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Info You Can Use: Legal Tips

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A couple weeks ago, Gene Takagi of the Non-Profit Law Blog made a post cautioning lawyers about issues to consider when representing a nonprofit.

As you might imagine, every one of his tips were important for members of a non-profit board and leadership to know as well. Some of his traps and tips are frequent points of conversation in the non-profit arts community: don’t write a mission statement that is too restrictive; be sure you have a viable business plan and don’t assume non-profit status is your only option; boards members should be aware they have a very real governance role; non-profit doesn’t mean tax-exempt or no-profit; all overhead is not bad; get board and directors insurance.

There were also some topics that are less frequently discussed:

Traps
1. Failing to inform the client at the outset of representation that you represent the organization and not any individual directors or officers.

4. Including “non-voting directors” in the organization’s bylaws (under most states’ laws, there is no such thing as a “non-voting director” and, subject to very limited exceptions, each director has the right to vote on all matters before the board).

5. Providing in the bylaws that the board of directors may combine in-person votes at a meeting with email votes to take board actions.

6. Reinforcing the myth that nonprofits should always minimize overhead expenses (even at the expense of building an appropriate foundation on which to build the organization’s operations).

7. Failing to inform the client about the differences among volunteers, independent contractors, and employees, and the risks of misapplying these classifications.

10. Failing to discuss with the client the benefits of having organizational policies that address the legal and management implications of conflicts of interest, proper gift receipts, misuse of social media, expense reimbursements, acceptance of noncash gifts, document retention/destruction, and whistleblowers.

For me, that first one about the lawyer representing the organization and not you always strikes me as worth repeating. I have never had the ill-fortune of being in a situation where there was a even the whiff of legal action. However, when I am reviewing contract clauses that make me uneasy or am faced with a potentially contentious encounter, I will find myself thinking that the legal department will cover me if worse came to worse. Then I have to remind myself that in fact, they won’t necessarily have my back because they serve the interests of the organization, which may not include protecting me.

Point #5 about mixing in-person and email voting is a reference to a prohibition in California law. However, reading the rationale behind the illegality of such action, it seems reasonable to expect other states would have a similar restrictions.

Since I have heavily summarized his post, it is worth taking a look at everything Takagi cautions and advises for the legal health of a non-profit

Effectively Merging Non-Profits

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I apologize for missing my postings on Monday and Tuesday, I was away at a retreat to examine and discuss how to effectively merge the booking consortium to which I belong with the consortium that it spun off from. The meetings occurred in another part of the state and I didn’t have ready access to a computer and the time to write entries.

I use the phrase “effectively merge,” the same words we used throughout most of our discussions, because the truth is that an actual merger of two non-profits is a lengthy, involved and expensive process. What will happen in reality is that the one organization will be dissolved and its assets and members will be transferred to the other as is allowed by its founding documents. But in effect, it is a merger.

A good portion of the first day seemed to be spent composing the correct syntax for the required motions that would be made the next day at the annual meetings of both organizations to start this process. Since we already intended to rewrite our bylaws per the suggestions of an attorney we consulted, we were resolved to dedicate the next year to working on the rewrite. We also were determined to examine the organization and what we wanted it to be. As a consequence, both groups will remain in existence as separate entities for another year laboring jointly to define the bylaws and purpose of the combined organization.

Even though it is likely to be the most dry and boring, I joined the Governance and Membership Committee just for the experience of redefining the nuts and bolts of the organization. I figured it would make good material for blog posts if nothing else.

I also joined the Artistic Selection Committee. The other committees are Marketing/Sponsorship/Grants and Education. Among the things the committees are going to explore are what does it mean to be a member? What are the benefits of participation? Should membership be tiered to both allow casual partnerships with non-member groups and provide greater benefits to those who are more extensively involved.

We are going to examine how we go about selecting artists to present in the context of many different factors. Since we would like to pursue gaining sponsorships as a group and offer companies the opportunity to have exposure across the state, we will have to decide how the program is designed and the sponsored show is chosen. There is also the big issue of whether such arrangements will endanger relationships individual members had with these companies previously. Why sponsor shows at a single venue when you can do so across the entire state? On the other hand, perhaps your brand is diminished by having your name associated with theatres that serve a less elite clientele and you don’t want your ads appearing in their programs.

There are similar questions for the education area. A recent partnership resulted in an experience between schools, audiences and artists that could have yielded a more extensive interaction had the time and resources been available to exploit the situation. If these are the opportunities we want to pursue, where do the staff hours and other resources come from?

That brings us back to the work of the other committees exploring what it means to be a member and what sort of investment in the organization is needed to benefit from its efforts, including any packages put together to offer potential sponsors.

One of the desires stated this week was to expand the membership to include other arts organizations around the state. By redesigning the purpose of the organization a little, we hope to increase our relevance to other groups. They may only do a show once or twice a year, but they can find the process greatly facilitated by our expertise. I think there could be a reciprocal benefit. Perhaps connections the new groups have open up more churches and schools to chamber concerts and outreaches. (Or local artists and churches/schools became more aware of each other.)

So my question here at the end of the entry is this—has anyone had any experiences similar to this? I have to help generate bylaws and policies to guide this organization and it would be nice not to reinvent the wheel. Are you a member of a consortium or partnership between different arts organizations which works together to achieve certain goals?

I am looking more for an arrangement where all decisions and initiatives are generated and executed by the members rather than a situation like an arts council where the council works to advance the interests of the members. We operate as a board organization rather than a membership organization. Though I would be interested in learning about any multi-organizational partnership arrangement that diverges from everyone else does.

Funny Thing Happened While Revising Bylaws

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I was really surprised at some recent developments in my block booking consortium today. For about a year we have been scrutinizing our bylaws because people began to realize that practice was deviating from the specifics of the document. I had contributed some information on bylaws to the conversation based on material I wrote about in an earlier entry.

Since the last meeting a committee had met to discuss the bylaws. I wasn’t surprised to learn that people were leaning toward merging with the organization that “birthed” us. Most of the membership overlapped so we generally ended up having meetings together. The only defining difference between us were the genres of entertainment we booked. The discussion of merger brought up many technical questions that will require consulting a lawyer.

One of the interesting questions that arose was if we dissolved one organization and consolidated everyone into the other, could the funds of the dissolved organization be absorbed by the remaining organization. While non-profits’ assets are usually only transferable to other non-profits, an organization’s charter may specify where the assets should go if it ceases operation. Someone mentioned a group to which he belonged had stipulated the funds be split among some local music programs.

What surprised me was the amount of introspection that was occurring about the organizations. It turns out my experience as a member, that of a partnership to leverage our buying power and to collaborate on grants, is not the ideal upon which the groups were founded. There is a lot of history of which I am unaware. At one time there was a much greater focus on community education projects. And the membership was much larger. As coordinating tours started monopolizing greater amounts of time at meetings, the organizations became less relevant for many members and they started drifting away.

By the time the meeting ended, we decided to have a retreat prior to our annual meeting in May to examine the identity and purpose of the groups in addition to discussing whether they would merge or not. This was the last of my associations I expected to be organizing a retreat to contemplate its ideals. Everything has been very practical. Discussions have revolved around times, dates, hotel rooms needed, artistic fees and whether a group offered ed services.

Now people are questioning whether we can be a force for arts advocacy in our community.

I am starting to get a little excited about this planned retreat in May and what might develop.

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Butts In The Seats by Joe Patti is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
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