April 30, 2014
Drafting the Ideal Team: Risk Lessons from the NFL
By Arley Turner
Next week is my favorite event of the pro football offseason, the NFL Draft. During the draft, the General Manager of each franchise generally leads the selection of the team’s “draft picks.” Each prospective team member is carefully screened before the GM decides which players will be targeted as new players for the coming season. Every draft pick has the potential to be a star player, a solid contributor, or in some cases, a poor fit.
So how do the NFL’s most successful teams choose their draft picks, and what can nonprofit leaders learn from the process?
Screening and selecting new hires for your mission-focused organization may not seem as glamorous as making draft picks in the NFL. But the consequences are just as vital to the people and communities you serve. By exercising care as you “draft” new team players, you have the best opportunity to fortify your mission for the long term, and add dedicated teammates to your cause.
Arley Turner is Project Manager at the Nonprofit Risk Management Center. She welcomes your comments and questions about risk topics, the Center’s Affiliate Member program, the 2014 NFL Draft or the Denver Broncos. Arley can be reached at (202) 785-3891 orArley@nonprofitrisk.org.
Affordable, Convenient Risk Management Training
Each month the Center records a brand-new Risk Webinar featuring up-to-date content on issues that are top-of-mind for nonprofit leaders. The one-time cost for each program is $59, or apply to become an Affiliate Member to enjoy unlimited access to our “vault” of more than 100 hours of risk management training. Frustrated with the limitations of your annual performance review process? Learn what’s new in the field of performance management by purchasing this month’s program on Managing Risk in Performance Management. Next month’s program, on The Insurance Marketplace will be released on Monday, May 5. To purchase any recorded program or peruse the “webinar vault,” visit our 2014 Webinars page today.
New Sessions Added to Upcoming Risk Conferences
The conference programs for the Center’s 3 risk-themed conferences are taking shape! We invite you to browse the schedules, workshop descriptions and registration details for each event, by visiting the conference webpage. To suggest a topic for the Risk Summit in Chicago, click here.
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Risk WebinarsFit-to Suit Risk Policies
My Risk Management Policies, Version 2.0 helps you create custom risk policies for your organization in a matter of minutes. Need well-written policies? This cloud app makes policy drafting easy. After completing the quick registration process, search by keywords, categories or peruse an alphabetized list of 150 templates. Each template offers many options to consider. Some of the templates force you to make practical choices. For example, you might prefer an informal style over formal language. Or perhaps you want to strictly prohibit something that other nonprofits allow! With My Risk Management Policies, Version 2.0, custom-fitting policy language to suit your nonprofit is easy and dare we say… fun!
Version 2.0, What’s New?
We’re excited to announce some terrific new features, plus a bold new design. Many of the new features were developed with client feedback in mind. You spoke and we listened!
To begin developing customized Risk Management Policies for your nonprofit,click here.
The one-time licensing fee for My Risk Management Policies is only $179 or just $29 if your nonprofit is an Affiliate Member of the Nonprofit Risk Management Center.
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© 2014 Nonprofit Risk Management Center
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Wednesday, April 30, 2014
Drafting the Ideal Team: Risk Lessons from the NFL - RISK eNews
Navigating a Nonprofit Corporation through Bankruptcy
Introduction
The nonprofit sector is an enormous contributor to the American economy, providing 5.5 percent of the nation’s GDP and employing 13.7 million people. Just like for-profit corporations, nonprofits can be susceptible to financial problems and insolvency, and may ultimately seek protection under the Bankruptcy Code (although, unlike for-profit corporations, nonprofits cannot be forced into bankruptcy involuntarily). While there is ample guidance for nonprofit directors regarding their fiduciary duties generally, very little has been written about the duties of directors of insolvent nonprofit corporations.
Overview
It is well settled that the duties of officers and directors emanate from state law.[1] Directors are stewards charged with balancing risk and furthering the purpose of the enterprise. The purpose of a for-profit corporation is to enhance the value of the enterprise for the benefit of residual interest-holders, ordinarily the owners of the enterprise. The purpose of a nonprofit corporation is to further the stated mission of the enterprise, rather than to generate wealth for stakeholders.
Some nonprofits have members (nonprofit membership organizations) and some do not (non-member not-for-profit organizations). While in some respects the members of a nonprofit membership organization are like shareholders of a for-profit corporation, in that they elect a board of directors, membership interests in a nonprofit, unlike shares in a for-profit corporation, represent a controlling rather than an economic stake in the enterprise. They cannot be transferred for value like shares of for-profit corporations, and often do not even entitle members to a share of the residual value of the enterprise upon dissolution.[2]
The members of a nonprofit membership organization periodically elect a board of directors, which is ultimately responsible for the operation of the enterprise and the fulfillment of its mission. The boards of non-member not-for-profit corporations are self-selecting and self-perpetuating. The mission of a nonprofit membership organization may either be to advance a charitable or public purpose—as in the case of a nonprofit hospital system, a nonprofit theater, National Public Radio (NPR) or Public Broadcasting Services (PBS)—or to benefit the members of the nonprofit—as in the case of a rural electrical cooperative, a local food cooperative, a university club, a country club, or a professional sports association, such as the National Football League (NFL), Major League Baseball (MLB), and the Professional Golfers’ Association (PGA). The mission of a non-member not-for-profit will be to advance a particular charitable or public purpose.
When a for-profit corporation becomes insolvent, the directors continue to be obligated to preserve (and, if possible, enhance) the value of the enterprise, although the beneficiaries of this obligation shift from the owners to the creditors of the company. Similarly, when a nonprofit corporation becomes insolvent, the directors remain obligated to fulfill their fiduciary obligations as delineated under state law (i.e., to advance the stated mission of the enterprise). While in either case, state law, rather than federal bankruptcy law, will continue to govern a director’s fiduciary duties in a bankruptcy proceeding, a bankruptcy filing will require a board to navigate an entirely new statutory framework while discharging its fiduciary obligations.[3]
In some respects, a bankruptcy filing will shift the landscape to provide greater power to creditors. For example, in a bankruptcy case a debtor will be required to provide a greater level of transparency regarding its financial condition and operations than is ordinarily required. Soon after the filing of a chapter 11 case, a representative of the Office of the United States Trustee (a branch of the Department of Justice) will solicit indications of interest from unsecured creditors in forming an official committee. If a sufficient level of interest is shown, a committee will be formed, which may retain legal and financial professionals at the debtor’s expense and will act as the creditors’ watchdog in the chapter 11 process. During bankruptcy, a debtor will be required to seek court approval, after providing creditors with notice and the opportunity to object, before taking any action that is not in the debtor’s ordinary course of business. Bankruptcy will also provide creditors with remedies for addressing director malfeasance that are not ordinarily available, such as replacing the debtor-in-possession with a trustee or examiner, subordinating a director’s claim under section 510(c), converting the case to chapter 7 (if the debtor is not a farmer or a nonprofit), and objecting to plan confirmation on the basis of improper enrichment of directors.[4]
In other respects, a bankruptcy filing shifts the landscape to provide directors with greater power to deal with recalcitrant creditors. For example, bankruptcy can be used to force a restructuring over a group of holdouts,[5] and a debtor may even strip a creditor of its right to vote on a proposed plan as a consequence of the creditor’s conduct during the chapter 11 case by “designating” or disqualifying that creditor’s vote.[6]
Fiduciary Duties of For-Profit Corporate Boards
The goal of the board of a for-profit corporation is to maximize the value of the enterprise (without subjecting the enterprise to unreasonable risk).[7] Under state law, directors of a corporation generally owe a fiduciary duty to the corporation, including, among other things, to maximize its value. [8]
As set forth in Torch Liquidating Trust ex rel. Bridge Associates L.L.C. v. Stockstill, 561 F.3d 377 (5th Cir. 2009), when a corporation is solvent, the shareholders are the beneficiaries of the corporation’s growth and increased value and have standing to bring actions against directors on the company’s behalf asserting a claim for breach of the directors’ duties to the corporation.[9] When the corporation is insolvent, however, the creditors take the place of the shareholders as the holders of the residual interest in the enterprise, and thus acquire standing to bring derivative actions on behalf of the company.[10] The derivative suit is a powerful weapon for enforcing directors’ fiduciary duties under state law and challenging corporate mismanagement.
It is important to understand that a direct fiduciary duty to creditors does not spring into being upon the insolvency of the enterprise. Rather, creditors simply replace shareholders as the class entitled to commence a derivative action to assert a breach of a director’s state law fiduciary obligations when the enterprise becomes insolvent.[11] While bankruptcy cases often speak of a duty to creditors, that duty is better articulated, as in the Torch Liquidating case, as a continuation of the pre-petition duty of a board of directors to the enterprise, which derivatively redounds to the benefit of creditors when the enterprise becomes insolvent.
Fiduciary Duties of Nonprofit Corporate Boards
Directors of nonprofit corporations have fiduciary duties that to a large extent parallel the duties of for-profit directors.[12] However, unlike the duties of a board of a for-profit corporation, the duties of a board of a nonprofit are not to maximize the value of the enterprise. The obligations of a board of a nonprofit corporation are to the corporation and its stated purpose and mission.[13] While nonprofit corporations do not have shareholders, there are still constituencies who have standing to bring derivative suits, including members (in the case of a nonprofit membership corporation) and directors of the nonprofit.[14] One commentator has even suggested the possibility of beneficiary derivative actions.[15] At the same time, however, federal law and the nonprofit laws of some states provide qualified immunity for uncompensated officers and directors of certain nonprofit organizations.[16]
As with the duties of a board of a for-profit corporation, the duties of a board of a nonprofit do not change when the enterprise becomes insolvent. The board of an insolvent nonprofit need not act like the board of a for-profit corporation and seek to maximize the value of the enterprise in contravention of the entity’s corporate mission. A board of an insolvent nonprofit must remain true to its mission as set forth in its organizational documents. In fact, in forgoing the corporate mission to pursue a path of value maximization, a nonprofit board could expose itself to liability for violating the nonprofit’s organizational documents.[17]
Creditors of an insolvent nonprofit corporation have different rights than creditors of an insolvent for-profit corporation and should not expect nonprofit boards to act like for-profit boards in bankruptcy. For example, unlike creditors of a for-profit corporation, creditors of a nonprofit cannot put the nonprofit into bankruptcy by filing an involuntary bankruptcy petition against it[18] and may not compel a nonprofit debtor to convert its case from chapter 11 to chapter 7 liquidation.[19] Further, while creditors of for-profits in bankruptcy can expect to receive the residual value of an insolvent for-profit corporation unless the debtor is sold or a plan is approved providing for a recapitalization, courts have generally held that creditors of nonprofits are not entitled to the residual value of the enterprise in bankruptcy.[20] This means that unlike in a bankruptcy of a for-profit corporation, managers and directors of a reorganized nonprofit may often retain control of the nonprofit over the objection of an impaired class of creditors.
Creditors that contract with a nonprofit corporation know that they are dealing with an entity that has a mission other than the maximization of the value of the enterprise, and engage with the company with full knowledge that the corporation will be operated on that basis. While such creditors may reasonably expect that a nonprofit board will not intentionally waste corporate assets under any circumstances, there is no basis to expect that a nonprofit board will abrogate its stated mission in order to maximize enterprise value once the company becomes insolvent. While many bankruptcy cases discuss the fiduciary duty of an estate representative to maximize the value of the enterprise for the benefit of creditors, upon closer inspection these cases generally involve for-profit entities whose boards are obligated to maximize value under state law.[21] There is no provision of the Bankruptcy Code that specifically obligates a trustee or debtor-in-possession to maximize the value of the enterprise for the benefit of creditors.[22]
It is instructive that in the context of asset sales (where one might reasonably argue that even a nonprofit debtor should be obligated to maximize value), the Bankruptcy Code places clear restrictions on a nonprofit debtor, which frequently prevent the debtor from maximizing value: (i) a transfer of assets of a nonprofit debtor must comply with whatever applicable non-bankruptcy law governs transfers of property by that nonprofit (i.e., state law, including laws relevant to nonprofits);[23] (ii) a nonprofit debtor may transfer assets to a for-profit corporation only under the same conditions that would apply if the debtor had not filed a bankruptcy case;[24] and (iii) all transfers of a nonprofit debtor’s property under a proposed plan must be made in accordance with applicable non-bankruptcy law that governs transfers of property by a nonprofit entity.[25] The legislative history of these three subsections evidences Congress’s intent to keep in place state law restrictions on nonprofits and “restrict the authority of a trustee to use, sell, or lease property by a nonprofit corporation or a trust.”[26]
Conclusion
State law frames and controls the duties and responsibilities of corporate directors, and often provides qualified immunities for directors of nonprofit corporations. No provision of the Bankruptcy Code preempts any state law concerning the duties and responsibilities of corporate directors, nor are we aware of any state law that modifies a director’s duty when a corporation becomes insolvent. Bankruptcy merely imposes a new overlay of tools to be used and obstacles to be navigated by a board while complying with its fiduciary duties and shepherding an enterprise through the restructuring process.
Announcing The 2014 Field Guide to Software for Nonprofits
2014 Field Guide to Software for Nonprofits
We'd like to tell you about the Field Guide to Software for Nonprofits, our flagship product, which we've newly updated for 2014. This handy reference book to the different types of software available to help your organization will become your go-to guide, whether you're a technologist or tech-averse.
The Idealware mission is to help nonprofits like yours make smart technology decisions, and the Field Guide is the perfect summary of that mission. Each year we update it to reflect the thousands of hours of research, interviews, and analysis we conduct around nonprofit technology, as well as trends and needs in the nonprofit sector.
Inside the 220-page book, you'll find information on every type of software to benefit your nonprofit. In each section you'll get an overview of the different tools available to you, what you can use them for, the options widely used by other nonprofits, and guidance on where to seek out more information. For the 2014 edition, we've added completely new research and recommendations, up-to-the minute listings of software rates and features, and insight into software and technology on the cutting edge.
We're extremely proud of the Field Guide. Since our inaugural edition five years ago, we've made it a priority each year to provide a comprehensive overview of nonprofit technology at a cost that fits the budgets of even the smallest organizations. You can purchase the 2014 Field Guide to Software for Nonprofits for $19.95 by registering below.
Or, if you want to purchase multiple copies or are ordering from outside the U.S., click here to buy through Amazon.
If you would like your coworkers, network, or grantees to benefit from our research too, remember that we also offer attractive rates for bulk purchases. Contact Laura Quinn atlaura@idealware.org for more information.
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Monday, April 28, 2014
Comptroller Thomas P. DiNapoli's Weekly News
For the Week Ending April 27, 2014
DiNapoli: New York on Stronger Financial Footing New York state ended the 2013–14 fiscal year in the strongest fiscal position in years and was able to deposit $175 million in the Rainy Day Reserve Fund for the first time since 2008, according to a report on the recently enacted state budget released Monday by State Comptroller Thomas P. DiNapoli. Still, the $143 billion budget continues to rely, in part, on temporary funding streams to attain balance. Comptroller DiNapoli and A.G. Schneiderman Announce Guilty Pleas by Former Met Council Directors for Stealing $9M in Kickback Scheme New York State Comptroller Thomas P. DiNapoli and New York State Attorney General Eric T. SchneidermanWednesday announced the guilty pleas of William Rapfogel, former executive director and chief executive officer of the Metropolitan Council on Jewish Poverty (Met Council), and David Cohen, also a former executive director of the council. Rapfogel and Cohen both face prison time after pleading guilty to multiple felony charges for stealing, together with other co–conspirators, approximately $9 million from the taxpayer–funded nonprofit organization in a 20–year grand larceny and kickback scheme. DiNapoli: Major Retailers Agree to Stronger Supplier Oversight New York State Comptroller Thomas P. DiNapoli Thursday announced that Fortune 500 retailers Dollar Tree and Dillard’s have agreed to new reporting standards that will help ensure greater transparency and safety in their suppliers’ factories. The agreements will help safeguard the companies and their investors against the financial and reputational damage that can result when suppliers fail to uphold recognized standards of labor and workplace safety. As a result of the substantive agreements, DiNapoli has withdrawn his shareholder proposals asking the companies to strengthen their supply chain accountability. DiNapoli Offers Proposal to Encourage Better Local Government Budgeting State Comptroller Thomas P. DiNapoli Tuesday announced the introduction of a legislative proposal aimed at helping local governments across New York improve their long–term budget planning. The bill would provide reimbursement from the state to municipalities for costs incurred for hiring financial advisors to assist in the development of multi–year budget plans. DiNapoli Announces State Contract & Payment Actions for March 2014 State Comptroller Thomas P. DiNapoli announced Monday his office reviewed 2,379 contracts valued at $2.9 billion and approved more than 2.7 million payments worth more than $18.9 billion in March 2014. His office also rejected 202 contracts and related transactions valued at $531 million and 5,036 payments valued at more than $7.9 million due to fraud, waste or improprieties. Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits ofCenter Moriches Free Public Library; Town of Harmony; Village of Hillburn; Village of Liberty; Mount Vernon Industrial Development Agency; Town of Villenova; and the Westmere Fire District. Comptroller DiNapoli Releases School Audits New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of theDryden Central School District; New Rochelle City School District; Port Jefferson Union Free School District; and the Portville Central School District. |
Take the Step to Delay the Nonprofit Revitalization
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Monday, April 21, 2014
New Report on Foundation Funding to Address Domestic Violence
FOR IMMEDIATE RELEASE
CONTACT:Cheryl Loe
Communications Project Manager
The Foundation Center
(888) 356-0354 ext. 701
communications@
New Report on Foundation Funding to Address Domestic Violence
New York, NY — April 21, 2014. Today, the Foundation Center announced the release of a landmark report on foundation support for organizations and programs working to prevent — and address the consequences of — domestic violence in California. Enabled through a grant from Blue Shield of California Foundation, and using data from the Foundation Center's research database, Foundation Funding to Address Domestic Violence in California is the first-ever examination of philanthropy's contribution to the field of domestic violence. The report provides a landscape analysis to inform community organizations, funders, government agencies, and other stakeholders working to improve prevailing statistics that show one in three women will experience rape, physical violence, and/or stalking by an intimate partner in her lifetime.
"It is evident from this study that there is still ample space for additional funders to help end domestic violence," said Peter Long, Ph.D., president and CEO of Blue Shield of California Foundation. "Given the complex causes of and solutions for domestic violence, philanthropic organizations working on a variety of issues — from healthcare to childhood development — have clear opportunities to get involved and make a difference."
In the period 2009-2011, a total of 96 funders awarded more than $42 million in grants to domestic violence organizations in California. Funds primarily supported family services (80 percent), along with grants for legal services (28.8 percent), prevention (35.6 percent), and public health (27.2 percent).
Other key findings from the report:
- The populations most targeted by foundations were women and girls (96 percent) and children and youth (73.5 percent), followed by the economically disadvantaged (35 percent) and racial/ethnic minorities (16.1 percent).
- Grant recipient organizations located in major metropolitan areas led the state in their share of domestic violence funding dollars: San Francisco (27.4 percent) and Los Angeles (20.7 percent).
- Blue Shield of California Foundation is the leading domestic violence funder in California, making up more than 30 percent of total grant dollars awarded toward domestic violence prevention and services.
- Among the 1,000 largest foundations, the most that invested in any given year during the study period was 74.
"It is essential for funders, practitioners, and policymakers to have concrete data about funding to address domestic violence," said Brenda Henry-Sanchez, director of research for special projects at the Foundation Center and co-author of the report. "This kind of knowledge helps pinpoint where the gaps are so funders can direct their investments where it will do the most good."
Data on foundation funding for critical social issues like domestic violence align with the Foundation Center's stated priorities to communicate philanthropy's contribution to making a better world and to empower donors with the knowledge tools they need to be strategic. This report provides benchmarks against which to measure future progress in California and can serve as a model for other states that want to better understand the nature of foundation funding to address domestic violence.
The data highlighted in Foundation Funding to Address Domestic Violence in California are from the Foundation Center's research grants set, which includes all grants of $10,000 or more awarded by 1,000 of the largest U.S. foundations.
The report, which can be downloaded for free from the Foundation Center's web site, is part of a project funded by Blue Shield of California Foundation that offers tools and training to improve the fundraising capacity of California's domestic violence service providers. In collaboration with several funder associations and Blue Shield of California Foundation, the Foundation Center will present a webinar on May 6 at 11:00 am (PT) to highlight the findings of the report and engage funders and advocates to discuss its implications for the field. Registration for the webinar is online.
About the Foundation Center
Established in 1956, the Foundation Center is the leading source of information about philanthropy worldwide. Through data, analysis, and training, it connects people who want to change the world to the resources they need to succeed. The Center maintains the most comprehensive database on U.S. and, increasingly, global grantmakers and their grants — a robust, accessible knowledge bank for the sector. It also operates research, education, and training programs designed to advance knowledge of philanthropy at every level. Thousands of people visit the Center's web site each day and are served in its five regional library/learning centers and its network of more than 470 funding information centers located in public libraries, community foundations, and educational institutions nationwide and around the world. For more information, please visit foundationcenter.org or call (212) 620-4230.
Established in 1956, the Foundation Center is the leading source of information about philanthropy worldwide. Through data, analysis, and training, it connects people who want to change the world to the resources they need to succeed. The Center maintains the most comprehensive database on U.S. and, increasingly, global grantmakers and their grants — a robust, accessible knowledge bank for the sector. It also operates research, education, and training programs designed to advance knowledge of philanthropy at every level. Thousands of people visit the Center's web site each day and are served in its five regional library/learning centers and its network of more than 470 funding information centers located in public libraries, community foundations, and educational institutions nationwide and around the world. For more information, please visit foundationcenter.org or call (212) 620-4230.
The Foundation Center • 79 Fifth Avenue, New York, NY 10003 • (212) 620-4230
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