Non-profits and Sunshine Laws?
Have you ever participated in an interesting conversation that inspired you enough to go do some research? Last night I had one of those moments, and what I found was so interesting I just had to share it with you this morning.
So, last night I was out enjoying a nice dinner with a non-profit board volunteer when the conversation turned to the subject of board meetings and how the local newspaper covers their agency.
He said, “Erik, the problem with making difficult discussions in the board room is that we’re subject to the Open Meetings Act.”
I said, “Really? I don’t think so. The Open Meetings Act is aimed primarily at government and public institutions.”
He responded with, “Erik, with as much government money as our agency takes, we are covered by this law and have to let the public and press into our meetings.”
If you know me well, then you know that not knowing an answer to something like this just drives me crazy. So, when I got back to my hotel room, I just popped open Google and started digging.
Ah ha! The first thing I found validated my point of view. The Illinois Open Meetings Act specifically exempts non-profit organizations. Click here to read more.
However, as with most things in life, nothing is simple or that clear cut. The next thing I found online was from Ann Taylor Schwing. She provided a dizzying number of bullet points pointing to various numbers of possible scenarios when the Open Meetings Act might extend beyond government entities and into board rooms of private organizations.
Click here to read more and see if your agency might fit into some these exceptions. After I consumed Ann’s work, my head started spinning and went into overdrive. For example:
- One of the exceptions that Ann points out is: “whether the functions performed by the private entity would otherwise be performed by a public body, or were performed by the public body before the creation of the private entity“. Well, this certainly should give many agency’s a moment to pause and consider.
- Another of the exceptions Ann highlights is: “the extent to which public entities may control the entity in question and the extent to which the entity is autonomous“. This got me to start counting the number of non-profits in my hometown who were recently quoted in the newspaper as saying, “If my city funding gets cut, we’re going to end up closing our doors.” As the Church Lady used to say on Saturday Night Live, “Well now. Isn’t THAT interesting?”
OK, you’re probably wondering what all this means and if it necessitates any action on your part. Here are just a few of my thoughts:
- I would click the aforementioned links and do some research. No one wants to be surprised by a newspaper report or a disgruntled donor or client who demands access to your board room. I like to live by the general rule that “Prior Proper Preparation Prevents Piss Poor Performance”. 🙂
- If the second bullet point sounds like it might describe your agency (e.g. your agency is so reliant on government money and your ‘independence’ is compromised), then you should engaging board members in a discussion around whether or not this is OK with them and what to do about it. After all, this is a quintessential “board governance” issue that the law calls on them to wrestle with. Right?
- There is a bigger picture issue here as it pertains to non-profit transparency. You might want to start engaging board volunteers in a discussion around whether or not opening your board meetings to the public (e.g. donors, clients, neighbors, etc) is a good idea. And if it is, then how do you function in that public space and still get sensitive board business accomplished.
Some of you are probably thinking “Erik, are you crazy?” Well, maybe I am, but ask yourself this: “do donor have a right to attend governance meetings as an investor in your organization?” More to the point, I’ve seen some non-profit organizations model themselves after publicly traded for-profit organizations by hosting an annual meeting that is open to the public and is seen as a stewardship opportunity for donors.
Does your agency host an annual meeting that is open to donors and the public? If so, please tell us what it looks like and what is discussed in the comment box below. Has your agency ever been pressured by the press or the public about the Open Meetings Act? If so, please share with us what happened.
Come on folks! We can all learn from each other. Please take a moment to weigh-in.
Here’s to your health!
Founder & President, The Healthy Non-Profit LLC