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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:

https://www.sfwa.org/2016/03/ask-tax-czarina-bartering/

·

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:

https://philanthropy.com/article/Killing-Sacred-Cows-Charities/235472

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.

_________________________________________________________________________________

*ED—Congratulations. Everyone now knows you know Latin. Show-off.

(Me: It’s worse than that. I had to look those up on Wikipedia.)

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Friday Five: February 26, 2016

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!

_______________________________________________________________________________

*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.

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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!

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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.

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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.

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ABOUT BERGMAN and ALLDERDICE

We founded Bergman and Allderdice in 2005 out of the desire to work closely with organizations that are committed to making a difference in our community. Having worked at larger firms, we decided we preferred the personalized service of a smaller, women-owned firm dedicated to providing high quality and cost effective legal services. We are team players who work closely with our clients, providing practical solutions to complex legal matters and helping them maximize self-sustainability. We pride ourselves on our reputation in the nonprofit and community development arena, both locally and nationally, and feel that our clients' loyalty speaks for itself. Our areas of expertise include affordable housing, community development, tax-exempt bond financing, CDFI- and CDE- source financing, compliance, management, public/private partnerships, mergers and acquisitions, nonprofit and for-profit formation and qualifying organizations for tax-exempt status.

Clients 

 
Office 

1200 Wilshire Blvd #610
Los Angeles, CA 90017
(213) 736-5101
info@b-alaw.com
                                  
 Principal 
BETH BERGMAN
bbergman@b-alaw.com
(213) 736-5101 ext. 1

 Principa
MICHAEL ALLDERDICE 
mallderdice@b-alaw.com
(213) 736-5101 ext. 2


 Of Counsel 
JENNIFER POST biography
DAVID ROSMAN biography

 Legal Assistant 
MELANIE CRUZ
(213) 736-5101 ext. 4

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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.

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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.

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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.

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Charter Schools

There are a number of bills currently under review that will have a significant impact on how charter schools will survive and function in California. One of these is AB 1576, a bill giving county offices of education the authority to loan money to charter schools. Another bill, SB 958, will require that special education services provided by charter schools be administered through the special education agency nearest the school, unlike previous years where charter schools have had to look outside their local area for special needs administration. Those opposed to the bill argue that ‘long distance’ Special Education Local Area Plan offices (SELPA) are necessary as local agencies often ignore their needs. Finally, the California Charter Schools Association released results of their ‘Portrait of the Month’ report, on non-renewal of 10 underperforming charter schools. 

You can read findings of the report and more detail

here

.

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Komen For The Cure

The

Non-Profit Times

released an interesting

summary

of the current media storm surrounding Komen for the Cure and their controversial funding cut to Planned Parenthood.

As a nonprofit known for its powerful marketing, there is much debate over how the Komen brand will overcome this media firestorm. See the article above for an insightful analysis into the way forward for Komen as a brand and organization, in particular the recovery steps outlined by Nancy Schwart that emphasize the importance of regaining the confidence of supporters. As a nonprofit known for its dubious corporate partnerships, including the KFC Buckets for the Cure campaign, Komen is well adept at reforming themselves and retaining public support. Whether they can come through the controversy remains to be seen.

The Komen for the Cure story, including founder Nancy Brinker’s statement following the funding cut, is

here

.

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Cato Institute Suffers Direction Crisis

The libertarian think tank, the Cato Institute, came into the media spotlight recently following a lawsuit against two Board members: the conservative activist Koch brothers. The Board is made up of 16 members, however power is mainly held by a four member ‘shareholder’ group.  Currently two of these seats are held by the Koch brothers, and they wish to seize control of the third following the vacancy of one of the seats. Robert A. Levy, another of the institute’s founders, has been outspoken in his statements to the media over how this would damage the way forward for the Cato Institute in receiving future funding from parties who wish it to remain a nonpartisan research center.

Read more about the

ongoing story

.

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EO 2011 Annual Report and 2012 Work Plan

The IRS released their 2011 Annual Report and 2012 Workplan recently, containing information on where they will be focusing their resources in the upcoming year. This includes looking at the Affordable Care Act 2010 and requirements for tax-exempt hospitals, new 501(c)(29) Qualified Nonprofit Health Insurance Issuers as well as how existing guidance will apply to those 501(c)(3) organizations that participate in the Medicare Shared Savings Program through Accountable Care Organizations. 

You can read the report

here

.

You can also read the March 14th EO Update

here

.

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The New California Hybrid Forms Hit the Street January 1, 2012: The Benefit and Flexible Purpose Corporations

As a result of California laws enacted on October 9, 2011, entrepreneurs and existing corporations have two additional “hybrid” corporate forms to choose from beginning January 1, 2012: “Benefit” and “Flexible Purpose” corporate entities. Prior to the enactment of

AB 361

 (Benefit Corporation, California Corporations Code sections 14600-14631) and

SB 201

(F

lexible Purpose Corporation, California Corporations Code sections 2500-3503), entrepreneurs were forced to choose between forming as for-profit or nonprofit corporations.

Previously, directors of for-profit corporations engaging in charitable acts or promoting socially responsible policies would do so at the risk of the perception that they were impermissibly putting social purposes ahead of shareholder returns. Similarly, nonprofit corporations might risk losing tax-exempt status if they were perceived to engage in profitable activities rather than serving the 

public interest. As a Benefit Corporation or Flexible Purpose Corporation, organizations can legally pursue both socially responsible and profit-producing purposes at the same time. Both entities will be subject to the same taxes as for-profit corporations.

AB 361: The Benefit Corporation

The idea behind Benefit Corporations has been around since the early days of the United States when states began chartering corporations to achieve a specific public purpose, such as building bridges, roads and other infrastructure. Many argue that social ills came about as corporations became bound to maximize profits and were no longer chartered with a public purpose. Benefit Corporation legislation allows corporations to legally return to pursuing a specific public purpose.

Maryland enacted the first Benefit Corporation law in April 2010. Subsequently, Hawaii, New Jersey and Vermont enacted similar laws. Benefit Corporation laws are pending in Colorado, New York, North Carolina, Pennsylvania and Michigan.

Under the new law, the articles of incorporation of a Benefit Corporation must state that the corporation is being “formed for the purpose of creating general public benefit,” defined as a “material positive impact on society and the environment . . . as assessed against a 3rd-party standard.”

Specific public benefits can include providing low-income or underserved individuals or communities with beneficial products or services; promoting economic opportunity for individuals or communities beyond the creation of jobs in the ordinary course of business; preserving the environment; improving human health; promoting the arts, sciences or advancement of knowledge; increasing the flow of capital to entities with a public benefit purpose; accomplishing any other benefit for society or the environment.

Benefit Corporations will likely be utilized in a variety of industries, including companies that provide food, clothing apparel, office supplies and legal services.

SB 201: The Flexible Purpose Corporation

California is the first state to enact a law authorizing Flexible Purpose Corporations, although Colorado tried and failed to pass similar legislation.

In California, existing corporations and other business entities may merge or convert into a flexible purpose corporation by satisfying certain requirements, including approval of the conversion by a 2/3 vote of shareholders (or a greater vote, if the articles require). The law will also allow flexible purpose corporations to convert into a nonprofit corporation, a corporation, or other domestic business entity upon satisfaction of certain requirements.

Flexible purpose corporations may pursue profit and a “special purpose” at the same time. “Special purposes” include “charitable or public purpose activities that a nonprofit public benefit corporation is authorized to carry out” and “promoting positive short-term or long-term effects of …the flexible purpose corporation’s activities upon” the corporation’s employees, suppliers, customers and creditors or the community and society, or the environment.

Conclusion

These corporate forms join the ever-expanding list of potential structures for pursuing social enterprise in a for-profit context (along with regular corporations, limited liability companies, joint ventures, private-public partnerships and L3C’s). By allowing greater latitude for the establishment of businesses that do not neatly fit into for-profit or nonprofit categories, one hopes these new laws encourage businesses to stay and expand in California.

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Nonprofit Leaders Surveyed

A new report was just released by

McKim Nonprofit Consulting

based on a survey of 70 nonprofit leaders in the greater Los Angeles area. In light of recent economic reports, the survey reveals critical trends impacting all nonprofits locally and nationwide. Some interesting data stands out. For example, the survey shows that while nonprofits have to increasingly rely on volunteers to deliver services, few know how to effectively manage the cadre of people who donate their time. That could jeopardize volunteer relationships, services and long-term donations. The survey also reveals that most boards lack education about their roles and responsibilities, which means that the boards are operating at a less than effective level and that they are not fully supporting the agencies that they purport to represent.

Read the

full report

.

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Changes For DC Nonprofits Effective New Year's Day

via WorldAtlas.com

As the New Year rolls in, so do the extensive provisions of the new District of Columbia Nonprofit Corporation Act 2010 (the “Act”, D.C. Code

§29-401.01

), effective January 1, 2012. The law in this area has been rarely touched since 1962 and January 1, 2012 represents a significant turning point for nonprofit corporations in the District of Columbia with regards to how they will organize themselves in the future. Below, some of the most interesting elements of the Act are discussed. It can be argued that many of these provisions strengthen the transparency of DC nonprofit organizations and increase accountability and public confidence.

Directors and officers

A number of the provisions in the Act apply to directors and the standards and expectations of their personal duties. The duty of good faith, care and loyalty has been codified for all directors and officers and provides useful detail of fiduciary duties (

§29-406.30

). In a similar vein, the Act also lays out clear guidance on indemnification from personal liability to protect directors and contains provisions on insurance to directors and officers and advancement of expenses, amongst other points (

§26-406.11

). This new guidance will be a useful mechanism with which to review and update current organizational documents and policies to reflect the new legal requirements. The Act provides for a maximum board term of 5 years, although reelection is permitted for additional terms (

§29-406.05

). Considered together, these provisions provide clearer guidance relating to the boundaries of nonprofit directors and officers of DC nonprofit corporations.

Recordkeeping

The new Act details a number of required procedures regarding records and housekeeping issues including lists of key documents to be stored at the organization’s principal office (

§29-413.01

) and inspection rights of these documents for

directors and members (

§29-413.02

), emphasizing a theme of transparency and accountability. Similarly, financial statements must be made available to its members if requested, unless otherwise stated in an organization’s articles or bylaws (

§29-413.20

).

Amendments to Articles and Bylaws

If the nonprofit has members they can approve substantive changes to articles and bylaws (if not restricted in bylaws), encouraging directors and officers to be more interactive with the organization, again moving away from boardroom politics (

§29-408.20

). This will arguably help member organizations to be more front-facing and transparent with their members.

Members

Conversely, however, the definition of a ‘member’ has been defined under the new Act to include only those with voting  rights with respect to director elections and specific major transactions (

§29-410.02

). Membership nonprofits can avoid the potential pitfalls of this provision by expressly referring to the right nonvoting members can have. It could be stated that this provision forces organizations to reflect and review the structure of voting rights within their organization, and clarify this transparently through express provision contained in their Bylaws and Articles.

Above covers only a handful of the new provisions coming into effect in the District of Columbia for nonprofit corporations on January 1. Reviewing key organizational documents and policies is strongly recommended to ensure there are no nasty surprises in the form of noncompliance in the face of this new far-reaching legislation.

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Community Development Finance

For this month’s Nonprofit Spotlight we interviewed Dan Leibsohn, President, Executive Director and Founder of Community Development Finance (CDF).  Dan is also Founder of Capital Flows, a community development consulting company, and founder of the Low Income Investment Fund (formerly Low Income Housing Fund).

Mr. Leibsohn graduated from the University of Michigan in Economics and received a Masters in Public Administration from Harvard University where he also studied city planning.

Dan Leibsohn

In May 2009, CDF opened the first nonprofit, full-service check cashing store in the country in the Fruitvale neighborhood of Oakland, California.  It was designed to help low-income families lower their costs, save money and move out of poverty.  The check cashing component of the institution is designed to be financially sustainable through earned revenue.  We recently traveled to Dan’s store to learn more about the check cashing project.

Q: What is a “check cashing” store and how was yours created?

A: Our check cashing store is a nonprofit corporation that provides check cashing services at much lower prices than the market rate stores.  For example, we charge customers a below-market rate fee of 1% for a check under $1,000 compared to 3% at the store a couple of blocks away.  Our customers are low-income community members who may become subject to burdensome overdraft and “non-sufficient funds” fees at traditional financial institutions.  By using our services, they can avoid such unnecessary fees while developing the capacity to enter the financial mainstream again at a later date.  We have a lending program and all the other traditional check cashing services and we also offer financial coaching services and small business assistance.

Today’s economy has severely impacted our customers who now earn less money and bring in smaller checks.  Also, some of our customers who are immigrants used to earn enough money in America to be able to send some home to their families.  Now some immigrants in America are receiving money from relatives abroad because they cannot earn enough here.  The effects of the poor economy inspired us to provide a bridge to traditional banking for low-income community members. 

Q: What are the ideal circumstances for operating a check cashing store?

A:  The needs for any location are different based on the population living and working nearby and on the competition in the area.  In order for our check cashing store to provide its services at below market prices, the store must rely on high volume.  In other words, the store is self-sustaining as long as we have a lot of customers paying a small fee.  Additionally, for our store to be sustainable, it is crucial to have a location that is convenient for our customers.  Finally, we rely on grants to cover the rest of our costs.

Q: Tell us about your goals for the check cashing store project.

A: The ultimate goal of the check cashing store project is to get our customers to enter the financial mainstream if they want to and are able to.  Our check cashing store can provide a bridge to traditional banking.  Once our customers learn how to manage an account correctly, traditional banking will be less expensive for them.  We also hope to be able to serve those who cannot enter the financial mainstream with lower prices and financial coaching.  We estimate that we save our customers about $150,000 annually through our lower costs and other services.

Q: What is the biggest challenge the check cashing store has recently encountered?

A: We had experienced a lack of interest in the financial coaching services that we offer.  Our customers might have been embarrassed about the fact that they had financial issues, or perhaps they didn’t have time to use our services. 

To overcome this apparent lack of interest, we made the process less formal.  By engaging our customers in casual conversations at the beginning of the process, we have successfully increased the number of participants in our program and the depth in which we are able to assist them.

The other major challenge is building up our volume and obtaining grants and donations to support the full effort.

Q: Can you tell me about a success story that holds particular significance with you?

A: We have recently had a breakthrough in our lending program.  We have provided 1,177 loans at one third to half the market fees and at a loss rate of less than 2% where the average loss rate for many pay-day loan alternatives is 8-12%.

Another is the one I mentioned before: our being able to save customers about $150,000 per year.

Q: How do you see the Community Development Fund going forward and what are your personal future goals for the organization?

A: There are many possibilities.  For example, with the right support, we believe that we can help to capture 5-10% of the pay-day loan market by creating a network of nonprofit lenders throughout the state.  We see ourselves creating this network by partnering with nonprofits, credit unions, CDFIs, church groups and public agencies.

In general, we’d like to pass along what we’ve learned about the lending market, financial coaching and the needs of check cashing customers by helping to expand these approaches to as many other locations and organizations as possible.   

Q: How does this tie to the field of microfinance?

A: Appropriately structured micro-finance lending is a large key to assisting low-income households and small business in escaping poverty. Everyone focuses on pay-day lenders and check cashing stores, however, there is an entire set of financial institutions and practices in low-income neighborhoods that replaces the institutions that the rest of the society uses. Low-income households tend to use the entire range of services, not just an occasional or isolated service; they are more expensive and make it more difficult for people to move out of poverty. They include car title loans, rent-to-own stores, pawn brokers and others. This entire range of institutions constitutes a dual financial economy and it is this entire range that must be addressed.  We believe that micro-finance plays a major role in this effort.

In brief, micro-finance lending and financial counseling are key to assisting low-income households and small businesses escape poverty.  An entire dual economy exists in these low-income communities that bypasses more traditional financial institutions.  Pay-day lenders and check cashing stores are only a small piece of this puzzle.  Car title loans, rent-to-own stores, pawn brokers and other businesses often charge astronomical interest rates for their services and fuel the cycle of poverty.  These institutions and their effect on low-income communities must be addressed, and  micro-finance and financial counseling can play a major role in helping these communities transition into a higher socioeconomic level.

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California Supreme Court Abolishes Redevelopment Agencies

.

On December 29, 2011, the California Supreme Court held that ABX 126

, a law that abolished redevelopment agencies

in September 2011, is constitutional, and held ABX 127, a law authorizing the existence of redevelopment agencies as long as they make a large annual payment to the state, unconstitutional. The court’s decision, therefore, upholds the abolition of redevelopment agencies and renders invalid the only law permitting the resurrection of these much-needed agencies.

Funding for affordable housing is desperately needed in California and prior to today’s holding, redevelopment agencies were a major source of that funding. Because there is evidence that suggests the California legislature did not intend this outcome, one can only hope that the legislature will take immediate action to prevent the loss of over $1 billion annually in affordable housing revenues in California in the new year.

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Treasury Department Publishes Study on Supporting Organizations and Donor-Advised Funds

via Groco.com

President Bush signs the

Pension Protection Act.

 On December 6, 2011, the Treasury Department reported to Congress on the results of the

Pension Protection Act of 2006

. The report specifically addressed whether the tax deduction for contributions to supporting organizations and donor-advised funds is appropriate, given issues around the use of charitable contributions for the benefit of the donor.

The report describes how federal tax law treats supporting organizations and donor-advised funds, providing a statistical analysis of such organizations based on IRS income data from 1985-2006 and individual income-tax returns. The report also covers public comments in response to IRS Notice 2007-21. Respondents felt donor advised funds assisted donors, but did not agree that consolidated reporting of funds was appropriate.

The Treasury ultimately concludes that the contribution deduction rules for donor-advised funds and supporting organizations are appropriate because donors relinquish control of assets and because the time lapse between the receipt and use of assets is the same as the time lapse that applies to the use of assets by any other public charities. Furthermore, sponsoring organizations have no legal duty to use the funds in the way preferred by the donor. As a result, the Treasury does not recommend new legislation at this time.

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