BILL ANALYSIS Ó AB 2327 Page 1 ASSEMBLY THIRD READING AB 2327 (Feuer) As Amended April 16, 2012 Majority vote JUDICIARY 9-0 APPROPRIATIONS 16-1 ----------------------------------------------------------------- |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 AB 2327 Page 2 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 AB 2327 Page 3 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 AB 2327 Page 4 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. AB 2327 Page 5 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 FN: 0003541