CALIFORNIA GOVERNANCE LAWS AND PRINCIPLES Morrison & Foerster LLP Susan Mac Cormac and Clare Reilly 1
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1 Last Updated: October 2013 CALIFORNIA GOVERNANCE LAWS AND PRINCIPLES Morrison & Foerster LLP Susan Mac Cormac and Clare Reilly 1 Table of Contents 1. Good Governance Under California Law 2. Reporting Systems 3. The Sarbanes-Oxley Good Governance Principles 4. IRS Encourages Good Governance Policies 5. Resources Organizations dedicated to positive social change should institute and maintain good governance practices, including transparent decision making, accurate financial reporting and accepted auditing practices. In the discussion below, we outline the requirements of California law applicable to the governance practices of social sector organizations, the good governance principles embodied in the Sarbanes-Oxley Act and the actions taken by the IRS to encourage good governance. 1. Good Governance Under California Law In 2004, California enacted the California Nonprofit Integrity Act, the first corporate accountability law in the United States specifically aimed at charitable organizations. Like the federal Sarbanes-Oxley Act, the California law focuses on corporate governance and accountability. However, it also contains provisions governing relations with commercial fundraisers and similar entities. For a further explanation of these provisions, see California State Fundraising Regulation and Registration. Approval of Executive Compensation To assure adequate oversight of executive compensation, the California Nonprofit Integrity Act requires the board of directors or a board committee of a charitable organization that holds property, does business or raises funds in California, to review and approve the compensation, including benefits of the President or CEO and the Treasurer or CFO. The approving body must determine that the compensation is just and reasonable. Review and approval must occur when the 1 Previous reviews completed by Pat Derdenger of Steptoe & Johnson LLP.
2 officers are hired, when the term of employment is renewed or extended, and when the compensation package is modified, unless the modification applies to substantially all employees. Audits and Audit Committees If a charitable organization is required to register and file periodic reports with the California Attorney General (see California State Fundraising Regulation and Registration) and if it receives or accrues in any fiscal year gross revenues of $2 million or more, then it must prepare audited financial statements and appoint an audit committee. Grant or contract income is not included in the charitable organization s gross revenue so long as the governmental entity requires an accounting of those funds. The financial audit must be performed by an independent certified public accountant in accordance with generally accepted accounting principles. The audited statements must be made available for inspection by the Attorney General and the public within nine months after the close of the fiscal year. The California Nonprofit Integrity Act also requires that charities in corporate form including charities incorporated outside California but required to register with California s Attorney General appoint an audit committee. The committee must be appointed by the board of directors. The California Nonprofit Integrity Act sets forth exacting rules concerning the composition of the audit committee. The duties of the audit committee are spelled out in the California Nonprofit Integrity Act and include recommendations to the board concerning retention and termination of the independent auditor; negotiation of the auditor s fee; determining whether to accept the audit; and approving non-audit services to be provided by the auditing firm. As discussed in California State Fundraising Regulation and Registration, certain charitable organizations, such as educational institutions, hospitals, cemeteries and religious organizations, are not subject to the mandatory audit and audit committee requirements of the California Nonprofit Integrity Act. 2. Reporting, Ratings and Certifications Investors in, and donors to, organizations dedicated to social change, as well as other stakeholders and interested parties, may have difficulty comparing one company against another when assessing the social impact that a particular organization is making. They also often are unable to determine whether resources devoted to a
3 social or environmental purpose have real impact as opposed to generating corporate waste. Ratings systems developed by third-party ratings agencies can create an objective means of evaluating these organizations and provide reliable information to interested parties that are focused on an organization s social mission. There are many ratings agencies and certification programs that are applicable to organizations with a social mission. For example, non-profit corporation B Lab has established a certification process for entities of all forms to become B Corporations. To become a B Corporation (which, to be clear, is not a corporate form), an entity must (i) pass the B Impact Ratings System assessment, (ii) adopt the B Corporation Legal Framework, which may, in some cases, require that certain provisions be included in a company s charter and other organizational documents, (iii) enter into a term sheet with B Lab, and (iv) pay a fee to B Lab based on annual revenue, ranging from $500 to $25,000 per year. B Lab s ratings system assesses the impact of a company on all of its stakeholders. There is some question about whether B Labs relies on self-regulating or engages in an adequate independent audit process to confirm the impact associated with a B Corporation designation. There are also certain organizations that set standards relating to a company s social mission, without actually evaluating the performance of a particular company. For example, non-profit organization Global Reporting Initiative ( GRI ) has established guidelines for companies that disclose sustainability performance to their stakeholders, including recommended performance indicators and management disclosures. GRI does not monitor particular companies or provide any certifications, but instead sets a standard for companies to follow when reporting on sustainability matters. 3. The Sarbanes-Oxley Good Governance Principles Except for provisions concerning document destruction and whistleblower protection, the governance provisions required by the Sarbanes-Oxley Act apply only to public companies and thus do not apply to social sector organizations. Nevertheless, the reforms prescribed by the Sarbanes-Oxley Act have become the touchstone standard for the governance of all entities. Consequently, most social sector entities, both profit and nonprofit, are voluntarily incorporating Sarbanes-Oxley principles into their own governance structures as a way of instilling confidence and trust among their members, donors/grantors and other constituents. In 2005, the ABA Coordinating Committee on Nonprofit Governance published a Guide to Nonprofit Corporate Governance in the Wake of Sarbanes-Oxley in which it set forth 10 general principles worthy of consideration for the governance of
4 nonprofit organizations. Those principles, which may or may not be appropriate for a particular social sector organization, are set forth below: Principle 1 Role of Board: The organization s governing board should oversee the operations of the organization in such manner as will assure effective and ethical management. Principle 2 Importance of Independent Directors: The independent and non-management board members are an organizational resource that should be used to assure the exercise of independent judgment in key committees and general board decision-making. Principle 3 Audit Committee: An organization with significant financial resources should have an audit committee composed solely of independent directors that should assure the independence of the organization s financial auditors, review the organization s critical accounting policies and decisions and the adequacy of its internal control systems, and oversee the accuracy of its financial statements and reports. Principle 4 Governance and Nominating Committee: An organization should have one or more committees, composed solely of independent directors, that focus on core governance and board composition issues, including: the governing documents of the organization and the board; the criteria, evaluation, and nomination of directors; the appropriateness of board size, leadership, composition, and committee structure; and codes of ethical conduct. Principle 5 Compensation Committee: An organization should have a committee, composed of independent directors, that determines the compensation of the chief executive officer and determines or reviews the compensation of other executive officers, and assures that compensation decisions are tied to the executives actual performance in meeting predetermined goals and objectives. Principle 6 Disclosure and Integrity of Institutional Information: Disclosures made by an organization regarding its assets, activities, liabilities, and results of operations should be accurate and complete, and include all material information. Financial and other information should fairly reflect the condition of the organization, and be presented in a manner that promotes rather than obscures understanding. CEOs and CFOs should be able to certify the accuracy of financial and other disclosures, and the adequacy of their organizations internal controls. Principle 7 Ethics and Business Conduct Codes: An organization should adopt and implement ethics and business conduct codes applicable to directors, senior management, agents, and employees that reflect a commitment to operating in the best interests of the organization and in compliance with applicable law, ethical business standards, and the organization s governing documents.
5 Principle 8 Executive and Director Compensation: Executives (and directors if appropriate) should be compensated fairly and in a manner that reflects their contribution to the organization. Such compensation should not include loans, but may include incentives that correspond to success or failure in meeting performance goals. Principle 9 Monitoring Compliance and Investigating Complaints: An organization should have procedures for receiving, investigating, and taking appropriate action regarding fraud or noncompliance with law or organization policy, and should protect whistleblowers against retaliation. Principle 10 Document Destruction and Retention: An organization should have document retention policies that comply with applicable laws and are implemented in a manner that does not result in the destruction of documents that may be relevant to an actual or anticipated legal proceeding or governmental investigation. ABA Coordinating Committee on Nonprofit Governance, Guide to Nonprofit Corporate Governance in the Wake of Sarbanes-Oxley (American Bar Association, Section of Business Law, 2005). For suggestions on how to form an independent, effective board, please visit: Many of these principles now intersect with, and to some extent overlap with, the IRS Form 990 policies and procedures disclosures described below. 4. IRS Encourages Good Governance Policies The IRS is encouraging improved nonprofit governance in three ways. First, it is adopting a checklist to help IRS examiners determine whether an organization s governance practices affect its tax compliance. Second, the IRS is training its employees on how nonprofit governance affects determinations and rulings. Third, the IRS will look for ways to correlate responses to the questions on Part VI of Form 990 about governance with other Form 990 information in possible compliance initiatives. For example, the IRS might consider whether an organization has adopted procedures for setting compensation of senior employees when reviewing the compensation reported in Form 990. More information and resources regarding the IRS and good governance are available at:
6 5. Resources ABA Coordinating Committee on Nonprofit Governance, Guide to Nonprofit Corporate Governance in the Wake of Sarbanes-Oxley (American Bar Association, Section of Business Law, 2005) Form 990 Filing Tips: Governance (Part VI) IRS Training Materials-Governance Governance and Tax-Exempt Organizations Examination Materials Ellis Carter's Top 10 Non-profit Governance Mistakes (And 5 More) Nonprofit Law Blog, rofit-governance-mistakes-from-a-lawyers-perspective.html Guidebook for Directors of Nonprofit Corporations, Second Edition (Committee on Nonprofit Corporations, Section of Business Law of American Bar Association, Section, edited by George W. Overton and Jeanne Carmedelle Frey, 2002) Jacobs, Association Law Handbook, 4 th edition (ASAE & The Center for Association Leadership, 2007) Kaufmann, Pamela S., California Adopts First Mini-Sarbanes Oxley Act for Nonprofits, 16 Tax n of Exempts 243, 2005 WL (W.G.&.L.) Silk, Thomas and Fei, Explanation of California s Nonprofit Integrity Act of 2004 (SB 1262), 3 Int l J. Civ. Soc y L. 101 (2005) The Sarbanes-Oxley Act and Implications for Nonprofit Organizations (BoardSource and Independent Sector) (2003 updated 2006) U.S. Office of Personnel Management, CFC Glossary, available at
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