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VIDEO Q&A for Subscribers: November 2024 [SUBSCRIBERS-ONLY]
Ben and Mike answer questions from subscribers about the spending of operating reserves, conflicts of interest related founders of a nonprofit becoming staff, deciding between filing the Form 990-EZ and the Form 990, and legal issues raised by the moving of funds between related organizations.
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TEMPLATE: Code of Ethics [SUBSCRIBERS-ONLY]
A Code of Ethics is one of the fundamental governance policies that all nonprofit organizations should have, and an important complement to your organization’s conflict of interest policy. This Code of Ethics template is intended to help your organization identify and express the core principles and ethical requirements with which all Board members, staff, and other individuals who serve and/or represent the organization are expected to comply.
Q&A #156 – Who is considered a family member under nonprofit conflict of interest rules?
Extended family members such as aunts, uncles, and cousins generally fall outside of the technical definition of “family members” under the federal tax code provisions governing conflicts of interest involving 501(c)(3) nonprofit organizations. However, these types of relationships can certainly lead to the perception that there is a conflict and should be treated as such to avoid the risk of damaging your organization’s reputation.
Q&A #125 – Are in-kind contributions by Board members considered conflict of interest transactions?
Nonprofit conflict of interest policies are generally aimed at ensuring the organization’s assets are not used to provide excessive benefit to the people who run the organization. While purely donative arrangements (such as providing free office space to the organization) are not typically considered conflict of interest transactions, it is best to err on the side of full disclosure and review by independent Board members because individuals sometimes benefit from these transactions in ways that are not immediately apparent.
Q&A #121 – Is a nonprofit permitted to compensate Board members for their Board service?
Nonprofit organizations are generally permitted to provide reasonable compensation to Board members for their Board service, provided this is not prohibited by the organization’s Articles of Incorporation or Bylaws, and subject to certain provisions of the applicable state nonprofit corporation statute.
Q&A #107 – Should a majority of a nonprofit’s Board members be independent?
While it is not necessarily a bad thing to have some non-independent members on the Board of Directors of a nonprofit organization, it is important for both perception and governance reasons to ensure that a majority of the Board members are “independent” as defined in Part I, Line 4 and Part VI, Line 1b of the Form 990.
Q&A #99 – Do non-spouse romantic relationships raise conflict of interest issues?
While a non-spouse romantic relationship would ordinarily fall outside of the scope of the conflict of interest rules in the federal tax code, and may or may not be addressed by your organization’s conflict of interest policy and applicable state nonprofit corporation statute, it would be prudent to treat this situation like any other conflict of interest. Regardless of the legal formalities, these types of relationships can certainly lead to the perception that there is a conflict and should be treated as such to avoid the risk of damaging your organization’s reputation.
Q&A #64 – Is it appropriate to take an official action in executive session?
Whether it is appropriate to take an official action during executive session depends on what your organization and Board understands executive session to mean. “Executive session” generally refers to a private meeting of the Board (and perhaps select other invitees), which is intended to provide a space where Board members can hold candid discussions on sensitive or confidential matters. Executive session is a useful and appropriate format for some issues, but it is important to be clear about whether executive session is intended to be “off the record,” as official Board actions must ultimately be documented in the meeting minutes.
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The Practical Side of Annual Conflict of Interest Disclosure Statements [SUBSCRIBERS-ONLY]
Most nonprofit organizations have adopted a code of ethics, statement of values, or code of conduct. Within these statements there is always a reference to monitoring, oversight, and transparency related to conflicts of interest. Having a strong conflict of interest policy strengthens your code of ethics posture. Adding robust annual conflict of interest disclosure statements will project an even higher level of assurance that your organization takes its code of conduct seriously.
Q&A #56 – Who should fill out an organization’s annual conflict of interest disclosure statement?
Processes for applying and monitoring conflict of interest policies vary widely for different nonprofits, but the Form 990 is a good starting point for basic guidance. As a practical matter, you want to ensure that the annual conflict of interest disclosure statement is at least filled out by all directors, officers, and “key employees,” as these terms are defined for purposes of Part VI, Line 12b on the Form 990. As a technical matter, all employees and volunteer leaders who are (or could be) “disqualified persons” as defined in Treas. Reg. § 53.4958-3 should also be required to disclose conflicts of interest, so it is prudent to err on the side of distributing the annual conflict of interest disclosure statement more widely.
Q&A #55 – What Board members are considered independent for purposes of reviewing executive compensation?
The key guidance addressing independent review and approval of executive compensation for Form 990 purposes is set forth in Treas. Reg. § 53-4958-6. The key principle is that the persons reviewing and approving executive compensation should not be in a position to economically benefit from the compensation and should not be family members of the person receiving the compensation or otherwise have a business or employment relationship with this person.
Q&A #54 – What comparability data must a small 501(c)(3) organization review when determining executive compensation?
For small organizations, the rule for reviewing comparability data when determining compensation amounts is relatively easy to satisfy. This Form 990 question is based on Treasury Regulations issued under the “intermediate sanctions” rules. Treas. Reg. § 53-4958-6 provides that organizations with less than $1 million in annual revenue (averaged over the three prior tax years) can satisfy this standard by reviewing “data on compensation paid by three comparable organizations in the same or similar communities for similar services.”
Q&A #44 – Should a Board member personally own a nonprofit organization’s trademarks and website URL?
I have not seen guidance from the IRS directly addressing this situation, but I think it is problematic for a founder or Board member to personally own a nonprofit organization’s trademarks, website URL, social media accounts, and other types of intangible assets. While one could make an argument that there is no harm if the nonprofit is allowed to use these assets for free (or for a fee that is no more than fair market value), there are problems with this situation that become increasingly apparent over time.
Q&A #43 – Should a nonprofit conflict of interest policy address non-financial conflicts?
You are correct that perceived or actual conflicts of interest can arise in a variety of different contexts and not all of them involve financial transactions. However, it is generally best to keep your conflict of interest policy focused on financial conflicts, while addressing concerns about non-financial conflicts in other ways.
Q&A #17 – Is it a conflict of interest to make a grant to another nonprofit founded by one of our Board members?
This is not the type of conflict of interest that is the main concern of the rules applicable to 501(c)(3) organizations, but there are a few good reasons to approach this situation carefully regardless.