[Chapter-delegates] Follow-up on Chapters Advisory Council Meeting of 17 September 2024

Mon Oct 28 05:20:02 PDT 2024

Thanks, Ilona - you explained it with more precision than I could.

v

On Mon, Oct 28, 2024 at 8:13 AM Ilona Levine via Chapter-delegates <
chapter-delegates at elists.isoc.org> wrote:

> Hi Judith,
>
>
>
> The request seeking services agreement is based on the assumption that the
> relationship between the two organization is of the vendor type.  As I
> mentioned in my emails of September 20, September 23 and October 10,
> the Foundation, instead, is a subsidiary of ISOC, not a third-party service
> provider or outside contractor.  So, ISOC is not “outsourcing” to the
> Foundation but instead, the two entities cooperate to achieve the mission
> of the Internet Society.
>
>
>
> In other words, that relationship is based on the US federal tax law, not
> a set of service agreements.  Here are some additional legal documents that
> expand on that principle:
>
>    - The Foundation’s articles of incorporation: Articles of Incorporation
>    <https://www.isocfoundation.org/wp-content/uploads/2020/04/Foundation-Articles-of-Incorporation.pdf?_gl=1*1t6uwq3*_up*MQ..*_ga*NjczNzE1NzcxLjE3Mjk3ODQ2OTI.*_ga_BQY6ZNFJLB*MTcyOTc4NDY5MC4xLjEuMTcyOTc4NDcxMy4wLjAuMA..>.
>    Article SECOND of the Articles of Incorporation provides that the Internet
>    Society is the sole member the Foundation. Article THIRD provides that the
>    Foundation is organized for the benefit of, or to conduct or carryout the
>    purposes of, the Internet Society.
>    - The Foundation’s IRS Determination Letter, which designates the
>    Foundation as a Type I Supporting Organization based on the Foundation’s
>    Articles of Incorporation: IRS Determination Letter
>    <https://www.isocfoundation.org/wp-content/uploads/2020/04/Foundation-Determination-Letter.pdf>
>    - *Foundation's* Bylaws
>    <https://www.isocfoundation.org/board-of-trustees/governance/by-laws/> might
>    also helpful.
>
>
>
> Similarly, for ISOC:
>
> Articles of Incorporation
> <https://www.internetsociety.org/about-internet-society/governance-policies/articles-of-incorporation/>
>
> Bylaws
> <https://www.internetsociety.org/about-internet-society/governance-policies/by-laws/>
>
>
>
> On the agreements side, the email of September 23 references the agreement
> in place since July 1, 2018 between the Foundation and Internet Society.
> The name of the agreement: Facilities and Services Agreement. Description:
> how the two organizations may share some employees and the use of space on
> a cost reimbursement basis as needed.
>
>
>
> Best,
>
> Ilona
>
>
>
> *Ilona Levine,* SVP, General Counsel and Corporate Secretary
>
> levine at isoc.org|
> internetsociety.org | @internetsociety
>
> Donate today. <https://bit.ly/3nUsQmJ>
>
> *Help protect the Internet for everyone.*
>
>
>
> [image:
> https://backchannel.internetsociety.org/wp-content/uploads/2020/01/image001.png]
>
> This communication is the property of the Internet Society and may contain
> confidential or privileged information.  Unauthorized use of this
> communication is strictly prohibited.  If you have received it in error,
> please notify the sender by reply e-mail and destroy all copies of the
> communication and any attachments.
>
>
>
>
>
>
>
> *From: *Judith Hellerstein <judith at jhellerstein.com>
> *Date: *Sunday, October 27, 2024 at 8:27 PM
> *To: *Ilona Levine <levine at isoc.org>
> *Cc: *Olivier MJ Crépin-Leblond <ocl at gih.com>, Ted IETF <
> ted.ietf at gmail.com>, Chapter Delegates <chapter-delegates at elists.isoc.org>
> *Subject: *Re: [Chapter-delegates] Follow-up on Chapters Advisory Council
> Meeting of 17 September 2024
>
>
>
> Hi Ilona,
>
> In Chris’s response there were no documents sent. He just talked about the
> communications plan.  What Olivier is seeking is documents that set out the
> rules for engagement between the foundation and the ISOC HQ
>
> As Olivier states, Supporting Organisation and the Supported Organisation
> is formalised by a set of service agreements since the two organisations
> remain legally distinct.
>
>
>
> It is these documents we are seeking.  We are not seeking the
> communications plan but these specific legal documents that are connecting
> the two groups.
>
>
>
> I have not seen these either neither in your emails or in Chris’s and so I
> support Olivier’s request
>
>
>
> Best,
>
>
>
> Judith Hellerstein
>
> Chapter Advisory Representative from ISOC DC
>
> Sent from my iPad
>
> judith at jhellerstein.com
>
> Skype ID:JudithHellerstein
>
>
>
> On Oct 27, 2024, at 11:28 AM, Ilona Levine via Chapter-delegates <
> chapter-delegates at elists.isoc.org> wrote:
>
> Hello Olivier,
>
>
>
> To address your concern that you have not received any response from me on
> the matters you have raised, I refer you to the emails dated 20 September,
> 23 September, and 10 October. They contain information necessary to assist
> you and ChAC, if needed, in the meeting with Chris next week.
>
>
>
> Best,
>
> Ilona
>
>
>
> *Ilona Levine,* General Counsel and Corporate Secretary
>
> levine at isoc.org|
> internetsociety.org | @internetsociety
>
> Donate today. <https://bit.ly/3nUsQmJ>
>
> *Help protect the Internet for everyone.*
>
>
>
> <image001.png>
>
> This communication is the property of the Internet Society and may contain
> confidential or privileged information.  Unauthorized use of this
> communication is strictly prohibited.  If you have received it in error,
> please notify the sender by reply e-mail and destroy all copies of the
> communication and any attachments.
>
>
>
>
>
>
>
>
>
> *From: *Olivier MJ Crépin-Leblond <ocl at gih.com>
> *Date: *Thursday, October 24, 2024 at 10:24 AM
> *To: *Ilona Levine <levine at isoc.org>, Ted IETF <ted.ietf at gmail.com>
> *Cc: *Chapter Delegates <Chapter-delegates at elists.isoc.org>, Sally
> Wentworth <wentworth at isoc.org>
> *Subject: *Re: Follow-up on Chapters Advisory Council Meeting of 17
> September 2024
>
>
>
> Dear Ilona,
>
> referring to my email below, I note with concern that I appear to have not
> received any response from you on the matters I raised. Having mentioned in
> your email dated 8 October 2024 that "*All necessary legal documents,
> including agreements, have been put in place to respect the separate nature
> of the two organizations." *, I am yet to have seen any of these
> documents which you mentioned. Please be so kind to share them or if this
> is not possible, even in a redacted manner, then please provide a list of
> the agreements to which you refer, including the date of the agreement, the
> name of the agreement, the signatory parties, and a brief description of
> each agreement.
>
> I reiterate the differentiation between a "supporting organisation" and a
> "merged organisation", which are not legally the same. Supporting
> organisations require, under Company Law, that the link between the
> Supporting Organisation and the Supported Organisation is formalised by a
> set of service agreements since the two organisations remain legally
> distinct.
>
> I look forward to your prompt response.
>
> Kindest regards,
>
> Olivier Crépin-Leblond
>
>
> On 15/10/2024 10:56, Olivier MJ Crépin-Leblond wrote:
>
> Dear Ilona,
>
> thank you for your email dated 10 October 2024.
>
> I am disappointed to note that you have still not provided a response with
> the information requested in my emails appended in the email thread below.
> You will note the extract below from my email dated 8 October 2024:
>
> QUOTE:
> "Responding to your note: "*All necessary legal documents, including
> agreements, have been put in place to respect the separate nature of the
> two organizations.*
>
> All I am asking is for them to be shared. If that is not possible, even in
> a redacted manner, for whatever reason, then please provide a list of the
> agreements to which you refer, including the date of the agreement, the
> name of the agreement, the signatory parties, and a brief description of
> each agreement."
>
> I reiterate this request and would be grateful if you could provide the
> information requested without further delay.
>
> I very much appreciate (and draw your attention to) the input and support
> for this information request from my fellow "Chapter Delegates".
>
> As a reminder, in U.S. company law, a "supporting organisation" and a
> "merged organisation" are not legally the same.
>
> I am pleased that we all appear to agree that the Internet Society
> Foundation is formally a "Section 509(a)(3) Supporting Organisation" under
> United States Non Profit Tax Law.
> The information from the IRS links below provide helpful "Official
> Guidance":
>
>
> https://www.irs.gov/charities-non-profits/section-509a3-supporting-organizations
>
> https://www.irs.gov/charities-non-profits/charitable-organizations/supporting-organizations-requirements-and-types
>
> I look forward to your prompt response.
>
> Kindest regards,
>
> Olivier Crépin-Leblond
>
>
> On 10/10/2024 17:04, Ilona Levine wrote:
>
> Hi Olivier,
>
>
>
> Thank you for your follow up email. I think the use of the term
> "outsourcing" in the email below might have caused some confusion.  You
> mentioned you are familiar with the “supporting organizations” and how they
> operate, but it might also be helpful for me to provide some additional
> background for others.
>
> As you know, the relationship between supporting and supported
> organizations is not a vendor or contractor relationship. Though
> the Foundation is a separate corporation, it is a controlled subsidiary of
> ISOC, not a third-party service provider or outside contractor.  So ISOC is
> not “outsourcing” to the Foundation but instead, the two entities cooperate
> to achieve the mission of the Internet Society.  In other words, as a
> supporting organization, the Foundation’s purpose is to operate for the
> benefit of, and to support, ISOC. In furtherance of that purpose, the
> Foundation conducts programs and activities that benefit ISOC and furthers
> ISOC’s mission. For example, the Foundation engages in communications
> activities at the direction of and to the benefit of ISOC.
>
>
>
> As you also know based on your extensive experience with nonprofits, the
> Internet Society Board develops the overall strategy for ISOC. Internet
> Society management then develops its action plan and in turn, works with
> the Foundation to ensure that it, as a supporting organization, provides
> the support necessary to achieve ISOC’s goals. The Foundation does that
> through its own action plan, which sets out objectives for all of its
> functions, including the communications function.  So the Board sets the
> strategy, Internet Society management creates the action plans, and the
> Foundation management allocates resources to support those plans as
> necessary.
>
>
>
> After the approval of the 2025 action plans, ISOC will share them with the
> community.  As discussed earlier, part of that will be Chris presenting to
> this community how the communications group will be tackling its work in
> the upcoming year.
>
>
>
> Best regards,
>
> Ilona
>
>
>
> *From: *Olivier MJ Crépin-Leblond <ocl at gih.com> <ocl at gih.com>
> *Date: *Tuesday, October 8, 2024 at 8:47 AM
> *To: *Ilona Levine <levine at isoc.org> <levine at isoc.org>, Ted IETF
> <ted.ietf at gmail.com> <ted.ietf at gmail.com>
> *Cc: *Chapter Delegates <Chapter-delegates at elists.isoc.org>
> <Chapter-delegates at elists.isoc.org>, Sally Wentworth <wentworth at isoc.org>
> <wentworth at isoc.org>
> *Subject: *Re: Follow-up on Chapters Advisory Council Meeting of 17
> September 2024
>
>
>
> Dear Ilona,
>
> Further to our discussion two weeks ago regarding the definition of the
> relationship between the Internet Society and the Internet Society
> Foundation, in the absence of your response, I wish to reiterate the need
> for a clear outsourcing agreement between these entities. It is recognised
> as good business practice internationally to establish such agreements to
> delineate respective liabilities in the execution of these contracts.
>
> Responding to your note: "*All necessary legal documents, including
> agreements, have been put in place to respect the separate nature of the
> two organizations.*"
>
> All I am asking is for them to be shared. If that is not possible, even in
> a redacted manner, for whatever reason, then please provide a list of the
> agreements to which you refer, including the date of the agreement, the
> name of the agreement, the signatory parties, and a brief description of
> each agreement.
>
> Looking forward to your prompt response.
>
> Kindest regards,
>
> Olivier Crépin-Leblond
>
>
>
>
> On 24/09/2024 17:22, Olivier MJ Crépin-Leblond wrote:
>
> Dear Ilona,
>
> Many thanks for your follow-up.
>
> The thread may not have come all through. During the Chapter Advisory
> Council call, Ted mentioned the transfer of some responsibilities in
> relation to Communications from the Internet Society to the Internet
> Society Foundation. My initial question to Ted was in regards to the
> outsourcing agreement as follows:
>
>
>
> *"I was previously unaware of this change. Although the Internet Society
> Foundation may have been designated by the Internet Society as a
> "supporting organisation" of the Internet Society, it remains a distinct
> and separate legal entity. Therefore, I assume that any "outsourcing" of
> responsibilities such as Marketing and/or Communications would be defined
> in a written "contract for services" between the Parties setting out
> (inter-alia) the terms, rights, and obligations of each Party. Could you
> please provide the terms for such an agreement and any limitations therein?
> My principal concern lies in distinguishing between executing the
> Communications Plan and drafting the Communications Plan. These are
> fundamentally different tasks and would undoubtedly be included in the
> "contract for services"".*
>
> The top level responsibility of the strategy of the Internet Society
> remains within the Internet Society. I find it surprising that an
> outsourcing entity would be able to dictate that strategy without it being
> agreed by the Internet Society itself.
> The Internet Society has the opportunity to outsource the execution of its
> Communications Plan to a supporting organisation on the basis of terms and
> conditions agreed between the parties. This requires outsourcing
> agreement(s) in order to know where the boundaries and responsibilities are
> between the two organisations, including their respective liabilities in
> the execution of these agreement(s).
>
> For example:
>
>
>
>
> Key Components of an Outsourcing Communications Agreement
>
>    1. *Introduction and Definitions*:
>
>
>    1. Clearly define the parties involved.
>       2. Provide definitions for key terms used throughout the agreement.
>
>
>    2. *Scope of Services*:
>
>
>    1. Detail the specific services to be outsourced.
>       2. Include service level agreements (SLAs) to set performance
>       standards.
>
>
>    3. *Term and Termination*:
>
>
>    1. Specify the duration of the agreement.
>       2. Outline conditions for termination by either party.
>
>
>    4. *Pricing and Payment Terms*:
>
>
>    1. Define the pricing structure and payment schedule.
>       2. Include any penalties for late payments or performance failures.
>
>
>    5. *Confidentiality and Data Protection*:
>
>
>    1. Ensure compliance with data protection laws.
>       2. Include confidentiality clauses to protect sensitive information.
>
>
>    6. *Intellectual Property Rights*:
>
>
>    1. Clarify the ownership of any intellectual property created during
>       the agreement.
>
>
>    7. *Warranties and Liability*:
>
>
>    1. Outline the warranties provided by the service provider.
>       2. Define the liability limits for both parties.
>
>
>    8. *Monitoring and Reporting*:
>
>
>    1. Establish how performance will be monitored and reported.
>       2. Include provisions for regular review meetings.
>
>
>    9. *Dispute Resolution*:
>
>
>    1. Specify the process for resolving disputes.
>       2. Include mediation or arbitration clauses if applicable.
>
>
>    10. *Exit Management*:
>
>
>    1. Plan for the transition of services back to the company or to
>       another provider.
>       2. Include provisions for the transfer of data and assets.
>
>
>
> I trust that you mentioned: "All necessary legal documents, including
> agreements, have been put in place to respect the separate nature of the
> two organizations."
> Thus I would be interested in its details as explained in my email.
>
> Kindest regards,
>
> Olivier
>
>
>
> On 23/09/2024 18:36, Ilona Levine wrote:
>
> Dear Olivier,
>
> I understand that the nature of your request is to assist the Chapters
> Advisory Council and Chris Locke in preparation to his session on the
> communication plan. The agreement in place since 2018 between the
> Foundation and Internet Society focuses on the legal obligations in line
> with the Foundation's role as a 509(a)(3) and therefore, won’t be useful
> for that purpose.
>
> Best regards,
>
> Ilona
>
>
>
> *From: *Olivier MJ Crépin-Leblond <ocl at gih.com> <ocl at gih.com>
> *Date: *Sunday, September 22, 2024 at 8:52 AM
> *To: *Ilona Levine <levine at isoc.org> <levine at isoc.org>, Ted IETF
> <ted.ietf at gmail.com> <ted.ietf at gmail.com>
> *Cc: *Chapter Delegates <Chapter-delegates at elists.isoc.org>
> <Chapter-delegates at elists.isoc.org>, Sally Wentworth <wentworth at isoc.org>
> <wentworth at isoc.org>
> *Subject: *Re: Follow-up on Chapters Advisory Council Meeting of 17
> September 2024
>
>
>
> Dear Ilona,
>
> thank you for clarifying that all necessary legal documents, including
> agreements, have been duly executed to respect the separate nature of the
> two organisations.
>
> I am aware of the publication of the original IETF Administration LLC
> agreements with the Internet Society, specifically:
> IETF-ISOC Funding Agreement (2020)
> <https://www.ietf.org/media/documents/IETF_Funding_Agreement_-_Executed_-_20201123.pdf>
> IETF-ISOC Funding Agreement Amendment (2020)
> <https://www.ietf.org/media/documents/IETF_ISOC_Funding_Amendment_Amendment_-_20201222.pdf>
> IETF-ISOC Funding Agreement Amended and Restated (2024)
> <https://www.ietf.org/media/documents/ISOC-IETF_Amended_Funding_Agreement_-_20240103_-_Redacted_Executed.pdf>
>
> These documents are accessible on the IETF Administration LLC’s website at
> https://www.ietf.org/administration/overview/.
>
> Could you kindly confirm whether the agreements between the Foundation and
> the Internet Society are also publicly available? I have been unable to
> locate them on either website.
>
> I would appreciate it if you could provide a list of the agreements to
> which you refer, including the date of the agreement, the name of the
> agreement, the signatory parties, and a brief description of each agreement.
>
> I look forward to your kind response.
>
> Kindest regards,
>
> Olivier
>
>
>
>
> On 20/09/2024 19:48, Ilona Levine wrote:
>
> Hi Olivier, thank you for your follow up email.  You noted that you are
> aware of the tax requirements that apply to supporting organizations.
> Mainly, those requirements relate to supporting the mission of its
> supported entities.  In this case, the Internet Society.
>
>
>
> As part of that support, the Foundation provides grants to other
> organizations that have missions consistent with the Internet Society’s in
> order to fund programs that further the Internet Society’s purposes. The
> Foundation also engages in activities that support Internet Society
> directly. For example, the Foundation engages in fundraising and
> communication activities for the benefit of the Internet Society.
>
>
>
> As you also pointed out, the Foundation is a separate legal entity.  It is
> a controlled subsidiary of Internet Society.  All necessary legal
> documents, including agreements, have been put in place to respect the
> separate nature of the two organizations.
>
>
>
> I trust this answers your question.
>
>
>
> Best regards,
>
> Ilona
>
>
>
> *Ilona Levine,* SVP, General Counsel and Corporate Secretary
>
> levine at isoc.org|
> internetsociety.org | @internetsociety
>
> Donate today. <https://bit.ly/3nUsQmJ>
>
> *Help protect the Internet for everyone.*
>
>
>
> <image002.png>
>
> This communication is the property of the Internet Society and may contain
> confidential or privileged information.  Unauthorized use of this
> communication is strictly prohibited.  If you have received it in error,
> please notify the sender by reply e-mail and destroy all copies of the
> communication and any attachments.
>
>
>
>
>
>
>
> *From: *Olivier MJ Crépin-Leblond <ocl at gih.com> <ocl at gih.com>
> *Date: *Friday, September 20, 2024 at 11:38 AM
> *To: *Ted IETF <ted.ietf at gmail.com> <ted.ietf at gmail.com>, Ilona Levine
> <levine at isoc.org> <levine at isoc.org>
> *Cc: *Chapter Delegates <Chapter-delegates at elists.isoc.org>
> <Chapter-delegates at elists.isoc.org>, Sally Wentworth <wentworth at isoc.org>
> <wentworth at isoc.org>
> *Subject: *Re: Follow-up on Chapters Advisory Council Meeting of 17
> September 2024
>
>
>
> Dear Ted,
>
> thank you for your follow-up on this matter. I am aware of the special tax
> terms in relation to "supporting organisations".
>
> That being said, the Internet Society Foundation is a distinct and
> separate legal entity to the Internet Society, irrespective of the
> relationship between them. As a result, any outsourcing task undertaken by
> one, for the other entity, would be defined in a contract, whether written,
> verbal or otherwise. If not, there is a lack of clarity and expectations
> about the relationship, which brings potential liability and risk that both
> entities are subjected to, in relation to the other's actions. Any lawyer
> would tell you that it is highly advisable to have a written contract, if
> only for legal protection.
>
> Thanks for letting me know that you are travelling. I am copying President
> and CEO Sally Wentworth in case you're unavailable for a length of time.
>
> Kindest regards,
>
> Olivier
>
> On 20/09/2024 13:12, Ted Hardie wrote:
>
> Hi Olivier,
>
>
>
> A supporting organization is a term of art in US tax law, please see:
>
>
>
>
> https://www.irs.gov/charities-non-profits/charitable-organizations/supporting-organizations-requirements-and-types
>
>
>
> and
>
>
>
>
> https://www.irs.gov/charities-non-profits/section-509a3-supporting-organizations
>
>
>
> Explaining how the two relate is complicated enough that there are legal
> briefs on it; I have cc'ed the Society's chief counsel in case you would
> like that level of detail.  The summary, however, is that a supporting
> organization is a charity because it supports the charitable purpose of the
> main organization.  As a result, it can provide services to the main
> organization under the special tax rules noted above.
>
>
>
> Note that I am traveling and will generally be slow to respond for a few
> days, but hopefully the links above will get you started and Ilona can
> provide more detailed legal information as needed.
>
>
>
> regards,
>
>
>
> Ted Hardie
>
>
>
>
>
> On Fri, Sep 20, 2024 at 6:24 AM Olivier MJ Crépin-Leblond <ocl at gih.com>
> wrote:
>
> Dear Ted,
>
>
> During this week’s Chapters Advisory Council call, you mentioned that the
> Internet Society Foundation, as a "supporting organisation" of the Internet
> Society, is managing the communications department for the Internet
> Society.
>
> Upon seeking clarification, you explained that the Internet Society
> Foundation comprises two elements: one philanthropic (grant-making) and the
> other as a "supporting organisation" of the Internet Society. "This implies
> that many of the supporting functions for the Internet Society as a whole
> are now part of the Foundation, primarily because the Foundation can
> provide these services to the Internet Society at no cost".
>
> You further elaborated that this "arrangement" allows the Internet Society
> to allocate its budget more effectively.
>
> I was previously unaware of this change. Although the Internet Society
> Foundation may have been designated by the Internet Society as a
> "supporting organisation" of the Internet Society, it remains a distinct
> and separate legal entity. Therefore, I assume that any "outsourcing" of
> responsibilities such as Marketing and/or Communications would be defined
> in a written "contract for services" between the Parties setting out
> (inter-alia) the terms, rights, and obligations of each Party. Could you
> please provide the terms for such an agreement and any limitations therein?
>
> My principal concern lies in distinguishing between executing the
> Communications Plan and drafting the Communications Plan. These are
> fundamentally different tasks and would undoubtedly be included in the
> "contract for services".
>
> The "contract for services" (together with any relevant supporting
> information) will be helpful input for both the Chapters Advisory Council
> and also for Chris Locke and his Team (including for the current "branding"
> presentations) in preparation for the promised session from Chris Locke to
> the Chapters Advisory Council.
>
> I look forward to your response and to receiving a copy of the "contract
> for services" agreement, together with any relevant supporting information
> as requested above.
>
> Kindest regards,
>
> Olivier
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> _______________________________________________
> As an Internet Society Chapter Officer you are automatically subscribed
> to this list, which is regularly synchronized with the Internet Society
> Chapter Portal (AMS): https://community.internetsociety.org.
> -
> View the Internet Society Code of Conduct:
> https://www.internetsociety.org/become-a-member/code-of-conduct/
>
> _______________________________________________
> As an Internet Society Chapter Officer you are automatically subscribed
> to this list, which is regularly synchronized with the Internet Society
> Chapter Portal (AMS): https://community.internetsociety.org.
> -
> View the Internet Society Code of Conduct:
> https://www.internetsociety.org/become-a-member/code-of-conduct/
>
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