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Re: Constitution - formal proposal (v0.5)

Ian Jackson wrote:
  >Oliver Elphick writes ("Re: Constitution - formal proposal (v0.5) "):
  >> I'm an accountant, but haven't worked in practice for 15 years, so I'm
  >> not up to date, as I say.  I'm thinking of British tax law; a corporation
  >> (which includes unincorporated associations such as Debian) can be taxable
  >> in Britain if its affairs are controlled from here.
  >Could you cast your eye over my latest draft (0.6) ?  I've reworded
  >it so that it now talks about SPI and Debian jointly making decisions,
  >and about property held in trust for certain purposes (but doesn't
  >actually change the rules for spending).

It would be as well to get a NY state lawyer/accountant to take a look as well.

I suggest certain changes between the double lines; lines beginning `X ='
are to be deleted and replaced:

 = 9. Software in the Public Interest
 = SPI and Debian are separate organisations who share some goals. Debian
 = is grateful for the legal support framework offered by SPI. Debian's
 = developers are currently members of SPI by virtue of their status as
 = developers. 
 = 9.1. Authority
 =    1. SPI has no authority regarding Debian's technical or nontechnical
 =       decisions, except that no decision by Debian with respect to any
 =       property held by SPI shall require SPI to act outside its legal
 =       authority, and that Debian may occasionally use SPI as a decision
X =       body of last recourse. 
       body of last resort. 

[Not relevant to your question:] The last clause of this sentence is unclear
in its effect.  It appears to mean that someone (unspecified) may appeal
to SPI to make a decision for Debian over the heads of all other authority
specified in the rest of this constitution. I suggest that it would be 
better to omit this.

X =    2. Debian claims no authority over SPI other than that over certain

     2. Debian claims no authority over SPI other than over the use of certain
 =       of SPI's property, as described below, though Debian developers
 =       may be granted authority within SPI by SPI's rules. 
 =    3. Debian developers are not agents or employees of SPI, or of each
 =       other or of persons in authority in the Debian Project. A person
 =       acting as a developer does so as an individual, on their own
 =       behalf. 
X = 9.2. Management of Debian's property

9.2 Management of property held by SPI for the benefit of the Debian project

Since Debian has no authority to hold money or property, any donations for
the Debian project must be made to SPI, which has been formed to manage such

SPI have made the following undertakings:
 =    1. SPI will hold money money, trademarks and other tangible and
 =       intangible property and manage other affairs for purposes related
 =       to Debian. 
 =    2. Such property will be accounted for separately and held in trust
 =       for those purposes, decided on by Debian and SPI according to
 =       this section. 
X =    3. SPI will not spend money or otherwise dispose of or use such
X =       property without approval from Debian, which may be granted by
    3. SPI will not dispose of or use money or property held in trust for
       Debian without approval from Debian, which may be granted by
 =       the Project Leader or by General Resolution of the Developers. 
X =    4. SPI will consider spending money or disposing of such property
    4. SPI will consider using or disposing of money or property held in
       trust for Debian
 =       when asked to do so by the Project Leader. 
X =    5. SPI will spend money or dispose of Debian's property when 
    5. SPI will use or dispose of money or property held in trust for
       Debian when
 =       asked to do so by a General Resolution of the Developers,
 =       provided that this is compatible with SPI's legal authority. 
X =    6. SPI will notify the Project when it spends money or disposes of
X =       such property. 
    6. SPI will notify the [leader|secretary|debian-devel mailing list] when
       it uses or disposes of money or property held in trust for Debian. 


My changes are intended to remove the appearance of control that is
equivalent to ownership.  If SPI is a separate legal person, Debian can
have no legal authority which is not granted by SPI's own constitution.
Therefore it is wrong for this constitution to assert any such authority.

I therefore changed clause 9.2 to make it clear that SPI have made certain
undertakings. [I hope that this is actually the case?]

A highly relevant question here is, who has authority over SPI to make
them keep these undertakings if they were to break them?  I imagine that
Debian's officers could do so, but the grounds would be breach of trust
(an external authority) or of SPI's own rules.  In neither case could this
constitution be cited as an authority over SPI.

Oliver Elphick                                Oliver.Elphick@lfix.co.uk
Isle of Wight                              http://www.lfix.co.uk/oliver

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