Kate Bahen

May 25, 2018

Doug White, author of Abusing Donor Intent: The Robertson Family’s Epic Lawsuit Against Princeton University, offers donor advice when making restricted gifts. White is well-versed as a philanthropic advisor; he is a former professor, teaching a Masters in Fundraising at Columbia University, and won the 1996 Association of Fundraising Professionals research award.

White cautions that the boiler plate donor agreements prepared by charities are intentionally ambiguous so that “nothing actionable” can ever take place. White urges donors to be far more diligent in tracking how their money is used. They need to hold the charity to account.

White recommends donors considering restricted gifts have a written legal gift agreement. This gift agreement should provide the following:

  • Give clear legal standing, designating someone to enforce the gift’s provisions as well as fund the likely expenses of enforcement.
  • Build into the gift agreement a procedure to permit variance. Circumstances change. As with the March of Dimes to find a cure for polio, if the purpose of the gift needs to be changed, expanded, or revised, how can this be agreed upon rather than funds simply diverted? Set up how the gift can be modified without resorting to the courts invoking the legal finding of cy press.
  • Establish in the agreement clear expectations, measurable outcomes and results. Donors and charities must be on the same page. Select mutually agreed interim milestones and performance metrics to objectively assess the gift’s performance.

Disputes typically focus on money and spending. Too often, the charity’s expectation of financial reports is more general than the specific information a donor desires. Financial reporting needs to be specified within the gift agreement. Donors should closely examine an existing accounting leger for an existing endowment at the charity and assess if a charity’s current practice meets your expectations.

Yet the safeguards White recommends failed the Robertson family. The Robertson’s gift had every one of these included in its 1961 gift agreement; it was a legal document worked over extensively by the family’s and Princeton’s University’s lawyers. It even went further establishing a separate trust, with independent trustees, and the funds were separated and managed independent from Princeton’s. It had the foresight to give legal standing, and funding, to a separate foundation to enforce the Princeton gift agreement. None of these provisions were sufficient.

Charity Intelligence has no experience advising major gifts of this magnitude. If planning a mega gift, please consult with an independent, experienced philanthropic advisor of major gifts.

However, could investment practices benefit donors?

Buy outcomes – this is a growing trend among donors to buy outcomes. Far too often donors start off on the wrong foot saying at the first meeting “I’d like to donate $x millions”. Instead, begin with the goal and objectives. For example, “What would it cost to establish a premier graduate school in government administration that will be ranked in the top five nationally and graduate 200 students a year?”

Benchmark – be a smart “shopper”. Before donating, study your options, and interview different charities doing similar work. Get multiple bids for similar programs. Charity Intelligence finds significant variation between charities. In 1973 when the Robertson gift was seriously underperforming the donor’s expectations, an external comparison was done. This identified national programs getting top results, delivering far greater value than Princeton. Perhaps Charles Robertson was blinkered by being a Princeton alumnus. The external review identified that the Robertson donation could have far better achieved his objectives at graduate programs at Georgetown University, the Kennedy School at Harvard University, Texas A&M, or Syracuse University. Aside – following the 2008 settlement, this is exactly what the Robertson Foundation is doing today. It funds graduate fellowships at these universities and is happy with the results.  

Maintain control – most donors today fulfill pledges in installments. If things go wrong in the early years, payments can be withheld. This prevents further financial loss. Once the money is gifted, it is rarely returned.

 Start Small, Be Patient, Give Big as a Reward for Track Record. To test a charity’s culture, accountability and results, start with a smaller gift. With good performance, this gift can grow. This is the Gates Foundation’s strategy.

“When measurable key results reveal a lack of progress, or showed that an objective was unachievable, we reallocated the capital.”

Patti Stonesifer, former CEO, Gates Foundation.[i]

Charity Intelligence believes charities must honour donors’ restrictions. Donor intent should be considered sacrosanct; the donor-charity relationship so fundamentally relies on trust. If the donor’s wishes are too hard, a charity can always say ‘no thank you’. Nobody is forcing a charity to accept money. If a charity offers restricted gift opportunities to donors, it must keep its side of the deal.

Donors also need to accept that, even with a lot of new money, a charity that has not produced measurable results in the past, is unlikely to magically transform. Money can achieve good work in competent hands. Yet, where there is a track record of murky transparency and soft results, one donation is unlikely to change this. The quote “culture eats strategy for breakfast” applies to charities too.

Read more:

Abusing Donor Intent: Doug White's book about the epic Robertson v. Princeton University lawsuit and other American legal cases

Uncharted waters: Donor rights in Canada

Sources

[i] John Doerr, Measure What Matters: How Google, Bono and the Gates Foundation Rock the World with OKR” Chapter 11 Track: The Gates Foundation Story, 2018

 

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