Nonprofit Board Governance Legal Issues

Project Bridges Board Presentation • © Gammon & Grange, P.C. 2011 www.gg-law.com 703-761-5000 • Sept. 19, 2011 • Slide 1

Building BRIDGES to More Effective Board Governance

Project BRIDGES Board Retreat September 19, 2011

Ken Liu Gammon & Grange, P.C.


7 BRIDGES to a Better Board

Topics

1. Board Basics

2. Risk management

3. Informed Boardsmanship

4. Duties of care and loyalty

5. Governing interested party transactions

6. Evaluation of legal compliance

7. Staff-Board roles and relationships


1.1 Board Basics: What is A Director?

The individual director: Acting alone has no powers, unless expressly authorized

by the Board Exerts his or her power by voice & vote when the entire

Board is duly convened Shares in all the powers and responsibilities of the

Board

The Board has a collegial governance power


1.2 Board Basics: Who are the Directors’ Constituencies?

A director is accountable to: Constituents/Members: Those whom the organization

serves Donors: Those who support the organization The general public (essence of being public charity) The law: State and federal governments The entity’s Articles, Bylaws, Policies, Budget, etc. The Board of Directors -- each other The Lord (Matthew 12:36 (ESV) I tell you, on the day of

judgment people will give account for every careless word they speak . . .)


1.3 Board Basics: What are the Directors’ Purposes?

A director serves the purposes of the organization

and ensures organization’s activities are serving those purposes

Where are these purposes found? Articles of Incorporation Bylaws Mission Statement The Bible

All activities should be consistent with purposes


1.4 Board Basics: BRIDGES’ Purposes Statement (in Articles & Bylaws) Articles and Bylaws purpose statement: The Corporation seeks: to develop a network of churches and faith-based

organizations to combat social and spiritual problems in local communities,

facilitate programs and support services that strengthen the capacity of churches and faith-based organizations to combat these problems, and

provide resources, education, and training to churches and faith-based organizations to help them strengthen and expand their capacity to relieve poverty, serve the needy in their communities, and provide Biblical solutions to the heart issues underlying the social and spiritual problems the Corporation seeks to combat.


1.5 Board Basics: Primary Sources of a Director’s Legal Duties

Articles of Incorporation Bylaws D.C. Nonprofit Corporation Law Federal tax exempt law / IRS regulations “Common Law” duties

Duty of care Duty of loyalty


2. Risk Management Quiz


Risk Management Quiz

1. Is it permissible for a nonprofit corporation (like Project BRIDGES) to make a loan to an officer or director on terms that favor the nonprofit (e.g., agreement provides that nonprofit is to receive greater than fair market value interest)?

YES, under federal law and IRS regulations; but BUT NO, under D.C. law. Any and all loans to a

nonprofit’s directors and officers are prohibited



2. Are nonprofit boards required to adopt a budget process?

No, but it is strong recommended! No law requires a budget, but the budget is one of the most important tools of financial accountability whereby Board fulfills fiduciary responsibility. Best practices would require a complete budget process.



3. Is it advisable for a large nonprofit Board to carry on most of its work through a small executive committee that determines compensation issues and approves related-party transactions?

NO: Executive committee can handle routine matters

between Board meetings; but should not take over Board’s authority for big ticket decisions: e.g., approving large contracts, new program areas, affiliations, sale of significant assets, related-party transactions, etc.



4. May a nonprofit Board choose not to have term limits in its bylaws?

YES: But it is generally advisable to limit director terms to help keep directors accountable, and Board vibrant and responsive to constituencies. Best practice NGOs have term limits.



6. Should a Board member personally review employee performance appraisals and instruct employees on job performance?

NO, unless the director also has a hat as an officer, or is specifically authorized to do so, say in a smaller entity. This is not only micromanaging, it could be usurpation of the CEO’s authority. Directors are not operating officers of the nonprofit, and generally have no authority to act for the entity between Board meetings.



7. Does D.C. law grant immunity from liability to directors of nonprofit organizations?

YES, BUT LIMITED: D.C. law grants civil (not criminal) immunity, unless the director’s act leading to the injury: is willful misconduct, results in improper personal benefit, exceeds the scope of his authority, or if the nonprofit doesn’t meet certain expense and

insurance tests



8. If a director or officer of a nonprofit organization publicly endorses a political candidate because of the candidate's stand on moral issues (e.g., faith based initiatives, human rights, etc.), could the organization lose its tax-exempt status for impermissible political activities?

YES: Political campaign activity is absolutely prohibited.



9. Can a 501(c)(3) nonprofit lose its tax-exempt status for lobbying activities?

NO: IF the lobbying is “non-substantial.” Definitely less than 5%; maybe less than 20% or higher IF

done with volunteers.


Risk Management Quiz 10. If BRIDGES does not fund any Muslim projects or

groups, must it worry about compliance with the Anti-Terrorist Funding Provisions of the USA Patriot Act?

YES: Patriot Act: criminal liability for providing material support or funds, for use in terrorist act

USAID grant recipient must certify it has taken all reasonable steps to ensure it does not and will not knowingly provide material support or resources to any entity that commits or supports terrorist acts

Combined Federal Campaign participants must certify that they do not knowingly support any persons or organizations on the terrorism lists of the U.S., U.N., or European Union


3. Informed Boardsmanship


Informed Boardsmanship

1. Are Board members familiar with the organization's mission, purposes, objectives, policies, statement of faith, programs, and activities?

Clearly Articulate Your Mission & Values and Communicate your organization’s activities to the broader

community



2. Are Board members committed to the organization's mission, purposes, objectives, policies, statement of faith, programs, and activities?

Are they qualified to implement its goals? Take steps to encourage full participation by all Board members Recruit Board members who:

Embrace and are passionate about, the mission and purposes Are qualified to implement goals Reflect the diversity of your organizational culture: race, gender,

professions, experience/background, skills



3. Are Board members adequately informed about the Board's responsibilities and liabilities?

Before new people join board, need to adequately

prepare them for expectations, legal responsibilities and liabilities.



4. Does the Board regularly evaluate the use of its resources to ensure they are effectively used to further the organization's goals?

One of the Board’s biggest responsibilities is ensuring the organization’s money, staff and volunteers, intellectual property, and other resources are properly used.



5. In recognition of its public trust, is the Board accountable to the community for the organization's success in carrying out its mission and meeting its ethical and legal obligations?

Community = donors, beneficiaries, constituents, and government authorities

Annual audit; publicly available? Board should be familiar with Form 990 Consider ECFA Membership (www.ecfa.org) Watch the watchdog groups, such as:

www.charitynavigator.org www.bbb.org/us/charity

http://www.ecfa.org/�

http://www.charitynavigator.org/�

http://www.bbb.org/us/charity�



6. Does the Board conduct periodic opportunities for training, education, and upgrading of needed skills for its members?

A properly trained and managed Board is one of the most

effective safeguards against legal liability. Nonprofit Board members need to be instructed as to their

fiduciary duties to the corporation, the unique requirements of a nonprofit organization, and restrictions on transactions due to the limitations on private benefit and inurement, unrelated business activity, legislative and political activity, etc.



Keep abreast of latest legal developments affecting

nonprofit organizations Sample resources for Board training

ECFA: www.ecfa.org Christian Leadership Alliance

www.christianleadershipalliance.org BoardSource: www.boardsource.org Independent Sector: www.independentsector.org Gammon & Grange: www.gg-law.com

Sign-up for G&G Law Alerts™

http://www.ecfa.org/�

http://www.christianleadershipalliance.org/�

http://www.boardsource.org/�

http://www.independentsector.org/�

http://www.gg-law.com/�



7. Does the Board run effective and efficient meetings that address the needs of the organization?

Provide timely and effective reports in advance of

Board meetings Board meetings must be used for furthering the goals

of the organization, not specific interests of individual Directors

Divide Board's work between individual Directors, committees, and entire Board



Require absent Directors to review minutes of any

Board meeting missed, and to register their dissent when in disagreement with any Board action

Annually assess Board's effectiveness, providing for procedural changes, training, and education



8. Has the Board developed purposeful policies & procedures?

Develop efficient procedures, but don’t let them supersede strategic thought and action

Develop risk management policies and strategies in consultation with legal counsel

Implement accounting and fiduciary guidelines

Implement conflicts of interest policy



9. Does the Board have an effective budget process?

Coordination of budget with organization's purposes, mission, and strategic plan

Line-item breakout of all significant categories of expenses and income

Review monthly financial statements, including budget projections, comparisons, and line-item variances



Review detailed breakout of new activities or projects Follow policy of red flagging any line item that is

more than 5 percent (5%) above budget, and prohibit such expenditures without special Board approval

Insist on annual audit


4. Duties of Care & Loyalty


4. Duties of Care & Loyalty

Two fundamental duties of a Nonprofit Director:

Duty of Care Duty of Loyalty


Director is a fiduciary – Director must at all times act for the benefit of the organization, in its best interests and to further its exempt purposes

"A director shall perform his duties as a director,

including his duties as a member of any committee of the board upon which he may serve, in good faith, in a manner he reasonably believes to be in the best interest of the corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances.”

Model Business Corporation Act (MBCA), 35.


4.1 Duty of Care

Duty of care A Director should:

(1) be reasonably informed; and (2) exercise independent judgment; (3) to participate in corporate decisions; (4) in good faith; (5) with the care of an ordinarily prudent person in

similar circumstances.


4.1 Duty of Care

Regularly attend all meetings of the Board

Directors can only act as a group (the Board) Board benefits from individual and collegial insights

and group discussion D.C. law and BRIDGES’ Bylaws (8.5) permit

participation by electronic means, so long as everyone can hear and participate

D.C. law and BRIDGES’ Bylaws (8.6) also permit Board action by unanimous written consent, without a live Board meeting


4.1 Duty of Care

Each Director is obligated to: Obtain all information needed to participate in informed

way with regard to every matter requiring Board action May rely upon information received from the following

sources if the director reasonably believes the source to be reliable and competent Officers and employees of the corporation Professionals and experts – lawyers, accountants, etc. Committees of the Board BRIDGES’ members and their pastors

Review and understand all documents submitted to Board Request additional information whenever necessary


4.1 Duty of Care

Each Director is obligated to: Exercise independent judgment on all corporate

decisions – no rubber stamps Director can be liable even if he remains silent in the

face of improper Board action To avoid liability, Director must actively dissent on

the record Responsibly exercise delegation

Board manages the corporation, but does NOT manage day-to-day operations Board sets policies Day-to-day operation is function of management

(officers, employees, agents)


4.1 Duty of Care

Responsibly exercise DELEGATION. Board can delegate its duties to committees of the

Board Can delegate actual Board authority IF committee

composed only of current Board members. “The designation and appointment of any such

committee and the delegation thereto of authority shall not operate to relieve the board of directors, or any individual director, of any responsibility imposed upon it or him by law.” DC Code §29-301.22


4.2 Duty of Loyalty

Duty of Loyalty requires that BRIDGES’ directors at all times act in BRIDGES’ best interests and not for their own personal interests

Three aspects to the Duty of Loyalty:

Corporate Opportunity Confidentiality Conflicts of Interest


4.2 Duty of Loyalty

“Corporate Opportunity” - when a director knows that he or she can participate in a transaction that would plausibly fall within BRIDGES’ present or future activities

What should the director do? Affirmatively present the opportunity to Board, BEFORE participating in the transaction, and let the Board determine that it wishes to abstain from

the opportunity (i.e., ROFR) Always document this fully (e.g., in the minutes of the

Board meeting) showing the conflicted Director was recused from final

discussion and voting.


4.2 Duty of Loyalty

Director should treat as confidential all BRIDGES-related matters unless There has been general public disclosure; or The information is a matter of public record or

common knowledge

Directors are not ex officio spokesmen for BRIDGES Disclosure of matters risks waiving applicable

privileges (e.g. attorney-client privilege)


5. Governing Interested Party

Transactions


5. Governing Interested Party Transactions Conflicts of interest arise whenever a Director (or

senior manager with decision-making influence) has a real or apparent personal interest in a proposed organizational transaction

Conflicts of interest transactions must be properly

handled to avoid self-dealing Self-dealing arises whenever the personal interest or

the interest of a family member, friend, or other organization in which a Director is involved takes precedence over BRIDGES’ best interests


5. Governing Interested Party Transactions To avoid prohibited conflicts of interest, the Board

should adopt and consistently follow a conflicts of interest policy

A good conflicts of interest policy takes into account

restrictions on private benefit / private inurement, and IRS regulations on “Intermediate Sanctions” for excess benefit transactions


5. Governing Interested Party Transactions Private benefit:

benefit to private person or entity, unrelated to exempt purposes, and not resulting in substantially equivalent benefit to

organization Private inurement:

private benefit to an insider (an individual who has significant

influence over the organization) or to a person or entity closely related to an insider

receives benefits greater than she or he provides in return


5. Governing Interested Party Transactions “Intermediate Sanctions”

the IRS can impose a penalty “excise tax” on an “excess benefit transaction” Involving a “disqualified person”

Sanctions can apply to both: The disqualified person, and The managers (including directors) who approve the

“excess benefit transaction”


5. Governing Interested Party Transactions Questions to ask to avoid conflict of interest:

Was there full disclosure to the rest of the Board? Was there unbiased decision-making by the Board? Was the transaction fair to the organization overall? Even though the transaction involves an apparent conflict

of interest, when all the facts are known, is there a demonstrable absence of self-dealing?

Was personal appropriation of all corporate opportunities avoided?

Was any interested director properly insulated from final discussion and voting?


5. Governing Interested Party Transactions IRS recognizes rebuttable presumption that

transaction is reasonable if: approved by governing body composed entirely of persons

without conflict of interest (recuse interested directors from final discussion and voting);

Board relies on appropriate comparability data for determining reasonable compensation or other FMV of benefit received or provided

basis for approval, and comparability data, were contemporaneously documented by Board


6. Evaluation of Compliance and Risk Management


Sarbanes Oxley (SOX)

1. Have a written document retention and periodic destruction policy

2. Develop and adopt whistle-blower policy. 3.Establish a conflict of interest policy 4.Independent and competent audit committee (or at least

an annual audit) 5.CEO and CFO should sign off on all financial statements

including Form 990 6.Disclose financial statements (Form 990)


6. Evaluation of Compliance and Risk Management Charitable Solicitation In most states, nonprofits must register to solicit charitable

contributions Religious organizations are exempt from D.C. registration

requirements, but such exemption must be claimed and affirmatively granted through the Dep’t of Consumer and Regulatory Affairs

Religious organizations are also exempt from Maryland registration requirements, but must submit evidence of entitlement to the exemption to the Maryland Secretary of State


6. Evaluation of Compliance and Risk Management No substantial lobbying is allowed

“Lobbying”: advocacy of passage or defeat of

particular legislation Insubstantial lobbying is acceptable


6. Evaluation of Compliance and Risk Management No political campaign activity allowed

“Political campaign activity”: advocacy of election or defeat of a candidate for public office

This is an ABSOLUTE prohibition Can lose exempt status for violation


6. Evaluation of Compliance and Risk Management Intellectual Property Conduct searches of names before adopting Consider federal trademark registration of key names,

logos Do not allow 3rd parties to use names, logos, w/o license Have contracts to own IP in works created by

independent contractors Include clause protecting proprietary information in all

contracts


6. Evaluation of Compliance and Risk Management Financial audits

Establish audit committee to engage outside auditor Use RFP process every 3 to 5 years After audit is completed, conduct comprehensive

exit interview with auditor(s)


6. Evaluation of Compliance and Risk Management Legal Audits The Gammon & Grange Legal Audit Questionnaire™ ("LAQ")

enables a nonprofit organization to take a significant, self-directed step in assessing its legal health. Diagnoses the organization’s legal strengths and weaknesses and developing a plan for improving legal compliance and risk management

An ounce of legal checkup is worth a pound of litigation

“cure”.


7. Staff/Board Roles and

Relationships


Staff/Board Roles and Relationships

Project BRIDGES’ structure: Governed by Board of Directors Managed by officers

Founder & Co-Founder: vision-casting, representing BRIDGES to its constituencies and communities

Board Chair: presides over meetings of Board President: manages BRIDGES’ day-to-day activities Secretary: keeps Board meeting minutes, corporate

books & records Treasurer: oversees all financial activity

Supported by members (mostly churches; members have no governing voice or vote)



Boundaries: Board: decides the ENDS (i.e., goals and objectives) Exec. Dir. and Staff: decide the MEANS

Board should provide clear parameters on the means the E.D. and staff may use to achieve the Board's ends

Within those policy parameters, give the E.D. the discretion to use his creativity and professional skills to achieve the Board’s ends

Board chair and Executive Director share leadership of the organization – Chair in setting longer term goals, E.D. in running operations



Know When to Delegate Create an Executive Committee & determine in

advance (bylaws, etc.) what the EC can decide between board meetings.

Develop effective committees Which committees are necessary or helpful? Who can serve? Who should chair? Who appoints or elects members? What is the committee’s role? Who staffs the committee?

Create an advisory group with ensured term limits for volunteers



Evaluation of Board Member Performance

Engage in annual self-evaluation through key questions submitted by Board anonymously

Engage in periodic peer evaluation: Board members evaluating Board members, or Board development committee

Engage in accountability by inviting staff members to assess whether Board members are in touch with the reality of nonprofit’s challenges

Submit to professional evaluation and advice of board development committee



Evaluation of Board Member Performance

Board members performance issues to evaluate:

Attendance

Preparation

Constructiveness of contributions

Loyalty

Record as donor

Fundraising assistance

Representation before public


Leadership

“Leadership is not about titles, positions or flowcharts. It is about one life influencing another.” ― John C. Maxwell

“the Son of Man did not come to be served, but to serve . . .”

- Matthew 20:28

http://www.goodreads.com/author/show/68.John_C_Maxwell�


Kenneth Liu Gammon & Grange, P.C. 8280 Greensboro Dr., 7th F McLean, VA 22102 703-761-5000 [email protected] www.gg-law.com

© 2011 Gammon & Grange, P.C. The content in this presentation is

provided for general informational purposes only and does not constitute legal advice. This presentation may be freely distributed in full without modification.

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Nonprofit Board Governance Legal Issues