BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2327
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          ASSEMBLY THIRD READING
          AB 2327 (Feuer)
          As Amended April 16, 2012
          Majority vote 

           JUDICIARY           9-0         APPROPRIATIONS      16-1        
           
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          |Ayes:|Feuer, Wagner, Atkins,    |Ayes:|Fuentes, Harkey,          |
          |     |Dickinson, Gorell, Huber, |     |Blumenfield, Bradford,    |
          |     |Monning, Wieckowski,      |     |Charles Calderon, Campos, |
          |     |Alejo                     |     |Davis, Gatto, Hall, Hill, |
          |     |                          |     |Lara, Mitchell, Nielsen,  |
          |     |                          |     |Norby, Solorio, Wagner    |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |Nays:|Donnelly                  |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           
          SUMMARY  :  Seeks to provide the Attorney General the authority to 
          issue a cease and desist order or seek civil penalties against 
          any person or entity violating the Supervision of Trustees and 
          Fundraisers for Charitable Purposes Act (Act).  Specifically, 
           this bill  :  
           
          1)Permits the Attorney General to issue a cease and desist order 
            whenever the Attorney General finds that an entity or person 
            subject to the provisions of the Act has committed a violation 
            of the Act including:

             a)   Failing or refusing to produce required records of the 
               organization;

             b)   Making a material false statement in any application, 
               statement or report;

             c)   Failing to file financial reports, or filing incomplete 
               financial reports; or,

             d)   Engaging in specified prohibited acts.

          1)Permits the Attorney General, after giving five days' notice, 
            to impose a civil penalty not to exceed $1,000 per act or 








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            omission, for any act or omission in violation of the Act or 
            Chapter 4 (commencing with Section 300) Division 1 of Title 11 
            of the California Code of Regulations.  The penalty will 
            accrue at the rate of $100 per day for each day of 
            noncompliance, commencing on the fifth day after notice.

          2)Permits the Attorney General to suspend the registration, 
            under the Act, of any person or entity assessed penalties 
            under the Act.

          3)Grants any person or entity subject to penalties under the 
            Act, a review hearing in accordance with the procedures set 
            forth in Chapter 15 (commencing with Section 999.1) of 
            Division 1 of Title 11 of the California Code of Regulations, 
            so long as the person or entity requests the hearing within 30 
            days of receipt of notice of the Attorney General's action.

          4)Permits the Attorney General to seek an injunction, order of 
            receivership, restitution or order of accounting to ensure due 
            application of charitable funds. 


           EXISTING LAW  :

          1)Provides that charitable corporations or trustees, commercial 
            fundraisers, fundraising counsel, or coventurers who hold or 
            solicit property for charitable purposes are required to file 
            a registration statement, articles of incorporation, and an 
            annual financial report with the Attorney General.  

          2)Provides that the primary responsibility for supervising 
            charitable trusts in California, for insuring compliance with 
            trusts and articles of incorporation, and for protection of 
            assets held by charitable trusts and public benefit 
            corporations, resides in the Attorney General.  

          3)Provides that the Attorney General shall be entitled to 
            recover from defendants named in a charitable trust 
            enforcement action all actual costs incurred in conducting 
            that action.  

          4)Provides that all moneys recovered by the Attorney General 
            shall be deposited into the General Fund and shall be used to 
            offset the costs of future charitable trust enforcement 








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            actions by the Attorney General.  

          5)Provides a fine not to exceed $1,000 for a first offense under 
            the Act and a fine not to exceed $2,500 for all subsequent 
            violations.  

           FISCAL EFFECT  :  According to the Assembly Appropriations 
          Committee:

          1)Any costs to the Attorney General's office would be absorbable 
            within existing resources and would be offset to some extent 
            by revenue from civil penalties.
                                                    
          2)Minor ongoing costs to the courts associated with additional 
            civil actions.

           COMMENTS  :  This non-controversial bill seeks to improve 
          oversight of charitable fundraisers to encourage giving.  In 
          support of the measure, the author notes:

               Many individuals and families have been hit hard 
               financially during this economic crisis, which in turn has 
               had negative financial ramifications for nonprofits that 
               depend on charitable giving. With scaled back federal and 
               state programs in recent years, many nonprofits have 
               increased their capacity to provide those services that 
               have been cut. While charitable giving declined 4.2% 
               between 2008 and 2010 (according to data from the Giving 
               USA Foundation), giving remains relatively robust at an 
               estimated $290 billion in 2010.  With fewer charitable 
               dollars available, however, it is imperative that the 
               individuals and organizations generosity serves its 
               intended purposes.

               The Supervision of Trustees and Fundraisers for Charitable 
               Purposes Act regulates persons or entities that raise funds 
               for nonprofits.  The Attorney General enforces the Act, but 
               the Act precludes the Attorney General from imposing a 
               penalty for any violation unless the Attorney General 
               proves fraud.  This bill would remove that limitation and 
               allow the assessment of penalties for any violation of the 
               Act.

          Several recent media reports have chronicled the loss of 








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          millions of dollars in charitable revenues as the result of 
          charitable fundraisers improperly using millions of dollars in 
          donations (Los Angeles Times "Nonprofits Fear Money in Center's 
          Care Vanished" February 14, 2012).  In several cases, concerns 
          were expressed about an organization prior to the eventual loss 
          of charitable funds. 
           
           The current law only permits the Attorney General to seek fines 
          after an act or omission has occurred, or to pursue common law 
          remedies in court.  Currently, the Attorney General lacks clear 
          power to prevent frauds from occurring.  This bill adds another 
          weapon in the Attorney General's arsenal by permitting the 
          Attorney General to issue a cease and desist order before an act 
          or omission has occurred.  Under this bill, as soon as the 
          Attorney General learns of concerns regarding a fundraiser's 
          practices, or notices inconsistences, irregularities or 
          omissions from a charitable organization mandating filings, the 
          Attorney General can step in to stop fraud or deceit hopefully 
          before they can harm charitable organizations.  If the Attorney 
          General believes action beyond a cease and desist order is 
          necessary this bill permits the Attorney General to seek an 
          injunction.

          This bill would also permit the Attorney General to suspend the 
          registration of any entity in violation of the Act that the 
          Attorney General had previously fined.  Any entity subject to a 
          registration suspension would be permitted to file for a hearing 
          reviewing the merits of the suspension pursuant to the 
          procedural guidelines set forth in the California Code of 
          Regulations.  

          Charitable organizations reported a significant reduction in 
          donations as a result of the "Great Recession" of 2008.  
          Although donations have yet to return to the pre-2008 levels, 
          many charities now report that donations are slowly rising.  
          However, instances of fraud (including a recent case involving 
          the board of a San Diego based charity for burn victims 
          diverting over $100,000 in donations for personal expenses) are 
          undermining the public's confidence.  This bill hopefully will 
          help struggling charities, by reassuring donors that their 
          contributions are safe and that the Attorney General is 
          monitoring charities to ensure that donations are properly 
          handled.









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          In addition to giving the Attorney General greater ability to 
          prevent fraud involving charitable organizations; this bill also 
          simplifies the penalty scheme for violations of the Supervision 
          of Trustees and Fundraisers for Charitable Purposes Act.  
          Existing law imposes a tiered penalty scheme for violations of 
          the act, a $1,000 fine for a first violation and a $2,500 fine 
          for subsequent violations.  This bill will replace the existing 
          scheme with a $1,000 fine for each act and omission that 
          violates the Act.  This bill permits fines to accrue at the rate 
          of $100 per day for each day a charitable organization is not in 
          compliance with the Act.  By streamlining the penalty scheme the 
          Attorney General can more efficiently punish those who violate 
          the Act and place charitable funds at risk.
           
           
           Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334 


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