Topical Tuesday: March 8, 2016



Topical Tuesday: March 8, 2016
All right, folks, it’s March, the month legendary for entering like Panthera leo and leaving like Ovis aries, having somehow mysteriously transformed.* We have five links for you to read which will brighten your Tuesday:
·         What is the one question that stumps most non-profits? Envision Consulting can tell you: http://www.envisionnonprofit.com/our-blog/180-nonprofit-strategic-plan
·         The Atlantic has a great deep dive from Amy Schiller on the new trend of “marketized philanthropy,” and she raises some troubling questions about it: http://www.theatlantic.com/business/archive/2014/05/is-for-profit-the-future-of-non-profit/371336/
·         Shameless plug on behalf of one of Bergman and Allderdice’s new clients: Pledgling makes fundraising easier for nonprofits by using online tools to exponentially increase your organization’s visibility while keeping all transactions simple and secure. Are you a nonprofit seeking fundraising assistance? Learn more here: https://www.pledgeling.com/about/ and here: https://www.pledgeling.com/faq/
·         For individuals prepping their taxes, make sure to list any bartering income from work you’ve done. Yes, bartering income counts as income:
·          The Hero Initiative is an organization that helps make sure comics creators have a safety net as they get older. Cartoonist Roy Heath tells his story (in comic form!) about being ripped off by Roy Lichtenstein and how The Hero Initiative helped him: http://comicsalliance.com/russ-heaths-comic-about-being-ripped-off-by-roy-lichtenstein-will-give-you-a-new-appreciation-for-the-hero-initiative/
Bonus link: The Chronicle of Philanthropy’s March cover story, “Killing Sacred Cows,” is a fascinating, thought-provoking look at how some daring organizations are choosing not to apply for certain grants or hold fundraising galas; top honors for the gutsiest org goes to Communities in Schools, which turned down a $500,000 grant because there were too many restrictions attached. The article is behind a paywall, but it’s worth subscribing to The Chronicle just to read the article. It could permanently change the way you fundraise:  
That’s all for this Tuesday. Got legal questions about nonprofits, incorporating, fundraising, compliance, or anything else? Bergman and Allderdice offers free consults. Hit us up at info@B-alaw.com or give us a ring at (213) 736-5101.
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*ED—Congratulations. Everyone now knows you know Latin. Show-off.
(Me: It’s worse than that. I had to look those up on Wikipedia.)
Friday Five: Five Useful Articles for February 26, 2016



It’s been an eventful February in the nonprofit world—the death of Supreme Court justice Antonin Scalia, ongoing laws being proposed and passed in state legislatures, and, of course, the ever-closer April 15 deadline for annual tax filings.

Here are five links to help you through the cold (Okay, cold for those of you in the northern half of the country. We live in L.A. We’re only dimly aware of this thing called “weather”):

• The inimitable Gene Takagi at NEO law group has a set of 5 helpful fundraising tips for nonprofit organizations: http://goo.gl/lQQONN

• The conservative blog The Federalist highlights some potential problems with Donald Trump’s veterans charity donations: http://goo.gl/RHytHz

• The Nonprofit Quarterly is not impressed with Facebook’s new “Facebook for Nonprofits” site. (ED—One small disagreement w/ Nonprofit Quarterly: based on personal experience, some nonprofit orgs are not up to date with Facebook pages, and will probably find the page useful— G.M.) http://goo.gl/VMZAmR

• JDSupra Business Advisor illuminates the additional scrutiny that Congress is bringing to colleges’ large endowment funds:  http://goo.gl/WmJQB8

• Finally, the creators of thatswhatshesaid, a new one-woman show which extensively quotes other recent plays, are duking it out with play publisher Samuel French over fair use Arts administrator Howard Sherman has an interesting and balanced look at the case: http://goo.gl/fQJhPA

Written by Erin Pike and Courtney Meaker, thatswhatshesaid critiques the female character descriptions in the ten most produced plays of 2015, but it’s constructed entirely from quotations from those ten plays, and used without the playwrights’ permission. * Samuel French sent a cease-and-desist letter; the actress and director are fighting back.

Got non-profit questions? Send them our way at info@b-alaw.com, or call us at (213) - 736-5101.
And remember to follow us on twitter @bergmanalldlaw for more updates!

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*The concept of fair use allows a creator to quote other works for purposes of ‘criticism,’ but there isn’t a whole lot of straightforward precedent to rely on in general, and particularly with this case.

Keynote Address by Director Annie Donovan at the 2015 CDFI Coalition Institute

Thank you, Ray, for your kind words. I also would like to thank the CDFI Coalition for giving me this opportunity to speak, and for their longstanding support for the CDFI Fund and the CDFI industry. It is an honor and a pleasure for me to join you here today at the 2015 CDFI Coalition Institute.
A National Treasure
In my first week on the job, I sent out an electronic message to the industry in which I described the network of CDFIs that exists today as a “national treasure.”  This phrase resonated with many people, who either tweeted or retweeted it, or remarked to me though e-mails and personal conversations that they couldn’t agree more with that description.
Why are CDFIs a national treasure?  In my view there are many reasons, but today I would like to focus on just two.  The first, and most fundamental reason, is that CDFIs have demonstrated through a track record of performance over the past several decades that low-income people and low-income communities are credit worthy.  Sometimes I think that because this is an assumption so many of us made when we embarked on this work, we forget to stop and reflect on just how powerful an outcome this is. CDFIs have demonstrated that low-income people and low-income communities are credit worthy.
How do we know this? Because CDFIs report default rates that are more or less commensurate with traditional financial institutions, because CDFI balance sheets continue to grow, because mainstream investors continue to invest in CDFIs, and because very few CDFIs have failed over the past two decades, even during the financial crisis.
Today, the CDFI Fund is releasing two reports that we commissioned.  The first is “Stepping into the Breach: An Impact Evaluation Summary Report” by Michael Swack and his team at the University of New Hampshire.  The second is “Risk and Efficiency among CDFIs: A Statistical Evaluation” by Gregory Fairchild and his team from the University of Virginia and Stanford University.  You already heard from Greg Bischak and Gregory Fairchild a short time ago on the Risk and Efficiency report.  Tomorrow, Greg Bischak will dive into the results from the Impact Evaluation report.  The good news these reports reveal is that CDFIs are disproportionately serving distressed communities and minority borrowers.  Moreover, during the great recession, when conventional financial institutions pulled back and accumulated cash on their balance sheets, CDFIs pushed forward. You stepped into the breach and acted as a countercyclical force in hard hit communities. CDFIs actually grew as a result. And, the Fairchild study found that regulated CDFIs, though they serve markets that are assumed to be inherently more risky, are no more risky than other financial institutions.
The second reason that CDFIs are a national treasure is because CDFIs have become a platform for social innovation in low-income communities.  With your ears to the ground, and your unrelenting belief in the virtue of the people you serve, you are often the first to see opportunities and create solutions that others miss.  From affordable housing, to child care, charter schools, health centers, small businesses, transit oriented development, and the arts,  CDFI are on it! 
An example I heard about recently that I think clearly demonstrates this innovation and how it is transforming the lives of people and communities is occurring in Cuyahoga County Ohio, the county in which Cleveland is located.  The Nonprofit Finance Fund and The Reinvestment Fund helped finance a social impact bond to support a program that is keeping families facing homelessness together.  By fostering a partnership between women’s homeless or domestic violence shelters and the Division of Children and Family Services, women with children are being provided assistance to help them acquire housing and health services quickly so that they can regain custody of their children, who are automatically placed into foster care upon arrival at the shelters.  This program is an example of innovation that could reduce the number of children in foster care in Cuyahoga County by 1/3, and prove to be a significant cost saver for the county, all while stabilizing and reuniting families at a time of great need.
A Model That Works
CDFI certification is often used as a shortcut to eligibility for other government programs because your effectiveness is broadly understood.  For example, the majority of funding granted by the Department of Education under its Credit Enhancement Program for Charter School Facilities goes to CDFIs.  In its inaugural funding round for social impact bond intermediaries, the Social Innovation Fund this year granted more than 45% of its resources to certified CDFIs.  I participate in many interagency meetings in which sister federal agency want to know: how can we leverage the power of CDFIs to accomplish our social objectives?
CDFIs are demonstrating how to leverage federal funding with private investment to create responsible savings, lending, and investment products that create economic opportunity in low-income communities.  Are there inefficiencies in serving these populations? Yes, there are.  Is there a need for development services and financial education to be coupled with CDFI products?  Yes, in many cases there is.  But I believe that CDFIs are leaders in designing and delivering smart tools for communities.
The First 20 Years – A Look Back At Our Successes
The CDFI Fund celebrated its 20th anniversary last September. I have to say, I clearly remember when the CDFI Fund was created, and it doesn’t seem quite possible that it was 20 years ago.
Back in the early 1990s, there were organizations across the country that were dedicated to providing financial products and services in underserved low-income communities, of course, but there was no federal mechanism for certifying and supporting them. That changed on September 23, 1994, when President Bill Clinton signed the Riegle Community Development and Regulatory Improvement Act. The new legislation authorized the creation of the Community Development Financial Institutions Fund, a new federal agency dedicated to creating and increasing the number of CDFIs serving our nation’s low-income communities.
The Riegle Act was the upshot of candidate Clinton’s proposal to create a network of community development banks in the United States. It also was the product of the dedication and hard work of a group of leading community finance practitioners that came together to contribute policy recommendations and lead a grassroots campaign to secure the passage of the bill. That group eventually became the CDFI Coalition, and all of us in the industry can be grateful for their efforts back then and in subsequent years.
I have to think that the CDFI industry that has emerged over the two decades since the signing of the Riegle Act has surpassed even the most wildly optimistic visions of the Clinton Administration and those early CDFI practitioners (and I was one of them, so I can speak for myself). Today, there are 933 certified CDFIs in the United States. That total includes 508 loan funds, 243 credit unions, 109 banks, 59 depository holding companies, and 14 venture capital funds. There are CDFIs in all 50 states, as well as the District of Columbia, Puerto Rico, and Guam.
We have demonstrated that there is a tremendous demand for our services—that low-income communities need and want the services that CDFIs provide, and use them.
We have demonstrated that low-income communities are untapped sources of innovation and creativity—that there are people in these communities who will make the most of the opportunities our services provide.
We have demonstrated that there are thousands of people all over the country who are passionate about doing this work, who will do what it takes to start a CDFI and keep it going, and who will work unbelievably hard to develop new ways to meet the needs of the communities they serve.
We have demonstrated that there are mainstream banks and other investors who want to invest in low-income communities and will form productive partnerships with CDFIs and Community Development Entities.
We have demonstrated that our programs work—that they generate new economic opportunity in communities where businesses, and jobs, and affordable housing, and opportunity have long been in short supply.
And we have demonstrated that the federal government has a critical role to play, in partnership with others, in fighting poverty and can indeed do great things to lift up low-income communities and support the local organizations that serve them.
And that’s why I believe that the CDFI Fund—and the entire CDFI industry—is truly a national treasure.
Mapping The Future – A Call To Action
I also believe that those of us who have the privilege of working in this industry are charged with the responsibility for protecting this national treasure. I can assure you, that’s something that all of us at the CDFI Fund are committed to. We are committed to building on the strong foundation that so many people have helped to build over the past 20 years and to doing everything we can to make sure that the future of the CDFI Fund is a great as its past.
Which brings me to the topic of the CDFI Fund’s priorities going forward.
You have just heard from the panel of CDFI Fund managers about the plans for some of our key programs, and I hope it was abundantly clear from their remarks that the CDFI Fund has an ambitious plan for 2015.
But we also will be looking beyond 2015. This year, in addition to managing all the programs and services that we provide to the industry, we will be developing a new comprehensive five-year strategic plan for the CDFI Fund.  We won’t be developing this plan in isolation. The process will be informed by the perspectives of the CDFI Fund’s Advisory Board, Treasury officials, and members of the CDFI industry.
What I want above all is for 2015 to be a year of listening for the CDFI Fund. To that end, I am pleased to announce that we will be conducting a series of listening sessions later this summer at a number of locations around the country. The goal is to get input from the industry and the public about where the field needs to go in the future and how the CDFI Fund can help it get there.
We are just now beginning to plan these listening sessions, but at this point I can say that we will be looking for comments and suggestions on six broad topics:

  1. Data – How we can use data to strengthen the industry and increase our impact. While the findings in the reports released today are promising, they still don’t tell the whole story of the impact CDFIs are having. There are many questions that the authors acknowledge they just can’t answer because the data is limited.  This is a condition we must change if we are to strengthen and grow what we’ve so painstakingly built over the decades.
  2. Innovation – How can the CDFI Fund best support CDFIs to continue to innovate? What innovations are most needed in communities today?
  3. Growth and Impact – Can we take what we’ve built and scale it?  How do we deepen our impact? How do we support transformation and not just transactions? How do we move needles?
  4. Access - What do we need to do to reach communities that need CDFIs but are not being served by them?
  5. Operations and customer service – What works well at the CDFI Fund and what needs to be improved?
  6. What are we missing - What are the issues that should be on our radar screen at the CDFI Fund but are not?
We will release detailed information about these listening sessions, including the schedule and locations, later this spring. Please stay tuned.
In addition to conducting the listening sessions, we will be inviting anyone and everyone to submit their comments and suggestions to us by email at thenextfiveyears@cdfi.treas.gov and on a special page, The Next Five Years, on our website.
Needless to say, we hope to hear from you. In fact, we’re counting on it. The members of the CDFI Coalition have been such a vital part of the CDFI Fund’s past, and we need you to be a vital part of our future.
So please join us at one of the listening sessions or at least send us your ideas, your suggestions, your dreams for the future of the CDFI Fund and the CDFI industry. If you do, I can promise you that you will be heard. Your suggestions will be carefully reviewed during our strategic planning process and will help guide us in our thinking.
Motivation As A Foundation For The Future
You know, it’s helpful to celebrate anniversaries because they mark milestones. We’ve come a long way over the past 20 years.  And yet, we all know there is much work still to be done.  I continue to be personally energized by the promise of this important work and by our continued collaboration. 
Whether you’ve been doing this work for 20 or 30 years or you’re just starting out, I encourage you to stay connected to what drew you into community development finance to begin with.  For me, it was my experience as a Peace Corps Volunteer over 25 years ago.  I was assigned to a rural fishing village on the eastern tip of Jamaica. One day, I had gone to a neighboring community to do some work when a heavy storm rolled in.  Upon returning home, I got off the bus to find that the dirt road leading to my house had literally turned into a river.  I didn’t know what to do.  Then I heard someone calling my name from way up on a hillside.  It was my neighbor.  She was waiting for me, holding a plastic bag over her head for protection from the rain.  She showed me an alternative path through the bush that led to my house.  It sure beat swimming home! 
That experience made me realize that we are all interdependent, regardless of socio-economic status.  It cemented my commitment to work to ensure that economic opportunity is as widely available as possible.  Everyone deserves the opportunity to reach their highest potential in life. I am certain that there are lots of these kinds of stories in this room.  I encourage each of you to recall your own story and to draw on it as we embark on the next decade of this journey to connect capital with underserved communities.  
I am very much looking forward to our collaboration to protect and grow this national treasure that is the CDFI network.
Thank you!

The Nonprofit Revitalization Act of 2013


On December 18, 2013, New York Governor Andrew M. Cuomo signed the Nonprofit Revitalization Act of 2013 into law.  The Act, which is an overhaul of New York’s antiquated and burdensome nonprofit law, became effective as of July 1, 2014.

The general purposes of the Act are to:
  • eliminate unnecessary administrative and procedural burdens;
  •  modernize the New York nonprofit law; and
  •  strengthen governance through compliance with certain best practices.
Some features of the new law are as follows:
  •  It abandons the four types of nonprofit corporations (Types A, B, C, and D), and replaces them with two types – “charitable” and “non-charitable”.  All Type B, C, and Type D entities formed for a charitable purpose will now be designated “charitable” and all Type A, and all other Type D entities will now be designated “non-charitable”.
  • It allows use of electronic mail to transmit board and membership meeting notices and other communications, and permits board members to attend meetings via Skype and video conference;
  • It provides for a one-step approval process (e.g. Attorney General review) for any charitable corporation seeking to sell, lease, exchange, or dispose of all or substantially all of its assets, merge, consolidate, or change its purpose.  Formerly, approval was a lengthy and costly two-step process which consisted of Attorney General review followed by court approval.
  • Entities with 20 or more employees and annual revenue in excess of $1M must adopt a whistleblower policy, protecting directors, officers, employees and volunteers who report suspected improper conduct from retaliation.
  • Every nonprofit must adopt a conflict of interest policy, ensuring that directors, officers and key employees act in the nonprofit’s best interest.
  •  For nonprofits with fewer than 21 directors, approval of non-substantial real estate transactions requires the vote of a majority of the directors (formerly required vote of two-thirds of the directors), and approval of transactions involving property that constitutes all or substantially all of the nonprofit’s assets will require the vote of two-thirds of the directors.
Read the text of the Nonprofit Revitalization Act of 2013.

Balancing Profit and Purpose: The B Corp and the Benefit Corporation


Today’s blog entry seeks to clarify the confusion between “B Corp” and “benefit corporation”, which terms are commonly and incorrectly used interchangeably, and speak to the features and requirements of both. 

It all started with B Lab, a nonprofit organization responsible for (a) writing the benefit corporation legislation that has now been enacted by 26 states and D.C., and (b) overseeing and administering the private “B Corp” certification process.  A benefit corporation is a type of entity under state law, and B Corp certification is a private certification conferred by B Lab on business entities that apply for such certification. 

As of August 2014, B Corp certification has grown into a community of 1,052 B Corp entities in 34 countries (739 in the United States alone), spanning 60 industries, approximately 20 of which are in the U.S. legal services industry.  The benefit corporation is a recent phenomenon, first appearing in 2010 in Maryland.  Companies like Dogeared, EO Products and Patagonia (the first benefit corporation in California), are both certified B Corps and benefit corporations.

Here are some of the key characteristics of the B Corp and benefit corporation:

Becoming a Certified B Corp
  • Any type of for-profit entity can apply to B Lab to become a certified B Corp.
  • To become a B Corp, one must (a) complete the “B Impact Assessment Survey” and score at least 80/200, (b) sign a Term Sheet and Declaration of Independence, and (c) if required, amend its governing documents to include the “B Corp Legal Framework” which requires that the company consider the impact of its decisions not only on shareholders but also its employees, customers, suppliers, community and the environment.
  • B Corp certification is for a two-year term and subject to an annual certification fee ranging from $500 – $25,000 annually (based on the B Corp’s annual sales).
  • B Corp certification is similar to a license and may be terminated.
Becoming a Benefit Corporation
  • A benefit corporation is legal entity and specific type of corporation that may only be formed in a state (including California) that has enacted legislation authorizing its creation.
  • Every benefit corporation is required by law to have a general or specific (optional) public benefit purpose.
  •  An existing corporation can become a benefit corporation by amending its Articles of Incorporation and Bylaws.
  • A change to or from a benefit corporation is a corporate entity change that requires 2/3 shareholder approval.  Any shareholders who vote against a conversion from a corporation to a benefit corporation can force the corporation to purchase their shares at fair market value.
Expansion of Fiduciary Duties 
Traditionally, a director’s and officer’s obligation is to manage the corporation to provide a return to its investors.

The B Corp certification attempts to modify the fiduciary duties of the governing body and officers by requiring a company’s governing documents to state that they must consider multiple stakeholders, not just shareholders.

The benefit corporation creates a new legal framework that requires directors to consider “shareholders, workers, suppliers, customers, the community and society at large, the local and global environment, and the short and long terms interests of the benefit corporation”.  Likewise, the officers must consider the impacts of their actions on the same group.  Therefore, in addition to traditional responsibilities, a director or officer of a benefit corporation must also consider the general or specific public benefit of his or her actions.

Benefit Enforcement Proceedings 
A benefit corporation is subject to a “benefit enforcement proceeding,” a unique cause of action asking the court for an equitable remedy to require the benefit corporation to pursue its general or specific public benefit.  A benefit enforcement proceeding may only be brought by the corporation itself, a shareholder or director, and persons specified in the corporation’s articles or bylaws as beneficiaries of the corporation’s purpose.  The benefit corporation cannot be found liable for monetary damages; however, if the court finds that the benefit corporation’s failure to comply with the Benefit Corporation Law was without justification, the court may award the plaintiff its reasonable attorneys’ fees and costs.

Reporting & Audits 
B Lab makes the results of each B Corp’s “B Impact Report” publicly available on its website, and B Lab randomly audits 20% of all B Corps over the two-year certification period.

The benefit corporation law imposes reporting requirements by requiring a benefit corporation to prepare a special annual report (called a “benefit report”), which includes information such as how it pursued its general or specific public benefit, any circumstances that hindered the pursuit of a general or any specific public benefit, and an assessment of its social and environmental performance.  The benefit report must be made available to the public on its website, if any, or otherwise a copy must be provided without charge to anyone requesting it.

Choosing a Path 
Each company has to consider how best to achieve its goals.  Is it considering becoming certified as a B Corp or becoming a benefit corporation because it is the right thing to do?  For positive publicity?  Because customers are giving preferential treatment to B Corps and/or benefit corporations?  Consider which public benefits the company pursues or wants to pursue; if they are already part of the company’s culture, and all owners agree, then the benefit corporation route makes sense and, if the company is already a corporation, relatively easy to achieve.  Take a look at annual reports for the past few years--does the company already publicize the benefits it promotes?  If so, then publishing annual reports conforming with the public benefit law should not impose a burden.  If the company is not a corporation, check with its attorneys and accountants regarding the impact of conversion.  If the company is considering B Lab certification, take a look at the B Impact Assessment Survey to get a sense if the company’s current practices qualify for B Corp certification, and check the license fee schedule to determine the bi-annual expense.  If the company changes direction and abandons its public benefit purpose, it is easier to let the B Corp certification lapse than it is to convert from a benefit corporation to a standard corporation.
Be sure to do your homework when deciding which path is best for your company, and don't forget to enjoy the journey.

New York To Update EO Regs


Schneiderman
N.Y. Attorney General Eric T. Schneiderman is proposing legislation to make the 103,000 nonprofits in New York more accountable. Among the proposals is the requirement for nonprofits to have both conflict of interest and whistleblower policies, as well as increasing Board accountability, which puts them in line with the newer IRS 990 guidelines.  Another aspect of the legislation is the increased power for the Attorney General to challenge compensation and maintain effective oversight. This follows Schneiderman’s creation of a panel to review nonprofit compensation following alleged abuses in a large NY nonprofit.

Read more about this proposed legislation, co-authored by nonprofit groups.

CDFI's Latest Round of Awards for New Markets Tax Credits

The Community Development Financial Institutions Fund in February announced $3.6 billion of New Markets Tax Credits (NMTC) awards to 70 community development entities (CDE) nationwide. The 2011 round of NMTC awards had stiff competition with 314 applications from CDEs around the country and only 22% of these being awarded an allocation.


Allocation amounts ranged from $20 million to $100 million with the average being $51.8 million. 60% of those awarded are CDFIs, nonprofit organizations, governmentally controlled entities, minority owned or controlled entities, or subsidiaries of such organizations. Over a total of nine rounds, $33 billion over 664 allocations have been awarded, including $1 billion being specifically set aside for redevelopment in the aftermath of Hurricane Katrina.

See the full list of 2011 allocatees.

Housing and Redevelopment Update


Zimmerman
SB 1220 was introduced on February 23rd 2012, proposing the Housing Opportunity and Market Stabilization Act 2012 (HOMeS), with a goal of creating a permanent funding source for affordable places to live on California. The bill imposes a $75 recordation fee of each real estate document in order to create a trust fund that will support the development, acquisition, rehabilitation and preservation of homes affordable to low and moderate income households.

The fee is estimated to generate $700 million per year for the HOMeS fund. The bill originates from the office of Senator Mark DeSaulnier and is being sponsored by California Housing Consortium and Housing California. The bill has received an enthusiastic response from housing organizations such as SCANPH. "The HOMeS Act takes a significant step towards ending homelessness and helping the most vulnerable find safe and affordable homes," said Paul Zimmerman, former Executive Director of SCANPH. "The legislature must now find a new way to address our housing needs. We know that what's there is not working - and for the sake of our working families - they need to fix it."

A fact sheet on the bill.