Non Profit Law Blog

Info You Can Use: Doing Business With Board Members

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Since I am on the topic of board decisions this week, Non Profit Law blog recently listed a link about non profits doing business with their own board members.

While it is natural for non profits to seek out people from specific professions/skillsets to be on their boards in order to provide some expert guidance and advice, things get a little sticky when it becomes necessarily to contract professional services.

Since board members often have a personal investment in the organization, they may tend to charge extremely competitive fees for their services. As the article notes, it can also be a little awkward to be talking about paying someone else to do work that a board member in the room is perfectly capable of performing.

The article notes that not only is it difficult to avoid having some business dealings with your board members, it may be hard to actually get good people to serve on the board if they perceive there will be undue scrutiny of how their professional and volunteer activities overlap.

However, it is important to have a conflict of interest policy for board service. Failing to have one and follow it create potential problems for the organization, especially given the role non-profits serve in their communities.

Experts say one danger of so many veteran board members is that a nonprofit could lose touch with how a community perceives the awarding of contracts to members of its own board.

“Public legitimacy and support are very important, and a more isolated board may not be as aware of that,” said Francie Ostrower…

[…]

Board Source , an organization for nonprofit boards recommended by the National YMCA, suggests that board members who want to do work for the organization should donate their services. If they can’t, they should follow the board’s conflict policies.

Other critics of the practice such as Joshua Humphreys, a fellow at Tellus Institute, a Boston policy think tank, take a dimmer view.

“Best practice for nonprofits is to draw a bright line between board service and doing business with service providers,” said Humphreys. “It creates divided loyalties between the public purpose of the charity and the private gains someone is motivated by.”

Siegel (Jack Siegel, Charity Governance) said the practice chips away at the independent thinking of board members who are the recipients of contracts, as they tend to side with their supporters on the board in other matters.

“If you see conflict (of interest), you can almost bet there are other problems in the organization,” Siegel said.

The article goes on to quote Siegel pointing out that it is difficult to hold the work of board members to the standard you should because you have a relationship with them. This point struck a sympathetic chord with me as I remembered some occasions in my career where the quality of the work by a board member was never in question, but changes to elements no one really liked were never requested for fear of offending the board member by questioning their style/taste.

One of the suggestions for eliminating the conflict is that the person leave the board for the duration of their company’s contract under the assumption that if the person is really invested in the success of the organization, they will extend the same discounts as they would when they were serving.

What the article doesn’t mention is that if they don’t extend the same discount it may actually be better for your relationship with the person. If all those involved feel that a fair market price is being paid for the work, there is less potential for resentment on the part of the service provider over sacrificing time and income on a difficult project and less hesitation on the part of the non-profit to assert that their standards be met.

Still, this is all easy to say in theory. In practice, you run into the old question, “how do you fire a volunteer?” When people generously provide time, energy and expertise, they are investing a lot of themselves personally. It can be difficult to refuse their help without making it seem like you are refusing them as a person.

That is why it is good to have a well-constructed conflict of interest policy to which to point. When the situation arises where a board member will start to do business with the organization in a significant way, you can point to the policy and note that providing the service will, of necessity, change the board member’s relationship with the organization and as such the following actions must be taken per the conflict of interest policy.

Board Source has some general information on conflicts of interest on their website and some samples conflict of interest statements for purchase and download. (I have never read them so I can’t attest to their usefulness.)

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

Info You Can Use: Commerciality Doctrine (What The Heck Is That?)

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Hat tip to Non-Profit Law blog for providing the link to Charity Lawyer Ellis Carter’s 2009 post about the Commerciality Doctrine. As you can probably tell from the title of this entry, I wasn’t really aware of this doctrine at all, but it is actually very important in terms of an organization’s 501 (c) (3) status.

According to Ellis,

Commerciality Doctrine has evolved in the courts and is applied to determine whether an organization complies with Section 501(c)(3)’s requirement to operate exclusively for exempt purposes. A key factor indicating an organization is operating in an excessively commercial manner is that its activities are in competition with those of for-profit commercial entities.

Reading what criteria the courts use as a test for whether a non-profit organization is operating in an excessively commercial manner, I start to get a little nervous:

-pricing to maximize profits;

-generation and accumulation of unreasonable reserves;

-use of commercial promotional methods, such as advertising;

-sales and marketing to the general public;

-high volume of sales;

-the organization uses paid professional staff rather than volunteer labor;

-the organization discontinues money losing programs; and

-the organization does not receive significant charitable contributions.

Most organizations probably don’t have to worry about accumulation of unreasonable reserves and seating capacity may limit high volume of sales. If arts organizations start to adopt dynamic pricing for shows, they may have to watch how high they push prices. But a lot of non profit arts organizations have professional staffs who have replaced volunteers somewhere in their history. Even those without professional staffs use advertising, sales, marketing and discontinue money losing programs. How do you not flirt with violating your status under this criteria?

So is it actually good to keep those money losing programs around? Apparently so…

Factors evidencing the absence of a commercial purpose include the following:

-lack of competition with for-profit entities;

-below market rate pricing;

-relatively insubstantial reserves;

-lack of commercial advertising practices;

-the absence of sales to the general public;

-low volume of sales;

-use of volunteers and low-paid non-professional staff; and

-significant charitable contributions.

This list almost makes a virtue of incompetence and lack of ambition.

But the first thing I thought of after reading this list was, what about the Roundabout Theatre? How the heck have they avoided being shut down on this basis. Except for requiring as significant charitable contributions as anyone else, they are a non-profit that essentially fails on every one of these measures.

They actually may have run afoul these laws and I am just unaware of it. Plenty of commercial Broadway producers have expressed criticism about the way the Roundabout and other non-profits like Lincoln Center enjoy a competitive advantage over them. Back in 2000, long before he became chair of the NEA, Rocco Landesman wrote,

“increasingly the template of success comes from the commercial arena, which is, in the end, not dedicated to the art so much as to the audience. The uber-model for this trend is ”the American Airlines Roundabout Theater,” whose artistic director, Todd Haimes, saved a bankrupt institution by adapting contemporary, market-savvy, the-audience-is-king techniques of modern corporations. Pleasing the customers, giving them what they want in the form they expect, works for Coca-Cola –…It would, I suppose, be hyperbolic to say that Todd Haimes has had a more pernicious influence on English-speaking theater than anyone since Oliver Cromwell (and it wouldn’t be nice, either, since Mr. Haimes is a personable and honorable man)”

Now it should be noted that Landesman’s piece expressed regret that the non-profit theater movement toward a commercial orientation due to market forces has meant that little original work is created any more. Though he has “accused Haimes of running a wolfish commercial operation in the sheepskin of a publicly funded institution.”

The idea that decision making in non-profits shouldn’t be motivated by a need to compete with commercial entities is probably part of the basis for the criteria of the Commerciality doctrine. Although Carter provides an example of it, I wonder how often and strictly the Commerciality Doctrine is applied to non-profits. With cuts to arts funding at all levels and an oft repeated litany that performances should be self supporting or not occur at all, is it fair to require that non-profits ignore the pressure to support themselves with strategies that create more earned revenue?

Todd Haimes has said as much,

“I feel enormous pressure to generate income for our theater,’…`I’ll do anything within reason, as long as it goes back into the nonprofit purpose of the Roundabout,” Haimes said. “So I’m trying to be more creative.”

With a $40 million budget in 2008, $12 million in donated and needing $13 million in sales, most of us are not anywhere near Roundabout Theatre’s ability to raise scowls from commercial competitors. We do face similar pressure to perform well and might well find our ambitions causing problems for our tax status given that so many other aspects of non-profit operations are being examined.

Info You Can Use: Does Friending A Candidate Endanger Your Non-Profit Status

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The Non Profit Law blog linked to a really great publication put out by the Alliance for Justice that explains whether your online activity might run afoul prohibitions in your 501 (c) 3 status. This is the clearest explanation of these issues I have read.

“This guide aims to answer the questions nonprofit managers most frequently face regarding the Internet and social media.”

The document covers situations that don’t involve online activity, but really it is the social media element that comprises the uncharted territory that people aren’t clear about. The document makes a distinction between lobbying, which a 501 c 3 non-profit can do and supporting a candidate, which they can’t.

Though sometimes the distinction is very subtle. For example, you can make a post on Representative X’s Facebook account, “Rep X, support the arts by voting Yes on Bill 123.”and that is direct lobbying. If you post a slightly different message, “People of My State, tell Rep X, to support the arts by voting Yes on Bill 123, ” and that is considered grassroots lobbying because it is a general call to others to take some action. If you post, “We love Rep X because she supports the arts and voted Yes on Bill 123,” that is promoting a specific candidate.

Except in some very specific circumstances, you can’t link to a candidate’s website. In fact, you can’t link to any website that promotes a candidate and you are responsible for making sure the content of the site doesn’t change since you first linked to it.

For example, you are doing a renovation and link to the website of the company that is providing you with sustainable wood as a way of proving to your constituency that you are acting responsibly. If the supplier changes their website to criticize a candidate’s stance on logging, your organization might be in trouble.

There are also restrictions on allowing employees to use company equipment, even on their time off, to express support for a candidate.

In answer the question posed by the title of this entry, no, you can’t friend a candidate on Facebook or follow them on Twitter. They are free to friend and follow your organization. Even though etiquette suggests you follow them in return, the IRS suggests you don’t.

About the only time you are safe to have a promotion of a candidate on your website is if you allow Google to place ads on your website and have no control over what they are placing.

There are a lot of other questions answered in the document as well. Since a lot of 501 (c) 3 organizations are associated with 501 (c) 4s which have looser restrictions, they provide some detailed guidance about how closely connected their activities can be. The guide also deals with setting policies for renting your mailing lists, guest bloggers, moderating blog commenters, using photos, hosting videos.

It is clear that there are going to be a lot of nuances specific to the activities of different organizations. However, if you have had questions about what is permissible as lobbying and prohibited as campaign support, and don’t have a tax lawyer immediately available, this is a good place to start to find your answers.