Re: Resolution 2019-05-25.jrk.1: Removing Jenkins as associated project

On Mon, Jun 03, 2019 at 12:15:53PM +0100, Ian Jackson wrote:
> I do not think it is appropriate for the resolution to authorise a
> transfer without clearly stating what organisation the transfer is to.
> This is not a situation where a resolution that is intentionally vague
> is appropriate.
>
> If I were a board member I would worry that voting in favour of this
> resolution would amount to delegating my obligations to uphold US
> charity law.

Board members at any organization routinely delegate their obligations
to comply with the law to the individuals who carry out the detailed
work. More specifically, the role of the board is to oversee, but this
does not mean final approval must be given individually to each transfer
only after every detail is known. It means enough attention to the
parameters that the rest can _responsibly_ be left to trusting those
acting for SPI, as well as following up after the fact. SPI has
historically leaned too much on board votes, and that's been a
contributing factor toward the high level of burnout that SPI directors
have had.

The resolution contains several safeguards in the interest of being
responsible.

For one, it does not contain any individualized grant of authority
toward specific people or roles in carrying out the transfer. The only
people with inherent authority to carry out the board's proposed
instruction are already officers (possibly other directors as well), who
already have statutory obligations toward SPI. If they delegate or
designate anyone else to act on this, this will of course not relieve
them of their own obligations. But I do imagine that, in practice, it
will be an SPI officer who gives final approval to the transfer.

Additionally, the resolution recognizes that SPI may want commitments
from the receiving organization to ensure that the interests of the free
software community or the Jenkins project are protected. This to me
feels like a suitable catch-all provision for the category of concerns
you're (rightly!) raising, aside from ensuring legality of course.

My strong preference is not to bother the board with two votes on this,
after we set suitable parameters and continue to oversee the officers
and other individual actors like a board should. Therefore I don't plan
to draft or propose amendments to request a confirmatory vote.

But, if any other directors feel strongly enough that it's worth two
votes, they can draft and propose such an amendment. I wouldn't oppose
it if their wording seems workable and they find it necessary in order
to vote in favor next Monday.

> > I believe the 1st choice is to transfer the assets to a 501(c)(3)
> > under the LF. This is laid out in "whereas #5",
>
> How would this proposed 501(c)(3) be governed ?
>
> Jimmy tells us that while the CDF is governed by its corporate
> members, the Jenkins project is not.
>
> Would decisions for the 501(c)(3) be made by the CDF board or the LF
> board or by Jenkins's governance structures ?

I don't know anything about the governance plans for the proposed
501(c)(3). What I meant is that, while LF and CDF have explicitly
pay-to-play governance structures in the way that is allowable for
501(c)(6) organizations, such a structure would not be approved by the
IRS for a 501(c)(3) organization. They would have basically the same
duty we do to act in the interest of the general public and not for the
private benefit of, or private inurement to, their members.

So, the mere fact of IRS approval of a 501(c)(3) mitigates a lot of the
risk in this regard.

> While it may be lawful for SPI to transfer charitable assets to
> another charity which spends those charitable funds on
> legally-charitable purposes but at the direction of for-profit
> corporations, it is not clear to me that it is ethically appropriate
> for SPI to make such a transfer.

As noted above, I think IRS approval of a 501(c)(3) would go a long way
to satisfying this concern. To whatever extent it doesn't, that's why
the resolution allows us to insist on commitments from the receiving
organization. Commitments can be legally binding if necessary, and this
might well be required due to our legal obligations if the receiving org
ends up not being a 501(c)(3).

- Jimmy Kaplowitz
jimmy(at)spi-inc(dot)org