The Law of Fundraising. Bruce R. Hopkins

by a regulated entity (such as the soliciting charitable organization or professional fundraiser), the law often requires that the information be open to inspection at all reasonable times by the appropriate officials of the state. Most of these laws require a charitable organization, and/or related professional fundraisers, professional solicitors, and commercial coventurers, to keep “true and complete” records to ensure compliance with the laws requiring disclosure of information and the availability of records.

§ 3.11 CONTRACTS

      Many of the state charitable solicitation acts require that the relationship between a charitable organization and a professional fundraiser, and/or between a charitable organization and a professional solicitor, be evidenced in a written agreement. This contract must be filed with the state soon after the document is executed.

      A few of the states with laws pertaining to commercial coventurers have a like requirement with respect to contracts entered into between charitable organizations and business enterprises.

The states that make these requirements applicable to charitable organizations and professional fundraisers, but not to charitable organizations and professional solicitors, are often the states that define a professional solicitor as one who is an employee of a professional fundraiser.⁶⁶

Several state charitable solicitation acts contain rules that mandate certain provisions in a contract between a charitable organization and a professional fundraiser, professional solicitor, and/or commercial coventurer.⁶⁷ The law may require that any one of these three types of contracts must contain (1) a concise and accurate statement of the charitable organization's right to cancel; (2) a concise and accurate statement of the period during which the contract may be canceled; (3) the address to which the notice of cancellation is to be sent; (4) the address of the secretary of state, to whom a duplicate of the notice of cancellation is to be sent; and (5) a statement of the financial arrangement between the parties.

§ 3.12 REGISTERED AGENT REQUIREMENTS

      A state charitable solicitation act often contemplates that a charitable organization, professional fundraiser, and/or professional solicitor will appoint a registered agent in the state where contributions are being solicited. A registered agent is a person who, as agent for the entity, is the formal point of contact for anyone who is required to or desires to communicate with the entity. In general, organizations (particularly corporations) are required by law to maintain a registered agent in the state or states in which they are formed and headquartered, and in any other state in which they are doing business. A registered agent can be an individual who is a resident of the state, a corporation that is authorized by the state to function as a registered agent for corporations, or (in some states) a lawyer who is a member of the bar of that state.

      Thus, where a charitable organization, professional fundraiser, or professional solicitor is incorporated under the law of a state or has its principal place of activity or business in a particular state (a domestic state), it is required to appoint a registered agent in conformity with the requirements of that state.

Where a charitable organization, professional fundraiser, or professional solicitor has its principal place of activity or business in a state other than that in which the charitable solicitation is being conducted (a foreign state), however, it likely will not have appointed a registered agent in that state.⁶⁸ In this situation, the charitable solicitation act in several states provides that, where the foreign charitable organization, professional fundraiser, and/or professional solicitor participates in a charitable solicitation in the state, the administrator of the act is deemed, by virtue of the solicitation activity, to have been irrevocably appointed as its agent for purposes of service of process and similar functions.

      Occasionally, rules of this nature are applicable with respect to commercial coventuring.

§ 3.13 PROHIBITED ACTS

      Nearly all of the state charitable solicitation acts contain a list of one or more types of conduct—often termed prohibited acts—that may not be lawfully engaged in by a charitable organization (and perhaps a professional fundraiser, professional solicitor, and/or commercial coventurer).

      These prohibited acts may entail some or all of the following:

       A person may not, for the purpose of soliciting charitable contributions, use the name of another person (except that of an officer, director, or trustee of the charitable organization by or for which contributions are solicited) without the consent of the other person.⁶⁹ This prohibition extends to the use of an individual's name on stationery or in an advertisement or brochure, or as one who has contributed to, sponsored, or endorsed the organization.

       A person may not, for the purpose of soliciting contributions, use a name, symbol, or statement so closely related or similar to that used by another charitable organization or government agency that it would tend to confuse or mislead the public.⁷⁰

       A person may not use or exploit the fact of registration with the state to lead the public to believe that the registration in any manner constitutes an endorsement or approval by the state.

       A person may not misrepresent to or mislead anyone, by any manner, means, practice, or device, to believe that the organization on behalf of which the solicitation is being conducted is a charitable organization or that the proceeds of the solicitation will be used for charitable purposes, where that is not the case.

       A person may not represent that the solicitation is for or on behalf of a charitable organization or otherwise induce contributions from the public without proper authorization from the charitable organization.⁷¹

      Some states prohibit a professional solicitor from soliciting for a charitable organization unless the solicitor has a written and otherwise valid authorization from the organization, has the authorization in his or her possession when making solicitations, and displays the authorization upon request to the person being solicited, police officers, or agents of the state.

§ 3.14 REGULATORY PROHIBITIONS

Some states have provisions in their charitable solicitation acts that go beyond the usual regulation of the process of raising funds for charitable purposes.

      In many states, it is expressly unlawful for a charitable organization to solicit and/or expend funds raised for purposes that are not charitable or for purposes not referenced in the application submitted as part of the registration process.

      Most of the states have disclosure rules as part of their charitable solicitation acts, as a condition to a lawful fundraising effort. A few states have point-of-solicitation disclosure requirements imposed on charitable organizations, and several states have such requirements with respect to solicitations by professional solicitors.

      Many states have rules concerning the solicitation of tickets to be used at promotional or fundraising events.

      In some states, the law imposes specific requirements on the boards of directors of soliciting charitable organizations. Directors of charitable entities may be expressly obligated to supervise the organizations' fundraising activities. A charitable solicitation law may prohibit certain conflicts of interest at the board level in the fundraising setting. One of these laws requires a charity to “substantiate a valid governing structure.” A state law has directions to the board as to investment management activities, another places limitations on the ability of a charitable organization