Читать книгу The Law of Fundraising - Bruce R. Hopkins - Страница 58

A fundamental requirement of nearly every state charitable solicitation act is that a charitable organization (as defined in that law and not exempted from the obligation)³⁵ that intends to solicit—by any means—contributions from persons in that state must first apply for and acquire permission to undertake the solicitation. This permission, which must be secured by both domestic (in-state) and foreign (out-of-state) charitable organizations, is characterized as a registration in most states. In other states, it is cast as an application for a license, a filing of a statement, a filing for a certificate, a filing for a permit, or a filing of a solicitation notice.³⁶ Some states with a form of statutory law on this point do not have any registration or similar requirement for charitable entities.

Typical wording of a provision of this nature is that every charitable organization that intends to solicit contributions within the jurisdiction, or have funds solicited on its behalf, must, prior to any solicitation, file a registration statement.

If the application for this permission is successful, the result is authorization to conduct the solicitation. Application for the registration, license, or other permit is most frequently made to the office of the attorney general or the secretary of state.

Generally, the law requires a principal officer of the charitable organization to certify the accuracy of and to execute the registration statement, license, application, or the like.

The statute usually enumerates the categories of information, about the charitable organization and the solicitation, that must be in the registration statement or other application. These categories of information most frequently are some or all of the following:

 The name of the organization

 The name in which the organization intends to solicit contributions

 The principal address of the organization and the address of any office in the state or, in the absence of an office, the name and address of the person having custody of the organization's financial records

 The names and addresses of any chapters, branches, or affiliates to be located in the state

 The names and addresses of the organization's trustees, directors, officers, executive staff, and registered agent

 The place where and the date when the organization was legally established

 The form of the organization (corporation, trust, or unincorporated entity)

 A statement about the organization's classification as a tax-exempt organization under federal law³⁷

 The purpose or purposes for which the organization was founded

 An income and expense statement, and an asset and liability statement, for the organization's immediately preceding tax year (perhaps audited), showing, among other items, the type and amount of funds raised, expenses for fundraising, and expenditures of the funds raised

 The methods by which solicitations will be made, including use of a professional fundraiser and/or professional solicitor³⁸

 The purpose or purposes for which the contributions to be solicited will be used

 The names of the individuals who will have final responsibility for the custody of the contributions

 The names of the individuals responsible for the final distribution of the contributions

 A statement indicating whether the organization is or has ever been enjoined by one or more states from soliciting contributions

 Copies of contracts between the charitable organization and professional fundraisers and/or professional solicitors

It is common for the statute to authorize the state's regulatory agency to require, by regulations or otherwise, the submission of information in addition to that required by the statute.

The states' laws either expressly provide or contemplate that the regulatory authorities will examine the application and, where the application is legally sufficient, issue the permit or other authorization to proceed with the fundraising effort. The review authority at this stage of the process is exceedingly broad. At a minimum, the governmental authorities have the power to determine whether the application conforms with all of the legal requirements. At the same time, the discretion these officials have is not unlimited; legally, they are not empowered to make subjective judgments about the worthiness or similar attributes of applicant organizations.³⁹

An investigation can ensue at this stage (as well as at any time thereafter). Most states' laws vest plenary investigative capacity in the regulatory and enforcement authorities, particularly the attorney general.⁴⁰

Sometimes a chapter, branch, or other affiliate (other than an independent member agency of a federated fundraising organization) has the option of separately reporting the relevant information to the state. Alternatively, it reports to the parent organization, which is then required to furnish the information in a consolidated form to the state.

Permission to engage in fundraising for charitable purposes will not be issued where the regulatory authorities conclude that the charitable organization has omitted or materially misrepresented required information or would be acting in violation of one or more provisions of the state's charitable solicitation law. The law may provide that a permit to solicit will not be issued where a person violated the law, attempted to obtain the fundraising authorization by misrepresentation, or materially misrepresented the purposes and the manner in which contributions would be used.

Usually, the state levies a registration fee, which is either a fixed amount or an amount correlated with the level of contributions received, administrative or fundraising outlays, or the like.⁴¹ Most of these statutes provide for a stated fixed fee; some states levy a fee, the amount of which depends on the level of annual receipts. A state may allow the regulatory authorities to set the fee. Other states, however, allow a charitable organization to register its fundraising program without charge.

State laws differ as to the duration of the registration or other authorization to engage in charitable fundraising. In most states, the permit or license expires by law one year after the date of its issuance, at the close of the calendar year, or at the close of the organization's fiscal year. Renewal of the registration or other authorization is made by filing an updated application within a certain period before the expiration date of the existing registration. These statutes usually also require a supplemental filing during the time a registration is in effect, where there is a material change in the information submitted with the application.

In some states, the registration or other authorization remains in effect until withdrawn by the charitable organization or suspended or revoked by the state.

The statutory law in the other jurisdictions does not address the subject of duration of the authorization to engage in charitable fundraising.

These laws usually provide that, where the charitable organization has violated a provision of the applicable charitable solicitation act, the enforcement authorities are to suspend or revoke the registration or other authorization. The statute usually provides for some form of due process, including a hearing, in this type of circumstance.⁴²

There often are separate registration requirements for professional fundraisers and professional solicitors.⁴³

The burdens of registration imposed on charitable organizations engaging in multistate charitable solicitations appear to be moderating, as the consequence of development of a unified registration statement. More than 30 states and the District of Columbia agreed to use the form. Some states, however, require supplemental information. This form is optional for use by participating charitable organizations.⁴⁴