March 28-29, 2008
Below you will find quick links to the individual panel topics with recommended articles
The 2008 Charities Law Conference began with concurrent Overview Sessions: one for attorneys general and staff and one for non-governmental attendees from the charitable sector, academia, and private practice. The sessions provided a broad overview of the interaction of state regulators and charities, with information tailored for the particular audience. These sessions were designed to foster a baseline mutual understanding of the characteristics and roles of both the attorney general and the charitable sector.
All panels for the plenary sessions following the Overview Sessions were multidisciplinary, with an attorney general moderating a panel of commentators, including one assistant attorney general specializing in charities regulation, a representative from the charitable sector (both large and small entities), an academic who has written in the field of charities regulation, and practitioners within the field. The conference was premised upon the notion that all panels and sessions will be interactive and characterized by wide-ranging discussion from both panelists and audience members.
When and why Attorneys General get involved in charity matters, and Public policy considerations that encourage and constrain Attorney General action
Two “Triggers” panels began the plenary portion of the conference and examined how and when an attorney general may become involved in a charities matter in the first instance. Whether through discovery by the entity itself, a donor complaint, a whistleblower or newspaper article, these Triggers sessions examined the factors that influence an attorney general’s decisions. The first Triggers panel contemplated various governance issues that may trigger involvement by an attorney general; the second panel considered other factors that may cause involvement of the office of the attorney general.
Part One: Governance Issues that may trigger AG involvement
Part Two: Other Issues that may trigger AG involvement
Point / Counterpoint: case and related policy discussion: The Yawkey Trust, the Red Sox and Beantown
Fundamental to an attorney general’s decision in becoming involved in a charities matter is the identity of various potential parties: plaintiffs, defendants and third parties. Whether those parties include donors, heirs, whistleblowers, board members, fundraisers, public interest representatives, or individuals seeking a private right of action, the attorney general’s determination will be influenced by a number of factors discussed in the Parties panel.
Determining the targets and players in investigations and enforcement actions
Questions and conversation on parties
THE FEDERAL GOVERNMENT AND STATE AG OVERSIGHT OF CHARITIES
The regulatory implications of Federal tax policy, the new Internal Revenue Service Form 990 and heightened Congressional activity
State attorneys general are affected by federal policy and procedures, including the recognition of tax exempt status and annual reporting requirements for charitable entities, as well as the broader relationship of tax policy to their duties. This session considered the interactions between state and federal entities and explored potential implications of emerging tax policy.
Selecting, obtaining and effectuating a desired outcome; the public policy considerations [in two parts]
Consideration by an attorney general of whether and at what point to become involved in a charities matter is contingent upon what remedies are available for either reforming a charitable entity or, in the event the entity becomes incapable of pursuing its charitable purpose, requiring dissolution. An understanding by both regulators and regulated entities of potential remedies is paramount to effective and timely preservation of charitable assets, a primary underpinning of a community’s trust in the charitable sector and applicable regulation.
The first Remedies panel discussed various options available to an attorney general acting as enforcement entity. Within jurisdictional limitations, attorneys general may look to structural remedies, including revamping or replacing governing boards, requiring specific processes to be put into place, and injunctive relief or even monetary damages against entities or individuals, if appropriate. The second Remedies panel moved into a discussion of a core function of the attorney general in charities regulation: the cy pres doctrine – whereby charitable assets are re-directed to other purposes – and its real world application by attorneys general, with its attendant public policy considerations. The day’s formal presentations will conclude with observations from Harvey Dale, Professor, and Director of the National Center on Philanthropy and the Law, New York University School of Law.
Part One: Governance and structural
Point / Counterpoint
Remedies Part Two: Monetary and cy pres
OVERSIGHT, INVESTIGATION, LITIGATION
Faced with limited financial and attorney resources, attorneys general look for efficient and cost-effective methods of determining whether to become involved in a case and, if a decision is made to pursue a matter, how best to investigate alleged improprieties or wrongdoing by entities or individuals. Equally important is the consideration that even the threat of an investigation by a regulator has the potential of extinguishing the fundraising capability for a nonprofit—the lifeblood of charitable entities.
This Oversight and Investigations session looked at the nuts and bolts of such investigations, e.g. the importance of available financial information and audits, what constitutes good internal financial controls for charities, evidence of whether such controls are present, and the power of forensic accounting. In addition, this session considered the impact of such investigations on regulated entities, particularly smaller charitable organizations with considerable budget restraints. We also explored how the nonprofit community can serve as a resource for attorneys general.
Resources and tools for Attorneys General
State and national work on best practices
Working with AGs to ensure that state regulations reach nonprofits in their states
Examples of government task force approaches:
Where to report problems/abuses
A "Toolkit" for Attorneys General and their Staffs
No matter the degree of regulatory activity within a state, offices of attorneys general will pursue charities matters with limited and varying resources in hand. This “Toolkit” for attorneys general and their offices helped identify available resources to assist these offices, whether on a routine or infrequent basis. Discussion leaders concentrated on topics raised throughout the conference, as well as organizational and enforcement models, legislative and statutory proposals, funding possibilities, continuing communications and ways in which the Columbia Law School Charities project may be of use to the attorneys general in this important regulating role.