Dear Nonprofiteer,
I’m on the board of two smallish non-profit arts organizations, and a regular financial supporter of several others. I’ve noticed a trend in fundraising appeals- in letters that go out to previous funders, the dollar amount they contributed in previous years is named, with a request for a specific increase in the current campaign. (“Thank you for your generous contribution of $100 in 2011. Would you consider a gift of $125 in 2012?”)
Signed,
Possibly Pissy, But Really Very Generous At Heart
Dear Nonprofiteer, Who are they to tell me what to give?
February 6, 2012Dear Nonprofiteer, Should I look before I leap, or not leap at all?
January 25, 2012Dear Nonprofiteer:
I recently joined the board of directors of a small nonprofit (4 staff, $200k budget). Within a month of my joining, our executive director announced she would be leaving as her partner has a new job in another state. In addition, while she won’t move for a couple of months, presumably giving the board plenty of time to find a successor, she wants to study for the bar exam in the new state and requested to work half-time until she leaves.
There are a couple of complications (aren’t there always). I was approached by two board members about taking the ED position. I initially said no, but reconsidered and have let the board know of my interest. I have recused myself from any discussions of the search and said I would resign from the board if selected.
The current ED has said that one staff member is interested in the position as well. Since going part-time, the ED also said this same employee is fulfilling many of her duties, and requested a bonus for the employee equivalent to the 20 hours a week the ED is not working. She said he is, in effect, an interim executive director, and should be compensated. I and other board members doubt that the current person is actually doing the extra 20 hours a week, and/or doubt he can sustain it. (I was present for this discussion, but said nothing and abstained from the vote on his compensation).
I feel I cannot make many obvious suggestions to the board (like that we hire an outside interim ED, either full or part-time) without it appearing that I’m trying to better position myself for the job. It could appear that I don’t want a competitor to have the interim job for fear that it would give him an advantage. There is also the matter of whether I take the interim position. I can’t bring it up, of course, but what if someone else does?
I guess the big question is that having even expressed an interest in the ED job, should I resign until the search is complete and a new ED hired? That means I would stop all my board work for a period that could be months. And if I’m not selected, do I come back on the Board and pick up where things left off? Obviously I’m concerned about all the lost time on major initiatives. Having a half-time ED is bad enough. We don’t need to lose board members, too.
Signed, Conflicted
Dear Conflicted:
The short answer is “Yes.” If you’re going to be a candidate for Executive Director, you must resign from the Board of Directors–not if and when you’re selected, but right now. There is no other way the Board’s search committee can consider you without favoritism, or at least the appearance of it. And in a circumstance like the one you’ve described, in which a current member of the staff is interested in the Executive Director position himself, the appearance of fairness in the process is absolutely essential to the continued functioning of the organization.
Imagine the staff member’s spending the couple-three months minimum required for a search grumbling to his two remaining fellow employees about how unfair it is for you to compete with him for the favor of a group of your peers. The effect on morale would be disastrous. And if you got the job under those circumstances, you would walk into a hornet’s nest: hostile employees, shame-faced Board members, and thus a host of troubles you don’t need while the agency is working on the new initiatives you mentioned.
You’re already experiencing the extent to which your Board duties and your hoped-for staff duties embroil you in conflict of interest, and it will only get worse. Either withdraw your name from consideration or submit your resignation to the Board chair–-today.
If you don’t get the job, the question of whether you can return to the Board of Directors is one to be decided by the Board of Directors, not including you. That is, you are rolling the dice that your erstwhile colleagues will want you to return after you’ve failed to impress them sufficiently to get the job. And even if they do, won’t you feel awkward under those circumstances? Won’t you be looking around the Board room wondering who voted against you, and why?
So the question becomes whether you in fact wish to become Executive Director enough to make a do-or-die fight for it, knowing that your relationship with the organization will most likely be at an end if you lose the fight. That’s up to you–you haven’t told the Nonprofiteer anything about your current professional situation but it’s presumably unsatisfying if the Executive Director post beckons so strongly–but consider the costs to the agency no matter what the outcome, and maybe think better of it.
If you do think better of it, and decide to remain on the Board, you could do two things that would strengthen the agency immeasurably: first, persuade your colleagues to hire an actual interim Executive Director, preferably someone who’s been trained in the particular tasks of that very difficult role and certainly someone who is not under any circumstances a candidate for the permanent job. A trained interim ED can make sure necessary initiatives move ahead, clear up any personnel issues that may have been festering under the ex-ED (such as, why is she so concerned about his getting a bonus? More favoritism, perhaps?), and relieve the time pressure the Board would otherwise feel while filling such an important spot. In most major cities the Executive Service Corps operates an interim ED training program and will be glad to provide you with the names of candidates. Choose one to spend between six months and a year guiding the agency while you and your Board colleagues figure out what you want in a new leader and how to go about finding it.
Second, whether or not you hire such an interim ED, persuade your Board colleagues not to confer that title on the candidate-staff member. The title makes him heir-presumptive, which if true means you won’t be conducting a thorough and genuine search and if false means you’ll have a justly disappointed employee in a position to do a lot of damage.
If you decide to pay the current ED only half her salary for working only half-time, fine; that has nothing to do with whether any- or everyone else on staff deserves extra compensation. It may be that their burdens are lightened rather than increased by having a less-engaged ED. That may be why you distrust the ED’s claim about how hard this guy is working.
The Nonprofiteer doesn’t understand at all the concept of bonuses in the nonprofit world. If your Executive Director does a great job, reward her with a raise. If she does a lousy job, don’t. But bonuses are based on outcome metrics, and those are rarely a direct reflection of an ED’s skill. If you tell an ED you’ll give her a bonus if she puts on five concerts this year, she’ll make sure to do so–-whether or not they’re any good. Or if she expects a bonus for serving x number of clients, you can be sure that x clients will go through the agency’s doors; but whether they’ve been served is a whole ‘nother question. A Board which gives bonuses to nonprofit executives is mistaking what’s measurable for what’s valuable.
So, to recap: if you want to work for the agency, quit its Board to level the job-hunting playing field. Be prepared for the likelihood that you won’t be able to return. Consider whether you’d all be better off if instead you withdrew your name from contention and focused on helping to find someone else to provide the able leadership, both interim and permanent, the group requires and deserves.
Taxes vs. philanthropy: the view of a raving lefty
January 11, 2012I am distressed by the sight of poverty; I am benefited by its alleviation; but I am benefited equally whether I or someone else pays for its alleviation; the benefits of other people’s charity therefore partly accrue to me. To put it differently, we might all of us be willing to contribute to the relief of poverty, provided everyone else did. We might not be willing to contribute the same amount without such assurance.
Therefore, this wild-eyed radical continues, the government must step in. If poverty is to be alleviated, everyone must be taxed so that no one gets a free ride to the benefits of poverty eradication.
How appalling! How socialistic! Of course, what else could one expect from an ivory-tower academic complete with Nobel prize?
No, not that one (or even that one): Milton Friedman.
When the man said “There ain’t no such thing as a free lunch,” he meant it.
H/t Allen R. Sanderson.
Dear Nonprofiteer, Does an alumni association chapter have to file tax returns?
January 5, 2012Dear Nonprofiteer,
I am the president of my local alumni chapter for a large university located in another state. The National Alumni Association is a 501(c)(3) organization with by-laws that state it can create various chapters around the country. When our local chapter was created, the founding president filed the paperwork for an EIN so we could open a checking account. That is all he did; we are not incorporated as a 501-anything. When he filled out the EIN paperwork, for “type of entity,” he clicked the “other” box and wrote “social club” in the blank. Our little chapter brings in less than $10,000 per year. We then funnel most of that back to the university’s scholarship fund.
My question is: are we supposed to be paying federal income taxes? State of Illinois income taxes?
My university is being remarkably unhelpful. They did definitively say that they strongly advise their chapters against incorporating as their own 501(c)(3).
I have done some research and seen that other universities structure their alumni associations so that the national association is a 501(c)(3) and the local chapters are 501(c)(4)s. The local chapters then file what is called a “IRS-990 postcard.” This seems a reasonable solution, but it also requires that my chapter incorporate as a 501(c)(4), and I am hesitant to do that without official word from my university. I have a fellow board member who is breathing down my neck, convinced we are breaking all kinds of laws. What should I do?
Signed, Clueless in Chicago
Dear Clueless:
The Nonprofiteer knows even less about tax law than you do, so she turned to her Association of Consultants to Nonprofits colleague Kathryn Vanden Berk, whose nonprofit law practice makes the Internal Revenue Code her constant companion. Kathryn characterized your question as “easy but in multiple parts,” and her answer appears below. Many thanks to her for her guidance, and for demonstrating that the author of Good Counsel isn’t the only nonprofit lawyer the Nonprofiteer knows!
There are four ways to handle this. (1) ask the national association to take you on as a fiscal agent, (2) ask the national to file as a group exemption so that each chapter may get its exemption from the central organization of the group; (3) incorporate and go through the exemption application; and (4) do nothing.
Of these, the easiest is to be sponsored by the national (or any other already-existing) 501(c)(3). The exempt entity confers the local chapter with its exempt status automatically and no paperwork needs to be filed. However, the fiscal agent must report to the IRS on what happens within the local chapter.
The easiest for the locals, but harder for the national, is for the national to seek a group exemption. It can then manage each of the local chapters as subsidiaries. As above, the national is responsible for reporting to the IRS.
If the local decides to incorporate and seek its own exemption, it should identify its purpose as “educational and charitable”. Generally, a scholarship organization must file a Schedule H with its exemption application, but it appears that this local forwards its funds to the national, and the national makes the selection. In that case, it is not necessary for the local to go through the scholarship preparation.
An organization that identifies itself as a “social club” is exempt under 501(c)(6) of the Code. However, I would not suggest that in this case. The money collected is used for scholarships, and that is clearly a charitable purpose. Since the national was able to get a 501(c)(3) ruling, it would be foolish for the locals to seek a different, less valuable exemption. If the IRS balks at the (c)(3) classification, I would suggest that the national seek a group exemption.
Doing nothing is maybe not a crazy approach, but it risks exposure and the protections of the IRS Code and IL law are not available to the chapter leadership and members. The reason I say it’s not crazy is the small amount of $$ that flows through the organization. No one is going to come after them unless (and this is the big risk) something happens. Then I can predict that there will be a great deal of embarrassment and perhaps even personal liability.
Bottom line: if you have not filed for a tax exemption, you must file as if you are a for-profit business, using Form 1120. If you give your funds to the national at year’s end, then it is unlikely you will have to pay taxes. However, your members cannot take deductions for the gifts they make to the local, even if they go to the national’s scholarship fund. Same with Illinois: if the chapter is not tax exempt, then it is taxable and must file as such.
I should note that if you collect charitable funds in Illinois, you really need to be registered with the IL Attorney General, even if you are not exempt via the IRS. The AG’s office is very strict about this. You will have to pay a late filing penalty because you have been soliciting without being registered. You might be exempt if you can convince the AG that $$ was raised only from members, but they are not as flexible on this as they once were.
I don’t know why the university advises against incorporation. It’s a fairly inexpensive thing to do, and it gives liability protection to every member. It’s a small price to pay for the protection it gives. You need to have someone agree to be your Registered Agent, and to have his/her office or residence registered as the Registered Office. You need to file annual reports (in Illinois and most states) to stay in good standing. In Illinois, this costs $10.00 per year.
I don’t know why the (c)(3) and (c)(4) approach is used. You would want every part of the organization to be classified as 501(c)(3) so that all gifts, grants and contributions are tax exempt and deductible to the donor. I’d want to explore this further before acting.
So, Clueless, the answer is that no good deed goes unpunished. Having investigated the question, you’ve now unearthed a series of obligations, decisions and tasks which I’m sure you’d rather not have known about. You’re not about to go to jail but to protect yourselves it seems that getting your university to agree to serve as your fiscal agent, and then registering to raise funds in the state of Illinois, is the bare minimum you should do.
Guest post: One Book, Three Challenges
January 1, 2012Good Counsel: Meeting the Legal Needs of Nonprofits
by Lesley Rosenthal
(John Wiley & Sons 2012)
As I embarked on writing Good Counsel: Meeting the Legal Needs of Nonprofits, well-meaning and concerned folks cited at least three reasons why no one had written such a book before, and (implicitly) why I shouldn’t try: it’s too dangerous, too hard, too scary.
The “too-dangerous” crowd, personified by some of the most successful leaders of nonprofit turnarounds on several continents, worried that legal information in non-lawyers’ hands would result in the unlicensed practice of law by a bunch of irresponsible, budget-strapped do-it-yourself nonprofiteers. Who knows what kinds of mission mischief non-lawyers would make with their newfound knowledge – the legal equivalent of sewing your own sutures! Fortunately my own boss, the President of Lincoln Center, and several of my other mentors before him, including a former Bar Association president and a federal judge, helped forge my conviction that the law belongs to the people. They encouraged my desire to put it into plain English for all to know.
The “too-hard” folks, also well meaning, recognized the enormous variety of laws that commonly arise in nonprofits and thought it impossible to provide a general overview in one volume. I know what they meant: the tangle of specialized state and federal laws that make our sector one of the most highly regulated in the whole economy, such as state nonprofit corporations laws, Section 501(c) of the internal revenue code, IRS rules, regulations and expectations surrounding the tax exemption and good governance, multi-level filing and disclosure requirements, pension, endowment and investment laws, lobbying restrictions, and a web of 50 different states’ fundraising laws. Many fine books have been written on each of these subjects, but rare is the legal resource that touches upon them all. Then, the skeptics continued, there are also general business laws that apply to these organizations – contract law, labor and employment laws, intellectual property laws, consumer regulatory laws, real estate laws, building codes and more. And business laws apply to the nonprofit sector in weird ways not necessarily intended by lawmakers, forcing volunteer-driven organizations, for example, to think long and hard about how to structure their activities to comply with minimum wage and hours laws. Pile on top of all of those layers the additional specialized laws that apply to the wide world of nonprofits, such as FDA regs for blood banks, student privacy laws for higher ed, permitting and accreditation for hospitals and mental health facilities and so on, and the whole enterprise of writing a book about the legal context of nonprofits threatens to die under its own weight.
The “too-scary” people are the most sympathetic people of all. They are the good-hearted lawyers who are already serving as counsel, as board members – or as both simultaneously – to nonprofit organizations. Their values may line up perfectly with the mission of the organization they serve – an elder care lawyer, for example, serving on the board of a community-based senior center, a real estate lawyer counseling a neighborhood development organization, a sports and entertainment lawyer doing board duty on her town’s local Little League or scout troop – but their legal expertise may be far afield of the legal issues facing the organization. It scares them to no end when a legal question arises in the boardroom and all eyes turn toward them. UBIT – what’s that? Conflict of interest policy pertaining to co-investment interests? Ugh. Section 501(h) election for lobbying activities? Isn’t this meeting almost over? They could have just begged off answering these questions – that’s not my area of law, you see, you wouldn’t ask a dermatologist about your chest pains, would you? – if only Good Counsel didn’t exist to connect the dots between the law they do know and the law they need to know to better serve their favorite charity.
Good Counsel is intended – charitably – to defy all three objections. In 300 pages it places the law of nonprofits in the hands of board members that oversee and executives that actually run the organizations – CEOs, CFOs, program managers and staff, fundraisers, personnel directors, communications professionals, operations and facilities managers and more. Does it answer every question? No. Does it sensitize non-lawyers to common legal issues in the highly regulated context in which they operate? I sure hope so.
Lawyers who make their living practicing in this field needn’t worry that this one volume will displace them; to the contrary, placed in the right hands, the book will generate more sophisticated questions and ultimately more and better client relationships. Corporate and transactional lawyers who have not yet found an outlet for their volunteer yearnings – because it seems that most pro bono projects are more aligned with the skills of litigators, not business lawyers – may feel empowered to see how readily they can translate what they know to the legal needs of prospective nonprofit corporate clients.
Law school deans concerned about the criticism being leveled at the entire enterprise of legal education may find a path forward in Good Counsel. With case studies, work plans and focus questions following each chapter, the book lays out a path for law students supervised by clinical professors to engage with a particular nonprofit organization and assess its legal needs – growing the students’ legal skills and stretching their capacities as counselors in ways that will serve them well even if they do end up in private practice after graduation, as most do.
And the legal profession, which despite the canon of lawyer jokes is as public-spirited as any I know, may find that Good Counsel can be used to foster and strengthen more pro bono relationships between lawyers and organizations. There is a great deal of goodwill for nonprofit organizations among public-spirited lawyers. I know, because I have been both a purveyor and voracious consumer of pro bono legal services, that there is more time and willingness to serve among the legal profession than has been fully tapped to date. A pilot program of the New York State Bar Association and the New York Attorney General’s Office Charities Bureau has adopted Good Counsel as a training resource for that very purpose: to help launch up to 50 new pro bono relationships between lawyers and charities in the initial pilot year of a program called Charity Corps: Lawyers Helping Nonprofits.
Far too many of our nation’s one million public charities lack regular access to counsel. At the same time, good-hearted lawyers are floundering in their efforts to help their favorite nonprofits, or are afraid to try because they think the field is so distant from subject matter they know. Law students graduate in debt up to their ears but lacking the practical skills they need to begin servicing clients after law school. Good Counsel is a playbook, intended for all three audiences.
And while I admit it was a little hard, scary and dangerous, ultimately there were far more supporters than skeptics for this project. I invite readers – lawyers, nonprofit leaders, and academics – to take a look and let me know if it works.
Lesley Rosenthal
www.goodcounselbook.com
Schedule of upcoming Good Counsel events in NYC, LA, Detroit, Miami, Philadelphia, Boston, DC and Buffalo, NY available on www.facebook.com/GoodCounselBook or at the book’s website, www.goodcounselbook.com.
Available for purchase at http://www.amazon.com/dp/1118084047/ref=rdr_ext_tmb
Review copies for academics, media, upon request to tbatanchie@wiley.com
Staying out of jail and up to technological speed while running a nonprofit
December 21, 2011Some days the Nonprofiteer is happy to serve just as a pass-through for the good work other people are doing. This is one of those days.
On January 11, look out for the publication of Good Counsel: Meeting the Legal Needs of Nonprofits, Lesley Rosenthal’s guide to every possible legal issue in nonprofits. (The Nonprofiteer urged Lesley, who is Lincoln Center’s general counsel, to call the book “How to stay out of jail while running a nonprofit,” but for some reason she demurred!) Having had a chance to review the book in manuscript, the Nonprofiteer is happy to give Good Counsel her strongest possible endorsement, and not only—not even primarily—for big agencies with their own general counsels. The lawyers on your Board who are forever being expected to know everything legal that might affect your agency (and who are secretly wetting their pants from anxiety because they don’t actually know all those things) will be particularly grateful for this brief, well-written and comprehensive guide to, well, staying out of jail. And—how moderne!–it’s also available for Kindle and I-Pad. Publisher John Wiley & Sons/Lincoln Center.
And, in other useful news, elevationweb.org announces that it’s prepared once again to provide free Web development services to nonprofits which can match Elevation Web’s contribution. Last year this “socially conscious Web design and media company” donated $400K in services to 95-plus nonprofits. So if you (like most of the Nonprofiteer’s clients) think that upgrading your Website and making it easier to use (i.e. donate from) is of critical importance in the coming year, check out the group and complete the application at http://www.elevationweb.org/one_for_one.php.