To Sue or Not to Sue Over Unpaid Pledges?

Sometimes, nonprofit organizations sue philanthropists over unpaid pledges. This was recently the case with the Kansas City Art Institute. When a charity pursues this type of legal action, it sends shockwaves throughout the nonprofit and philanthropic sectors.

I do believe there are times when a nonprofit can and should sue a donor. However, this should only be done as an absolute last resort. The three instances when a lawsuit might be acceptable are:

1. The donor dies with an outstanding pledge and an heir challenges the will. In that case, the nonprofit might need to sue the estate to establish its claim and collect.

2. The nonprofit incurs real expense based on the donor’s commitment. For example, based on a pledge agreement, the nonprofit breaks-ground on a new building. The nonprofit might need to sue simply to survive.

3. The donor is about to or has entered bankruptcy. Suing the donor would be a way for the nonprofit to establish its claim. (By the way, I suspect that this fear might be what may have triggered the Art Institute case.)

In any case, suing a donor should only be done after careful consideration and only when all other options have been exhausted.

To sue or not sue over unpaid pledges? That is the question. The answer, offered by Brian M. Sagrestano, JD, CFRE and Robert E. Wahlers, MS, CFRE, is: Avoid the problem in the first place!

Brian and Robert are friends of mine. They are both seasoned, wise development professionals who have served on the national board of the Partnership for Philanthropic Planning. I’m pleased that they have offered to share some of their wisdom below as they introduce us to the concept of “concierge stewardship.”

Brian and Robert both generously provided insights and material for my book, Donor-Centered Planned Gift Marketing, for which I won the AFP-Skystone Partners Prize for Research in Fundraising and Philanthropy.

Now, Brian and Robert have written their own book, Philanthropic Planning Companion: The Fundraisers’ and Professional Advisors’ Guide to Charitable Gift Planning, and I’m honored to have been included in their comprehensive volume. The book is part of the AFP/Wiley Fund Development Series.

The official description of the book notes, “For fundraisers and professional advisors alike, The Philanthropic Planning Companion is the one-stop resource you’ll keep by your side to help your donors/clients meet their charitable and personal planning objectives.”

So, do you want to avoid a nightmare at your organization? If so, read on:

 

The Kansas City Art Institute recently sued Larry and Kristina Dodge for failure to pay $4 million on a $5 million pledge that was to be used to pay for construction of a new building, according to The Kansas City Star.

When the Dodges attempted to defend themselves (rather than hire an attorney they indicated that they could not afford), they made procedural errors and a default judgment was entered against them for the full $4 million due on the pledge. According to The Star, the Dodges made three payments on their pledge before their financial situation was impacted by the Great Recession, limiting their ability to fulfill the commitment.

In the article, Larry Dodge is quoted, indicating that he and his wife were in negotiation with the Institute to come up with a payment plan when it unexpectedly filed suit to collect on the pledge.

Regardless of the outcome, the reputations of both the Dodges and the Institute are forever harmed. Prospective donors will think twice before making a major commitment to a charity that would sue them to collect on a pledge. Meantime, the Dodges reputation, despite their many years of generous philanthropy, will be forever tarnished.

We cannot judge the merits of the Art Institute’s action or the ability of the Dodges to pay on their pledge, as we are not privy to all of the facts of the case. However, it raises a much larger issue about charities and pledges.

Special Report: Lance Armstrong Confesses, Finally

Lance Armstrong finally got around to confessing that he engaged in illegal doping. He admitted that he would not have won the Tour de France a record seven times if he had not doped. He acknowledged that he has been a bully. He demonstrated to the world that he is a liar.

Armstrong’s confession in his interview with Oprah Winfrey did not surprise everyone. However, many people did stand-by Armstrong up until the interview. Some of those folks ended up feeling foolish. 

I received an email from one of my readers yesterday. Months ago, the reader had responded to one of my earlier posts about Armstrong. The reader had expressed support for the cyclist and said he should not resign from the Lance Armstrong Foundation (LIVESTRONG) board. This reader’s view was shared by 49 percent of those who responded to my survey.

In yesterday’s email message, the reader apologized to me for having been “incredibly naïve.” I want this reader, and everyone who was duped by this doper for so long, to know that you are not the one who has anything to apologize for. While I appreciate the gesture, I can find no fault in this reader’s desire to see good in a fellow human being. If Armstrong has made anyone more jaded and less trusting as a result of his lies, it’s just another of the many offenses he’s committed.

Unfortunately, it will take us more time to understand the complete fallout from Armstrong’s actions. Will his past connection to LIVESTRONG hurt the nonprofit moving forward? Will LIVESTRONG’s slow reaction time as events unfolded be held against the organization? Now that the world  knows that Armstrong is a liar, will that erode the public’s trust in the charity he created?

Is MLK Day Just Another Day Off?

On Monday, January 21, Americans will celebrate the Martin Luther King, Jr. Day of Service. This is a national holiday rooted in the country’s core ideals.

“Service is a powerful way for citizens, nonprofits, the private sector and government to work together to meet critical needs and advance King’s dream of opportunity for all,” states the Corporation for National and Community Service. “MLK Day is an opportunity for Americans to put the core American principles of citizenship and service into action.”

These core ideals go back to the birth of the country. Alexis de Tocqueville, the 19th century French historian and political writer, made a number of observations about America including:

The health of a democratic society may be measured by the quality of functions performed by private citizens.”

“I must say that I have seen Americans make great and real sacrifices to the public welfare; and have noticed a hundred instances in which they hardly ever failed to lend faithful support to one another.”

“If a stoppage occurs in a thoroughfare, and the circulation of the public is hindered, the neighbors immediately constitute a deliberative body; and this extemporaneous assembly gives rise to an executive power which remedies the inconvenience before anybody has thought of recurring to an authority superior to that of the persons immediately concerned.”

It is an American tradition that when we see a problem, we often will seek to solve it. We are not content to sit back, whine, and hope the government will take care of it for us. Certainly, government has its role. However, at the heart of the American democratic spirit is the notion of private citizen action to help one another and our society in general.

Volunteers do much good for our society. They also form an important force that allows our democracy to thrive. On MLK Day, hundreds of thousands of people will volunteer joining the millions who do so throughout the year. This call to service makes MLK Day unique among American national holidays.

43 percent of Americans volunteered in 2011, according to The World Giving Index 2011. The world average was 21 percent. Only four other nations ranked higher than the US for volunteerism in 2011 (Turkmenistan, Liberia, Sri Lanka, and Tajikistan).

In the US, 42 percent of men and 44 percent of women volunteer. By age group, the percentage of the population that volunteered in 2011 breaks out as follows:

When is it OK to Surprise Your Donors?

Different surprises can produce radically different outcomes. So, before I address my headline question, let’s look at two stories from outside the fundraising world that can provide some insight.

Dame Jane Goodall, PhD, the world’s foremost authority on chimpanzees and founder of the Jane Goodall Institute, was invited to speak at an international conference. To welcome Goodall to her hotel room and to provide her with something to snack on, conference planners arranged for a salmon, complete with tasty accessories, to be delivered to her room.

The salmon might have been a nice, delicious surprise for a weary traveler except for one important thing: Goodall is a vegan. Rather than being pleased with the surprise, Goodall was offended and disgusted by it. She was definitely not happy.

Conference planners could easily have averted the problem with the Goodall-surprise if they had first done a bit of research.

By contrast, the Red Robin gourmet-hamburger restaurant chain has developed a culture that encourages its employees to provide “Unbridled Acts.” Red Robin defines this as “random acts of kindness [employees] bestow upon restaurant Guests and other Team Members.” The acts focus on the target individual and what will make that person happy.

For example, ABCNews.com reported that a Red Robin manager in North Carolina surprised Amie and Jason Sivon. During a visit to their local Red Robin, with their two-year-old son, the Sivons chatted briefly with the manager. The manager joked that the meal might be a very pregnant Amie’s last before giving birth to her second child.

When the Sivons got their check, they saw that the restaurant had removed the cost of Amie’s $11.50 meal from the bill. A note was entered on to the check: “MOM 2 BEE GOOD LUC.”

“The manager said nothing to us about it,” Jason told ABCNews.com. “We were already happy with the service so that action really blew us away. I looked at my wife and told her that I guessed we would be coming here more often.”

Kevin Caulfield, a Red Robin spokesperson, explained the company’s corporate culture to ABCNews.com, “These kinds of random acts of kindness in our restaurants are part of our culture. Our team members, day in and day out, will bestow these random acts. They’re empowered to do special things for our guests to make the experience a great one for our guests.”

Red Robin takes Unbridled Acts so seriously that the company even devotes a section on its website to tell the stories customers share in letters, emails, and phone calls. Some stories involve comping a customer. Another story involves staff cheerfully searching through the garbage to find a customer’s lost key card. The stories are varied, but they all involve doing something special and unexpected for someone else. Some are particularly touching.

Red Robin knows how to surprise folks in small but wonderful ways.

So, when is it OK to surprise your donors and prospective donors?

Special Report: Are You Ready for 2013? These FREE Resources Will Help

When Congress recently adopted the American Taxpayer Relief Act of 2012, it had an immediate impact on the nonprofit sector. The new law provides some opportunities and challenges. Are you ready for both in 2013?

I’ve already written two posts to provide some useful insights:

• “Special Report: Everything Each NPO Must Know about Fiscal Cliff Legislation”
• “Fiscal Cliff Disaster Averted, but Trouble Looms”

Now, Viken Mikaelian and Brian Sagrestano, JD, CFRE, of PlannedGiving.Com, are offering a free webinar on Wednesday, January 16, at 2:00 PM (EST). “What to Tell Your Prospects” will explore:

Fiscal Cliff Disaster Averted, but Trouble Looms

We ended 2012 by surviving the so-called Mayan Doomsday. We began 2013 by driving off the so-called Fiscal Cliff before averting possible economic disaster. Congress passed the American Taxpayer Relief Act of 2012 which put the nation back on safe ground, for the moment.

Previously, I looked at the Act and provided information about what key elements mean for the nonprofit sector. Now, let’s look at:

What’s next?

The Charitable Giving Coalition, chaired by the Association of Fundraising Professionals, as well as the AFP Political Action Committee, won a great victory when Congress preserved the charitable giving tax deduction and reinstated the IRA Charitable Rollover for 2012 and 2013. Everyone who was involved in visiting members of Congress, writing them, or calling them to advocate for the nonprofit sector certainly has a right to take pride in what the sector has accomplished.

However, before we get too carried away congratulating ourselves, let’s remember that the nonprofit sector continues to face danger.

The return of Pease Amendment provisions will make charitable giving a bit more expensive for wealthy donors. Higher taxes will also mean that donors will have less money with which to give. As a result, organizations may face some challenges. But, these are challenges that we have faced before. We’ll just have to work a bit more creatively.

Unfortunately, there are other looming dangers.

The Fiscal Cliff legislation, which was originally supposed to decrease the deficit, will actually increase the deficit by $4 trillion over the next decade, according to the nonpartisan Congressional Budget Office. In other words, we’re still headed full-speed ahead to economic collapse which would be a disaster for the nonprofit sector and society in general.

Charitable giving has historically correlated to about two percent of Gross Domestic Product. If GDP growth continues at a slow pace, philanthropy is also likely to grow only modestly. If runaway deficit spending leads to another recession, we can expect a likely decline in overall philanthropy.

All Congress has done is buy a bit of time.

Republicans have signaled that they will address the issue of spending cuts within the next two months. In two months, Congress will have to vote on whether to increase the nation’s debt ceiling. President Obama has already said that any spending cuts will require an increase in tax revenue in order to garner Democrat support.

Having achieved a tax rate increase, The White House now seeks to raise additional revenue in other ways. For example, the Administration may want to apply the top tax rates to those earning less than the current threshold of $400,000 for individuals and $450,000 for married couples. Also, the Administration is likely to seek limitations on deductions, particularly for the “wealthy.” The Administration has previously expressed support for both revenue generating options. Now, it’s likely those proposals will resurface during spending-cut negotiations.

So, while the charitable deduction appears to be safe for the moment, that safety may only last for two months.

Think I’m being alarmist? Let me provide some perspective from the US Debt Clock:

In 2000 the deficit was $5.8 trillion, which was $56,150 per taxpayer.

In 2008 the deficit was $9.2 trillion, which was $85,893 per taxpayer.

In 2012 the deficit was $16.4 trillion, which was $145,620 for every taxpayer.

Now, the Fiscal Cliff deal will add another $4 trillion to the deficit over 10 years!

At some point, the American economy will either collapse, going the way of Greece, or the government will get its act together and control spending. I’ve heard a lot of talk during the debate over the Fiscal Cliff about the need to return to Clinton Era tax rates. Sadly, there was little talk of returning to Clinton Era spending levels, even as a percentage of GDP which would still allow for spending increases.

The situation must be dealt with for the good of the nation. Unfortunately, this may require some pain for the nonprofit sector in the form of a reduced charitable giving tax deduction and reduced direct grants to and contracts with nonprofit organizations.

On the floor of the House of Representatives, during debate over the Fiscal Cliff legislation, Democrats have already begun to argue for additional revenues, echoing statements this week from The White House. In other words, the nonprofit sector has made it out of the first round of debates. But, the second round is quickly approaching.

Challenging times remain immediately ahead.

Special Report: Everything Each NPO Must Know about Fiscal Cliff Legislation

A dysfunctional White House and Congress officially took the United States over the so-called “Fiscal Cliff” at the close of December 31. Fortunately, a deal was reached late on New Year’s Day, hopefully averting what economists say would have been an almost certain return to deep recession.

Since the American Taxpayer Relief Act of 2012 was passed, there’s already been a great deal of confusion and misinformation about what the Act means to the nonprofit sector. 

Thankfully, Brian M. Sagrestano, JD, CFRE, a consultant and co-author of Philanthropic Planning Companion: The Fundraiser’s and Professional Advisors’ Guide to Charitable Gift Planning, has written a careful and thorough analysis of the 157-page Act with particular attention to: income taxes, long-term capital gains and qualified dividends, gift and estate taxes, the IRA Charitable Rollover, and other provisions. He also predicts the impact the Act will have on philanthropy and provides some important tips for all nonprofit organizations.