LoCo governance and incorporation policy?

[Matthew East]

Hi,

On 11/09/2007, Brandon Sussman <Brandon at websterridge.com> wrote:
> Seems to me it is a really bad idea to have any identifiable group that might
> be the target of lawsuits not protect it's members and itself as best they can.
>
> "Why can't we just all get along?" might be a nice idea but what if somebody
> gets electrocuted by spilling their coffee into a power strip at an install party.
>
> Do you really think that the LoCo member that happened to stay home that day
> should not be protected?

You really need to identify with a lot more precision what the
potential liability you have in mind here is.

Let's take this back to basics. I'll do my best to keep what follows
legal-system independent, although I've used terminology that may be.
If this sounds patronising, it isn't meant to be, I just want to
clarify the issues here.

Liability (whether private or public) doesn't just jump out of
nothingness, it arises out of a duty that gets broken. For example, if
somebody negligently caused the electrocution, and they owe a private
law duty to people, then they may incur liability for the damage.
Equally, if someone intentionally or recklessly causes electrocution
to another, they might be in breach of a criminal law duty.

These are normal everyday duties that we owe one another and it's
inappropriate for local teams to worry about them on behalf of their
members: members can and should be responsible for themselves.

The only possible reason to start worrying is if a particular legal
system attributes liability to individuals where they are not the
individual responsible for breaking the duty.

There can only happen where both (a) and (b) below are satisfied:

(a) The local team is classed as a "non-incorporated association",
either because the jurisdiction automatically classes the local team
as such; or because the local team has concluded some arrangement
(e.g. a contract) to that effect; and

(b) The law imposes criminal or civil liability on non-incorporated
associations.

In my country (the UK, which shares quite a lot of law with the United
States), neither (a) nor (b) is satisfied, because the law doesn't
automatically class a local team as a non-incorporated association
unless they conclude a contract, and in any event non-incorporated
associations can't have legal liabilities.

The page http://en.wikipedia.org/wiki/Voluntary_association suggests
that this is likely to be true of most jurisdictions. Jan has
identified a particular jurisdiction (Belgium) in which he says that
both (a) and (b) are satisfied. If that is actually right, then it is
very surprising. In any event it's unlikely to apply in most cases.

Local teams are not different from the millions of other voluntary
organisations out there in each country. As a result, there is likely
to be a good deal of guidance around about what the risks and
appropriate protections are. But beware of people trying to sell you
stuff you don't really need. And you should think very carefully
indeed if you're thinking about incorporation, because you'll be
taking on administrative burdens, potential legal liability and
generally a lot of hassle when you don't really need it.

> I am involved in trying to start a LoCo in NH.  When it gets off the ground,
> prudent legal protection is not optional.

The bottom bottom line is that there are a bunch of helpful things
that local teams can do which don't require you worrying about these
issues in the first place. That's the main reason as I understand it
why we don't recommend that local teams worry about these issues. But
on the evidence of this thread, it may be worth the Community Council
considering this issue again because it rather sounds like you're not
going to take no for an answer.

It goes without saying that anything in this email shouldn't be taken
as legal advice - if you want legal advice, then go and get it.
However, my personal advice is to save yourself the time and go and
have some fun with Ubuntu.

-- 
Matthew East
http://www.mdke.org
gnupg pub 1024D/0E6B06FF