Nonprofit Radio for January 17, 2022: Legal Outlook For 2022

Gene Takagi: Legal Outlook For 2022

Gene Takagi

Gene Takagi returns for a mix of checklist items and emerging trends. It’s a good time to look big picture at your HR investments, corporate docs and financials. Also, what to look out for in crowdfunding, donor disclosure, data protection, and more. Gene is principal of the Nonprofit & Exempt Organizations Law Group (NEO) and our legal contributor.

 

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[00:02:10.34] spk_0:
Hello and welcome to Tony-Martignetti non profit radio big nonprofit ideas for the other 95%. I’m your aptly named host of your favorite abdominal podcast. Oh, I’m glad you’re with me. I’d bear the pain of proto psychosis if you infected me with the idea that you missed this week’s show Legal Outlook for 2022, Gene Takagi returns for a mix of checklist items and emerging trends. It’s a good time to look at big picture items like your HR investments, corporate docs and financials also though what to look out for in crowdfunding donor disclosure, data protection and more, jean is principal of the nonprofit and exempt organizations law group Neo and our legal contributor On Tony’s take two 50% off planned giving accelerator. We’re sponsored by turn to communications pr and content for nonprofits. Your story is their mission turn hyphen two dot c o. It’s always my pleasure to welcome back Gene Takagi to the show. You know who he is. It’s almost it’s almost superfluous for me for me to do the intro. But but jeanne deserves it. He’s well credentialed and I want to make sure that he gets his due introduction. Gene Takagi are legal contributor and managing attorney of Neo, the nonprofit and exempt organizations law group in saN Francisco. He edits that wildly popular nonprofit law blog dot com, which you should be following and he is a part time lecturer at Columbia University. The firm is at neo law group dot com and he’s at jeanne, Welcome back.

[00:02:11.94] spk_1:
Great to be back. tony how are you?

[00:02:13.98] spk_0:
It’s always a pleasure. Thank you. I’m well happy New Year.

[00:02:17.99] spk_1:
Happy New Year.

[00:03:05.74] spk_0:
Thank you. And let’s, so let’s let’s talk about the new year. Um and just before we do I want to remind folks that not too long ago we have genes one, our legal audit which you might want to look back at. That was a sort of a condensed version of some of what we’re gonna talk about today. Although we have lots of new subjects to talk about today too. But there was the one our legal audit and also with jean recently Risk management Part one and then a different show. Risk Management Part two. So those are resources that you can look back at just from a couple of months ago and we’ll go into and and those go into more detail on some of what we’re gonna talk about today jean. Uh where would you like to start for the new year, throw it open, throw it, I throw it open to you. What would you like to start with?

[00:03:58.64] spk_1:
So it does seem like kind of this chance that restarting, getting reenergized and thinking about our organizations and where we wanted to go. Um Yes, we have to keep in mind some of those um risks that we talked about in previous shows but we also have to think about kind of where we want to go. What of our, what our dreams are um what our vision is for the organization? Had we properly captured it? Um, what is our mission? Is that sort of properly captured? Is everything because our environment seems to be changing week by week. It seems to be new stuff that comes up that we have to consider. Are we still on track with where we want to go? So having these sort of broader discussions. I like sending those organizational priorities for the new year.

[00:04:06.64] spk_0:
Okay. Okay. Um, what would you, what what priority would you like to start with?

[00:06:07.94] spk_1:
Sure. So, um, being the lawyer, I say, okay, let’s talk about legal compliance just to make sure we’ve got some systems in place, mission and values, which we’ve frequently emphasized them when we’ve had discussions about not just existing to further your mission, but to do it in a way that advances your values and if equity and inclusion of part of those values, then, you know, that’s something you should be thinking about as well, definitely considering some of the trends that are out there. And I know we’ll get into that a little bit later in the show, but also including kind of the times that we’re we live in and acknowledging that yes, we’re under the impact of Covid, which seems to be shifting constantly in both how it’s affecting us and how we might need to respond to it. The great resignation, which certainly isn’t completely unrelated to the Covid, but that is a huge trend and movement as we’re trying to figure out how do we keep our workers, are we burning them out? The mental health issues that are, you know, hitting pretty much all of us, um, from the isolation, remote, working from the uncertainties of health, from sick family members and loved ones and all of that and saying, well, are we going to be able to keep our team together? Should we be keeping our team together the way we’re working now? Do we need to shift our work practices? Do we need to shift what type of benefits for giving to them? All of those things have got to be sort of raised? And I would say raise at the board level, you know, together with the executives and senior management team. Let’s talk about it. Let’s brainstorm think about this and get what our organizational priorities are this year, because things can change rapidly and rapid change if you don’t have any plans um, to anticipate some of them don’t have contingency plans can force you into very, very stressful times where immediate actions are necessary and you can sometimes make bad decisions if you’re under that type of time stress. So

[00:06:18.63] spk_0:
then it because then it becomes a crisis

[00:06:20.30] spk_1:
right? Exactly.

[00:06:48.64] spk_0:
And and a crisis in staffing, especially knowing how hard it is to hire folks now, you know, you talked about, you know, keeping the team together or should we keep should we keep the team together? But, you know, I’m sure you’re seeing it with your clients. The difficulty in hiring, you know, you want to, that, that, that’s a, that’s a huge factor in, you know, do we have the right team? Well, putting the right team together, it’s gonna take a lot longer than it used to?

[00:08:01.94] spk_1:
Yeah, absolutely. And if you’re talking about retention, you got to figure out what are you going to invest in this? I know you want to, you know, provide as much as you can to your beneficiaries. But if you’re not really considering the team of people in, you know, on your team that are providing those services that are supporting those services, the whole thing can collapse. So just remember where your infrastructure and when your groundwork is and how important the human resources are in your organization to being able to deliver services and provide goods for your charitable missions. So really important not to neglect that. And that requires an investment both on retention and if you aren’t able to retain everybody and you need to recruit, you’re gonna have to be able to show what you’re going to invest in those new employees and give them time to learn. You can’t expect them to perform like experience people have, um, in the past. So it’s, you know, some patients, um, and definitely investment in education and training and orientation, um, and all the rest and again, um, to the extent that your executive is probably also overwhelmed with everything else going on. The board is really pivotal in trying to be able to come up with plans that help invest in their teams.

[00:08:10.44] spk_0:
This goes to legal audit the conversation we had a few months ago. You’d like to see a review of governing documents to.

[00:09:31.74] spk_1:
Yeah, I I always think that that’s a great thing to check out in the new year. Just even if you have somebody, you know, a higher up kind of a board member or where your executive or senior manager take a look At your articles and bylaws, even spending 30 minutes on it and saying is our mission really reflected in these documents or have we evolved into something else? And these documents are like stale and old and outdated now in that case those documents still rule. So if you have the I. R. S. Or a state regulator coming in audit you, if you’re not performing within that mission statement in your articles and bylaws, you could be acting completely out of compliance and worst case scenario, you can really threaten the organization through penalties, etcetera. So that’s something to take a look at. Also just take a look at a lot of organizations. I find out their their boards, they’re like, oh, you know, we forgot to elect them. You know, we, we, you know, we’ve had terms, you know of two years but they’ve been on for like 10 years and we’re happy with them. So we just don’t do elections that can be really, really harmful as well for multiple reasons. But you know, sit back, see what you’re doing and what you’re not doing consistent with your articles and bylaws. And if you need to change things determine that you have to change. And if you need the help of a lawyer, try to find somebody that can help you with that. And there are some good resources on the web as well.

[00:09:48.64] spk_0:
What’s, what’s one of the good resources?

[00:10:15.04] spk_1:
A little bit of a self plug because I’m a board member, but board source has excellent resources on board of directors, governance things of that nature. Stanford University also has excellent resources in terms of sort of template documents that are just a guide for nonprofits. It’s not one size fits all, but it just gives you a general idea about how some things operate. Um, so those are just too good resources to look at.

[00:10:18.35] spk_0:
And, and again, we, we talked about this extensively in the show called your one

[00:10:24.34] spk_1:
hour legal audit.

[00:10:30.14] spk_0:
You have some last one. You have some financial performance advice for the new year.

[00:13:04.74] spk_1:
Yeah. Well I think probably, um, most people take a look at their financials throughout the year on the board level and on the executive level. Um, but the new year, you’ve actually sort of completed your financials and they might not be, um, in final form yet, but you might have what some people call it pro form, a set of financials, um, sort of close to final, where you get to assess what you’ve done in the year, you know, for, for most organizations, this goes without saying, but you want to make sure that you’re performing in a way that you’re not becoming insolvent. So you want to make sure what your balance sheet looks like and whether you have net assets, um, if you don’t have net assets, that means that you are either insolvent or, you know, in the zone of insolvency, you have to think about how you’re going to address that very serious issue. And I would say you don’t have internal expertise on dealing with it, get outside help right away if that’s the case. But your, your statement of revenues and expenses as well, are you sort of operating what people call in the black so that there is, you know, some net income in there or are you operating in the red where you’re very concerned because you’re losing money, timing is always important. So it’s misleading to look at one year in isolation because sometimes grants are given in one year, but they’re actually uh received in another year. So the timing issue can pose different challenges about reading financials. So you want to be able to read it sort of collectively through a multi year period just to know where you stand. And again, if board members aren’t able to help an executive and the executive feels like they need some help with understanding financials, to reading financials invest in everybody’s training in this area and there are a lot of people, even pro bono, that, that are offering this training pro bono and a lot of resources on the web. So make sure you understand your financials and what they’re indicating. You don’t need to know every single financial ratio that you know, business people use, but just generally no. Are you healthy financially or are you trending bad? And if you have several years where you’re in the red, where you, where you’re not making money, it looks like you’re bleeding money, then that might be indicative of some change that’s necessary in order to make your organization sustainable on an ongoing basis. So again, you don’t want to hit crisis mode financially. So this is a good chance, take a look at your financials, not just last year, but over a multiyear period and see where you are, get help if you need it.

[00:15:08.54] spk_0:
We have a show that I replayed, oh, I think within the past six months, uh, the guest was Andy Robinson. So you could go to tony-martignetti dot com and just search his name Andy Robinson, but it was something like teaching your board basic financials and he wrote a book, I’m pretty sure it was published by charity channel, uh, with, with a title similar to that. So if you, and the show is a few years old, but reading financial statements and and balance sheets hasn’t changed much in probably 100 years. Um, so it’s just all in and out now now, it’s all in Excel. But uh, so if you’d like some help with that, there is a, there is a show where Andy Robinson was the guest talking about, you’re improving your boards, financial literacy. It’s time for a break. Turn to communications, your 2022 communications plan. Does it have lots of projects? Lots of writing projects? You can get the biggest projects off your plate and outsource them. Free up staff time to devote to the work that it’s not feasible to have others doing for you. Like the annual report, just because it’s been done in house in the past, doesn’t mean it has to be done in house this year. What about research reports, White papers, your other heavy lift pieces. Do you need help with writing projects in 2022, Turn to communications, your story is their mission turn hyphen two dot c o. Now, back to legal outlook for 2022 with Gene Takagi. Okay, so let’s talk about some trends then, jean, you have a, you have a case we haven’t talked about, we haven’t talked about an actual case for a while. Americans for prosperity.

[00:19:16.54] spk_1:
Yeah. So um that was a huge U. S. Supreme Court case at least huge for the nonprofit sector. Um, but with deeper implications for if I if I’m not over hyping it for democracy itself. So um so americans for prosperity, Foundation versus Banta, who was the California Attorney general basically it was about the schedule be disclosure of donors who donated more than $5000. So for nonprofits who know how to prepare their form 19 nineties, you’ll know that on schedule B of your form 1990. Eur actually disclosing to the I. R. S. It’s not public information. Um But it’s to the I. R. S. The name and address of your donors who donated more than $5000. Now that hasn’t changed, you still have to disclose it to the I. R. S. But certain states, including California where volunteers from as the attorney general um New york I believe New Jersey I believe Hawaii also included Um all asked for a copy of the 990 including an unredacted schedule B to be given to the state regulator because they also want to look at that information for state law compliance purposes. A lot of them are concerned about donors who give money but get something back in return that’s not being disclosed. So if they ever have to have an investigation of that, that information turns out to be very helpful to the state to be able to say ah they were giving money but they also took in this huge benefit, this huge contract for example, which you know, reap them millions of dollars. Um So there was a legal case um that went up through the courts um finally hit the U. S. Supreme Court and the A. G. Lost here, The California G. Um So the court decided and we know the court’s composition is fairly conservative right now. The court decided that uh the states don’t have this right. Um It was based on the fact finding of the lower courts which is a little bit unfortunate because if the higher court could have considered more facts, then it might have been decided a different way but based on kind of how how our legal system works and and and how the Supreme Court works and the composition of the Supreme Court. They held that, hey this is not disclosed able to the states essentially that’s the impact of it. The broader impact on why I said democracy might be uh issue here is because well what about sort of campaign finance disclosures? And what about the I. R. S. Should they be entitled to that information as well? So it’s really helpful in compliance. But the counter argument and why some organizations charities, we’re also um not in favor of the disclosures is because of the protection of the donor. And the old case cited um in this part of the argument was an N double A cp case that said, well, if we disclose our donors, the KKK had threatened to kill all of them. Um And you can see why privacy was important in that issue and this issue, it was nothing like this. I think it’s a Koch brothers, um, kind of funded charity. They wanted really to keep their identity, um, more hidden because they have desires to influence politics in many ways. And if it always gets associated with them, then the impact lessons. So if they can look like they’re ground swells of movements that are funding these things rather than individual donors, um, it looks better for for what they’re trying to do. So that’s, you know, that’s what’s at stake here is not only are the state’s not allowed to get this information that would really help them in state law enforcement of whether there’s diversion of charitable assets that benefit

[00:19:29.74] spk_0:
donors. But

[00:19:30.15] spk_1:
in the broader sense, are we going to allow more dark money to enter into our political systems without knowing that there are donors, heavy donors that back these, you know, politicians or political parties or political movements. So that’s the scary part about this decision.

[00:19:57.94] spk_0:
What’s the, I think infamous Supreme Court case that that allowed the allowed the dark money into, uh, into politics. United

[00:20:02.73] spk_1:
Citizens. United

[00:20:27.54] spk_0:
United. Yeah. Um, All right. All right. And so I just want to repeat this. So this case that Gene was just talking about is americans for prosperity Foundation V. Banta B. O. N. T. A. What about crowdfunding you, you point out that there’s a new crowdfunding law. Hope is this a little more optimistic? I hope?

[00:21:22.54] spk_1:
Uh, well, depending upon how you look at it. And I think in one sense it’s inevitable. Um, a lot of our laws that are developed regarding fundraising, um, don’t even, and never anticipated the internet, right, johnny. So, uh, you know, now crowdfunding platform is, you know, not just the internet, the use of the internet, but it’s a lot of different for profit companies getting involved, um, to enable charities and organizations and people who are not charities to raise funds that look like they could be for charitable purposes, Right? So you want to help victims of a fire, but you want to help them directly, because some individuals said, I want to start a Go fund Me campaign, right? And say, well, you know, chip in 50 bucks and let’s try to get these people some help doesn’t, that doesn’t go through a charity. Often it just goes to this person, right, who promises to give these other people money

[00:21:35.90] spk_0:
and go funding the person’s goodwill. Honestly, yeah,

[00:21:58.14] spk_1:
Go fund Me is, you know, reacted to this and they’re probably the biggest crowdfunding platforms. So they’ve reacted to this in terms of having their own internal policies to help prevent a check. But overall, there’s, you know, hundreds, if not thousands of crowdfunding platforms out there that do this to make a profit. Um, and they may not have those types of controls or checks to not to just, you know, prevent somebody from saying, let’s raise money to help fire victims and then just keeping it. Um, so,

[00:22:11.97] spk_0:
what, what, what is the import of the law for, for us?

[00:23:21.34] spk_1:
So I think the import of the law is, if you’re going to get on and decide, hey, we want to do crowdfunding, um, you’ve got to select your platform provider carefully and this law, which is in California, but is likely to spread across different states in various forms, says, well now, if you’re gonna do that, you’ve got to make sure that this crowdfunding platform is registered. Um, and they’re reporting and there are all sorts of rules involved. So if you have a contract with them, it should be subject to these rules that might say things like, well, if they collect money, they have to give the money to the charity within a certain time period. Right? So they couldn’t say, well, it takes this administration, so maybe a couple of years before you get that, you know, nobody’s gonna be happy with that, but without rules, why not? Um, so these are, this is why it’s important for charities to have rules. The actual details of the rules. So I can see why some people have some, some issue with them. And we haven’t had all of the regulations yet, they’re still in discussion. So this is very, Still very trending, but the crowdfunding law, the law, the general law that’s in place now will become effective in California in 2023, and the regulations are being developed right now,

[00:23:58.04] spk_0:
let’s turn to remote work, which is obviously so much more common now. Hybrid work, you know, return to work dates are being pushed off and off. Um What what are what are what are what trends are you seeing? What should be on, will you be on the lookout for with respect to uh remote work and employment law issues?

[00:25:10.84] spk_1:
Yeah, it’s, you know, this is a really tricky area. Um you know, for sure, Covid where people were suddenly not permitted to to go indoors in some cases for months. Um and who knows if, you know, we’re going to return to some of those scenarios with the omicron variant out there, We’re hoping that it’s less um severe in terms of its impact, even if it might be a more transmissible, but if we if we keep worrying about this and saying, you know, our workers aren’t comfortable coming to work, even if the law allows them to come to work. Um Maybe we’re going to let people work remotely, and many of us have gone full remote, some of us have gone back to partial returns, some have gone back to full returns and then gone back, you know out the other way and said, okay, you know, it’s at the workers discretion whether they want to come in or not. So what makes us a little bit tricky. Um is that you don’t control the work environment as the employer, if they’re working at home, right? Um but that becomes the work environment, if they’re doing work from home, that’s their work environment, and, you know, the employer is responsible for the work environment if they should get hurt, for example,

[00:25:22.94] spk_0:
um

[00:26:56.24] spk_1:
So it becomes a little bit tricky about, well, how do you, how do you handle that for workers comp reasons, for safety reasons, for OSHA reasons? Um and I think there’s an understanding by regulators that, you know, this is out of control of most small businesses, small charities and, you know, to to that extent, we’re not really gonna look to enforce things on that level, but there are other things that, that are also concerning, because not everybody goes when, when they decide to work remote, we work in the same city or in the same state, right. A lot of us um have decided to, you know, maybe move back with family, which might be in another state. In some cases it could be another country, or some of us have decided to travel and spend a little bit of time, you know, in different places. Um So how does allow treat that? And basically, you know, the old rules, which are the rules, many of us are stuck with. Um the old rules are, well, you have to comply with the laws where the worker is doing the work, so if you have a worker in new york who’s now working remotely and came out to florida, well, then all the employment rules regarding worker safety and wage and hour laws and salary, overtime, sick pay benefits, all the florida laws apply to that worker now. Um, and so now it’s like, well, you’ve got to work in florida, you’ve got to think about, are you qualified to do business in

[00:27:00.21] spk_0:
florida,

[00:27:36.94] spk_1:
charity registration in florida? Um, and you may have had no connection to florida before, but all of a sudden you have a worker working there. Um, so a few states, um, and they’re not very many, but a few states that said, well, you know, during covid, we’ve got these temporary rules where we’re relaxed, where you don’t have to do that. And there’s also state tax issues, right? State payroll taxes, and, and other times, all of those things, some states said, you don’t have to worry about it. A lot of organizations are simply not complying with, But,

[00:27:37.49] spk_0:
but you said it’s only a handful of states that said, we’re we’re we’re not enforcing

[00:27:42.14] spk_1:
right. Exactly.

[00:27:43.33] spk_0:
The majority of

[00:29:01.34] spk_1:
states are, Yeah, well, I shouldn’t say they’re enforcing, but they haven’t the old laws or the existing laws still apply. There are no transition laws, so you’re out of compliance. And if they do enforce, which might not be like a, you know, a regulator coming out to you and saying you haven’t done this, it may be your employee is unhappy with something you’ve done, who’s working there and said, hey florida law applies and you haven’t been complying with the florida sort of benefits laws that, that apply. And maybe I could give you more specific example because san Francisco, if you came out to California, your remote employee came out to California, san Francisco has mandatory six hours and not a lot, a lot of states don’t have sick our pay. Um, but all of a sudden if you’re not paying them and they get wind of that, hey, you were supposed to pay me for this and you haven’t been, it’s the employee who could launch the complaint. Um, so it’s just to be careful of these things and, and just as your strategy for charity registration, tony when you’re sort of fundraising all over the country to, to, you’re not going to be able to maybe do all 50 states at once, but just to make sure you’ve got a plan to attack this kind of the same thing here. Um, check out where your employees are, you should know exactly where they are and check each state in terms of how strictly, maybe in terms of enforcing this and start to slowly comply

[00:30:12.74] spk_0:
the implications of state law. Yeah. What about the technology remote work? I don’t know if that’s all been figured out yet and maybe there were, maybe there were stopgap measures during the, during the, the darkest part of the pandemic, but but going forward, you know, tech technology has to be, has to be upgraded. You know, are we gonna, we’re gonna continue providing work phones? Are we going to provide work laptops? What about paying for internet access over the long term? I mean, you know, the internet access can be costly. And if if work is taking up a lot of the bandwidth, isn’t it appropriate for an employer to be paying a portion? And then how do then how does the, how does the, what’s the mechanism for the employee verifying how much they pay and you know, and then what percentage are we gonna cover of that, all the all the technology issues around, around remote work.

[00:30:58.44] spk_1:
Yeah, def definitely. And and as an as an employer, I would say, beyond sort of any legal compliance issues, um, you’ve got a, I think an ethical issue to make sure you’re providing your employees with the tools to do their job. And if you’re allowing remote work, you should make sure that they have the tools. So if they need a computer to be able to access it, so they’re not, they’re not using their personal computer. Um then you should make sure that happens same thing with the telephone. And if, you know, if those are going to be dedicated to work, um it should be explicitly written out that way. But if you force them to use their personal things, there are some states that actually do have laws that say you must reimburse your your employees if they’re using the tools that they need um for for remote work, but just ethically. Yeah.

[00:31:18.74] spk_0:
But then that’s then that raises security issues too. Absolutely. They have any kind of HIPPA protected information on their personal laptop. That’s gonna be a big problem. That that’s I think that’s probably a mistake if you’re dealing with that kind of data. But um

[00:32:01.74] spk_1:
and don’t we probably all have that type of stuff on our personal computers, right? You know, sort of HIPPA protected? We may have had emails like that are saved onto our computers. Um Right. So if if the computer is also being used for work and there’s a work issue that causes that data to be taken or corrupted, like, you know, what’s the employer’s responsibility if they hadn’t provided an alternative, it’s a great point

[00:32:50.94] spk_0:
and and it’s not only hip hop data, but other other personalized data that that maybe on now the personals, the employee’s personal computer, desktop or laptop or phone, you know, how is that? How is that private private data protected? Do they have malware prevention on their on their personal devices so that so that company emails that they’re that they’re using on their personal device aren’t potentially compromised. I mean, the use of the personal equipment raises a lot of technology and and Legal privacy and ethical issues to your right. I mean, if the person is eight or 10 hours a day, they’re using their personal laptop, shouldn’t there be some compensation for that?

[00:34:46.94] spk_1:
Yeah. And I think minimally because no matter you know how much we encourage people to have sort of work dedicated computers provided by the workplace, people are going to use their personal phones. I mean we can go back to the politicians who have all been using their personal funds. So we know it happens regardless of what the best practices. But what can the employer do, they can pay for all of that data protection stuff that that computer should have. Right, tony because now it has much more sensitive information on there and the employer is partly responsible for some of the other information that could be on there and hack. So yeah, employers should help. And that kind of leads us to the whole data security issue as well that everybody’s got to be paying attention to now is really um nonprofits have important data in their system. Some of it is, you know, hipaa protected some of it is other privacy information. You may have employment reviews on there that you don’t want going out into the real world or client, you know, feedback which might be positive. Some of it might be negative sensitive communications, all sorts of stuff that you might find on a work computer and if it gets hacked and if that data gets stolen or if somebody holds the system which might run your programs or aspects of your programs if they cause your system to crash and say that they will only sort of fix it because they’ve hacked and caused the crash. If you pay a ransom, you’ve got all sorts of problems. Uh and maybe some of that may have been mitigated with some basic steps like you mean you’re not going to be, well even the U. S. Government can’t prevent all hackers. I think we we know that, but you can take reasonable steps based on your budget, whatever that might be to to control some of this. So it really is important to have some safeguards.

[00:34:55.74] spk_0:
Another potential category of data is the G. D. P. R. Data. If if if your nonprofit is implicated at all in in that european common law law then or the yeah then then you’ve got those concerns as well.

[00:35:08.94] spk_1:
Yeah, absolutely. So if you have european donors or you’re doing business with any european entities and you have data from those entities or persons be careful and again, remote working can trigger some of that. So if if they decided to, you know their home or or they want to travel to europe and do their work from there.

[00:35:28.74] spk_0:
Um,

[00:35:29.74] spk_1:
all sorts of implications.

[00:37:44.03] spk_0:
Yeah. Absolutely right. People very good point where where people are sitting and where they’re planted when they’re working, It’s time for Tony Take two We’ve got 50% off the tuition for planned giving accelerator. That’s because just last week A donor stepped up someone who believes very deeply in planned giving accelerator and he is offering to pay 50% of the tuition For the 1st 10 nonprofits that take him up on his offer. A couple have already done it as of the time I’m recording, but there are several spots left. So if you’ve been toying with the idea of planned giving accelerator, it’s never going to be cheaper than 50% off. What the way this will work is. You’ll pay the tuition in full, which is $1195 for the six month course. This donor will then make a gift to you of half of that. So you’ll have a new donor, he’ll pay half your tuition. So it ends up being 50% off the full tuition cost. I know the donor, it’s someone I trust you have my word. Your final cost will be half of the full tuition if you’d like to jump on this and be one of the members of what is now our february class. I want to give people enough time for this because it, it just came in last week. So I’m extending, we’re, we’re not gonna start the class until february if you’d like to be part of that february class At 50% off email and we’ll, we’ll talk about planned giving accelerator and whether it can help you launch your planned giving program. Mhm. tony at tony-martignetti dot com. That’s me. That is Tony’s take two, We’ve got boo koo but loads more time for legal outlook for 2022

[00:38:01.22] spk_1:
one and one of the tools to think about and I’m a little bit guilty of this as well um is be careful of public wifi um because that often is an entryway for a

[00:38:03.83] spk_0:
hacker. Yeah, that’s totally unsecured airports, airplanes,

[00:38:09.89] spk_1:
coffee shops,

[00:38:13.42] spk_0:
coffee shops, Starbucks, wherever those are, all unsecured networks.

[00:38:29.32] spk_1:
Right? Meaning that there is the potential for somebody in there who has some malicious intent if they want to be able to hack into to your computer through that public wifi. Unsecured wifi. And there are different systems um but maybe one of the simplest for for those of us who have smartphones, which I think is most of us is you could actually create a sort of a private wifi just

[00:38:52.92] spk_0:
for your smartphone, right? Hotspot? Hotspot and don’t use the unsecured wifi to connect to, you know, use the uh the four G or five G or the five GHZ et cetera.

[00:38:56.17] spk_1:
Right? And that’s something an employer could pay to make sure that the employee has significant data and data plan that can incorporate all the additional data that they may need in their plan because of the work. So again, that would be reasonable and and ethical for the nonprofit employer to pay for their employees to have a higher data plan. Um, if they’re going to to use that and insist as a policy that they do not use public wifi. If they’re using a work computer or a computer that contains work and sensitive information,

[00:39:36.52] spk_0:
all you need is to transmit an email on, on an unsecured wifi that that has a donors credit card number, maybe

[00:39:38.77] spk_1:
native

[00:39:58.12] spk_0:
birth address, name any, any two of those things together, uh, hacked could be very detrimental to that donor. And you know, whether it ever gets traced back to you is is uncertain, but you’ve, you’ve put your donors privacy at risk in a simple email that has any two of those pieces of information.

[00:40:04.31] spk_1:
And it appears to be a myth, um, when people have relied on, they’re not going to go after us because we’re nonprofits, people don’t go

[00:40:12.29] spk_0:
after. Oh, that’s bullshit. Oh, that’s ridiculous.

[00:40:14.57] spk_1:
Right?

[00:40:22.61] spk_0:
I’m working with a client now that, that is a, is in new york city that’s, that’s, um, victim of, of a malware, uh, ransomware, so brought me a ransomware attack.

[00:40:27.61] spk_1:
Yeah.

[00:40:40.41] spk_0:
And they’re keeping it quiet so I’m not permitted to say who it is. But um, yeah, they’ve, they’ve been, they’ve been hindered for weeks and weeks with data accessibility issues.

[00:40:42.71] spk_1:
Yeah. And it’s much more common than we think because organizations do want to keep it quiet because if there is a vulnerability, they don’t want to come and say other hackers come come and attack us, we’re vulnerable. So it may be much more pervasive than we think

[00:40:57.61] spk_0:
and that myth also breaks down along ideological

[00:41:00.04] spk_1:
lines.

[00:41:21.61] spk_0:
Some some person on the left may may attack an organization on the right. Some person on the right may attack an organization on the left just because of where the organization stands with respect to the person’s political and ideological beliefs that that that’s enough. It doesn’t matter that you’re a nonprofit. It’s it’s your ideology and your mission. It has nothing to do with your tax exempt status as to why somebody would or wouldn’t go after you.

[00:41:28.41] spk_1:
Yeah and um in these times that those ideological differences have been very um pronounced and. Yeah.

[00:41:41.11] spk_0:
Alright where else should we go? Gene with trends, trends for the new year. Come on.

[00:44:24.69] spk_1:
Um Let’s talk a little bit since we’re talking about technology and data security. Let’s talk a little bit about crypto currency because I find that pretty fascinating. Um There was an organization that came together and bid $40 million on a copy of the U. S. Constitution just a few weeks ago. Um That money the $40 million plus more I think about 47 or $48 million was raised for that purpose in less than two weeks. Um So um Cryptocurrency donors um often have made a ton of money because of the appreciation of cryptocurrencies like. Bitcoin for for those who aren’t super familiar with it. Um And if you donate Cryptocurrency, it’s like donating a non cash asset, meaning that if You bought crypto currency for $1,000 10 years ago and it’s worth now several million dollars, which if you bought the red Cryptocurrency, that might be the case if you sold it, uh you would have a lot of taxes to pay on that appreciation right? The several million dollars of appreciated income that would be subject to capital gains tax. Um So if you sold it and donated some of the proceeds, that would not be a very tax efficient way to donate. When if you donated the Cryptocurrency itself, what you do is you get to take a fair market value deduction of the several million dollars. So you gave several million. So potentially you could deduct that is a charitable contribution and pay no capital gains tax because he never sold it. Um So very tax efficient way of giving um And Cryptocurrency people, wealthy millionaires and others who decided that they wanted see some positive impact um from giving these gifts are are making gifts of Cryptocurrency now and that’s that’s partly why I am so many gathered together to say hey we’d like to fund a charity to buy a copy of the U. S. Constitution so that we can ensure that this constitution is always for the public’s benefit and on public viewership and not sitting in somebody’s house, you know for for their own prestige. Um But that really opens it up, cherish. Think about there’s a lot of these people who made quite a bit of money on Cryptocurrency and a lot of younger people are investing barely heavily in Cryptocurrency now. So it’s something to not sort of blow away if we’re um kind of our age or older, tony to say, Cryptocurrency, what is that? It’s it’s something to really embrace now because it’s it’s not just this exotic tool now, it’s part of regular investment portfolios.

[00:45:56.79] spk_0:
Absolutely, it’s it’s it’s coming and and jean this dovetails perfectly with Our November 15 show of 2021 Bitcoin in the future of fundraising with my guests who are an Connolly and Jason shim who wrote a book Bitcoin in the future of fundraising. So, um it’s do you it’s just more, more sage advice that crypto donations are coming. It’s not a matter of if it’s just when are you gonna get on board now or you’re gonna wait two more years and potentially be behind the curve. Um and as an and Jason pointed out today, there are so few organizations accepting crypto that a lot of people are just searching for. Where can I donate? Cryptocurrency and probably largely, Gene for the reasons you’re describing there, They’re looking for a direct crypto donation to help them with substantial capital gains. Are there specific legal implications of crypto donations that that we need to be aware of or or is it just, you know, you just want folks to know that this trend is, it’s in the middle, it’s happening right now.

[00:48:15.97] spk_1:
So I think, you know, one of the reasons why charities are afraid to take Kryptos because they don’t know what laws apply when they receive the crypto. They’re like, what do we do with this? Um, and there are ways to easily cash that out and turn it into us cash. And in fact, most charities that accept crypto and they’re not a lot, you’re right, tony but most carriers that accept them liquidate them immediately turned them into cash and deposited into fiat currency, like regular paper currency, um, in their bank accounts. Um, So they’re not holding onto the crypto very long at all. One of the reasons why that’s, that can be very important is because there are prudent investor rules for charities that don’t apply to for profits that basically say if you’ve got investment assets, charities, this is not just endowments, but just any sort of investment assets for reserves or for a capital fund or anything you can’t invest. It speculatively, you couldn’t just throw it all in like Apple stock, um that would be too speculative. You have to look at it, uh, through what financial professionals, investment professionals called portfolio theory, are you sufficiently um, have an investment portfolio diversified across several different asset classes? So if one bombs, you haven’t tanked all of your money. Um, and the board of directors have a fiduciary duty to live up to the prudent investment laws that also sort of follow this portfolio theory of how how have you actually divest? Sorry? Um diversify Yeah. Um your your funds across different investment classes to protect yourself and there are different considerations that go along with that. Um But that is one reason why you don’t want to get stuck with all of your investments being in crypto because crypto maybe one of the most volatile type of investments where it can double in a matter of days and it could tank and disappear in a matter of days as well. So depending upon what type of Cryptocurrency you have and there are hundreds if not thousands of crypto types of Cryptocurrency um that have evolved in a lot of people and organizations that are making new coins all the time. So new new forms of Cryptocurrency arising and while we talked about crypto as being a part of more investment portfolios as a normal part of of investments. Now it’s not every Cryptocurrency that would be in that it’s certainly one

[00:48:47.07] spk_0:
1000 right? Some of these thousands trade for thousands of pennies, Thousands Yeah thousands of pennies even you know .0001 three zeros and a one is you know is the value of the currency. Um So. Alright that’s perfect as I said, perfect dovetail to that to that uh that november show because you’re you’re raising the prudent investor rule and and uh portfolio theory.

[00:50:07.66] spk_1:
One more thing on this, tony the forms the I. R. S. Forms for when you get Non cash contributions of more than $500. And how quickly you sell them. Um Also applies to form 82 83 is what the donor needs to sign when they give a non cash contribution of over $500 of over $500. And if it’s over $5000 which many crypto gifts are, they have to get a qualified appraisal for this. So that’s really important. And the Dhoni which is the charity has to sign that form for the donor. And then if the donor the Dhoni, I’m sorry the charity sells it within three years, they have to sign a form 80 to 82. Yeah so that’s again it’s not terribly hard. It sounds like a lot of just legalese I’m blabbing out but it’s not too hard but just take a quick look at those. If you decide that you want to start getting Cryptocurrency and at worst you might ask your donor to find a donor advised fund that takes crypto turns it into cash and then disperses it to the charity. So there are donor advised funds that do that

[00:50:15.76] spk_0:
interesting. Okay so so a Cryptocurrency donation is a non cash donation

[00:50:19.90] spk_1:
correct?

[00:50:58.76] spk_0:
Okay and for non cash donations of $500 or more, That’s where your your donor has the implication of i. r. s. Form 82 83. And you as the charity if you sell it within three years which your advice is that they do because it’s of its volatility Then you’ve got the implication of i. r. s. Form 80 – 82. I always thought those were backwards. The donors should have 80 to 82 because that comes first. Then comes 82 83 from the don’t to the Dhoni first the donor has it. Then the charity should be 80 to 82 82 83. But it’s not It’s 82 83 for your donor and 80 – 82 for you.

[00:51:06.16] spk_1:
That sounds like larry david logic. But that’s how I think as well.

[00:51:10.58] spk_0:
Yeah. I’ve been accused of being larry David in lots of ways. Including my my hair when it’s long like it is

[00:51:16.23] spk_1:
now. I’ve

[00:51:33.46] spk_0:
been accused of looking like Larry David. But we’re not complaining, we’re helping. That’s all right. Um Alright let’s leave us with something else. Another trend for the new year that you want us to be thinking about gene. Um

[00:51:36.96] spk_1:
Let me talk a little bit about diversity equity and inclusion. Since we’ve we’ve talked about that in the

[00:51:42.21] spk_0:
past. You could search jean and I have talked about D. I a bunch of times. But

[00:53:46.05] spk_1:
yeah please. You know I think in combination when we talk about the great migration and how the pandemic might be affecting different populations in different ways that we start to think again about kind of? Well if our charity is doing some some mission and we might not think of that mission as being really reflective of of specific races or or anything like that. Um But could D. E. I. B. Important anyway. And I think that’s where we get to think about. Well if we had more perspectives in our organization, if if we’re lacking some of those perspectives now, for example not having a lot of latin thinks Hispanics or blacks or asian americans on the board or in the leadership group, maybe we’re not really thinking about how our services that we’re delivering are affecting different populations differently. Maybe we’re just sort of providing services but we’re focused on urban centers or urban centers where if we’re center based, our center based is in neighborhoods that are much more accessible to uh white populations versus other populations. So getting different perspectives, even if we think of ourselves as being race neutral, which is kind of a charged term. But I’ll just use it for for these purposes. If we think some of us think of ourselves as race neutral and therefore we don’t have to get involved in the D. E. I work. We want to say, well don’t we care about serving our population in a way that’s kind of fair and not just favoring one segment over other segments or just totally neglecting certain segments of the population because they don’t have the same type of access. Have we ever thought about those things and having diversity can help us think about those things. Um, but it has to be done obviously in an inclusive way, which we’ve talked about and I know we just have a few minutes here, but it’s

[00:54:03.34] spk_0:
sort of it’s touching on, you know, not knowing what you don’t know without without having the perspective of diverse populations on your board, in your leadership, then you don’t know how you’re not serving other non white populations. Yeah. And even when we were perceived by other by by non white populations.

[00:55:32.64] spk_1:
Yeah, exactly. And even when we say, well when we look at a group of people and we say diversity, you know, that has one meaning. But sometimes when we just look in our inside our own heads, uh, and when people go unconscious bias, for example, try to think about what that is. It’s like, well if we don’t have the benefit of having different perspectives are being exposed to that all of our lives and none of us have all of the perspectives in our lives. So we were all going to be guilty of some sort of unconscious bias because we just don’t know any better. We we haven’t had other information that would have help develop a sensitivity or understanding or just knowledge of some of the disparities that are out there. So, and and how our organization can be either helping those disparities or hindering them. So just getting a sense of where we’d like to go. I think that can improve employee retention. It can lead us to new areas of employee recruitment and it can make us more relevant as organizations in the future, where if we’re not addressing some of these things, we could find ourselves becoming irrelevant less attractive to future donors, especially younger donors who this is very important to. Um, and so that’s my, my closing thought. Mhm.

[00:55:48.24] spk_0:
All good thoughts for uh, for the new year for 2022, Gene Takagi are legal, legal contributor, Managing attorney of Neo. You’ll find him at nonprofit law blog dot com. He’s also at G attack and you’ll find the firm at neo law group dot com. Gene again, thank you very much. Happy New Year.

[00:55:57.39] spk_1:
Happy New Year. tony

[00:56:47.13] spk_0:
next week. I’m working on it very diligently. If you missed any part of this week’s show, I beseech you find it at tony-martignetti dot com. We’re sponsored by Turn to communications pr and content for nonprofits. Your story is their mission turn hyphen two dot c o. Do you need help with any of those ready projects in 2022? Get them off your plate. A creative producer is claire Meyerhoff. The shows social media is by Susan Chavez Marc Silverman is our web guy and this music is by scott stein. Mm hmm, thank you for that affirmation scotty Be with me next week for nonprofit radio big nonprofit ideas for the other 95%. Go out and be great.

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