Читать книгу The Law of Fundraising - Bruce R. Hopkins - Страница 53

There is considerable confusion about the meaning of the term professional fundraiser. The dilemma arises from the fact that the term, and its nemesis professional solicitor, was developed in an era when the roles of the parties were discrete and thus much easier to identify. Basically and historically, a professional fundraiser was a consultant—an individual or firm that did not directly participate in the solicitation process but rather who worked with the charity in designing the fundraising plan. In most cases, the charitable organization was the person that undertook the actual fundraising, using volunteers. By contrast, a professional solicitor was a person who was paid to solicit gifts in the name of the charity.

During this era, the roles were separate and distinct. The fundraiser planned and did not solicit. The solicitor pursued gifts and was not involved in planning the campaign. In many instances today, that formal dichotomy is followed. Increasingly, however, the roles are being blurred, usually because the professional fundraiser is undertaking one or more roles in the area of solicitation.

Most states adhere to a definition such as this: a professional fundraiser is any person who, for a flat fixed fee under a written agreement, plans, conducts, manages, carries on, advises or acts as a consultant, whether directly or indirectly, in connection with the solicitation of contributions for or on behalf of a charitable organization. This type of definition usually is followed by the admonition that a professional fundraiser may not actually solicit contributions as a part of the services.

Often excluded from the ambit of the term professional fundraiser are the officers and employees of a registered³¹ or exempt³² charitable organization. Also usually excluded from the term are lawyers, investment counselors, and bankers, even if they advise a client or customer to contribute to a charitable organization.

Some states use a definition of the term professional fundraiser in a different manner, with some, as discussed as follows, having a definition of the term that also encompasses most categories of professional solicitors. About a dozen of the states' laws lack any definition of this term.

Part of the reason for the confusion in this area is the variation in terminology among the states. In about one-fifth of the states, the person usually generically referenced as a professional fundraiser is identified by means of that term. Other states, however, intending the same meaning, use the term professional fundraising counsel. Still other states prefer fundraising counsel. Other terms used in various state laws are fundraising consultant, professional fundraiser consultant, and professional fundraising consultant.

Presently, the state laws regarding fundraising regulation reflect considerable misunderstanding of the meaning of the term professional fundraiser in relation to the term professional solicitor.³³ As noted, some state laws so broadly define professional fundraiser (or equivalent term) that the term includes what is normally meant by professional solicitor. Terms used to describe a professional solicitor include phrases such as professional fundraising firm, professional commercial fundraiser, and commercial fundraiser for charitable purposes. A few states use the term professional fundraiser to describe what is generically meant by the term professional solicitor.