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TEMPLATE: Conflict of Interest Disclosure Statement [SUBSCRIBERS-ONLY]
This Conflict of Interest Disclosure Statement template is intended to provide a short, simple, and effective questionnaire to ensure transparency and compliance with your organization’s Conflict of Interest Policy, and includes basic instructions with a broad definition of “related parties."
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TEMPLATE: Conflict of Interest Policy [SUBSCRIBERS-ONLY]
This Conflict of Interest Policy template is intended to help your organization establish disclosure and review processes consistent with best practices and the private inurement and excess benefit transaction rules applicable to 501(c)(3) public charities. The language in this template is a modified version of language recommended by the Internal Revenue Service, with provisions defining “Interested Persons,” “Financial Interests,” and “Disinterested Directors,” governance procedures for managing for potential conflicts, documentation requirements, and more.
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TEMPLATE: Interest-Free Loan Agreement (to Nonprofit from Board Member) [SUBSCRIBERS-ONLY]
This template loan agreement provides basic terms and conditions that are generally recommended for nonprofit organizations receiving an interest-free loan from Board members, officers, or founders. This sample document includes provisions describing the amount and repayment (maturity) date of the loan, the interest-free and unsecured nature of the loan, the approval by independent directors, and more.
Q&A #178 – Are Board members allowed to participate in a 501(c)(3) organization's programs?
Internal Revenue Service (IRS) guidance suggests that, in general, Board members and other disqualified persons may participate in a 501(c)(3) organization’s programs without violating the inurement, excess benefit transaction, and other conflict of interest rules so long as they participate in the same manner as the general public. However, caution is warranted because this guidance is limited and may not apply to all situations.
Video Podcast: Common Nonprofit Fiduciary Duty Issues
Ben and Mike discuss the fiduciary duties that apply to the Board of Directors of a nonprofit organization, with a focus on how to apply the duty of care, duty of loyalty, and duty of obedience to issues and examples that arise frequently for nonprofits, such as delegating matters to experts and committees, navigating conflicts of interest and serving on multiple Boards, the corporate opportunity doctrine, and more.
Q&A #173 – Can a 501(c)(3) nonprofit organization convert to for-profit status?
In theory, there are ways for a 501(c)(3) public charity to transition to operating as a taxable for-profit business entity. However, this is a difficult process with many legal pitfalls, including the excess benefit transaction, inurement, and private benefit rules under federal tax law, and state laws governing nonprofit corporations and the use of funds received for charitable purposes.
TEMPLATE: Code of Ethics
A Code of Ethics is one of the fundamental governance policies that all nonprofit organizations should have, and an important complement to your organization’s conflict of interest policy. This Code of Ethics template is intended to help your organization identify and express the core principles and ethical requirements with which all Board members, staff, and other individuals who serve and/or represent the organization are expected to comply.
Q&A #156 – Who is considered a family member under nonprofit conflict of interest rules?
Extended family members such as aunts, uncles, and cousins generally fall outside of the technical definition of “family members” under the federal tax code provisions governing conflicts of interest involving 501(c)(3) nonprofit organizations. However, these types of relationships can certainly lead to the perception that there is a conflict and should be treated as such to avoid the risk of damaging your organization’s reputation.
Q&A #125 – Are in-kind contributions by Board members considered conflict of interest transactions?
Nonprofit conflict of interest policies are generally aimed at ensuring the organization’s assets are not used to provide excessive benefit to the people who run the organization. While purely donative arrangements (such as providing free office space to the organization) are not typically considered conflict of interest transactions, it is best to err on the side of full disclosure and review by independent Board members because individuals sometimes benefit from these transactions in ways that are not immediately apparent.
Q&A #121 – Is a nonprofit permitted to compensate Board members for their Board service?
Nonprofit organizations are generally permitted to provide reasonable compensation to Board members for their Board service, provided this is not prohibited by the organization’s Articles of Incorporation or Bylaws, and subject to certain provisions of the applicable state nonprofit corporation statute.
Q&A #107 – Should a majority of a nonprofit’s Board members be independent?
While it is not necessarily a bad thing to have some non-independent members on the Board of Directors of a nonprofit organization, it is important for both perception and governance reasons to ensure that a majority of the Board members are “independent” as defined in Part I, Line 4 and Part VI, Line 1b of the Form 990.
Q&A #99 – Do non-spouse romantic relationships raise conflict of interest issues?
While a non-spouse romantic relationship would ordinarily fall outside of the scope of the conflict of interest rules in the federal tax code, and may or may not be addressed by your organization’s conflict of interest policy and applicable state nonprofit corporation statute, it would be prudent to treat this situation like any other conflict of interest. Regardless of the legal formalities, these types of relationships can certainly lead to the perception that there is a conflict and should be treated as such to avoid the risk of damaging your organization’s reputation.
Q&A #64 – Is it appropriate to take an official action in executive session?
Whether it is appropriate to take an official action during executive session depends on what your organization and Board understands executive session to mean. “Executive session” generally refers to a private meeting of the Board (and perhaps select other invitees), which is intended to provide a space where Board members can hold candid discussions on sensitive or confidential matters. Executive session is a useful and appropriate format for some issues, but it is important to be clear about whether executive session is intended to be “off the record,” as official Board actions must ultimately be documented in the meeting minutes.
The Practical Side of Annual Conflict of Interest Disclosure Statements
Most nonprofit organizations have adopted a code of ethics, statement of values, or code of conduct. Within these statements there is always a reference to monitoring, oversight, and transparency related to conflicts of interest. Having a strong conflict of interest policy strengthens your code of ethics posture. Adding robust annual conflict of interest disclosure statements will project an even higher level of assurance that your organization takes its code of conduct seriously.
Q&A #56 – Who should fill out an organization’s annual conflict of interest disclosure statement?
Processes for applying and monitoring conflict of interest policies vary widely for different nonprofits, but the Form 990 is a good starting point for basic guidance. As a practical matter, you want to ensure that the annual conflict of interest disclosure statement is at least filled out by all directors, officers, and “key employees,” as these terms are defined for purposes of Part VI, Line 12b on the Form 990. As a technical matter, all employees and volunteer leaders who are (or could be) “disqualified persons” as defined in Treas. Reg. § 53.4958-3 should also be required to disclose conflicts of interest, so it is prudent to err on the side of distributing the annual conflict of interest disclosure statement more widely.