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Info You Can Use: Legal Tips

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

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Is It Against The Law To Pay Me More?

You may have heard about Dan Palotta’s recent TED Talk about how judging charities on concepts like administrative overhead ratios is hobbling their ability to solve huge problems.

He makes some persuasive points, though some of the concerns I had with his proposals when they appeared on the Harvard Business Review blog three years ago still remain.

Gene Takagi picked up on the talk and addressed legal considerations which would prevent non-profits from operating in the manner Palotta suggests. (Just to be clear, Palotta never suggests charities cleave to non-profit status.)

Takagi notes that charity pay scales are limited by laws governing 501 c 3s and so can’t compete well on salary if supporters show tolerance for doing so to attract the best talent. Expenditures are limited in much the same manner,

“If a for-profit spends 90 cents to make $1, it may be a perfectly acceptable profit margin, but if a charity spends 90 cents to make $1, it would be widely viewed as a terrible waste. As a result, many charities fail to properly report their fundraising expenses, and the IRS has raised the possibility of utilizing the controversial commensurate test, which addresses whether a charity is using its resource in line with its charitable mission…But this can’t be judged strictly on percentages, and charities should be allowed to experiment so if an honest fundraising and mission awareness-raising campaign fails, the charity isn’t slaughtered for it. The problem, however, is not the law, but the misguided public ideology of which Dan spoke.”

Charities are also often limited and discouraged from pursuing new revenue ideas by federal and state laws as well as popular sentiment.

I think the biggest question that this whole discussion raises for me is whether social attitudes are such that a for-profit company raising money for social issues will be tolerated. Given that people will give money to projects via things like Kickstarter without much consideration about whether it is non-profit or not, is the idea that non-profits do things that companies won’t due to lack of profitability and governments can’t/won’t due to lack of political will and expertise, over?

Currently I think there is a capricious element to Kickstarter campaigns that make it an unsuitable model for garnering long term support. However the very existence of such mechanisms may be shifting mindsets to a place where worthiness and overhead ratios are not mutually exclusive.

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Info You Can Use: Fundraising Must Benefit The Group, Not The Individual

The approach of the holidays provides me with a little more free time so I have been catching up on my “come back to and read” list. I got to reading a piece by Non-Profit Law blogger, Emily Chan addressing activities athletic booster clubs engage in that may endanger their non-profit status.

Since these clubs are organized under 501 (c) (3) just like arts organizations, I became a little concerned because I see similar things happening with some arts organizations.

The potential conflict Chan addresses is in making the amount of money a person raises directly correlate with the benefit to an individual like crediting against the payment of tuition/dues or travel expenses.

Furthermore, such a credit system still raises private benefit concerns regardless of whether a parent is considered an insider or even involved in the booster club. Lois Lerner, the Director of Exempt Organizations at the Internal Revenue Service, recently affirmed that crediting amounts raised by a participant against that participant’s costs (e.g., dues, travel expenses) is a private benefit violation that may jeopardize the organization’s exempt status.

What immediately came to mind is that a lot of dance schools have their students sell tickets, Entertainment coupon books, etc., keep track of what each person sells and rewards the kids. I don’t think there is any problem with one child only getting to choose glitter stickers because she sold less than the child who was able to claim a stuffed animal.

However, if those sales determined who got to perform or helped one person defray more of the cost of going to see a show in New York than another, there could be a problem. If it defrays the cost of everyone equally, or even a specific class within the group like sending the cast of a show to perform at a festival, then it isn’t problematic.

Really, it is mostly a matter of benefits specific to individuals. This also likely includes fund raising to benefit a specific individual, say the medical expenses of a musician who was in a car crash.

Individuals should not be soliciting contributions from donors with any suggestion or intention that the contribution will be directly used for that individual who solicited the gift. Additionally, the booster club should not accept any contributions that have been earmarked by the donor for a particular individual. Not only would such contributions not be tax-deductible for the donor, the booster club would likely be acting as a conduit in violation of the federal tax laws regulating private inurement and private benefit by allowing such money to pass through the organization to the individual without having exercised any control, oversight, or discretion over those funds

I wonder how this might apply to organizations that try to forge a deeper connection with donors by having them sponsor a student. Keeping in mind that I am not a lawyer, my guess is that if the organization is selecting the student being sponsored, there isn’t a problem. The money went into a general pot with no specific expectation of which student would benefit.

But what happens if the student drops out and the donor has taken a shine to another student and wants the sponsorship applied to her as a replacement? This is a tricky situation if you are hoping for the long term, continued support of the donor.

I also wonder if something changes with the student’s status that requires more funding than for any other student, say their place of residence changes so they must pay higher out of state tuition, can the donor be solicited or even direct additional money to benefit a specific student without endangering the non profit tax status?

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The Board Police

Via Non-Profit Law blog, Kevin Monroe of X Factor Consulting made a tongue in cheek post about crimes that the non-profit Board Police special investigation unit should be looking into. Among them are:

Impersonating a board officer. In many meetings, you may have difficulty spotting the board officers. They may not actually be the one running the board meeting…There are also reports of some organizations in which the officers have not officially been notified that they are board officers. They were absent at the meeting when elections were held and consequently unable to object to their election.

[...]

Misappropriation of focus - We know you’re familiar with misappropriation of funds — which itself is a serious crime. However, misappropriation of focus is also serious, but often undetected. This occurs when boards misunderstand their duty as directors and rather than focus on policy and strategy become obsessive about the operations of the organization. If you see repeated efforts to micromanage the staff, you’re probably observing a misappropriation of focus in action.

Conspiracy – … This often occurs before or after the actual board meetings to ensure a select group of board members always get their way on how they “run” the organization. You’ll know you’re in when you get invited to the “special meeting” of the select board members.

Obstruction of governance
– any act or action that distracts the board from having substantive discussions or decisions about important issues or policies to move the organization forward in a strategic manner. This could include rehashing the past, or debating what color to paint the lobby, but they are all ploys to prevent real governance from occurring.

Take a look at the whole post, framing the problem as something to be handled by the Board Police brings a humor to a somewhat serious subject.

Except, the Board Police are pretty much a real organization according to one of Monroe’s commenters.

This past Monday, Australian Charities and Not for Profit Commission (ACNC) started operations.

One of their purposes is to provide advice and assistance to non-profit organizations, including ”

Reforms to remove duplication and streamline reporting and other regulatory obligations will make it easier for NFPs to go about their core business. They will allow donors and the general community greater access to information about charities, the type of work they do and the effect of their work.”

But the ACNC will also have enforcement powers to ensure compliance:

These powers aim to protect the reputation of charities doing the right thing so they are not tainted by the minority who are trying to avoid their obligations. Sanctions will only be used in the rare circumstances where charities deliberately do the wrong thing, do not respond to education or fail to take the opportunity to fix the problem.

In this case the ACNC will have the ability to take action like issue warnings or, in more extreme cases, issue directions or revoke a charity’s ACNC registration. Without the ability to issue serious sanctions if needed, the ACNC can’t effectively protect the vast majority of the sector or the general community.

According to the ACNC website, as of late August Parliament hadn’t decided on those powers. The commenter, Melaine, on the X Factor Consulting blog wrote, “NFP voluntary Directors will have duties and face penalties that exceed those of the biggest commercial boards. (Bad) Makes it even harder to recruit.”

Perhaps some of my Australian readers can provide more comment and context? (I’m looking your way Sydney Arts Management Advisory Group)

Would an organization like this be useful in the United States? Four years ago during the presidential election, people were calling for the creation of a cabinet level Culture Czar position. Presumably such a position would not only given arts and culture a higher profile and advocacy within the government, it would have likely resulted in some form of increased oversight and regulation. I wonder if everyone clamoring for the position considered the potential downside.

Given the increased scrutiny non profit charities are under across the country, it isn’t outside the realm of possibility that the U.S. will get its own version of the board police.

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