Info You Can Use: Commerciality Doctrine (What The Heck Is That?)

by:

Joe Patti

Hat tip to Non-Profit Law blog for providing the link to Charity Lawyer Ellis Carter’s 2009 post about the Commerciality Doctrine. As you can probably tell from the title of this entry, I wasn’t really aware of this doctrine at all, but it is actually very important in terms of an organization’s 501 (c) (3) status.

According to Ellis,

Commerciality Doctrine has evolved in the courts and is applied to determine whether an organization complies with Section 501(c)(3)’s requirement to operate exclusively for exempt purposes. A key factor indicating an organization is operating in an excessively commercial manner is that its activities are in competition with those of for-profit commercial entities.

Reading what criteria the courts use as a test for whether a non-profit organization is operating in an excessively commercial manner, I start to get a little nervous:

-pricing to maximize profits;

-generation and accumulation of unreasonable reserves;

-use of commercial promotional methods, such as advertising;

-sales and marketing to the general public;

-high volume of sales;

-the organization uses paid professional staff rather than volunteer labor;

-the organization discontinues money losing programs; and

-the organization does not receive significant charitable contributions.

Most organizations probably don’t have to worry about accumulation of unreasonable reserves and seating capacity may limit high volume of sales. If arts organizations start to adopt dynamic pricing for shows, they may have to watch how high they push prices. But a lot of non profit arts organizations have professional staffs who have replaced volunteers somewhere in their history. Even those without professional staffs use advertising, sales, marketing and discontinue money losing programs. How do you not flirt with violating your status under this criteria?

So is it actually good to keep those money losing programs around? Apparently so…

Factors evidencing the absence of a commercial purpose include the following:

-lack of competition with for-profit entities;

-below market rate pricing;

-relatively insubstantial reserves;

-lack of commercial advertising practices;

-the absence of sales to the general public;

-low volume of sales;

-use of volunteers and low-paid non-professional staff; and

-significant charitable contributions.

This list almost makes a virtue of incompetence and lack of ambition.

But the first thing I thought of after reading this list was, what about the Roundabout Theatre? How the heck have they avoided being shut down on this basis. Except for requiring as significant charitable contributions as anyone else, they are a non-profit that essentially fails on every one of these measures.

They actually may have run afoul these laws and I am just unaware of it. Plenty of commercial Broadway producers have expressed criticism about the way the Roundabout and other non-profits like Lincoln Center enjoy a competitive advantage over them. Back in 2000, long before he became chair of the NEA, Rocco Landesman wrote,

“increasingly the template of success comes from the commercial arena, which is, in the end, not dedicated to the art so much as to the audience. The uber-model for this trend is ”the American Airlines Roundabout Theater,” whose artistic director, Todd Haimes, saved a bankrupt institution by adapting contemporary, market-savvy, the-audience-is-king techniques of modern corporations. Pleasing the customers, giving them what they want in the form they expect, works for Coca-Cola –…It would, I suppose, be hyperbolic to say that Todd Haimes has had a more pernicious influence on English-speaking theater than anyone since Oliver Cromwell (and it wouldn’t be nice, either, since Mr. Haimes is a personable and honorable man)”

Now it should be noted that Landesman’s piece expressed regret that the non-profit theater movement toward a commercial orientation due to market forces has meant that little original work is created any more. Though he has “accused Haimes of running a wolfish commercial operation in the sheepskin of a publicly funded institution.”

The idea that decision making in non-profits shouldn’t be motivated by a need to compete with commercial entities is probably part of the basis for the criteria of the Commerciality doctrine. Although Carter provides an example of it, I wonder how often and strictly the Commerciality Doctrine is applied to non-profits. With cuts to arts funding at all levels and an oft repeated litany that performances should be self supporting or not occur at all, is it fair to require that non-profits ignore the pressure to support themselves with strategies that create more earned revenue?

Todd Haimes has said as much,

“I feel enormous pressure to generate income for our theater,’…`I’ll do anything within reason, as long as it goes back into the nonprofit purpose of the Roundabout,” Haimes said. “So I’m trying to be more creative.”

With a $40 million budget in 2008, $12 million in donated and needing $13 million in sales, most of us are not anywhere near Roundabout Theatre’s ability to raise scowls from commercial competitors. We do face similar pressure to perform well and might well find our ambitions causing problems for our tax status given that so many other aspects of non-profit operations are being examined.

Info You Can Use: Efforts You Can Skip…Maybe

by:

Joe Patti

From time to time I advocate for carefully evaluating the technology tools ones organization uses rather than jumping on what appears to be the hottest new thing everyone is apparently using. Not every tool is appropriate for every organization.

It was with great interest that I started to read Taproot Foundation president Aaron Hurst’s piece, Five Investments You Can Skip. In it, Hurst follows a similar theme in suggesting that non-profit organizations of a certain size and scope consider giving certain “must haves” a pass. Upon reading them, however, I was a little skeptical about some. The five he suggested were:

1) Volunteers. Recruiting and managing volunteers generally isn’t worthwhile unless you use at least 50 per year, they do at least 50 hours of service each (or fewer volunteers and more hours each), and you invest in volunteer management systems. Short of that, it’s almost certainly a waste of time.

2) Websites. Most nonprofits (the small neighborhood ones) would likely be fine with just a Facebook page. A template site would do the trick for slightly larger group. Only 25 percent of nonprofits need customized web design.

3) Board. There is a tremendously high fixed cost to training your board to facilitate donations (in kind or cash). If your board can’t generate a large part of your budget (say, 20 percent), you are likely to find them getting in the way of fundraising success and eating up senior staff time (and increasing burn out). If that’s the case, your organization would likely see more success with a smaller board focused solely on audits and the legal requirements of governance.

4) Social Media. Does it drive your advocacy, fundraising, or program success? It does for likely less than 2 percent of nonprofits. Everyone else is wasting a ton of time and energy on it. Much like my local car wash that urges me to “like” it on Facebook.

5) Strategic planning. You need a strategic plan, but for most organizations it can be a lot lighter than most MBAs want to admit. It doesn’t need to be perfect and frequently should be more of a living document.

Numbers 3 and 5 I can agree with pretty readily. The suggestion to eschew websites in favor of a Facebook page in number 2 seems to be contradicted by the implication in number 4 that social media, including Facebook may be a waste of time and energy.

I did consider that what he says might be true for non-profits in general. I don’t think it is applicable to arts organizations where providing up to date information about events and activities pretty much necessitate a web presence that is adaptable to your specific needs. I have a difficult time imagining that Facebook is a good option for most non-profits given that they need a site that distinguishes them and their mission from everything else one might come across on the web.

His suggestion that only about 2% of non profits are seeing any benefit from social media made me wonder 1) what he based that on and 2) if true, it may just as likely be due to lack of understanding about how to use social media effectively.

Number 1- Not investing in volunteers, held a number of reversals of opinion for me. At first I assumed he opposed investing in Volunteer management software, then I realized he meant not having volunteers at all. This seemed the most controversial of his points as reflected by the long and impassioned comments that followed. Hurst answered those objections with some research that supported his assertion that volunteer programs weren’t effective below about 50 people.

“When an organization reaches 50 volunteers AND achieves an effective volunteer management model, not only do they lead and manage their organizations better, but they are also significantly more adaptable (i.e., reflect the capacity to be a learning organization), sustainable and better resourced (i.e., have skills, knowledge, experience, tools, and other resources to do their work).”

On the other hand, the way I read it, a small number of volunteers, even poorly managed, help to leverage organizational effectiveness at lower budgets.

“Organizations with 10 to 50 volunteers, regardless of whether they are managed well, are statistically equally as “effective” as their counterparts without volunteers on all measures of organizational effectiveness (capacity), yet their average (median) annual budgets are almost half…This implies that organizations that break the barrier of 10 volunteers, regardless of whether they have figured out all of the best practices necessary to manage those volunteers, are equally as capacitated as their non-volunteer-based organizational peers, at perhaps just shy of half the cost…it is important to challenge the assumption that an organization cannot aspire to a more fully “volunteer-engaged” organizational model. Lastly, it is important to acknowledge the need to conduct further rigorous research to test the cause-and-effect assumption of this important finding.”

The other thing about the study Hurst cites is that it seems to be focused entirely on whether volunteers contribute to organizational effectiveness in executing their programs. It doesn’t seem to examine the role of volunteers in furthering organizational goals in terms of advocacy, awareness building and generally representing the organization to the community. If these factors are measured as part of some criteria, it is not clear.

Despite the doubts that one may harbor about whether all his points are well supported, there is some validity to Hurst’s essential idea that it may be worthwhile to assess whether the implementation of all those best practices everyone knows you need to be employing really provides the best return on investment. It is understandably difficult to be a confident skeptic in the face of widely recognized best practices, but these days it could contribute to long term survival.

Organizational Culture–It’s People!!!!

by:

Joe Patti

Rosetta Thurman recently relinked back to an entry she did last year about organizational culture and the importance of not feeling like you are helpless in the face of it. Her basic premise is that organizational culture emerges from the practice of people and not from immutable laws written into the founding documents and the actions. (Though certainly, the initial culture establishes the precedent from which the organization develops.)

Her assertion that individuals in the organization are responsible for whether the culture changes or not struck a chord with me. I have been frustrated with organizational inertia both as a supervisor and subordinate in many places I have worked. While you can feel constrained by the (in)actions of your supervisor, the situation flows both ways. The entrenched reluctance of those you are trying to lead can cause just as much apathy as when the same characteristic is exhibited by one’s leaders.

I generally experience an optimism about a new hire starting work  similar to what I feel when I start a new job myself. I am eager to see what opportunities may be available by virtue of the skills and knowledge the new person brings. Given that most people in the non-profit field are overqualified for the job they are doing, each new person represents a great deal of potential.

People look at taking a new job as an opportunity for a new start. Employers should approach the arrival of a new hire in a like manner. Admittedly, most of the time in the non-profit world a new hire represents the opportunity to clear the backlog of work piling up on your desk. But if you view a new person as a replacement cog, chances are that is how you are viewed as well, perhaps even by yourself. The arrival of a new person is a good time to work on changing that aspect of the corporate culture for everyone’s benefit.

I just hired a new assistant theatre manager in September so these dynamics are at the forefront of my mind. Those who previously held the position provided different benefits to the theatre. The current person is in the position to either maintain or improve upon the gains of her predecessors. Having been in the job for about 45 days, she has enough understanding of the organization to start making suggested improvements.

I will confess that I reflexively feel a twinge of resistance when she starts a sentence with something like “I think that we should think about changing…” How could a new person dare to judge what we do! It is with some relief and then joy that I find that significant elements of her suggestions align with goals I am hoping to accomplish.

Granted, if you have done a good job during the interview process, this should be the result. However, I work for a state institution and the process seems oriented more toward CYA than hiring the best candidate. It is pleasing to realize you did hire the right person in spite of the process.

In any case, the most important factor in creating an environment where new endeavors are either encouraged or inhibited is the participation, or lack thereof, people.

But, of course, people have always been the most valuable ingredient.

[youtube]http://youtu.be/8Sp-VFBbjpE[/youtube]

Are We Being Nudged Toward Partnerships

by:

Joe Patti

I have started to wonder if there is going to be an increased emphasis on partnerships and perhaps even mergers in the non-profit arts. I often read about mergers by non-profits outside of the arts. Although the presenters consortium upon whose board I sit is in the middle of conducting a merger with a sister organization, I don’t hear about arts organizations doing it that often.

However, the Mid-Atlantic Arts Foundation has recently announced a new granting program, Southern Exposure, which will support the presentation of artists from Central and South America. (By the way, you don’t have to be located in the Mid-Atlantic States to apply.)

Most of the program isn’t outside of what you might expect of such a program except that it will “support projects that are developed collaboratively by presenter consortia based in the United States and its territories and ensure that engagements take place in at least three different cities or towns.”

The Western State Arts Federation (WESTAF) used to have a similar program termed “hub grants” as part of its TourWest grant program up until a few years ago. From what I have heard (which may not be accurate) they discontinued it because of lack of wide spread participation. (We actually participated in a couple years.) But now that times are financially a little tighter, will arts organizations on a national level be more amenable to partnering?

But really, back to my original question of whether a trend might be developing in which organizations are encouraged to partner. One cause of my speculation is that this summer I saw a grant program sponsored by the National Endowment for the Humanities for community colleges that required recipients to involve up to 12 other campuses.

Looking at the Mid-Atlantic Arts Foundation website, there are signs that they might be going in the direction of encouraging arts organizations to partner more often.

“Over the last five years, MAAF has built a core of program initiatives designed to address specific issues of regional arts support. The work of the Foundation has been focused on:
[…]
-Developing an infrastructure for touring and presenting
-Making connections beyond the region
-Developing partnerships
-Strengthening existing networks
[…]
-Exploring sub-regional initiatives and collaborations with subsets of MAAF state members
[…]

Now granted, the Southern Exposure initiative might have just fit their pre-existing efforts. Given that it does fit into their plans, if Southern Exposure proves successful, they may start to encourage similar collaborations more often.

Hawaii has an active presenting consortia (as do our brethren in the 49th, Alaska) so we are thrilled because this program plays to our strength. Plus, there is a project involving a group from South America we have been kicking around for a couple years. I will be the first to admit, this sort of cooperation isn’t easy to arrange and manage. It helps to have a little incentive. It would be great to see other groups adopt this practice. (Especially if you want to bring me out to consult with you! 😉 )