BlueSKy

You are here

What can we do about this person?

Your Legal Questions Answered

What can we do about this person?

We recently asked the treasurer of our 501(c)(3) organization to resign due to inappropriate behavior and acting against a board-approved request. This person is a licensed accountant. This person refuses to give us our computer records as well as our receipts. We cannot go forward except to try to reconstruct banking records, which will still make the records incomplete. This person maintains that as a volunteer they do not have to give us any of the work that they did. This person signed our Form 990 each year. We did pay this person for some of the duties like invoicing and tax preparation. What can we do about this person?

As an officer of a nonprofit, a treasurer has a fiduciary duty to the organization, and failure to return basic documents without an adequate reason seems to be a violation of that duty.  This person certainly needs a better reason than not being required to.  But I wouldn’t pursue that line of obligation. I would pursue this person’s professional license.

Accountants generally have an ethical obligation to return records supplied by their clients.  If your own requests have not gotten response, you could ask your lawyer to send a formal request, including a reminder of this person’s ethical duty.  And if that doesn’t work, I would file a complaint with the appropriate state professional association or licensing board.  You don’t describe the inappropriate behavior that caused the termination of this person’s position, but this person probably will not want to have the entire situation aired before a reviewing authority.  It is a whole lot easier to give the records back.

Tuesday, July 3, 2012

Comments

On a related note:  I'm the treasurer of a 501c7 all-volunteer social fraternity group and I provided a "company debit card" to our chairman to assist in the travel and administrative portions of his duties.  I have been asking for purchase receipts and documentation for the last 3 months and received nothing but "I'll work on it" from him.  Last month I gave him a week to submit receipts or I would suspend his debit card.  He sent nothing nor contacted me and now board members are telling me I went too far despite having a fiduciary responsibility to the organization and are calling for an emergency meeting to force me to reinstate his card.  Is the chairman's poor planning/follow up justification for this pressure? --T.P. via email

I agree with you that the president ought to be providing receipts and other substantiation for his expenses and, unless there is some extraordinary non-apparent reason for the failure, that the pressure from the other board members is unjustified.  In the charity world, the IRS treats expenses that are not substantiated in accord with an accountable plan as an "automatic excess benefit" unless reported as compensation in the year incurred.  Although a social club is not under the same excess benefit rules, you could say you intend to report the unsubstantiated expenses as compensation and see how he reacts.

If the board does call an emergency meeting and decides, after your explanation of the rules and fiduciary duty, that the card should be reinstated without requiring the receipts, I think I would tell them to find a new treasurer. Whether you resign quietly or with a noisy announcement may depend on whether you think the members care.  But as part of a national college fraternity system, they are not setting a good example by saying people can do whatever they want, without regard to rules or good practice. --Don Kramer

At least in the non-profit world, a board member should never be retained for such work. Among other things, this invites micro-managment. A paid resource, on a consultant basis has no expectation that she or he will be rehired.  Contemporary thinking says that an accountant, particularly one who does the organizational financial audit, should be changed every three to five years.  I do not agree with this, however.  If you are getting audits that meet the fields standard, you may keep the auditor.

What a mess!  You may, alternatively, have your lawyer send the person a polite, but to the point, letter which states your next steps if cooperation does not take place; a registered letter. --J.G. via email

Add new comment

Sign-up for our weekly Q&A; get a free report on electioneering