> thereby a vote of all developers, the above changes to the Gentoo
> Foundation 
> bylaws can be implemented by the trustees alone. So, in principle this
> change 
> could be done during the next Gentoo Foundation trustee meeting and be
> immediately in effect. 

Almost. New bylaws need to be drafted reviewed approved and filed with
New Mexico. Something at the back of my mind says that we need to serve 
some notice period to members too, before revised bylaws become effective 
The effect would not be immediate.

> 
> Rationale (the long part): [b]
> 
> A] Philosophy – should the „suits“ lead?
> The main purpose of the Gentoo Foundation is to administrate Gentoo
> finances 
> and protect Gentoo intellectual property. We are talking about two
> important 
> tasks here that require high dedication and are central to the daily 
> functioning of Gentoo. However, Gentoo is not a corporation, but an
> open 
> source initiative by volunteers. Most people investing time into
> Gentoo as 
> developers [c] are focussing on the technical aspect, and a community
> without 
> code is worthless in our context. I am aware that current trustees are
> 
> investing also much time and effort into technical aspects of Gentoo.
> However, 
> having people direct the course of the distribution due to occupying a
> non-
> technical, finance and administrative *role* means having the tail wag
> the dog. 

I’ll need to ask “What is Gentoo?” and “Who speaks for Gentoo?” to 
respond to that. Its likely we have different viewpoints on the former 
or we would not be having this discussion. The answer to the second 
part of the question is linked to the first.

> If anything, in a community-driven, non commercial Linux distribution 
> administration should follow technical requirements.
First and foremost administration should follow the legislation.
It would be more than unfortunate to do something illegal while following 
technical requirements.

> 
> B] Practicality – the two-headed snake
> The separation of tasks and responsibilities between Gentoo Council
> and the 
> Gentoo Foundation trustees has worked out fine for years. 
It works while we are all good friends.

> Any one-sided attempt 
> to change the balance, however, easily provides cause for conflict and
> endless 
> bikeshedding. 

I don’t see any one sided attempt to change the balance. Only healthy 
discussion about if we should and to what.

> This not only binds efforts and slows down decision
> processes, but also makes Gentoo as a whole vulnerable to outside 
> manipulation. By playing the Gentoo Foundation trustees against the 
> Gentoo Council or
> vice 
> versa, and searching supporters whereever it just suits, third parties
> can 
> induce friction and attempt to work around established procedures.

Isn’t that an example of the present arrangement not working?

> 
> C] Mandate – manifestos and voter perception
> Given the background of the previous years and the election manifestos
> of the 
> two 2016 elected Gentoo Foundation trustees [1,2] I see no voter
> intent to 
> extend the powers of the Gentoo Foundation trustees into topics
> previously 
> handled by the Gentoo Council. Conversely, manifestos of the 2016
> elected 
> Gentoo Council members cover a very wide range of topics
> [3,4,5,6,7,8], in 
> particular including also community oversight and public relations.
> 
> D] Oversight – past inactivity of the trustees to protect Gentoo
> assets
> As already stated above, the current role of the Gentoo Foundation and
> its 
> trustees is very important for the daily running of Gentoo – without
> it there 
> would be no infrastructure, no funds for equipment, and so on.
> However, past 
> events (failing to renew corporate registration, failing to submit tax
> filings, 

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

> the treasurer disappearing for many months without anyone panicking,
> an 
> apparent 5-digit mismatch in finances) do not really recommend the
> Gentoo 
> Foundation as top level oversight body. On the contrary, a compliance
> board 
> (as in this proposal the Gentoo Council) should be instated which is
> able to 
> oversee and take corrective action.
>

> E] Legalese – formal legitimization of the current trustee election
> The current method of electing the Gentoo Foundation trustees is
> legally 
> shaky. I have no doubts that the election process fairly expresses the
> wishes 
> of the voters. However, it leads to a rather strange conundrum in the
> Gentoo 
> Foundation bylaws: The bylaws require that the Board of Trustees is
> elected by 
> an annual meeting of the foundation members [Sec. 3.2], which is
> supposed to 
> normally take place on IRC in the #gentoo-trustees channel [Sec. 3.1].
> A 
> meeting requires a quorum of 1/3 of the members entitled to vote,
> „represented 
> in person“ [Sec. 3.9]. If this is taken verbatim, none of the trustees
> of the 
> past years would have been elected; I can't remember any meeting where
> a 
> quorum of foundation *members* would have been present. A completely 
> different, conflicting set of instructions covering the current method
> and 
> condorcet voting, is set out in a later paragraph [Sec. 5.5].

As you say, meetings of members that fail to reach a quorum should be 
adjourned. 
The adjourned session is automatically quorate.
> 
> ---------
> 
> 
> [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.

> 
> [b] I have taken the liberty to freely use arguments here which have 
> originally been posted by, e.g., rich0 or neddyseagoon. Nevertheless,
> opinions 
> expressed here are mine and should not be construed as a Gentoo
> Council or 
> ComRel team statement.

Incremental change is usually easiest but its not always the way ahead.


> 
> [c] A developer is a person who has passed the recruitment process and
> has a 
> @gentoo.org e-mail address. This is independent of push access to the
> main 
> Gentoo ebuild repository.
> 
> [1] http://dev.gentoo.org/~dabbott/manifest.html
> [2] https://dev.gentoo.org/~prometheanfire/trustee-manifesto.html
> [3] https://dev.gentoo.org/~blueness/manifesto-2016.txt
> [4] https://dev.gentoo.org/~dilfridge/Manifest-2016.txt
> [5] https://archives.gentoo.org/gentoo-project/message/
> 368c35c8337e00d5e22686c782a917b7
> [6] https://dev.gentoo.org/~k_f/Manifest-2016.txt
> [7] https://dev.gentoo.org/~rich0/council-manifesto-2016.txt
> [8] https://archives.gentoo.org/gentoo-project/message/
> 92961cfdbe56960fa2c78a04662c3547
> 

Disclaimer:
The opinions here are my own and do not represent the opinion of 
any group I am associated with now or may have been associated with 
in the past.

-- 
Regards,

Roy Bamford
(Neddyseagoon) a member of
elections
gentoo-ops
forum-mods

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