Officers and Directors of a Not-For-Profit Corporation Have a Fiduciary Duty of Care And

Memorandum

DATE: / January 5, 2010
RE: / Not-for-Profit Entity -- Conflict of Interest Policy

Officers and directors of a not-for-profit corporation have a fiduciary duty of care and loyalty to such organization.[1] Those fiduciary duties govern the actions of the officers and directors of a not-for-profit corporation and must be recognized by those involved. A conflict of interest policy articulates for the entity a standard for evaluating the conduct of officers, directors and key employees in situations that could result in a breach of such fiduciary duties. It establishes procedures for addressing and managing conflict situations to avoid a breach of fiduciary obligations.

Virtually all tax exempt organizations are required to file IRS Form 990 (2008) Return of Organization Exempt from Income Tax, describing themselves, their activities and financial circumstances. Included in that form is the question of whether the not-for-profit entity has a conflict of interest policy. If there is such a policy, Form 990 inquires as to how that policy is administered and enforced. The inclusion of these inquiries in Form 990 indicates that the IRS is interested in encouraging good governance for not-for-profit entities, in regard to conflict of interest situations.

Form 990 describes the basic elements of a conflict of interest policy in Section B of the Instructions for Form 990. Those are:

define conflict of interest
identify persons covered by the policy
facilitate disclosures that help identify conflicts of interest
specify procedures to manage conflicts of interest

The objective of such a policy is to avoid the possibility that those in positions of authority over an organization may receive an inappropriate benefit.

In light of the underlying fiduciary duty issues, the desirability of implementing good governance procedures and the interest of the IRS in such procedures, not-for-profit entities should adopt a conflict of interest policy. Such a policy should be appropriate for the entity, and each not-for-profit entity that adopts a conflict of interest policy should evaluate how its operations and activities might give rise to potential conflicts situations; what its tax status is and procedurally how it wants to address conflict of interest situations. Depending upon those elements, it can tailor its conflict of interest policy to fit its circumstances.

Charities. A conflict of interest policy is recommended by the Internal Revenue Service for entities that are seeking tax exempt status under Section 501(c)(3) of the Internal Revenue Code. In fact, the IRS has provided a sample conflict of interest policy as Exhibit A to the instruction to IRS Form 1023 (Rev. June 2006) Application for Recognition of Exemption.

The adoption of a conflict of interest policy that is based upon the IRS sample can be an effective way for a charitable organization to implement a suitable conflict of interest policy. Although the sample form of conflict of interest policy that is recommended by the IRS is somewhat formal and legalistic, it is a good starting point for a charitable organization to develop a conflict of interest policy. Attached as Sample 1 is a form of conflict of interest policy that modifies slightly the IRS sample that is included with Form 1023. It modifies the introductory paragraph slightly and adds the concept of “key employee” to identify better who is covered by the conflict of interest policy.

The IRS sample conflict of interest policy is intended to apply to § 501(c)(3) not-for-profit entities and specifically refers to charitable organizations. It also refers specifically to “a possible excess benefit transaction” which is a term of art related to Section 4958 of the International Revenue Code. Section 4958 imposes excise taxes on transactions between § 501(c)(3) and 501(c)(4) organizations and persons in a position to exercise substantial influence over such entities’ affairs. “Excess Benefits” can refer to compensation that is excessive or to property transactions for amounts in excess of fair market value.

Not-for-Profit Other Than Charity. The Conflict of Interest Policy attached as Sample 1 can be modified to provide the basis for a conflict of interest policy for entities that are not § 501(c)(3) or 501(c)(4) organizations. In such situations the form should be modified to delete the references to “excess benefit transactions” and “charitable” organizations. As set forth above, “excess benefit” is a term of art under the Internal Revenue Code relating to tax exempt organizations, and the Internal Revenue Code provisions embodying such term are not applicable to not-for-profit corporations that are not covered by Sections 501(c)(3) and 501(c)(4). Sample 2 deletes the reference to “excess benefit” and modifies the reference to “charitable” purposes in Articles VII and VIII.

Policy Conflict. The IRS sample form of conflict of interest policy and the attached Samples 1 and 2 refer to conflict situations arising from “financial interests” and accordingly do not address the type of conflict of interest that could arise if a board member was also on the board of a competing not-for-profit entity or was involved on the board of a not-for-profit entity that advocated a policy or position that was directly opposed to that of the organization.[2] For example, it could constitute a policy conflict of this nature if a member of the board of local symphony was also a member of the board of a local opera company; or if a member of the board of an animal rights group was also a member of an entity promoting hunting and trapping. While such “policy conflicts” are likely to be remote, depending upon the nature of the not-for-profit entity, the potential for such situations should be considered and if necessary addressed.

We have described this type of interest as a “policy interest.” Where appropriate the basic form of conflict of interest policy attached as Sample 1 can be modified to include and address such policy interest situations. Attached as Sample 3 is a form that modifies Sample 1 to include the concept of policy interest conflicts.

Statement. Article VI of each of these forms calls for annual statements by those affected, acknowledging they have received a copy of the policy, understand it and agree to be bound by it. A basic form reflecting the elements in Article VI is attached as Sample 4.

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SAMPLE 1

Conflict of Interest Policy

Article I

Purpose

This Conflict of Interest Policy sets forth [Tax Exempt Corporation’s] (“Organization”) criteria and procedures for identifying, evaluating and addressing conflict of interest situations. The purpose of this policy is to protect the Organization’s interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Organization or might result in a possible excess benefit transaction. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit and charitable organizations.

Article II

Definitions

1.Interested Person

Any director, officer, key employee, or member of a committee with governing board delegated powers, who has a direct or indirect financial interest or has a policy interest, each as defined below, is an interested person.

2.Financial Interest

A person has a financial interest if the person has, directly or indirectly, through business, investments, or family:

a.An ownership or investment interest in any entity with which the Organization has a transaction or arrangement,

b.A compensation arrangement with the Organization or with any entity or individual with which the Organization has a transaction or arrangement, or

c.A potential ownership or investment interest in, or compensation arrangements with, any entity or individual with which the Organization is negotiating a transaction or arrangement.

Compensation includes direct and indirect remuneration as well as gifts or favors that are not insubstantial.

3.Key Employees

A person is a key employee who, such as a manager, enjoys a portion of authority in the Organization where such person may benefit financially from his or her decision.

Article III

Procedures

1.Duty to Disclose

In connection with any actual or possible conflict of interest, an interested person must disclose the existence of any financial interest and be given the opportunity to disclose all material facts to the directors and members of committees with governing board delegated powers considering the proposed transaction or arrangement. A financial interest is not necessarily a conflict of interest. Under Article III, Section 2, a person who has a financial interest may have a conflict of interest only if the appropriate governing board or committee decides that a conflict of interest exists.

2.Determining Whether a Conflict of Interest Exists

After disclosure of the financial interest and all material facts, and after any discussion with the interested person, he/she shall leave the governing board or committee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining board or committee members shall decide if a conflict of interest exists.

3.Procedures for Addressing the Conflict of Interest

a.An interested person may make a presentation at the governing board or committee meeting, but after the presentation, he/she shall, if directed by the President, leave the meeting during the discussion of, and the vote on, the transaction or arrangement involving the possible conflict of interest.

b.The chairperson of the governing board or committee shall, if appropriate, appoint a person or committee to investigate alternatives to the proposed transaction or arrangement.

c.In the case of a financial interest, after exercising due diligence, the governing board or committee shall determine whether the Organization can obtain with reasonable efforts a more advantageous transaction or arrangement from a person or entity that would not give rise to a conflict of interest.

d.If a more advantageous transaction or arrangement is not reasonably possible under circumstances not producing a conflict of interest, the governing board or committee shall determine by a majority vote of the disinterested directors whether the transaction or arrangement is in the Organization’s best interest, for its own benefit, and whether it is fair and reasonable. In conformity with the above determination the board shall make its decision as to whether to enter into the transaction or arrangement.

4.Violations of the Conflicts of Interest Policy

a.If the governing board or committee has reasonable cause to believe a person has failed to disclose actual or possible conflicts of interest, it shall inform the person of the basis for such belief and afford that person an opportunity to explain the alleged failure to disclose.

b.If, after hearing the person’s response and after making further investigation as warranted by the circumstances, the governing board or committee determines the person has failed to disclose an actual or possible conflict of interest, it shall take appropriate disciplinary an corrective action.

Article IV

Records of Proceedings

The minutes of the governing board and all committees with board-delegated powers shall contain:

a.The names of the persons who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the governing board’s or committee’s decision as to whether a conflict of interest in fact existed.

b.The names of the persons who were present for discussions and votes relating to the transaction or arrangements, the content of the discussion, including any alternatives to the proposed transaction or arrangement, and a record of any votes taken in connection with the proceedings.

Article V

Compensation

a.A voting member of the governing board who receives compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.

b.A voting member of any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.

c.No member of the governing board or any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Organization, either individually or collectively, is prohibited from providing information to any committee regarding compensation.

Article VI

Annual Statements

Each director, key employee, officer and member of a committee with governing board-delegated powers shall annually sign a statement which affirms such person:

a.Has received a copy of the conflicts of interest policy,

b.Has read and understands the policy,

c.Has agreed to comply with the policy, and

d.Understands the Organization is charitable and in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes.

Article VII

Periodic Reviews

To ensure the Organization operates in a manner consistent with charitable purposes and does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, including the following subjects:

a.Whether compensation arrangements and benefits are reasonable, based on competent survey information, and the result of arm’s length bargaining.

b.Whether partnerships, joint ventures, and arrangements with management organizations conform to the Organization’s written policies, are properly recorded, reflect reasonable investment or payments for goods and services, further charitable purposes and do not result in inurement, impermissible private benefit or in an excess benefit transaction.

Article VIII

Use of Outside Experts

When conducting the periodic reviews as provided for in Article VII, the Organization may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the governing board of its responsibility for ensuring periodic reviews are conducted.

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SAMPLE 2

Conflict of Interest Policy

Article I

Purpose

This Conflict of Interest Policy sets forth [Tax Exempt Corporation’s] (“Organization”) criteria and procedures for identifying, evaluating and addressing conflict of interest situations. The purpose of this policy is to protect the Organization’s interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Organization or when the activities of a Board Member may prejudice or impair the Organization’s rights or interests. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit organizations.

Article II

Definitions

1.Interested Person

2.Financial Interest

A person has a financial interest if the person has, directly or indirectly, through business, investments, or family:

a.An ownership or investment interest in any entity with which the Organization has a transaction or arrangement,

b.A compensation arrangement with the Organization or with any entity or individual with which the Organization has a transaction or arrangement, or

c.A potential ownership or investment interest in, or compensation arrangements with, any entity or individual with which the Organization is negotiating a transaction or arrangement.

Compensation includes direct and indirect remuneration as well as gifts or favors that are not insubstantial.

3.Key Employees

A person is a key employee who, such as a manger, enjoys a portion of authority in the Organization that may benefit financially from his or her decision.

Article III

Procedures

1.Duty to Disclose

2.Determining Whether a Conflict of Interest Exists

3.Procedures for Addressing the Conflict of Interest

b.The chairperson of the governing board or committee shall, if appropriate, appoint a person or committee to investigate alternatives to the proposed transaction or arrangement.

4.Violations of the Conflicts of Interest Policy