You can view the page at http://www.theangelfishsociety.org/f...ges-March-2015
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You can view the page at http://www.theangelfishsociety.org/f...ges-March-2015
I'm glad we've gone forward with this; that should diffuse any possible whistle-blowers on our past state of incompliance. However, are we doing this in segments? It looks like we're still missing the permanent independent oversight committee or are we managing it via an existing body, which is ok. If via by an existing body, that needs to be ammended to reflect it on this work.
I'm headed out and read this saw this at the last minute so may have missed the above.
Nonetheless, I commend our governing bodies that contributed to having formulated this article into existence. Kudos to you all!!!
To the general membership, folks you need to be familiar with this one since this will affect past accepted practices. More importantly, this is not some bureaucratic move by TAS's governing body but an edict by the State of New York accross the board of all their registered businesses, organizations, societies, memberships whose service or goods are of a charitable, non-profit nature which includes us.
If you have any questions please do not hesitate to raise them here or offline. Since I had been working on this before my commission ended, I do have some general knowledge about it as well as Dan Burns and so you may ask us as well IF and only if you cannot get a reply (I put the conditional because, at least in my case, I may not possess the latest information).
In the interest of compliance with the Revitalization Act, listed here are provisions that must be addressed in our by-law rewrite. All of these provisions are mandates that must be written into the bylaws per New York State statutes.
Pursuant to the Act, all nonprofits and charitable trusts are required to adopt a conflicts-of-interest
policy requiring directors, officers, trustees and key employees to act in the nonprofit’s best interest.
A provision requiring director and officer actions that are in the nonprofits best interest must be written in the conflict of interest policy
The conflicts-of-interest policy must include:
(1) a definition of the circumstances constituting a conflict of interest;
(2) procedures for disclosing conflicts to the Audit Committee or the Board;
(3) a requirement that conflicted persons not be present at or participate in Board, trustee, or committee deliberations or vote on the matter giving rise to the conflict;
(4) a prohibition against any attempt by a conflicted person to influence deliberations or votes on a mattergiving rise to the conflict;
(5) a requirement that the existence and resolution of the conflict be documented in the organization’s records;
(6)procedures for disclosing, addressing and documenting related party
transactions; and
(7) a requirement that directors and trustees, before initial election or appointment and annually thereafter, must disclose potential conflicts of interest. Any existing conflicts-of-interest policies must be revised to conform to new statutory definitions of “independent director” and“related party transaction.”
All 7 of these provisions must be included in the articles with clear, concise definitions and procedures.
Additional By-Law rewrites must include:
Type A, B, C and D classifications are eradicated. Nonprofits will now be classified as either “charitable” or “non-charitable.” If by-laws reference any letter classification, they should be revised.
References to special and standing committees are eliminated.
These are the areas that I find which need to be included in the articles before voting/ratifying or we will still be noncompliant. I think that there may also be a provision requiring annual review of the policy as well, which should be written in. Furthermore, the Revitalization Act is a hallmark piece of legislation for non-profits and as such it would be in the best interest of the society to submit the by-law rewrite to the New York State Attorney Generals office for review and approval. He should also be able to clarify any points of contention.
Attorney General Eric Schneiderman
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
For reference purposes here is the conflict of interest proposal submitted in November of 2014. I was not informed as to why the policy was not adopted. Had the society implemented the proposal at that time, it would have met the edict of having the policy included in the by-laws prior to elections thereby providing compliance with the existing statutes and ensure the election process met the letter of the law. It closely matches the policies adopted by other nonprofits and meets or exceeds the provisions of the Revitalization Act.
Policy on Conflicts of Interest
It is in the best interest of The Angelfish Society, hereinafter known as TAS, to be aware of and properly manage all conflicts of interest and appearances of a conflict of interest. This conflict of interest policy is designed to help directors, officers, members, employees and volunteers of TAS identify situations that present potential conflicts of interest and to provide TAS with a procedure to appropriately manage conflicts in accordance with legal requirements and the goals of accountability and transparency in TAS’s operations.
1. Conflict of Interest Defined. In this policy, a person with a conflict of interest is referred to as an “interested person.” For purposes of this policy, the following circumstances shall be deemed to create a Conflict of Interest:
a. A director, officer, member, employee or volunteer, including a board member (or family member of any of the foregoing) is a party to a contract, or involved in a transaction with TAS for goods or services.
b. A director, officer, member, employee or volunteer, (or a family member of any of the foregoing) has a material financial interest in a transaction between TAS and an entity in which the director, officer, member, employee or volunteer, (or a family member of the foregoing) is a director, officer, member, agent, partner, associate, employee, trustee, personal representative, receiver, guardian, custodian, or other legal representative.
c. A director, officer, member, employee or volunteer, (or a family member of the foregoing) is engaged in some capacity or has a material financial interest in a business or enterprise that competes with TAS.
Gifts, Gratuities and Entertainment. Accepting gifts, entertainment or other favors from individuals or entities can also result in a conflict or duality of interest when the party providing the gift/entertainment/favor does so under circumstances where it might be inferred that such action was intended to influence or possibly would influence the interested person in the performance of his or her duties. This does not preclude the acceptance of items of nominal or insignificant value or entertainment of nominal or insignificant value which are not related to any particular transaction or activity of TAS.
2. Definitions.
a. A "Conflict of Interest" is any circumstance described in Part 1 of this Policy.
b. An "Interested Person" is any person serving as an officer, member, employee or member of the Board of Directors of TAS or a major donor to TAS or anyone else who is in a position of control over TAS who has a personal interest that is in conflict with the interests of TAS.
c. A "Family Member" is a spouse, parent, child or spouse of a child, brother, sister, or spouse of a brother or sister, of an interested person.
d. A "Material Financial Interest" in an entity is a financial interest of any kind, which, in view of all the circumstances, is substantial enough that it would, or reasonably could, affect an Interested Person’s or Family Member's judgment with respect to transactions to which the entity is a party.
e. A "Contract or Transaction" is any agreement or relationship involving the sale or purchase of goods or services, the providing or receipt of a loan or grant, the establishment of any other type of financial relationship, or the exercise of control over another organization. The making of a gift to TAS is not a Contract or Transaction.
3. Procedures.
a. Prior to board or committee action on a Contract or Transaction involving a Conflict of Interest, a director, officer or committee member having a Conflict of Interest and who is in attendance at the meeting shall disclose all facts material to the Conflict of Interest. Such disclosure shall be reflected in the minutes of the meeting. If board members are aware that staff or other volunteers have a conflict of interest, relevant facts should be disclosed by the board member or by the interested person him/herself if invited to the board meeting as a guest for purposes of disclosure.
b. A director, officer or committee member who plans not to attend a meeting at which he or she has reason to believe that the board or committee will act on a matter in which the person has a Conflict of Interest shall disclose to the chair of the meeting all facts material to the Conflict of Interest. The chair shall report the disclosure at the meeting and the disclosure shall be reflected in the minutes of the meeting.
c. A person who has a Conflict of Interest shall not participate in or be permitted to hear the board's or committee's discussion of the matter except to disclose material facts and to respond to questions. Such person shall not attempt to exert his or her personal influence with respect to the matter, either at or outside the meeting.
d. A person who has a Conflict of Interest with respect to a Contract or Transaction that will be voted on at a meeting shall not be counted in determining the presence of a quorum for purposes of the vote. Such person's ineligibility to vote shall be reflected in the minutes of the meeting. For purposes of this paragraph, a member of the Board of Directors of TAS has a Conflict of Interest when he or she stands for election as an officer or for re-election as a member of the Board of Directors.
e. Interested Persons who are not members of the Board of Directors of TAS, or who have a Conflict of Interest with respect to a Contract or Transaction that is not the subject of Board or committee action, shall disclose to their supervisor, or the Chair or the Chair's designee any Conflict of Interest that such Interested Person has with respect to a Contract or Transaction. Such disclosure shall be made as soon as the Conflict of Interest is known to the Interested Person. The Interested Person shall refrain from any action that may affect TAS’s participation in such Contract or Transaction.
In the event it is not entirely clear that a Conflict of Interest exists, the individual with the potential conflict shall disclose the circumstances to his or her supervisor or the Chair or the Chair's designee, who shall determine whether full board discussion is warranted or whether there exists a Conflict of Interest that is subject to this policy.
4. Confidentiality. Each director, officer, member, employee and volunteer shall exercise care not to disclose confidential information acquired in connection with disclosures of conflicts of interest or potential conflicts, which might be adverse to the interests of TAS. Furthermore, directors, officers, members, employees and volunteers shall not disclose or use information relating to the business of TAS for their personal profit or advantage or the personal profit or advantage of their Family Member(s).
5. Review of policy.
a. Each director, officer, member, employee and volunteer shall be provided with and asked to review a copy of this Policy and to acknowledge in writing that he or she has done so.
b. Prior to the initial election or re-election, of any director or officer, and annually thereafter, such director or officer shall complete, sign and submit to the secretary of the corporation a written statement identifying, to the best of the individual’s knowledge, any entity of which said individual is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the individual might have a conflicting interest. This requirement will be addresses annually and a written statement shall be resubmitted.
c. Annually each director, officer, member, employee and volunteer shall complete a disclosure form identifying any relationships, positions or circumstances in which s/he is involved that he or she believes could contribute to a Conflict of Interest. Such relationships, positions or circumstances might include service as a director of or consultant to another nonprofit organization, or ownership of a business that might provide goods or services to TAS. Any such information regarding the business interests of a director, officer, member, employee or volunteer, or a Family Member thereof, shall be treated as confidential and shall generally be made available only to the Board of Directors, Committee Chair, the Executive Director, and any committee appointed to address Conflicts of Interest, except to the extent additional disclosure is necessary in connection with the implementation of this Policy.
d. This Policy on Conflicts of Interest shall be reviewed annually by each member of the Board of Directors. Any changes to the policy shall be communicated to all members of the organization.
Ted,
I don't believe an organization of our size needs a permanent independent oversight committee; that seems a bit excessive for us. I don't believe this is truly necessary nor is it really practical for TAS; especially with the challenge we face in getting qualified individuals to serve on the Board and existing committees. We will not be in noncompliance with the New York statutes if we do not have this and the Board can serve this function.
Jackie
Quote:
Originally Posted by terrapins
Dan,
I believe the committee recommendations cover all the bases you point out. The committee simply tried to make the verbiage simple and as brief as possible for
the benefit of all members. Too much legalize can be confusing and intimidating for many. I think we need to construct these amendments and requirements in a way that encourages participation and compliance while covering us legally.
What you have put forth is certainly detailed and complete and it is just a matter of how we want to construct the language of our By-Lays amendments. I think either approached can work.
We will, of course, have to submit our revised bylaws to the NYK Attorney General in order to get our tax-free status re-established.
Thanks,
Jackie
I think that the bottomline is it's not us that make the rules but them (NY); like I said in the past, they'll have the last say and its to our best inteterest to be proactive. Nothing wrong with the dispartiy in how we interpret the statute - it's called brainstorm. BUT because that disparity is rather night and day, perhaps the best move before this is promulgated is to approach the folks in NY and ask their blessing. True, it might open a can of worms but I'd rather do that than get thrown into a snakepit. BTW Jackie, I like the verbiage. Unfortunately, it's sometimes hard to avoid it when your forumulating a response to a government body focused on formality.
Now so far as an "oversight: com", you could probably just manage it within the bylaws group. My original interpretation was it had to be an independent body - which in my mind meant a newly formed group. But upon reviewing it further, I believe we have some flexibility - we can have an existing group manage it. But the key thing is, the process is not a passive one wherein once the required paperwork is filed, that would be that for that. It's like a tsunami, you've got a monumental wave of to-do's behind the first step.
Maybe your group would be the one or add a couple of members to your group an have them play "monitor." But again, at this point, I think it's prudent to have a conversation with them to play safe. It would be a shame if after we vote on this, it turns out that it doesn't do jack for us and in consequence get clipped by the NY folks.
Dan, do you still have the NY contact information that you sent me some time back? I lost that info when my hard drive crashed (please do not post it here but send it to Jackie directly; if anything at least for her own records in the event she later on decides to pick their brains).
Ted,
I'm not opposed to chatting with the folks in NYK. I don't think it would open up anything negative for us.
I'm also of the opinion that the regulations simply state what we must include in our By-Laws and I don't think they care just how we format that as long as the key issues are covered.
Regards,
Jackie
A Cornucopia of blessings to you and yours Jackie!!! As always, you're perfect for the job in front of you and I agree about "as long as the key issues are covered." Now if you're going to do this in phases, make sure you tell them that and provide them with a timeline.
Afterall, what they're asking for isn't exactly a one sentence alteration to our bylaws; it's a philosophical paradigm shift that can potentially slow down progress by encumbering some of our long held accepted practices.
If it's any consolation, at least you have Dan's format as a guide to fall back on.