How to Be a Good Ally: A Strategic (Civil Rights) Engagement Conference

On January 6, 2016, I joined over 1,000 lawyers and legal professionals attending the How to Be a Good Ally conference in San Francisco. While work called me away in the mid-afternoon, I left tremendously impressed and inspired by those who organized the conference in reaction to the election results, by those who spoke to us, and by our local legal community. And I continued to follow the conference on Twitter.

Join 1,000+ lawyers and legal professionals for this cutting edge conference addressing urgent matters of importance, including rising hate crimes and anti-Semitism; governmental targeting of the Muslim community; deportations and dreamers; the targeting of transgender people and religious exemptions to LGBT civil rights protections; reproductive freedom and saving Roe v. Wade; changes to the Affordable Care Act and health access and impacts on people with disabilities and at-risk populations; criminalization of communities of color; combatting domestic and sexual violence; environmental protections under siege; voting rights and access; economic justice and workers’ rights; and challenges to civil liberties and the civil justice system.

You can follow the Storify here. Also check out the materials provided on Lieff Cabraser’s site relevant to each of the panels described below.

Highlighted Tweets & Resources

(from SFBayAllies, ADL San Francisco, Equal Rights Advocates, Equal Justice Society, Sara Zimmeran, Sally Xiyi Chen, Legal Aid at Work, Alison Elgart, Jeremy Chan, Bryan Parker)

Panel 1: Hate Crimes, Anti-Semitism and Rise of the White Nationalist Right

  • #HateGroups are emboldened when they feel they have allies in positions of power in gov’t. -@orensegal
  • Great takeaway from our first panel: protecting one group against hate crimes, is protecting all of us.
  • Action point: encourage advocates, allies & social media platforms to prevent #onlinehate and encourage positivity & truth
  • 501(c)(3) nonprofits can speak out if elected officials are advocating hate messages or violating civil rights
  • Reason for optimism: nonprofits are setting aside differences to collaborate on bigger civil rights issues
  • Recommendations of the ADL Task Force on the Online Harassment of Journalists

Panel 2: Government Targeting of Muslim Community

  • The Trump Memos: The ACLU’s Constitutional Analysis of the Public Statements and Policy Proposals of Donald Trump
  • Little outcry to Muslim registration program after 9/11-we must do better this time. Naheed Qureshi, @MuslimAdvocates

Panel 3: Immigrant Rights, Deportations and Dreamers

Panel 4: LGBTQ Equality Backlash

Panel 5: Protecting People with Disabilities and Medically at Risk

Panel 6: Justice Under Attack

  • Donald Trump and the Overinflated Presidency (WSJ)
  • Amicus: Corruption in the White House (Slate)
  • @Dahlialithwick We need to do better job of helping ppl undstnd what’s @stake; other side convincd ppl to vote against self-interest
  • Have to work across narrow interests (environment, LGBT, etc.); change will come from ground-up – decentralized @Dahlialithwick
  • “In order to change the rules, you need movement building.” – @rashadrobinson
  • @Dahlialithwick Nobody wants to talk about private prisons or gerrymandering but we have to get there
  •  @Dahlialithwick we must get beyond booze, Netflix & sleep. Tweeting & FB alone is not enough
  • Public failure to demand substance from media and government – @CharlesMBlow
  • Media was complicit in (digital) act of war – @CharlesMBlow
  • Optimist Prime: When cable news said, “he may not be good for the country, but he is good for our bottom line” = giant red flag. Unforgivable.

Panel 7: Criminalization of Communities of Color

Panel 8: Reproductive Rights and Saving Roe v. Wade

Panel 9: Combatting Domestic and Sexual Violence

  • @realDonaldTrump a disaster for violence against women. Must shift culture, esp in low wage industries+colleges.
  • ABA Section of Civil Rights and Social Justice Resource List from Campus Sexual Assault: A Civil Rights Perspective
  • Comments by PEOTUS and Sessions threaten to normalize gender-based violence. We must stand united to combat sexual violence

Panel 10: Protecting Workers

  • Chris Ho outlines how crucial protecting workers’ rights is now, esp. for undocumented workers, approx 10% of CA workforce
  • Language Discrimination (Legal Aid at Work)

Panel 11: Saving the Planet

Panel 12: Securing Voting Rights

Panel 13: Lift America to be America Again – A Call to Action (keynote by Rev. William Barber II)

  • If you ever want to see what white privilege is, we have just seen it in this election.
  • Trump mixes race and othering with economic fears, and points their fears towards women, POC, immigrants
  • We need mvmt lawyers, we need social engineers.  Everything you went to law school for is on the line RIGHT NOW.

10 Significant News Events of 2016

2016 has featured a number of major events that have affected, and will continue to affect, the nonprofit sector. Some might describe 2016 as a difficult year, featuring a long, turbulent election in the United States and unexpected results that have left many groups, including nonprofits themselves and the communities they serve, anxious and uncertain about their futures. Nonprofits such as the ACLU, the Sierra Club, Planned Parenthood, among others, saw record surges in donations following the election. On a judicial front, an empty seat on the Supreme Court resulted in the Court unable to decide on critical and controversial issues like immigration, and even though the Court upheld an affirmative action program at the University of Texas, the future of affirmative action and other major policy issues will likely depend on the next Supreme Court appointment. Abroad, Britons voted to leave the European Union, triggering financial and political uncertainty there as well. Here is a list of our 10 significant news events of 2016 affecting the nonprofit sector in the United States and a few links regarding each:

  1. The Election and President-Elect Donald Trump

    The 2016 Elections – Impact on the Work of Charitable Nonprofits [National Council of Nonprofits]
    Both Clinton and Trump Would Reduce Tax Incentives for Charitable Giving [Tax Policy Center]

    Trump’s White House Victory Could Spell Money Woes for Charities [Chronicle of Philanthropy]

    Nonprofits See Unprecedented Support Following Trump’s Win [Chronicle of Philanthropy]

  2. Brexit

    Historic UK “Brexit” Vote Raises Countless Issues for Nonprofits, Civil Society [Nonprofit Quarterly]

    What Lessons Does “Brexit” Hold for Social Innovators Worldwide? [Stanford Social Innovation Review]

  3. Dakota Access Pipeline

    Dakota Pipeline Update: When Resistance Is a Matter of Protection [Nonprofit Quarterly]

    American Indians Shouldn’t Get Shortchanged by Philanthropy [Chronicle of Philanthropy]

  4. Merrick Garland’s Nomination and the Empty Supreme Court Seat

    Obama nominates Merrick Garland to Supreme Court [CNN]

    The Supreme Court Needs a Ninth Justice Immediately [The Washington Post]

  5. Zika Epidemic

    Zika Spread Prompts Reexamination of Public Policy Re: Women’s Health in South America [Nonprofit Quarterly]

    Zika Is No Longer a Global Emergency, W.H.O. Says [New York Times]

  6. Black Lives Matter

    Black Lives Matter & the Road Ahead [Nonprofit Quarterly]

    How Philanthropy Can Show That Black Lives Matter [Chronicle of Philanthropy]

  7. Paris Global Climate Agreement

    Landmark Paris Climate Pact to Take Effect in 30 Days [Climate Central]

    100s of Businesses and Governments: Trump Should Uphold Climate Agreement [Nonprofit Quarterly]

  8. North Carolina “Bathroom Bill”

    DOJ and North Carolina File Lawsuits over NC’s Controversial LGBT Law [Nonprofit Quarterly]

    North Carolina Lawmakers Leave ‘Bathroom Bill’ in Place [The Washington Post]

  9. US Supreme Court Upholds Affirmative Action Program

    Supreme Court Upholds Affirmative Action Program at University of Texas [New York Times]

    Impact of Supreme Court’s affirmative action ruling could reach K-12, higher ed [PBS]

  10. Continued Conflict in Syria

    Starving in Place: Humanitarian Aid Still Blocked in Syria while Ceasefire Shaky [Nonprofit Quarterly]

    7 Experts To Read On The Desperate Health Crisis In Syria [Huffington Post]

    After Aleppo, what happens to Syria’s besieged towns? [Al Jazeera]

 

Editor’s Honorable Mentions:

Biggest Change to Nonprofit Financial Reporting in 20 Years Has Arrived [BDO Nonprofit Standard]

“The Financial Accounting Standards Board (FASB) has just released the Accounting Standards Update (ASU), Not-for-Profit Entities (Topic 958) – Presentation of Financial Statements of Not-for-Profit Entities, which you can find here. If you’ve been following our blog, you’ll know this marks the biggest change to nonprofit financial reporting in more than two decades.”

The Foreign NGO Law [ChinaSource]

“On January 1, 2017, China’s new Foreign NGO Management Law will go into effect, changing the landscape for foreign individuals and organizations working in China.”

The Blueprint Forecast for Philanthropy and the Social Economy 2017

Philanthropy consultant, scholar, and thought-leader Lucy Bernholz‘s annual industry forecast, Philanthropy and the Social Economy: Blueprint 2017, was published last week on GrantCraft. The Blueprint provides an overview of the current landscape, points to major trends, and directs your attention to horizons where you can expect some important breakthroughs in the coming year. As a past external reviewer of the Blueprint (in 2013), I’m particularly appreciative of all the work and thought Lucy puts into the forecast and recommend it as a must-read for leaders working in the nonprofit and social sector.

The first pull-out quote in the Blueprint captures perhaps its most important theme:

We must fight to protect civil society and democracy; they do not defend themselves.

Bernholz recognizes civil society as serving democracy by holding government, and corporate powers, accountable. This makes it critical for citizens to actively protect civil society, which is marked by the voluntary use of private resources for public benefit, regardless of whether through a nonprofit or other form

Among the topics covered by the Blueprint:

The intermingling of political and charitable activities of actors operating in both spaces, including, notably, both Presidential candidates in 2016 – As Bernholz notes: “Democratic political systems are shaped by a norm of transparency, whereas charitable regulations make room for anonymity and privacy.” But these systems have begun to overlap, creating inherent tensions and weakening oversight. Charities and social welfare organizations are being used for political purposes and political actors are using such organizations to hide their political activities (and funding). Bernholz accordingly asserts:

If both values—transparency and privacy— matter, then we need separate systems. If both sectors matter—political and civil society—then we need separate structures. In both cases, we need new rules and a new attention to oversight

The need to focus on the rules and rights embedded in the digital infrastructure of civil society – Society fails to recognize and appropriate address the dependence of civil society on its digital infrastructure. Bernholz states: “If we want civil society—the voluntary use of private resources for public benefit—to thrive, we need to protect the principles that enable it to exist in digital space.” This can be complicated where the majority of our digital systems are created and owned by for-profits and regulated and surveilled by government. Regardless, nonprofits, including foundations, should factor digital governance as part of their core responsibilities. As part of her forecast, Bernholz asserts:

Tax, estate, and corporate law as well as disclosure requirements have shaped philanthropy for decades. Telecommunications policy, privacy norms, cybersecurity requirements, consumer protection regulations, and intellectual property negotiations will shape it going forward.

Practical tips for nonprofits – Leaders need to “understand how digital works, what the relevant policy domains are, and how to manage digital risk.” To help, the Blueprint provides 3 worksheets focused on the use and governance of digital data in a reader’s organization:

  1. Digital data inventory
  2. Institutional data capacity
  3. Digital data and strategic planning

As for the forecasts made by the Blueprint, here are just three of Bernholz’s predictions:

  • Citizen oversight of government agencies will be a big area for technological innovation— for example, methods to monitor and report on police (e.g., TextMy90) and nonprofit “alert” systems built around streams of government data.
  • Actions sanctioned by the federal government against journalists, nonprofit organizations, and nonviolent activists inside the U.S. will profoundly test our rights to peacable assembly, a free press, and free expression.
  • State attorneys general will investigate at least one crowdfunding platform for charitable fraud.

Finally, read the Blueprint to learn the new buzzwords and Bernholz’s sage advice for the future:

The very nature of civil society is changed by our dependence on digital data. We cannot continue to act as if adapting our analog practices to digital resources will work.

Thanksgiving 2016

 

Happy Thanksgiving Greeting, Fall Leaves Background and text Happy Thanksgiving

 

This Thanksgiving, I intend to think about all the things for which I’m grateful, but beyond that, I intend to commit myself to acting to preserve those things.

I’m thankful for the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

I’m thankful for the Equal Protection Clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

I’m thankful for the charitable nonprofit sector and for all the charities and all the people working for and supporting those charities, including those advancing social and racial justice, addressing climate change, and promoting and protecting a healthy independent sector.

I’m thankful for the emergence of for-profit social enterprises bringing social good and environmental protection/sustainability as additional bottom lines for companies to pursue and for consumers making decisions based on companies’ social and environmental performance.

I’m thankful for family, friends, and my wonderful colleagues at NEO Law Group, without whom I could not pursue the work I love doing.

With the growing threat to our civil liberties, rights, and personal safety, it’s time for us to move beyond processing and venting and disrupt our personal lives to protect and hopefully make things better for our communities. For too long, much of the citizenry has been in reactive rather than proactive mode so a wait-and-see attitude would only signal weakness and/or uncaring complacency. I hope we’ll be stronger and better as a community and a country.

New Frontiers: 2016 Independent Sector Annual Conference

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Washington DC is the site for New Frontiers, the 2016 Independent Sector Annual Conference and Public Policy Action Institute, taking place  November 15-18. The Conference comes at a pivotal time for the nonprofit sector and our nation, rigidly divided on so many issues and characterized in many ways by a disengaged and disenchanted citizenry. The opening reception will be held at the Smithsonian’s brand new National Museum of African American History and Culture.

The Independent Sector Conference is the meeting ground for leaders and changemakers looking to drive momentum for the charitable community, set the sector’s agenda for the coming year, and collaborate on strategies for success.

 

We’ll take our messages to Capitol Hill, learn from insiders about how we can connect with the new administration, and collaborate to revitalize the ideals of democratic engagement in service of the common good.

Public Policy Action Institute (pre-conference)

Whether you’re a policy novice or an expert, the Public Policy Action Institute gives charitable sector leaders, policy advocates, and communications specialists effective strategies for getting your mission and message front and center with policymakers. And new this year, we’ll take our messages directly to the Capitol for Independent Sector Hill Day. You’ll meet face-to-face with policymakers about the issues most important to your work.

Making our Voices Heard in an Election Year and Beyond

  • “America is great because America is good, and if America ever ceases to be good, America will cease to be great.” – Alexis de Tocqueville
  • “The independent sector is our best line of defense for vulnerable populations. … Advocacy is not a luxury; it’s essential.” – Tom Sheridan
  • America doesn’t believe government is working for them but overwhelmingly believe in the nonprofit sector. See The Power of Nonprofit Advocacy: Best Lobbying Resource
  • 85% of young voters believe fed gov’t should be doing more to engage charitable sector to help address economic & social challenges. United For Charity (p. 8)
  • Report Shows Foundation Funding of #Advocacy Produces a Return on Investment of $115 to $1. NCRP
  • We don’t change without some level of disruption and revolution. Allow and don’t suppress millennial activism. Focus on engagement and empowerment of millennials.
  • To leverage engagement with elected officials, some charities (like Save the Children) have formed an affiliated 501(c)(4) organization that can lobby without limitation and endorse and/or oppose political candidates. The 501(c)(4) allows you to “thank and spank;” it’s the hammer to hold elected officials accountable.
  • Use the arts to further your message and engagement with elected officials.
  • Data is important (particularly for federal grants – see the Commission on Evidenced-Based Policy Making) but it’s expensive, can be skewed, and campaigns have been shown to win without good data. Sheridan advised organizations to “spend just enough on data to get you where you need to go.” He added that organizations should do (1) message-focused research to ensure they are avoiding the common trap of simply preaching to the choir and (2) impact-focused research to ensure they are satisfying donors and funders. Of course, impact-related data is important to inform nonprofits and their boards about their activities and decision-making.

Positioning our Tax Policy Soapbox for 2017

Continuing the Public Policy Legacy of John Gardner

  • “We can’t write off the danger of complacency, growing rigidity, imprisonment by our own comfortable habits and opinions.” – John Gardner, Personal Renewal
  • “You have within you more resources of energy than have ever been tapped, more talent than has ever been exploited, more strength than has ever been tested, more to give than you have ever given.” – Gardner – appropriate on an organizational and national level too

Sway the Other Branches of Government

Effectively Communicating with Congress: How to Develop and Implement an Effective Communications and Advocacy Strategy

  • Consider allies and opponents resulting from your advocacy and how that may play out in the future
  • Review levels of engagement mapped against audiences – see Evaluating Public Policy Advocacy (Framework for Policy & Advocacy Outcomes)
  • Communications: modern storytelling with peer voices (e.g., Humans of New York); humor; real-time; value-based; best practices (curating content, inviting others to conversation)
  • Jab-jab-jab-right hook – only every fourth piece should be an “ask”
  • “If you’re not at the table, you’re on the menu.” Keep messaging (use social media but don’t let it be stagnant).
  • “We in America do not have government by the majority. We have government by the majority who participate.” – Thomas Jefferson
  • Congressional offices are using social media to help gauge public opinion but district services still #1
  • How many similar comments on a social media post would be enough for your office to pay attention to? 80% of Congressional staff say less than 30. But you have to respond to them in 24-48 hours tops.

2020 Census

  • Census is connected to when redistricting [gerrymandering] gets done.
  • Policy decisions will matter. Immigration status could be added, which would result in significant reporting issues with many in fear of sharing information with the government.
  • Get-out-the-count will matter. Note that in the 2010 Census over 10% of Blacks and Latinos were missed in certain urban areas because of undercounting, particularly of children under 5.
  • Check out Annie B. Casey Foundation’s Kids Count Data Center

New Frontiers – Independent Sector Annual Conference

The Great Shared Task (Opening Plenary)

Christylez Bacon, Grammy-nominated hip hop music artist, opened the plenary with It’s the Beatbox. Immediately after, a panel reacted to the recent Presidential election.

  • Media may be the most effective check against the President; the First Amendment is first for a reason.
  • How do we discuss race and sexism in ways that aren’t so divisive? How can we listen to racists without getting angry at them? We should be angry.
  • Americans have deliberately chosen to blow up the system and elect a leadership in which anything is possible. But power is not permanent. – Michael Steel
  • Charitable organizations provide a voice for marginalized groups. The sector has a collective responsibility to influence policymakers.
  • Must work like hell to make sure we make good decisions on the state level. – Ellen Alberding
  • Private foundations should be much more aggressive on the advocacy front on the issues they care about. Many private foundations do not take the opportunity to fund advocacy.
  • What people care about are big issues, not your institution. Charities of all sizes and types must have a policy strategy, lock arms, and go after the big issues (including tax policy). – Brian Gallagher
  • Anti-establishment sentiment has already colored how people think about foundations and charities. – Gallagher

Live From IS: Where Nonprofits Fit After ‘Primal Scream’ – The NonProfit Times

Frame-Breaking Ideas for 21st Century Fundraising

  • Jeanne Bell (CompassPoint) shared with the audience the following publications:
    • Underdeveloped – nonprofits struggling with high turnover & long vacancies in development director post – results in vicious cycle –
    • Fundraising Bright Spots – 1. Fundraising is core to the organization’s identity; 2. Fundraising is distributed broadly across staff, board, and volunteers; 3. Fundraising succeeds because of authentic relationships with donors built on strong, trusting relationships among staff, board, and volunteers; 4. Fundraising is characterized by a systematic approach to donor engagement and continuous improvement
  • Discussion Issue: What is most challenging about engaging the broader staff in fundraising at your organization? Groups quickly moved to looking at solutions, including focusing on understanding charitable motivations of staff and framing it also as leadership training.
  • Anne Wallested (BoardSource) noted our unhealthy obsession with cost of fundraising and introduced a new way of measuring fundraising effectiveness with a preliminary draft paper:

1. Are we raising enough money to fund our mission now and in the future? (Total Fundraising Net)

2. To what extent are we dependent on a small number of large-scale donations? (Dependency Quotient = sum of contributions from top five donors or funders/total expenditures)

3. How efficiently are we raising funds? (Cost of Fundraising = total fundraising expenses/total fundraising net)

Equation: Enough money to fund programs + A responsible balance of risk and reward = Healthy fundraising programs

Communications: Talk impact, not percentages; focus on overall results, not individual tactics; be transparent, but holistic

  • Ann Hale (AFP) discussed competencies of fundraisers – relationship building, leadership, professional judgment, and organizational management.

Opening Reception (National Museum of African American History and Culture – Smithsonian)

The reception allowed us to visit the National Museum of African American History and Culture and it was a powerful, moving experience.

Community Town Hall (Plenary)

The Duke Ellington School of the Arts Show Choir opened the plenary with Hit Me With a Hot Note.

  • We were introduced to Independent Sector President and CEO Dan Cardinali (bio).
  • Dan learned from Native Americans in Philanthropy CEO Sarah Eagle Heart that “New Frontiers” meant something other than intended to some people, which left him feeling embarrassed but also hopeful that we could openly have this discussion at a meeting with newcomers to the Conference.
  • “We as a community care about the means as much as the ends.” – Cardinali
  • Through relationships, toxic stress diminishes in the body and the community. Nonprofit sector has the treasure of public trust and the public confidence in having expertise. Nonprofit sector is trusted to heal the country. – Cardinali

Community Dialogues

  • What are the three unique assets the sector has that are critical to healing the nation?
  • What are the commitments of the nonprofit sector?
  • What are the commitments we should expect of government?

Philanthropy Making a Difference with Government

  • Bad systems trump good programs – this is why philanthropy must partner with government
  • Philanthropy allows government to be more nimble, take risks, and create change
  • Lessons learned from collaborations: (1) role confusion and conflation; (2) defined responsibilities; (3) resources – whose; (4) results – shared definition; (5) risk – allocation (and who is going to move first). Add readiness (agencies may have many barriers to saying “yes” to anything but some barriers may be historical and not true legal barriers).
  • Foundations should invest heavily in having the community’s voices heard. One type of investment is higher risk tolerance.
  • Lean in, don’t step back in collaborating with government now. Mechanisms may be different, your missions are the same.

Dog Whistle Politics: How Racism Wrecks the Middle Class

  • “Strategic racism helps win elections…and not just this one.” Ian Haney Lopez
  • Call to Action: “This is the best opportunity in a generation to convince people that racism is a divide and conquer weapon that hurts all of us.”
  • “To restore our country–we need an inclusion revolution.” – Lopez. We must organize around identity, not class.

Keeping Up With Forces Shaping Our Future

  • Futurists look for trends and signs of change across the “STEEP” categories: social, technological, environmental, ecological, and political.
  • A futurist can help shape plans – see Perez Art Museum’s plans for surviving a hurricane.
  • Changing future of work – jobs are rapidly changing, millennials change jobs every 2 years or less (is this a symptom of a big problem?), rise of the “gig” economy, fight for $15 hour minimum wage, technology (e.g., artificial intelligence, diverless cars) automating work.
  • Pace of change is so rapid, it may require multiple pivots in organizational direction and structure.
  • Scenario planning is a structured way for organisations to think about the future.. The Economist

America Divided: How Can Our Sector Work Together Better? (Screening)

This series cuts to the heart of the inequality crisis, exploring life-and-death struggles around the economic, social and political divide. Our aim is to expose the damage extreme inequality inflicts on all Americans, reveal its systemic causes, and celebrate real-world heroes fighting for solutions.

The creator and executive producer of America DividedSolly Granatstein, provided us with a glimpse at some of our problems with inequality, including through subtle (to the prospective tenant) but pervasive housing discrimination.

On Shifting Ground – A Production of the Hilton Prize Coalition (Screening)

Steve Connors, Master Storyteller and Director, Hilton Prize Coalition Storytelling Program, noted the challenges of collaboration among local NGOs after the devastating 2015 earthquake in Nepal. They simply didn’t know each other.

With the production of “On Shifting Ground” as the Storytelling Program pilot, The Hilton Prize Coalition has created a new model for collaboration to achieve collective impact. With tools and support from the Coalition, the organizations featured are now formalizing a collaborative framework around program delivery that arose organically from their participation in the film.

Leadership Awards Luncheon

The Luncheon celebrated the transformative leadership of Bryan Stevenson, recipient of the 2016 John W. Gardner Leadership Award, and Diana Nambatya Nsubuga, recipient of the 2016 American Express NGen Leadership Award. Stevenson’s powerful messages inspired and resonated with the attendees:

  • “I don’t believe slavery ended in 1865, it just evolved.”
  • Whenever you allow yourself to be governed by fear and anger, you will tolerate inequality and oppression.
  • “If we do the uncomfortable things, we’ll find something on the other side of that.” We don’t create change when we only do what’s convenient and comfortable. Progress is never comfortable.
  • We need to change the narrative and be willing to talk about things we’ve been afraid to talk about.
  • You are beating the drum for justice. “We’ve got to be brave, brave, brave.”
  • Hopelessness is the enemy of justice. Hope will get you to speak, stand when others try to hold you down.
  • There is power in proximity. Too often we are trying to help suffering people from afar.
  • Beware of any romanticization of civil rights activism; it’s nothing like a “3-day carnival”.

Some final words from the Conference:

  • “America faces breathtaking opportunities disguised as unsolvable problems.” – Gardner
  • Make a career of humanity. Commit yourself to the noble struggle for equal rights.

Johnson Amendment: 501(c)(3) Prohibition on Political Campaign Intervention

Church

The Johnson Amendment refers to the law codified in Section 501(c)(3) of the Internal Revenue Code prohibiting organizations exempt from taxes under 501(c)(3) from participating in any political campaign on behalf of (or in opposition to) any candidate for elective public office. Churches & Political Activity: The Call to Repeal the Johnson Amendment, an article written by our senior counsel Erin Bradrick, was published by The Nonprofit Quarterly yesterday.

The most significant call for repealing the Johnson Amendment is from the Republican Party in its official 2016 Platform:

We value the right of America’s churches, pastors, and religious leaders to preach and speak freely according to their faith. Republicans believe the federal government, specifically the IRS, is constitutionally prohibited from policing or censoring the speech of America’s churches, pastors, and religious leaders. We support repeal of the Johnson Amendment, which restricted First Amendment freedoms of all nonprofit organizations by prohibiting political speech.

Additional Resources:

Know the law: Avoid political campaign intervention (IRS)

The Rules of The Game: A Guide to Election-Related Activities for 501(c)(3) Organizations (Alliance for Justice)

Republican Platform Calls for Repeal of Ban on Political Organizing by Churches (TIME)

Gene Takagi Awarded 2016 Outstanding Nonprofit Lawyer Award from ABA

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The American Bar Association Nonprofit Organizations Committee of the Business Law Section has announced the 2016 Outstanding Nonprofit Lawyer Award recipients.  NEO Law Group is very proud to share that Gene was awarded the Outstanding Lawyer Award for distinguished service as outside counsel to nonprofit organizations.  In announcing the award, the ABA stated:

After several decades of successful career ventures in various fields, Gene Takagi founded NEO Law Group, based in San Francisco, ten years ago to serve the legal needs of the nonprofit sector. NEO Law Group provides general corporate, charitable-trust, governance, and income-tax counsel exclusively to nonprofits and exempt organizations.

He has provided expert legal counsel and thoughtful advice to hundreds of nonprofit organizations throughout California and the country. Gene repeatedly exhibits professionalism, dedication, and thoughtfulness in his approach to each and every client, regardless of the scope of the matter or the size of the organization. He has intentionally structured his practice to make his services available to even the smallest of organizations, which may otherwise be unable to afford or access legal counsel, while simultaneously serving organizations with annual revenues in the tens of millions of dollars.

Gene approaches his role as legal counsel from the perspective of an educator and uses every opportunity to empower his clients by providing information and useful tools. He is particularly well known in the sector as the contributing publisher of the Nonprofit Law Blog and as a regular contributor to Tony Martignetti Nonprofit Radio.

RELEASE_2016

The other 2016 Outstanding Nonprofit Lawyer Award recipients included:

  • Thomas A. Troyer, Vanguard Award
  • Judith Andrews, Outstanding Lawyer Award
  • Sherry Hibbert, Outstanding In-House Counsel Award
  • Brandon Dickerson, Outstanding Young Lawyer Award

Congratulations to each of the recipients of this prestigious award!

Nonprofit Radio: New Overtime Rules – Temporarily Stopped (11/22/16 update)

Overtime

I’ll be on Nonprofit Radio this Friday at 10:30 am PT / 1:30 pm ET discussing the new overtime rules and their impact on nonprofits with host Tony Martignetti. Catch us live on Talking Alternative or a few days later on iTunes.

The Department of Labor’s final overtime rule updates the salary level required for the executive, administrative, and professional (“white collar”) exemption to ensure that the Fair Labor Standards Act’s (FLSA) intended overtime protections are fully implemented, and it provides greater clarity for white collar workers and their employers, including non-profit organizations. The final rule will also lead to better work-life balance for many workers, and it can benefit employers by increasing productivity and reducing turnover. – U.S. Department of Labor

Important Update (11/22/16)

A federal district judge issued a preliminary injunction temporarily stopping the implementation and enforcement of the new overtime rules we discussed that were slated to take effect on December 1, 2016. Whether the preliminary injunction turns into a permanent injunction is still unknown. Read more about the preliminary injunction here (National Council of Nonprofits).

Background

The FLSA requires that most employees in the United States be paid at least the federal minimum wage (currently, $7.25) for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

A common set of exemptions from the overtime rule, referred to as the white-collar exemptions, applies to employees employed as executive, administrative, or professional (EAP) employees*, generally only if (1) they are paid on a salary, not hourly, basis (the salary basis test); (2) their duties primarily involve executive, administrative, or professional duties as defined by the Labor Department regulations (the duties test); and (3) their salary meets the minimum threshold (salary level test). Note, however, that the minimum salary threshold does not apply to teachers, lawyers, or doctors.

There is another exemption from the minimum wage and overtime rules for highly compensated employees* if their total annual compensation meets or exceeds the minimum threshold.

* As of the posting date, these links do not have updated thresholds resulting from the new rules described below.

New Overtime Rules

Updated Thresholds:

Most employees earning a salary of less than $47,476 per year ($913 per week) will be entitled to overtime compensation. This approximately doubles the previous threshold of $23,660 (unchanged since 2004), effectively requiring employers to pay overtime for most salaried employees receiving between $23,660 and $47,476 per year, which they were previously not required to do under the FLSA. Further, the threshold will be automatically be updated every three years, starting on January 1, 2020. Note that the salary level does not include payments for medical, disability, or life insurance, or contributions to retirement plans or other fringe benefits. Nondiscretionary bonuses and incentive payments (including commissions) may be used to satisfy up to 10 percent of the standard salary test requirement so long as such payments are paid on a quarterly or more frequent basis.

The highly compensated employee minimum compensation threshold is now $134,004 (previously, $100,000).

Effective Date:

December 1, 2016

What Employees (and Nonprofits) are Covered by the New Rule:

The overtime rules generally apply to employees covered by the FLSA. These include:

  • Employees of organizations considered a “covered enterprise” – generally organizations that engage in ordinary commercial activities that result in sales made or business done that of at least $500,000. Most charitable nonprofits that do not engage in ordinary commercial activities will not be subject to the new overtime rules except employees of the following named enterprises: hospitals; institutions primarily engaged in the care of older adults and people with disabilities who reside on the premises; schools for children who are mentally or physically disabled or gifted; federal, state, and local governments; and preschools, elementary and secondary schools, and institutions of higher education. Note that the term ordinary commercial activities is similar to, but not synonymous with, the term unrelated business activities (as such term is used for purposes of determining unrelated business income tax liability).
  • Employees who engage in interstate commerce (including through the phone or the internet) or in the production of goods for interstate commerce and employees whose work involves or relates to the movement of persons or things (including donated items) across state lines.
  • Employees who are covered by operation of specific state laws. According to the National Council of Nonprofits: “In at least 11 states [or jurisdictions], the changes to the federal rules will automatically apply to virtually all employees and employers.”

See the excellent flowchart on National Council of Nonprofits site: Is Our Nonprofit Organization Covered by the FLSA?

What Nonprofit Employers Can Do:

According to the Department of Labor:

Non-profit organizations may ensure compliance for those employees affected by the Final Rule in a number of ways, including providing pay raises that increase workers’ salaries to the new threshold, spreading employment by reducing or eliminating work hours of individual employees working over 40 hours per week for which no overtime is being paid, or paying overtime.

Rationale

In 2014, President Obama directed the Department of Labor to update its regulations regarding minimum wage and overtime standards to ensure “workers are paid a fair day’s pay for a hard day’s work.” The new $47,476 threshold represents the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (the South). According to the Department of Labor Q&A site:

The Department has concluded that the standard salary level of $455 weekly ($23,660 annually for a full-year employee) set in 2004 was too low to adequately account for the elimination of the former “long” duties test that ensured that employers could not avoid paying overtime by assigning lower-paid employees a minimal amount of exempt work. Furthermore, the real value of the salary level has fallen significantly since it was set 12 years ago. Today, the annualized equivalent of the standard salary level is below the 2015 poverty threshold for a family of four, making it inconsistent with Congress’ intent to exempt only “bona fide” EAP workers, who typically earn salaries well above those of workers they supervise and presumably enjoy other privileges of employment such as above average fringe benefits, greater job security, and better opportunities for advancement.

 

The Department considered several alternatives for setting the standard salary level to determine which method would work most effectively with the current duties test to effectively distinguish between overtime-eligible white collar employees and those who are bona fide EAP employees. Because the Department decided not to revise the current standard duties test, it set a salary threshold at a level reflective of employees who historically have received overtime protections from those who have not. Specifically, because the current standard duties test is substantially similar to the former “short” duties test, which before 2004 had been associated with a higher salary threshold, the Department looked at the historical ratios between the short and long test salary levels in order to assure that we restored the historical relationship between having a less rigorous duties test and an appropriately high salary threshold. The Department set the standard salary level at the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage Census Region (currently the South), because it was at the low end of the historical range of short test salary ratios and would be appropriate across all areas and industries. The new salary amount will be $913 per week (which is $47,476 annually for a full-year worker) when this Final Rule takes effect on December 1, 2016.

Reaction from the Nonprofit Community

According to The Nonprofit Quarterly:

Among the more than 270,000 comments the DOL received to the proposed rule were many voices speaking for the nonprofit community, and they seemed to see only the negative impact on their operations; mission seemed to take a backseat to the difficulty of meeting a higher standard. Rick Cohen’s “brief review of one third of the posted comments found there was not one positive comment from a nonprofit.” The comments he saw predicted dire outcomes, staff reductions, service cuts, and even agency closings. No one seemed to see the increased pay for those earning low salaries as an important benefit to be supported. – Nonprofit Reactions to New Overtime Rules Run the Gamut

Independent Sector commented:

While IS believes that employees should be paid a living wage and similarly supports an increase in the salary threshold for eligibility to receive overtime compensation, there are many concerns that IS and others in the nonprofit sector have regarding this rule. As expressed in the submitted comments, IS is troubled by the agency’s lack of engagement with nonprofit organizations in developing its proposed new overtime rule, and urged four specific revisions to the plan before it is implemented: moving to a phased-in implementation; revising the terms of federal grants and contracts with nonprofit organizations; allowing for regional market differences to the proposed salary threshold; and implementing an open process for any changes to the duties tests.

Resources (updated 7/6/16)

Overtime Regulations and the Impact on Nonprofits (National Council of Nonprofits)

Breaking down your nonprofit’s obligation to pay overtime under the new federal rules (National Council of Nonprofits)

Overtime Final Rule and the Non-Profit Sector (Department of Labor)

Guidance for Non-Profit Organizations on Paying Overtime under the Fair Labor Standards Act (Department of Labor)

Overtime Rules for Nonprofits – videos (Independent Sector)

New overtime rules for nonprofits: what’s different about California? (CalNonprofits)

What’s different in California: Although the federal threshold for exempt status has been $23,660, in California the threshold for exempt status is set as twice minimum wage. So with the current minimum wage of $10/hour, the minimum for exempt status is $41,600/year, and as of January 1, 2017 when the minimum wage goes up to $10.50/hour, the minimum salary for exempt employees will be $43,680/year. So the gap between the old and new thresholds is narrower in California.

New Report: The Nonprofit Overtime Implementation Conundrum (National Council of Nonprofits)

Nonprofits Already Subsidizing Governments: The National Survey confirmed that seven out of eight nonprofits with government grants and contracts currently subsidize governments by providing services for which they are not fully compensated. Only 13 percent expressed the view that government grants contracts pay the full cost of the services provided on behalf of governments.

California’s Dangerous Nonprofit Warning Label Bill – AB 2855 – Will Not Advance

Jubilant people

5/28/16 Update: Costly bill that would have required charities in California to post a “warning label” on their websites and fundraising documents was held in committee and will not advance.

AB 2855 was a dangerous bill that threatened nonprofits raising funds in California and reflected the lack of understanding of its author/sponsor, California Assemblymember Jim Frazier (D –Oakley), of the nonprofit sector’s work, influence, and scope. Had this bill passed, it would have ranked among the worst laws in the country in its characterization and treatment of nonprofits. The bill was considered by the Assembly’s Appropriations Committee on May 11. Thanks to the strong advocacy efforts of over 700 nonprofits led by CalNonprofits and to members of the Appropriations Committee and its Chair Lorena Gonzalez (D-San Diego), AB 2855 was held in committee on May 27 and will not advance.

For more information about the dangers of bills like AB 2855, read our Senior Counsel Erin Bradrick‘s article The Ongoing Overhead Myth and the Dangers of Overly Zealous State Legislators in The Nonprofit Quarterly (4/14/16).

Our original analysis of AB 2855 (before it was shelved)

Background of the Bill – Mandated Overhead Disclosures

AB 2855 originally was drafted to require charities operating or engaging in charitable solicitations in California to post their administrative overhead expenses or a link to such information on each and every one of their web pages and on the first page of each and every fundraising document.

Requirements of the ‘Warning Label’ Bill

Likely because of Constitutional issues related to compelling such speech, AB 2855 was amended to delete the overhead disclosure requirement and replace it with a requirement for charities to include what CalNonprofits terms a warning label, more specifically:

  1. a required prominent link on charities’ websites to “the Attorney General’s Internet Web site which contains information about consumer rights and protections and charity research resources”; and
  2. the Web site address of such Attorney General’s Internet Web site on all charities’ fundraising documents (including old ones) used to solicit in California.

AB 2855 would require hundreds of thousands of charities operating or engaging in charitable solicitations in California (regardless of what state in which they are based) to put a link to a California Attorney General website with unknown content that would also be freely available to the public without such link. And it would require those charities to put the Attorney General website address on tens of millions of fundraising documents that are distributed within California.

First Amendment Issues

A general principle of the First Amendment requires a court to review any government regulation of the content of a person’s or organization’s speech with strict scrutiny. Generally, this involves asking two questions:

  1. Does the regulation further a compelling governmental interest?
  2. Are the means used narrowly tailored to accomplish that governmental interest?

The government’s interest, according to the Legislative Analysis, is “to give consumers more information about how to research a charity before making a gift ….” The additional substantive information would be required of, and provided by, the Office of the Attorney General. Such information would be accessible to the general public without requiring charities to add any information to their communications. But advocates of the bill appear to be making an argument that giving consumers an easier time to find such information on a government web address is the compelling government interest requiring the consumer protection ‘warning label’ on what would amount to tens of millions of documents.

Requiring hundreds of thousands of charities fundraising in California to include such website addresses and links on all of their websites and fundraising documents will require much work. It’s difficult to see how proponents of the bill will claim that the bill is narrowly tailored particularly in relation to the rather narrow goal of making information on the Attorney General’s website easier for the general public to find. It would be the first law of such nature governing charities in the country and a strong signal of the state government’s distrust of the charitable sector based on a minuscule fraction of charities involved in scandals picked up by the media. It essentially would put charities in the same category as tobacco companies that are required to put a warning label on their products. And it would undermine the incredibly valuable work of the charitable sector, the sector most trusted by the public.

The U.S. Supreme Court dealt with content-based regulation of speech in a charitable solicitation context in Riley v. National Federation of the Blind, 487 U.S. 781 (1988). In Riley, the Court held that the North Carolina Charitable Solicitations Act was unconstitutional content-based regulation of speech. Members of the Assembly Committee should be fully aware of this case and how the Supreme Court protects free speech before voting on compelling the speech of nonprofits in the manner described by AB 2855.

Imagine if all states had the same requirements. Every charity raising funds in all states would have 50 links to include on their website and on all of their national fundraising documents.

Opposition

See CalNonprofits letter to Assemblymember Lorena Gonzalez, Chair, Appropriations Committee:

The impact of AB 2855 – and thus any effort to ensure compliance with its requirements – would be far-reaching. AB 2855 would require every charity to include what feels to nonprofits like a “warning label” on their website in a “prominent” location and also requires nearly every document they produce to direct donors and others to the state’s top law enforcement’s website. Mandating content in the ways proposed by AB 2855 would be expensive and burdensome, and would detrimentally interfere with nonprofits’ ability to communicate with their constituents and the public. AB 2855 arguably compels speech in an unconstitutional manner by dictating specific content to be included on nonprofit websites and documents and seems ripe for challenge on this basis.

See CalNonprofits revised letter to the Honorable Ed Chau, Chair, Assembly Privacy and Consumer Protection Committee:

The AG’s office is already communicating this information to the public – their web site is the first listing in a Google search for “California charities.” Burdening nonprofits in and beyond California with required speech on “any document” which seeks donor support to simply advertise what the public can easily find is unnecessarily punitive without serving any compelling public interest. Imagine all the “documents” that non-profit organizations create to solicit funds to support their mission-based work: signs on coin collection jars, private letters to individual donors, billboards and other large-scale outdoor advertisements, flyers posted in laundromats, neighborhood association newsletters, to name just a few. And AB 2855’s provisions would apply to any charity – regardless of where they are based – that solicits donations from Californians. So, every inbound piece of mail from any charity in the world would have to include this unnecessary disclosure. The additional cost of including this provision on “any document” would be extraordinary.

Also see the Opinion piece by Tim Delaney, chief executive of the National Council of Nonprofits, in The Chronicle of Philanthropy:

The bill, as amended late last week, would force every nonprofit in the country that seeks funds in California to put a link on its home page – plus a disclosure on all other solicitation materials directing potential supporters to  the California Attorney General’s Office.  That office is instructed to provide “information about charities, informational materials containing consumer rights and protections and charity research resources to allow donors to become informed about a charity before making a decision to give.” Such legislative  language puts nonprofits at the mercy of an elected partisan’s changing views on what’s “appropriate” on such things as overhead, compensation, and advocacy – as well as which charitable causes are worthy. It probably will prompt copycat legislation in other states, transforming nonprofit website homepages into huge advertisements for the offices of state charity regulators, rather than the mission of the actual nonprofit.

Burdens and Costs to the State Government

AB 2855 will create substantial burdens for the State’s Office of the Attorney General in developing a website with appropriate information on how to research a charity (a very complex matter approached in myriad ways by grantmakers), developing regulations related to the law (including determining the minimum contacts required to fall within AB 2855 – e.g., a “donate” button on a passive website clicked by 5 California residents?), educating the public about the law and its associated regulations, re-designing registration and registration renewal forms, enforcing the law in audits, defending litigation on the constitutionality of the law (which would be expected in light of the almost universal opposition by the nonprofit sector).

You can access the May 11, 2016 Bill Analysis for the Appropriations Committee (which includes the comment “unduly onerous”) here.

Multistate Registration and Filing Portal

Register text on keyboard button

Currently, 39 states and the District of Columbia each require some form of periodic charity registration, which creates a substantial administrative and filing burden for organizations fundraising in multiple jurisdictions. 36 states and DC will accept the Uniform Registration Statement (URS), but that still requires an organization to file the URS with each state’s charity official (typically the Attorney General) and, in 13 jurisdictions, specific supplemental forms.

The Multistate Registration and Filing Portal, Inc. (MRFP), the National Association of State Charities Officials, and the National Association of Attorneys General started development of a Multistate Registration and Filing Portal,  to make it easier for nonprofits to register in multiple jurisdictions using a one-stop online portal. According to the Portal’s website:

The portal will maximize efficiency, data transparency, and information sharing by enabling compliance with registration requirements for all participating states without duplication of data entry. It will make the collected data available to the public in a searchable and interactive format. Academics, policy makers and the public will be able to conduct their own inquiries or download data in machine-readable format. Multistate registrants will realize reduced administrative costs and inefficiencies in complying with 39 states’ different registration requirements, allowing more resources to be devoted to charitable mission. Single state filers will avoid the inconvenience and uncertainty of paper filings. Registration service providers will be able to electronically transmit data for multiple clients. State filing fees will be collected and disbursed to states through the Single Portal.

 

We intend that the system will enable population of data fields from electronically filed Forms 990, thus avoiding further reentry of data. The system will enable regulators to combine 990 data with state registration data. Analytics will enable regulators to better understand charitable resources and solicitations, to better focus law enforcement and fraud prevention resources, and enable better policy making for protection of charitable resources. Electronic filing will allow states to direct limited resources from processing paper to our core regulatory responsibilities of preventing fraud and abuse of charitable funds and solicitations.

On February 17, 2016, MRFP posted a Request for Information (RFI) to invite input and proposals for development of the Portal. The RFI will remain open until April 1, 2016. To allow for additional feedback, MRFP is hosting a conference call on March 15, 2016 open to the public.

5 Likely Implications

  1. Easier registration process for charities with online capacity.
  2. Greater enforcement of registration, including use of penalties and sanctions for noncompliant organizations, in all states in which an organization engages in more than minimal fundraising.
  3. More clarity about the thresholds triggering registration requirements in states other than the charity’s state of formation.
  4. Growth of charity ratings services and the sophistication of their methodologies.
  5. Improved use of data and analytics by charities.

Additional Resources

New developments in the Single Portal Multi-State Charitable Registration project (National Council of Nonprofits, 1/20/16)