Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker (artshacker.com) website where I focus on topics related to boards, law, governance, policy and practice. I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/) My most recent role was as Executive Director of the Grand Opera House in Macon, GA. Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.

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Stuff To Ponder: Do Foundation Boards Value Non-Profit Values?

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There was an article on the Center for Effective Philanthropy’s (CEP) website in April that I felt started to give me some insight into why it seems that foundations and non profits often aren’t in synch with each other’s needs.

CEP President Phil Buchanan writes about research he and research analyst An-Li Herring did on the backgrounds of the CEOs of the top 100 Foundations. I was actually surprised to find that 60 of 100 came from outside foundations. Of those that came from foundations, only 21 were promoted internally from the foundation ranks. Seven had come from another foundation, four of them were already CEOs of those foundations, three of those four had come from outside philanthropy.

That seems like an exceptionally small number of people with philanthropy experience leading foundations.

The profile of the 60 CEOs from outside foundations broke down like this:

Twenty-seven had experience in the nonprofit sector broadly defined:

Those who ran operating nonprofits (not including institutions of higher education) number 14.

Those whose experience was in higher education, typically as a college president or dean, number 13.

Seventeen came directly from a role in business.

The remaining 16 CEOs who came from outside the world of organized philanthropy had positions in government, law, or other domains.

Since boards and CEOs set the tone and operational philosophy of the foundation, this can have a lot of influence on the manner in which they interact with non profits and the criteria they set for funding. After reading the article, I started to wonder if foundations have contributed to the pressure for non-profits to run themselves more like a business. I have never argued that operational discipline isn’t important for non profits, but they are quite different from for-profit entities.

Some observations Buchanan makes:

Second, foundation boards don’t much value experience at other foundations. Again, perhaps a focus on leadership development within philanthropy will change that, but moving from being a Vice President at Foundation A to CEO of Foundation B happens only very rarely (at least at the largest 100).

Third, experience as a grantee, if you exclude colleges and universities (which I’d argue are a different animal) isn’t much valued by most foundation boards when they’re searching for a CEO. It’s striking that there are more foundation CEOs who came to the position from a job in the corporate world than a job running a nonprofit (again, excluding colleges and universities).
[..]
All that said, I’d still argue that boards might want to prize operating nonprofit experience more highly than they apparently do. Leaders who have experienced the pressure to meet payroll with no endowment to fall back on, and have felt what it’s like to be on the other side of the table from foundations, bring something important. They come to the role with a hard-earned understanding of the challenges of doing the on-the-ground work foundations fund – and of what nonprofits really need from their funders.

After reading these findings, I wondered what it is exactly foundations value in CEOs if it isn’t experience, empathy and knowledge about the sector the foundation serves. Buchanan also makes an “if it ain’t broke” argument in support of foundation boards looking to promote internally rather than introducing a potentially disruptive element.

Having read the piece I am really curious to know if external hires are generally more effective than internal hires or not.

It would also be interesting to learn if non-profits would give the highest marks to their relationships with organizations lead by CEOs with a long career in philanthropy. Likewise, it would be interesting to know if foundations would give the highest marks/most support to non-profits whose practices/values are similar to those of the CEO’s past industry.

Info You Can Use: Let Me Take Vacation, Or You’re Gonna Pay!

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Hat tip to Non Profit Law blogger Emily Chan for providing a link to an article on a subject near and dear to my heart — vacation time.

There are some problems non-profits can run into regarding vacation and over time pay, but reading further is only necessary if people in your organization work a lot of overtime and don’t take all their vacation.

Hmm, nobody clicked away.

I wasn’t entirely joking when I said problems related to the accrual of vacation and over time were near and dear to my heart. Putting aside the number of vacation and comp time days I forfeited last year, I am regularly told about the guy who retired and wiped out most of the next season’s budget.

That is one of the hazards covered in the piece on Olive Grove Consulting’s blog. While most of the laws discussed are specific to California, there is a pretty good chance your state has similar labor laws.

For instance, in relation to accruing a lot of vacation time:

One law that often catches employers off guard is California’s requirement that employees be paid all vested vacation wages at the time of termination. As a result, an organization should ensure that it has sufficient reserves to pay out all accrued vacation. If an organization has a vacation policy that does not cap the amount of vacation an employee may accrue – and if employees do not regularly draw down their balances by taking vacation – then, the potential liability on the organization’s books can become significant.

California law prohibits employers from adopting “use-it-or-lose-it” vacation policies where vacation is forfeited if an employee does not take it. But, employers are permitted to place a reasonable cap on the amount of vacation that an employee may accrue. Thus, for example, if an organization allows employees to take 80 hours of vacation per year, the organization may cap the maximum vacation accrual amount at 140 hours. That way, even if some employees do not regularly take vacation, they will never accrue more than 140 hours, which will allow the organization to avoid having a significant amount of vacation liability on its books. To do this effectively, the organization must clearly articulate its vacation policy, including all applicable caps, in its handbook or in a stand-alone vacation policy.

Note: I edited answers for two question on this topic together. Also, my emphasis- Joe

The article also covers over time pay and discusses the California definition of employees who may be classified as exempt. This definition, which is very close to the federal definition, is based on spending more than 50% of your time performing certain types of duties or belonging to certain learned professions like lawyers, doctors, accountants (but not bookkeepers), clergy, registered nurses (but not LPNs).

Creative and artistic professions are considered exempt. The Olive Grove blog doesn’t expound, but the federal Fair Labor Standards Act says that:

Some employees may also perform “creative professional” job duties which are exempt. This classification applies to jobs such as actors, musicians, composers, writers, cartoonists, and some journalists. It is meant to cover employees in these kinds of jobs whose work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis.

So even if your imagination is working over time, you won’t get paid extra for it.

The Olive Grove blog also has some informative material about laws regarding comp time in lieu of pay, disciplining employees who do not record their over time and whether a non-profit can consider over time to be volunteer work.

Just in case you like the idea of voluntary over time but don’t read the article, let me just tell you–DON’T DO IT!

“However, the DOL (U.S. Dept of Labor) also takes the position that individuals may not “volunteer” to perform work for their employer that is the same as or similar to their normal work duties. Instead, this is compensable work time. The DOL is also likely to take this same position regarding time an employee spends performing dissimilar services, if those services occur at the employer’s request, under its direction or control, or during the employee’s normal working hours.”

Again, because the laws of your locality may vary from these, just take this information as a guide to the sort of questions you should be asking about labor laws in your state

Stuff To Ponder: Is Too Much Money Being Left On The Table?

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Though I have written about dynamic pricing, I have generally been a little resistant to the idea of implementing that sort of pricing because I feel having a clear and simple pricing is part of an arts organization’s relationship with a community. Or rather, having a complicated one can be a barrier to attendance and also generate a negative association with the organization.

But I have been reading some things recently that make me wonder about that.

JCPenny’s attempt to sell everything at an everyday low price that reflects the value of the product has apparently backfired on them.

According to a piece on MSNBC’s website:

Consumers complain about this constantly. That’s the basis of the Red Tape Chronicles in fact. At its best, the maddening mixture of coupons, rebates, sales and fine print fees can feel like a game. At worst, it’s being cheated. You’d think shoppers would love a chance to buy from a store that doesn’t play these games, the way car buyers (allegedly) like shopping at no-haggle auto dealerships.

[…]

To oversimplify for a moment, here’s Penney’s problem. They told the world that retailers only offer their best prices during crazy sales, and Penney stores would no longer host them. Sensible consumers apparently took that information to heart and decided to simply wait for such sales at other stores. As an added benefit, Penney lowered consumers’ search costs, because they now knew they didn’t need to bother driving to a Penney’s store anymore.

[…]

Shrouding isn’t the only reason Penney’s pricing plan is flawed. The firm is also leaving a lot of money on the table by rejecting a phenomenon known as “price discrimination.” Some people have more money than time, and some have more time than money. Some shoppers don’t mind spending hours to save $20; others would gladly give a store $20 to escape quickly. Smart retailers get money from both. By killing couponing, Penney has eliminated its ability to satisfy price discriminators.

And as others have pointed out, markdowns serve the age-old retailing trick of “anchoring.” For some reason, even very smart consumers feel better paying $60 for something if you initially tell them it costs $100, and then reduce the price.

Right around the same time this article came out, Colleen Dilenschneider on the Know Your Own Bone blog wrote about why offering discounts through services like Groupon is a bad idea for non-profits. The two reasons she gave?

“1) Your community expects more discounts, 2) Perhaps more importantly, your community waits for discounts”

Since MSNBC pretty much confirms what Colleen claims, I started to wonder if maybe arts organizations are fools not to double the prices and then offer 50% off coupons through social media.

Yeah, I know it is cynical and believe me, I still don’t want to get into doing anything resembling this. But I do everyone a disservice if I don’t explore the option.

Are arts organizations being responsible if they leave money on the table by not recognizing some people will pay more for the privilege of getting the transaction over quickly? If you effectively charge what you perceive to be the true value of your product by doubling the price in order to take advantage of consumer inability to pass up a 50% off coupon, are you really cheating your audience? (In other words, intend to sell tickets at $25 by pricing them at $50 and then flooding the market with half off coupons.)

One thing of course, I need to point out is that price does not develop loyalty. You can not develop a relationship with your community if interactions with your organization are based on price. I stated that in the early days of this blog and as Dilenschneider notes this is true even in these days of social media:

“It is far better for your brand and bottom line to have 100 fans who share and interact with your content to create a meaningful relationship, than to have 1,000 fans who never share your message and liked you just for the discount.”

Dilenschneider also points to some data that there are diminishing returns from social media discounts. This may illustrate be where arts organizations and retailers differ. Retailers can offer myriad discounts annually and not suffer, but arts and cultural organizations offer a product valued entirely differently from that of retailers

But lets assume that the current discounting model doesn’t work well for non-profits because it is really designed for the needs of retailers and that a discount offered in an alternative manner might prove more effective. Should we be researching alternative discount structures in order to more effectively generate revenue given that the future of donations and grants looks precarious?

Questions like this get into the core philosophy about the organization’s existence. Is the purpose to preserve and perpetuate the organization so it can continue to do good work? Or was the focus on providing the art in an affordable manner and the inability to do so is a sign that the organization should transition toward closure?

Still More On Crowdfunding Start Up Arts Orgs

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If you have been reading my blog regularly over the last few months, you know I have been keeping an eye on the possibility of the crowd funding elements of the recently passed JOBS Act replacing non profit status as a viable method of creating and sustaining an arts organization.

If you haven’t been reading that long, well harken back to my original musings on the subject as well as some more recent musings with links to information on the implications of the law as passed.

Hat tip to Charity Lawyer Blog’s Ellis Carter (whom I have previously incorrectly identified as male. Sorry about that Ellis) for her link to a piece on Startup Company Law Blog about the problems with the law.

Author Joe Wallin confirms many of the general suspicions I had about the costs of compliance probably being overly burdensome given the $1 million limit.

One thing that surprised me was that the law actually prohibits start ups from the “do it yourself” approach which I have always assumed to be a hallmark of start ups.

3) The Law Forces Companies To Use Intermediaries

The law forces startups to use intermediaries to raise the funds. This is fundamentally different from what typically happens with startups. Most startups raise funds without the help of intermediaries. In fact, this is the prevailing norm for startup companies. The typical advice to a startup is–don’t use an intermediary! Founders, do it yourself!

 But here the law forces companies into the arms of either registered broker-dealers or registered funding portals. These entities are subject to numerous requirements, and their compliance with those requirements will make the process much more difficult and costly for companies.

Maybe arts organizations with their bare bones mentality about providing a product might make it work within the restriction, but the whole point of pursuing an alternative to the non profit business model is to adopt an alternative approach and mindset about providing cultural experiences. (a.k.a. ramen isn’t a default food group for artists.) Though it will probably bring it own attendant problems, success might be measured by how diversely arts and cultural organizations manifest after phasing away from non-profit status.

At the end of his post, Wallin suggests Congress go back and make some changes to the law to allow start ups to proliferate more easily. I am sure there is still plenty of opportunity for successful crowd funded start ups within the law. If it isn’t changed before that, perhaps the successes will lend credence to the idea this can be a viable path for entrepreneurs, moreso with a few changes.