Friday, July 6, 2018
The news cycle may have moved on from the New York Attorney General's lengthy Petition against the Donald J. Trump Foundation and Donald, Donald Jr., Invanka, and Eric Trump, but the legal cycle continues. It is therefore worth considering what is the most important question that Petition raises - did now President Trump break any criminal laws through his Foundation?
First, a mea culpa is owed. When I first, very quickly (and in the Newark airport on my smart phone, which is not a great way to review legal documents), read the Petition and related materials, I missed the not-so-subtle hints that the AG included suggesting that the answer to this question is yes. As way of explanation but not excuse, this was in part because I did not then know that she generally lacka authority to bring criminal charges herself. But more importantly, in my quick read I missed both the occasional "willful" or "willful and knowing" language - particularly with respect to the alleged use of the Foundation to benefit his campaign - and, most damning, the copying of officials at the U.S. Department of Justice Criminal Division's Public Integrity Section on the FEC referral letter. So I apologize for anyone I talked to in the hours after the petition became public for not catching those hints.
But of course the fact that New York AG thinks they may have been one or more violations of criminal law does not necessarily make it so, even assuming the accuracy of the facts she alleges. There has already been a debate among tax scholars regarding whether those facts justify referral for a criminal investigation by the IRS - see Phil Hackney in the NY Times (yes) and Brian Galle in Medium (maybe, but probably not). I lean more toward Brian's side of this debate, with the kicker being that all of the funds distributed by the Foundation went to charities even if those contributions actually benefitted Mr. Trump, his business interests, or his campaign (with the exception of one $25,000 political organization donation in 2013, which plausibly was an inadvertent error and the false reporting of which could not be pinned on Mr. Trump by the AG). People who have been prosecuted (successfully) for using charitable assets for their own benefit, including former Representatives Corrinne Brown, Chakah Fatah, and Steve Stockman, have usually actually spent charitable funds on personal expenses or given it to their businesses or campaigns. And criminal prosecutions for false statements on annual information returns (the Form 990, or here the Form 990-PF) have tended to focus on not reporting material support for terrorist organizations and similar matters.
As the AG's copying of the DOJ Criminal Division indicates, the alleged illegal in-kind donation by the Foundation to the Trump campaign in violation of federal election law is probably the more likely candidate for a criminal charge. But election law experts contacted by N.Y. Times reporter Kenneth Vogel could not agree on whether any federal investigators would pursue such a charge, even assuming impartial consideration by career DOJ attorneys. And as noted in that article, ignorance might be a good defense here, "willful and knowing" language notwithstanding.
Perhaps the most intriguing suggestion to date is the one by David Cay Johnston in the N.Y. Times two days ago. He suggested that either the bringing of criminal charges - state or federal - or even civil tax charges - again, state or federal - against Mr. Trump, including ones based on the NY AG's allegations, could force the public disclosure of Mr. Trump's personal income tax returns (remember those?). Given the range of government officials who could pursue some such charges, it will be interesting to see if any of them take up this suggestion.
Thursday, July 5, 2018
States Continue to Chip Away at Donor Anonymity for Politically Active Nonprofits (Missouri and Washington)
With the nonprofit created by now former Governor Eric Greitens very much in the news, the Missouri Ethics Commission (MEC) issued an advisory opinion clarifying that nonprofits are considered "committees" and so subject to registration and public reporting of donor requirements under Missouri law if they receive more than a nominal amount for the primary or incidental purpose of influencing or attempting to influence voters with respect to an election to public office or a ballot measure. Perhaps as importantly, the MEC's opinion also notes that the use of a nonprofit to attempt to conceal the actual source of a contribution to a candidate committee or other (political) committee is prohibited. See also St. Louis Post-Dispatch.
In Washington, the legislature passed and the governor signed the DISCLOSE Act of 2018. The legislation, which will not be effective until January 1, 2019, creates a new category of entities required to register and publicly report their significant donors known as "incidental committees." Such committees are any nonprofit organization that is not a political committee but that makes political contributions or expenditures above a $25,000 annual threshold directly or indirectly through a political committee. The donor disclosure provision only applies to the top ten donors in a calendar year who give, in the aggregate $10,000 or more.
For example, Nebraska's Attorney General just released a detailed report and filed a consent judgment against Goodwill Industries, Inc. and Goodwill Speciality Services, Inc. in Omaha. The report explains how the AG's investigation, triggered by a series of newspaper articles, found that the two organizations had shifted away from their nonprofit mission toward retail sales, paid excessive executive compensation, and had boards that failed to provide appropriate oversight (while also concluding that transactions with board member affiliated companies were fair to the nonprofits). The consent judgment commits the nonprofits, now under new leadership, to a variety of remedial actions including adopting new governance policies relating to conflicts of interest and nepotism, ending certain business relationships and practices, and making a variety of other governance changes. For additional information, see Press Release; Omaha World-Herald.
Taking a broader look at charity oversight, Seven Days in Vermont reports that while that state only has a single assistant attorney general to oversee the more than 6,000 tax-exempt nonprofits in that state, neighboring New Hampshire has a staff of eight to oversee its 10,000 nonprofits. The report also contrasts the differing filing and governance requirements of the two states, with New Hampshire requiring registration, annual financial reports, and the adoption of a conflict of interest policy, while Vermont does not impose any of these requirements. The report suggests that delays in investigating reported problems with certain charities in Vermont may be attributable to this lack of requirements and staff. Hat tip: Nonprofit Quarterly.
Finally and probably not surprisingly, New York has been particularly active in recent months. I will get to the Donald J. Trump Foundation in a separate post, but even setting aside that high-profile case there has been a lot of activity. This includes a settlement with a trustee of the Richenthal Foundation that included $550,000 in restitution and a permanent bar on serving in any fiduciary position with a nonprofit operating in New York, a settlement with the Wounded Warriors Foundation of Orange County relating to fake raffles that required the charity to immediately dissolve and pay $4,200 in restitution, and a lawsuit against the accounting firm that audited a sham cancer charity that was shut down a year ago.
Thursday, May 10, 2018
Continuing the prior post about Congressional warfare against a gay rights organization, today I highlight some of the other examples in which governments in the United States have abused laws providing for incorporation of nonprofits or regulating charitable solicitation.
In 1974 -- some 10 years after the US House's embarrassing spectacle against the Mattachine Society -- the Ohio Supreme Court ruled that the Cincinnati Gay Society had purposes that conflicted with the public policy of Ohio, and thus not allowed to incorporate as a nonprofit. State ex rel. Grant v. Brown, 39 Ohio St.2d 112 (Ohio 1974). Ohio law provided that "A corporation may be formed for any purpose or purposes for which natural persons lawfully may associate themselves." Yet the Court affirmed the denial of incorporation to the Cincinnati Gay Society because the promotion of "homosexuality as a ‘valid life style’" was contrary to public policy. The Court's reasoning was brief:
Although homosexual acts between consenting adults are no longer statutory offenses since the new Criminal Code came into effect, there is still reason for denying the writ. We agree with the Secretary of State that the promotion of homosexuality as a valid life style is contrary to the public policy of the state.
Ohio was not the first (although it may have been one of the last) to deny incorporation to organizations that those in charge didn't like. Prof. Silber has an entire book that documents many of these examples. (New York was one of the worst offenders, because potential organizations had to apply to a judge. Although nothing in the law obviously bestowed discretion, judges reasoned that they wouldn't have been entrusted with the power to approve if it was simply ministerial.)
Throughout time, cities and states have tried to abuse their power over nonprofits. Here are just a few illustrative examples (many can be found in Silber's book):
- In 1896, the a group of Jewish immigrants were denied a nonprofit charter because the meetings would be on Sunday-- the "Lord's day"--"not laudable" & against "public policy."
- Decades later, a home for "unwed mothers" was denied incorporation because it would "benefit immoral women" and perpetuate a "fraud on prospective husbands"
- After being excluded from the whites-only Elks, a predominantly African-American group attempted to incorporate a racially-integrated Elks, but was rejected because it was too similar to the then-existing Elks organization.
- The National Foundation for Diarrheal Diseases wasn't allowed to incorporate because it was unlikely to gain enough donations to succeed.
- Cities have frequently tried to prohibit religious groups such as the Jehovah's Witnesses from operating in their community. E.g., Cantwell v. State of Connecticut, 310 U.S. 296, 300 (1940).
- Several cities attempted to ban soliciting donations that took place outside of the community wide fundraising campaign (community chest or united way). For example, Dayton, Ohio, prohibited the American Cancer Society from soliciting donations in town because the cause had already been adequately covered by the local community chest campaign. American Cancer Soc. v. City of Dayton, 114 N.E.2d 219, 223, 160 Ohio St. 114, 121 (Ohio 1963); see also Adams v. City of Park Ridge, 293 F.2d 585, 586 (7th Cir. 1961) (striking down town's ordinance that prohibited Heart Association from soliciting donations in favor of community chest).
- Los Angeles prohibited The Salvation Army from soliciting donations in town unless it first agreed to transfer control of all funds to a board of trustees who lived in the city. Ex parte Dart, 155 P. 63, 64, 172 Cal. 47, 50–51 (Cal. 1916)
To be sure, things have changed. But, surprisingly, some cities still provide extensive discretion to local authorities to decide which charitable causes are worthy before allowing them to solicit donations, although these laws are likely unconstitutional. For example, until challenged and repealed in 2016, Toledo, Ohio had a law that allowed donations to be solicited only if the City was satisfied that the field is not already covered by another charity, the solicitation “will be beneficial to the people of the City, either collectively or individually" and other requirements. Other cities, like Oakland, California, prohibit charities from soliciting donations if they spend more than a certain percent on fundraising expenses -- a law that was struck down decades ago. Or, Barberton, Ohio, was recently challenged for arresting people who were soliciting donations under a law that only allowed a "recognized charitable or religious group" to ask for donation, despite a nearly identical law being struck down by the Supreme Court in 1976. If you have additional thoughts or ideas on this, let me know: I'm currently researching both the history and the current practices on how cities regulate nonprofits, particularly when it comes to charitable solicitation.
Thursday, May 3, 2018
The National Association of State Charity Officials (NASCO), the Multistate Registration and Filing Portal, Inc. (MRFP), GuideStar, and CityBase (a technology firm) have announced that they are moving ahead with a longstanding plan to develop a single, online portal for charities to use to satisfy the registration and reporting requirements they face in most states. The data collected will not only be available to state regulators, but also (with private information removed) to researchers, policy makers, and the public through GuideStar. CityBase and GuideStar plan to launch an initial prototype this summer, with registration for a few states, with a full launch planned for later in 2018. The hope is to eventually make the portal work for registrations in all 39 states that currently require charities and professional fundraisers to register before raising funds in those states.
Wednesday, May 2, 2018
California: AG Rejects Requests to Reduce Hospital Charity Care Obligations, Targets Overvaluation of Pharmaceutical Donations
California Attorney General Xavier Becerra's office recently addressed two different types of activities relating to charities: the charity care obligations of certain California hospitals, and the valuation of pharmaceutical donations to certain charities.
The charity care issue arose when three California hospitals asked for permission to reduce their existing obligations to provide charity care under agreements entered into with the AG's office when they were participants in a merger or acquisition. The requests were based on changes in the healthcare market, particularly in light of Obamacare. Two of the hospitals are former nonprofit entities that for-profits purchased and now own. Emanuel Medical Center's $3,312,360 charity care obligation (for fiscal year 2016) arose out of a 2014 agreement with the AG relating to its purchase by Doctors Medical Center of Modesto, Inc. See its denial letter. The Mission Community Hospital's $2,424,236 charity care obligation (for fiscal year 2016) arose out of a 2010 agreement with the AG relating to its purchase by Deanco Healthcare LLC. See its denial letter. More details regarding the requests and the AG's consideration of them can be found in reports prepared for the AG's office relating to each request. See EMC Report; MCH Report.
The third hospital is the nonprofit USC Verdugo Hills Hospital, which had a $2,073,564 charity care obligation (for fiscal year 2017) arising out of a 2013 agreement with the AG relating to its purchase by a limited liability company wholly owned by the University of Southern California. See its denial letter. Its situation underlines the fact that such agreements do not only apply to acquisitions by for-profit entities. For more details, see the report prepared for the AG's office.
To make up for missing their required charity care obligations in the fiscal year listed for each of them, the AG is requiring each hospital to make donations to local nonprofits that provide health care services.
The pharmaceutical valuation issue relates to cease and desist orders sent by the AG to three charities: Catholic Medical Mission; Food for the Poor; and MAP International. For each charity, the order alleges that the charity reported inaccurately high valuations for contributed pharmaceuticals, leading both to overstating program to administration/fundraising expense ratios in charitable solicitation materials and, for the latter two charities, inaccurate statements in their federal tax (Form 990) and California (Form RRF-1) filings. The orders direct all three charities to stop including such ratios in their solicitations to California donors, threaten revocation of their charity registration in California, and assess hundreds of thousands of dollars in penalties. A fourth charity, the National Cancer Coalition, dissolved after the AG sought a permanent injunction based on similar issues, according to a report from The Nonprofit Times. The same report notes that the first three charities have issued statements contesting the AG's allegations.
UPDATE: The St. Louis Post-Dispatch reports that a Missouri House committee issued a report on May 2nd relating to the donor list, including evidence that Governor Greitens had signed a confidentiality agreement with Mission Continues, that the Governor had obtained the donor list himself in May 2014, and that the settlement of an ethics complaint relating to the list contained falsehoods. And in a new development, the St. Louis Post-Dispatch also reports that Washington University in St. Louis is investigating whether Governor Greitens misused grant funds received from the University by using a portion of them to compensate a campaign aide.
The Kansas City Star reports that embattled Missouri Governor Eric Greitens has been charged with felony computer tampering, which the newspaper characterizes as "essentially electronic theft," in connection with his campaign obtaining a donor list that belonged to Mission Continues. Mission Continues is a charity founded by Greitens in 2007. Greitens initially denied reports that his campaign had used the donor list to solicit contributions, but later admitted in a consent decree that the list was given to his campaign in March 2015 by his campaign manager. Emails discovered by the St. Louis-Dispatch indicate that Greitens' former assistant had sent the list to the campaign manager and another campaign staff member two months earlier. Greitens released a statement refuting the charges.
Here is the text of the Probable Cause Statement:
DATE: April 20, 2018
I, Anthony Box, knowing that false statements on this form are punishable by law, state that the facts contained herein are true.
1. I have probable cause to believe that Eric Greitens, a WHITE MALE DOB: 4/XX/74 Age: 44, committed one or more criminal offense(s).
Count 1 Tampering With Computer Data To Defraud Or Obtain Property (value $500 Or More) (Class D Felony) RSMO 569.095 ON 4/22/2015 Time: PLACE: City of St. Louis, MO (SCC 569.095-001Y200229)
Or, in the alternative to Count I:
Count 2 Tampering With Computer Data To Defraud Or Obtain Property (value $500 Or More) (Class D Felony) RSMO 569.095 ON 4/22/2015 Time: PLACE: City of St. Louis, MO (SCC 569.095-001Y200229)
2. The facts supporting this belief are as follows:
I learned through an investigation that the defendant, acting with others, took and used data specifically owned by the Mission Continues for the purpose of soliciting funds for his political campaign.
At the direction of the defendant, on April 22, 2015, K.T. disclosed data, specifically a donor list owned by The Mission Continues, to a political fundraiser (the “Fundraiser”) working on behalf of Greitens for Missouri. The defendant directed this disclosure. The President of The Mission Continues explained neither the defendant nor K.T. had permission from The Mission Continues to disclose the donor list to the Fundraiser or to use the donor list for political purposes. The Mission Continues employee handbook and the non-disclosure agreements prohibited the disclosure of the donor list and the retenhat tion of it by anyone not employed by and working on behalf of The Mission Continues. The Mission Continues conflict of interest agreement signed by board members prohibited the personal use of The Mission Continues assets, including the donor list.
The defendant and K.T. knew that the donor list disclosed on April 22, 2015, was taken without the permission of The Mission Continues. The defendant was aware that K.T. retained or used the list without the permission or consent of The Mission Continues and the defendant directed K.T. to send the donor list in an April 22, 2015 email to the Fundraiser.
At the time of the April 22, 2015 disclosure of the donor list, the donor list resided and existed internal to a computer or computer system used by K.T. for the purpose of conducting business on behalf of The Greitens Group and/or Greitens for Missouri, as well as a computer or computer system belonging to the Mission Continues. The defendant and K.T. disclosed the donor list to the Fundraiser for the purpose of obtaining property of five hundred dollars or more.
New York Attorney General Eric T. Schneiderman's Charities Bureau has been busy. Two recent activities are of particular note:
- Charitable Solicitation: Following up on its 2016 closure of a sham veterans charity, the AG's office announced a settlement that closed the charity's telemarketing company, Menacola Marketing, Inc. In the settlement agreement, the company agreed its solicitations on behalf of the veterans charity contained "numerous material misrepresentations," that the company had ignored several "red flags" regarding the professional fundraiser who facilitated its work for the charity, and had "repeatedly made misrepresentations" in filings with the Charities Bureau.
- Fiduciary Duties: Completing its investigation of Yisroel Schulman, the former President and Attorney-in-Charge of the New York Legal Assistance Group, Inc. (NYLAG), the AG's office announced a settlement in which Mr. Schulman admitted violating his fiduciary duties of loyalty, care, and obedience, admitted breaching his duties under the New York version of the Uniform Prudent Management of Institutional Funds Act, agreed to a five-year ban on future service as a director or officer of a nonprofit operating in New York, and agreed to pay $150,000 to NYLAG. In the settlement agreement, Mr. Schulman admitted this his recommendation to NYLAG's Board that it transfer NYLAG's multi-million dollar reserve fund to a donor advised fund at charity FJC was "neither prudent nor consistent with [his] duty to ensure that NYLAG's assets were administered for its benefit," in large part because that transfer surrendered NYLAG's legal ownership and control over those funds. Mr. Schulman also admitted that he also violated his fiduciary duty to safeguard NYLAG's assets when he "lost track" of another account that had received NYLAG charitable funds totalling approximately $600,000. The agreement also provides extensive detail about the a variety of misrepresentations relating to these NYLAG's funds and misuse of NYLAG's funds, including for the personal benefit of Mr. Schulman.
Saturday, November 18, 2017
Officials from Illinois, New York, and other states announced earlier this month that approximately two dozen states have acted to dissolve VietNow National Headquarters, Inc., an Illinois nonprofit corporation. The grounds for the action against the section 501(c)(19) veterans organization was deceptive telemarketing solicitations that mislead potential donors regarding the use of donated funds, including the fact that less than five percent of such funds actually went to charitable programs. If the name looks familiar, it is because this is the organization involved in the 2003 (yes, 2003) Supreme Court of the United States case brought by Illinois against for-profit telemarketers for alleged fraud.
More specifically, the settlement agreement includes provisions requiring VietNow to dissolve and certain of its officers and directors not to ever work for or serve in a fiduciary position with any charitable organization, as well as provision for division of VietNow's few remaining assets. The agreement also notes that a total of 27 states had "expressed interest in VietNow's solicitation activities in their respective states," although only 21 states signed the agreement (and two more states entered into separate agreements with similar terms).
Thursday, June 22, 2017
Journalists have a constant interest in charity private benefit stories, particularly ones with a political angle. And unfortunately they seem to be able to find them. Recent reports raising questions about plain vanilla (non-political) private benefit have focused on a variety of donors and charities, including New England Patriots' quarterback Tom Brady, the James G. Martin Memorial Trust in New Hampshire, and billionaire Patrick Soon-Shiong. But not surprisingly reporters have paid even greater attention to situations relating to politics and politicians, including ones involving the Eric Trump Foundation, Boston mayoral hopeful Tito Jackson, President Trump's chief strategist Stephen Bannon, and the Daily Caller News Foundation. These stories are distinct from ones relating to the use (and possible misuse) of charities for political purposes more generally, such as the recent article regarding the David Horwitz Freedom Center.
I should emphasize that none of these situations have resulted so far in any apparent civil or criminal penalties, and in some instances the facts described may not cross any legal lines. Indeed, the only one of these situations that appears to have drawn government scrutiny so far is the one involving the Eric Trump Foundation, which New York Attorney General Eric Schneiderman has said his office is looking into.
The same cannot be said of three other situations that involve the possible misuse of charitable assets. One, relatively minor situation relates to the admitted access of the Missouri Governor's political campaign to a charity's donor list without apparently the charity's knowledge or permission. Two other situations are more serious in that they each involve hundreds of thousands of dollars. In March, a federal grand jury indicted former U.S. Representative Stephen Stockman and an aide on charges relating to the alleged theft of hundreds of thousands of dollars from conservative foundations to fund campaigns and pay for personal expenses. (More coverage: DOJ Press Release.) And last month a federal jury convicted former U.S. Representative Corrine Brown of raising hundreds of thousands of dollars for a scholarship charity, funds that she then used for her own personal and professional purposes. (More coverage: N.Y. Times.)
Wednesday, June 21, 2017
There have been some interesting developments from the states relating to their bread and butter issues of governance, fundraising, and property tax exemptions, as well as a new law in Texas relating to sermons.
With respect to governance, another round of amendments to the New York Nonprofit Revitalization Act went into effect last month (except for one provision that went into effect on January 1st of this year). The amendments clarified a number of important provisions as well as relaxing some of the stricter rules in the original Act, including those relating to related party transactions. For a helpful summary, see this National Law Review article by Pamela Landman (Cadwalader) and Paul W. Mourning (Cadwalader). One interesting nonprofit governance case under the Act is Schneiderman v. The Lutheran Care Network et al., in which New York Attorney General Eric Schneiderman's office challenged the management fees charged by The Lutheran Care Network (TLCN) to one of its affiliates, in part because TLCN had exercised its authority over the affiliate to render the members of the affiliate's board of directors identical to the members of the TLCN board. The trial court rejected the AG office's position, citing the business judgment rule and the presumption that corporate officers and directors act in good faith, regardless of the decision by TLCN to make the affiliate board's membership mirror that of the TLCN board. The March 13th opinion does not appear to be publicly available, but for coverage see the Albany Times Union stories from March 21st, January 13th, and last October 1st.
NY AG Schneiderman office's was more successful in pursuing a fundraising-related claim against the Breast Cancer Survivors Foundation, Inc. (BCSF) and its President and Founder Dr. Yulius Poplyansky. In that case, the resulting settlement closed the "shell charity" BCSF nationwide and resulted in nearly $350,000 to be paid to legitimate breast cancer organizations. The settlement is one result of a broader NY AG "Operation Bottomfeeder" initiative aimed at such charities. The Nonprofit Quarterly noticed a troubling aspect of this case, however: the person apparently behind BCSF was Mark Gelvan, who has "a long history of such activity" and who also was banned for life from such fundraising by none other than the NY AG's office 13 years ago. What additional penalties he may face is unclear, as the investigation into BCSF is apparently continuing.
Turning to property tax exemptions, last year I mentioned that the Massachusetts Supreme Court was considering what counts as sufficiently "religious" use of real property to qualify for exemption as a house of religious worship under Massachusetts law. We now have an opinion in Shrine of Our Lady of La Sallette v. Board of Assessors, and religious organizations in Massachusetts can (mostly) breath a sigh of relief. While exemption statutes are strictly construed, the court rejected a narrow reading of the statute at issue here that would have subject some supporting facilities to tax. In doing so, the court stated "we recognize that a house of religious worship is more than the chapel used for prayer and the classrooms used for religious instruction. It includes the parking lot where congregants park their vehicles, the anteroom where they greet each other and leave their coats and jackets, the parish hall where they congregate in religious fellowship after prayer services, the offices for the clergy and staff, and the storage area where the extra chairs are stored for high holy days." The court then concluded that because the welcome center and a maintenance building both had a dominant purpose connected with religious worship and instruction they were fully exempt from tax, contrary to the position of the Board of Assessors, which had limited full exemption to a church, chapels, a monastery, and a retreat center. It agreed with the Board, however, that a safe house for battered women (leased to a another nonprofit for this purpose) and a wildlife sanctuary did not meet this test (although if the proper application had been filed, they might have been exempt because their dominant purpose was charitable). More coverage: WBUR News.
Finally, one other religious organization-related state law development. Several years ago attorneys for the mayor of Houston subpoenaed the sermons of five pastors who opposed a city ordinance banning discrimination based on sexual orientation during litigation relating to an attempt to repeal the ordinance. She dropped the subpoenas in the face of nationwide criticism, and the ordinance was repealed by Houston voters in November 2015. Nevertheless, the Houston Legislature and current Texas Governor Greg Abbott felt it was important to bar Texas government officials from ever compelling the disclosure of sermons in the future, and so they enacted legislation along those lines last month.
Tuesday, April 4, 2017
Missouri joins the company of Illinois, Georgia, Massachusetts, Michigan, and New York on a list of states whose Governors have set up nonprofit groups to help raise money for their campaigns. These nonprofits, organized as 501(c)(4) entities, allow said organizations to avoid disclosing who their donors are, and how they spend their money. However, these organizations may not spend more than half of their money on political activities, a rule monitored by the IRS.
Some commentators believe these 501(c)(4) organizations are being formed to circumvent campaign finance laws. In an attempt to close this loop-hole, Missouri state Senator Rob Schaaf has sponsored a bill to require such groups to identify their donors. Senator Schaaf believes increased transparency in funding will be a step in the right direction, stating “I think it’s a problem that [political candidates have] this desire to keep the sources of [their] money hidden.”
Those with opposing views, such as Republican consultant Greg Keller, believe that donors have the right to have their identity kept private. Keller stated “I think [501(c)(4)s] are becoming more common, that’s what I believe happens with campaign finance law. I think that every single time you try to micromanage how people are funding political organizations, you end up with more politics, not less.”
Campaign finance is a delicate issue unlikely to be resolved in the near-term. Former Missouri GOP chairman John Hancock believes that “as long as the law allows you not to disclose who your donors are, I think you’re going to see this replicated all across the country.” Time will tell if the trend continues to spread into other states.
David A. Brennen
Tuesday, November 29, 2016
Several well-established nonprofit organizations in Michigan found their longstanding holiday fundraising drives put on ice by the Michigan Attorney General. Media reports several planned fundraisers—such as fire fighters’ “fill the boot” drive for Muscular Dystrophy Association, or the Old Newsboys annual fundraiser—have already been shut down based on the Michigan Attorney General’s aggressive (and potentially unconstitutional) interpretation of a traffic law, while other organizations are worried about the potential consequences.
In a formal opinion, AG Schuette concluded that a state statute prohibiting the disruption of traffic prohibited solicitation of donations in or near roadways. In car-dependent Michigan, this is potentially a big deal that could make it harder for many nonprofits to reach their audiences using methods they have used for decades.
Friday, November 18, 2016
The Federal Trade Commission & National Association of State Charities Officials announced earlier this week "Give & Take: Consumers, Contributions, and Charity", a conference exploring consumer protection issues and charitable solicitations will take place in Washington DC on March 21, 2017. Comments, research, original papers and participation are sought with submission deadline of February 17, 2017. Topics sought include: How Are Donor Solicitations Evolving in the Digital Age? What Do Donors Expect When They Contribute? What Information About Charities Do Donors Find Helpful? Discovering and Reporting Possible Deceptive Charitable Solicitations: When do Donors Act? How are Consumer Purchasing Choices Influenced by Promises of Charitable Support or Social Benefit? What are Best Practices in Terms of Charitable Solicitations, Information and Accuracy?
For more information, see https://www.ftc.gov/news-events/events-calendar/2017/03/give-take-consumers-contributions-charity?utm_source=govdelivery.
Tuesday, November 15, 2016
As has been documented in this space many times, state attorneys general continue to play a pivotal role in ensuring that charitable nonprofit organizations continue to fulfill the promise of their charitable label.
For example, earlier this fall The Fresno Bee reported that the California Attorney General denied a request from Saint Agnes Medical Center to reduce the amount of charity care it provides and instead ordered the nonprofit hospital to pay $2.1 million to other community nonprofit organizations that provide direct health-care services. The request was an attempt by the hospital to reduce the $7 million in charity care it is required to provide annually pursuant to a three-year old agreement with the AG's office. The hospital only provided $4.9 million in charity care in 2015, however. To make up the deficit, the AG ordered the hospital to pay $2.1 million to other tax-exempt entities that provide direct health care services in the hospital's service area by no later than October 31, 2016. While the hospital reportedly was considering its options for challenging the AG order, there are no news stories or other public reports indicating that it did so before the October 31st deadline.
And just last week, the New York Attorney General announced a settlement with the National Vietnam Veterans Foundation and two of its officers to end that purported charity's operations. The founder and president of the nonprofit, who is himself a veteran and an attorney with the U.S. Department of Vetranss Affairs, admitted that 90% of donations were paid to fundraisers, that contributors were deceived about the use of funds raised, and that he used nonprofit funds for personal expenses. In addition to the organization dissolving, he and another officer agreed to be permanently banned nationwide from handing charitable assets. CNN originally reported problems at the organization last May.
For readers who were not able to attend last month's National Association of Attorneys General/National Association of State Charitable Officials Conference, the conference materials are available here. Here was the conference's agenda:
Non-Traditional Models of Philanthropy
- Richard Feiner, Director of Corporate and Foundation Relations, Weill Cornell Medicine
Donor Advised Funds, Endowments and Donor Restrictions
- David Shevlin, Partner, Simpson Thatcher
Corporate Governance - Top Ten Issues
- Michael Peregrine, Partner, McDermott, Will and Emery LLP
Board Education: Top 10 Ways to Get Investigated and How Board Education Can Help Prevent It
- Vernetta Walker, Vice President for Programs and Chief Governance Officer, BoardSource
- James Joseph, Partner, Arnold & Porter LLP
- Janet Kleinfelter, Deputy Attorney General, Office of the Attorney General of Tennessee
New Tools for the Nonprofit Sector
- James Sheehan, Chief of Charities Bureau, Office of the Attorney General of New York
- Amanda Broun, Vice President of Programs and Practice, Independent Sector
- Meghan Biss, Senior Technical Advisor to the Director, Exempt Organizations, IRS
- Miguel A. Barbosa, Co-Founder & CEO, citizenaudit.org
CyberSecurity/Data Privacy Issues
- Paul Luehr, Managing Director and Chief Policy Officer, Stroz Friedberg
- Abigail Stempsen, Assistant Attorney General, Office of the Attorney General of Nebraska
- Alissa Gardenswartz, Deputy Attorney General, Office of the Attorney General of Colorado
Multistate Litigation: Cancer Fund of America
- Tracy Thorleifson, Attorney, Federal Trade Commission
- Michael Foerster, Senior Deputy Attorney General, Office of the Attorney General of Pennsylvania
NAAG Charities Committee: Meet the Attorneys General
- Cindy Lott, Program Director, Nonprofit Management Program, Columbia University School of Professional Studies
Sunday, November 6, 2016
James Fishman (Pace) has the written the following commentary (posted with his permission) on recent news stories relating to charitable solicitation reporting issues involving the Bill, Hillary & Chelsea Clinton Foundation and the Donald J. Trump Foundation:
In a pallid imitation of David Farenthold’s work in the Washington Post on the Trump Foundation, a Scripps News investigation has reported that charity regulators in Mississippi cited the Clinton Foundation for three years beginning in 2001 for failure to register to solicit funds in that state, and the charity did not disclose those instances to some other states as required.
While the Clinton Foundation justifiably can be criticized for inattention to possible conflicts of interest as well as a lack of concern with good nonprofit governance norms, a failure to register in one state for several years followed by the Foundation’s failure to mention it some years later in other states’ annual filing forms are minor infractions equivalent to reporting someone was issued a traffic ticket for parking fifteen inches from the curb, instead of twelve as required by an ordinance.
Almost all of the states require registration in order for a charity to solicit funds. This is accompanied by a requirement of filing a financial report at the end of the year. The registration process is simplified in that almost forty states accept a unified filing statement, which means the charity has to fill out one form and can submit it to all states in which it will try to raise funds. This task is usually done by firms that specialize in fundraising registration and compliance services. The financial reports are likely prepared by the charity’s accountants, who may have no knowledge of the registration process. The charity may not know that a mistake was made in one state, and neither would the accountant. And, as the story indicates, the charity officials who sign the forms may rely on others to prepare them and so not catch inconsistencies between them.
Professor Linda Sugin of Fordham inspected the Trump Foundation’s 990-PF and wrote in a New York Times op-ed piece that there were misstatements made in answering questions whether the foundation engaged in any self-dealing or political activities. That form was likely prepared and filed by Mr. Trump’s accountants, who had little knowledge, like everyone else, of what the Foundation’s activities really were. (The Trump Foundation is registered as a private foundation. Despite its name the Clinton Foundation is a public charity.) So, as was likely the case here with the Clinton Foundation and its charitable solicitation filings, those reporting failures probably reflect more a lack of communication than intentional errors.
Failures of registration by charities to solicit funds are common as many small and new charities are unaware of the requirement. Even larger and more sophisticated charities often make mistakes when completing the many state forms; while a growing number of states accept the unified filing statement, many require additional, state-specific information. When such failures occur, the state’s attorney general or other responsible official will contact the charity, give a period of time to correct the failure, perhaps impose a minor fine, and that’s the end of the situation. Repeated violations may lead to somewhat larger fines, but absent evidence of fraud on the public or other substantive legal violations that is as far it usually goes, although on occasion an attorney general will order a charity to stop soliciting in their state until the filing failures are corrected.
The Trump Foundation, which failed to register anywhere, including its home state of New York, was ordered by New York Attorney General Eric Schneiderman to halt fundraising in New York until it registered, which it later promised to do. What was unique was that the failure to register was the subject of a press release, perhaps the first one ever issued for such an infraction. See Joseph Mead’s post in the Nonprofit Law Prof Blog. Whether the high profile nature of the Trump Foundation may have justified this step, unusual as it was, could certainly be debated.
Given the size and scope of the Clinton Foundation’s activities, not to speak of some legitimate issues for journalistic inquiry, are such inconsequential miscues worthy of the Scripps’ investigative reporters? One the many great things about the election finally taking place will be that the media can return to its normal stable of non-news stories. Kim Kardashian can’t wait.
Tuesday, October 4, 2016
New York AG issues Notice of Violation to Trump Foundation for Failing to Register before Soliciting Donations
Late last week (and widely reported yesterday), New York Attorney General Eric Schneiderman issued an order (with a press release) to the Trump Foundation directing it to cease soliciting donations until it complies with state registration requirements. New York is one of all but a handful of states require that charities planning to ask for donations in their state (under various circumstances) register with the state. Under these laws, charities are typically required to disclose some basic information about the charity, such as the percentage of raised funds that go to fundraising expenses, and the expenses charged by any professional fundraisers hired. For charities that raise funds from multiple states, registration can be an onerous burden, and there has long been a push to streamline multi-state registration to make compliance easier for nonprofits. Yet this is an unusual case, as I'll explain below the break.
Monday, August 29, 2016
Big news from Monongalia County, West Virginia (and I don't mean its party school ranking of number 2... ), but add West Virginia University to the list of charitable institutions making PILOT (payment in lieu of taxes) payments. WVU has done a significant amount of development in downtown Morgantown (yes, we have a downtown...) through private-public partnerships. As a result, a good deal of private property has gone off the tax rolls in this standard issue university town.
Of course, the issue of PILOTs has received a significant amount of discussion as of late (including on this website), as strapped state and local communities look for alternative sources of revenue. For more information, I strongly recommend starting with the Urban Institute website, which has a number of studies on PILOT issues (many of which are authored or co-authored by Evelyn Brody.) In that regard, this really shouldn't be much in the way of new ground... but...
(I am totally dating myself here...)
What I find interesting is that WVU is a public university. I've been searching on the interwebz (to no avail) for more information on how many public institutions - presumably, universities and hospitals - have agreed to PILOTs. (Anyone have any info? I found this helpful article by Langley, Kenyon and Bailin from the Lincoln Institute of Land Policy, circa 2012, that has a number of appendices - a very quick review doesn't seem to show any public institutions.) Part of the rationale for a private nonprofit to enter into a PILOT agreement and voluntarily pay not-taxes is that the alternative could be much, much worse. If a government changes the applicable laws granting nonprofit property tax exemption, the nonprofit will have little control over what happens next, so the devil you know and negotiate is probably better than what is behind Door Number 2.
I would think that with a public university, that calculus would be much, much different. After all, a public university is branch of government, it seems as if it would be much more difficult to muck with the property tax exemption for the University itself - both legally and politically. According to the press release from WVU, its 50 year payment agreement applies only to "private commercial establishments operating on University property for activities that are not a critical part of or integral to serving the academic needs of students." Therefore, while there may be limits on the ability to change the University's tax exemption, query how much play actually exists with attacking the property tax exemption for the University's leased property? (see section 10 versus sections 14 or 17, for example).
Wednesday, August 10, 2016
The NY Times is running a series of articles on the influence donors, particularly large corporations, appear to have over research conducted by some prominent think tanks. As its front page articles on August 8th and August 9th detail, many researchers associated with think tanks are paid consultants or lobbyists for corporate clients, and many think tanks also receive contributions directly from corporations that have an interest in the research the think tank is conducting. Some of the think tanks identified have either admitted to lapses in oversight or adopted more stringent conflict of interest and disclosure policies, but it is not clear how widespread such admissions or changes are within the think tank community.
While in theory reaching research conclusions that are helpful to donors or clients could constitute providing prohibited private benefit on the part of the think tanks, which are generally tax-exempt under Internal Revenue Code section 501(c)(3), the connections detailed in the articles seem too tenuous to support such a claim. This is especially true given both that proving a solid link between a donation and research results is difficult and that the think tanks identified generally engage in a broad range of research projects, only a small portion of which may be tainted by donor influence. Similarly, while some think tanks then arrange for meetings or conferences centering on their research and attended by government policy makers that might constitute lobbying for federal tax purposes, most such events likely fall outside of the technical definition of lobbying and the few that may not are almost certainly within the limited amount of lobbying permitted for tax-exempt charitable organizations such as think tanks.
Nevertheless, the stories are troubling because they throw into question the ability of government policymakers to rely on such research, as noted by Senator Elizabeth Warren in a video the NY Times posted with these stories. In its regular Room for the Debate feature, the NY Times therefore invited a number of commentators to suggest possible ways to address the concerns raised in its stories. Suggestions ranged from greater transparency about possible conflicts (including a certification process), better internal procedures to ensure unbiased research results, greater skepticism regarding those results on the part of journalists and others who report or rely on those results, and a diversification of funding sources (including ensuring various governmental funding sources) to support such research. I frankly am skeptical of transparency, certification, and internal procedure improvement if only because it may be too difficult for busy lawmakers, much less journalists and other members of the public, to shift through various disclosures or to determine what certification schemes or particular think tanks are reliable. I believe the diversification of funding sources idea has more promise, particularly if there are (nonpartisan) ways for government agencies to provide such funding conditioned on accurate, unbiased results. Bottom line, this strikes me as not a narrow federal tax issue but a larger issue about how to incentivize truth telling in public policy research.