The busiest season for social profit is upon us, but with everything that has happened in the first three quarters of 2020, especially the COVID-19 pandemic, things aren’t exactly breezy for the sector. What can we learn about the way we do things today that can help us navigate the challenges and uncertainties of the future? Joining Douglas Nelson to talk about this is one of Canada’s premier philanthropy lawyers, Mark Blumberg of Blumberg Segal, LLP. In this timely conversation, Mark gives charity organizations some useful advice on media relationships, funding and finances, mergers and more. Mark argues that the coming months and years are a good time for entrenched organizations to really reflect on the way they have always done things and spearhead a much-needed reset in the sector. Listen to the episode and find out why.
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Advice To The Sector During A Pandemic With Mark Blumberg
Before we get into this episode with Mark Blumberg of Blumberg Segal LLP, I want to take a moment to reflect on what the pandemic has done for our sector. These are indeed trying times economically and leaders are called upon to rally their teams on a weekly or even daily basis. It’s been incredible to see leaders step up across the sector and throughout organizations. As we start with what is normally the busiest time of the year, take a deep breath. You have time. From all of us at the show, we see you, respect you and support you. For episode 68 of the show, we have Mark Blumberg, who is one of Canada’s premier philanthropy lawyers. He’s an advocate and a constructive critic of our sector. He’s the energy behind valuable research tools, including CanadianCharityLaw.ca, CharityData.ca and SmartGiving.ca. Please enjoy my conversation with Mark Blumberg.
Our guest on the show is Mark Blumberg. He’s one of Canada’s premier philanthropy lawyers. He’s an advocate and a constructive critic for our sector and he’s the energy behind valuable research tools and information sources, including Canadian Charity Law, CharityData.ca and SmartGiving.ca. Welcome, Mark.
Thank you for having me. I appreciate it, Doug.
Mark, I do appreciate you making time to be on the show. Anyone who follows the sector has seen you quoted in The Globe and Mail, on radio and television talking about the issues of the day in the sector. I want to start with a basic one. Often when I’m standing in front of a board or working with clients, a question I get all the time is, what’s the difference between a not-for-profit organization and a charity? Can we start at based principles here?
Fundamentally, what I would say is you could think of there being nonprofits as a category and there’s a subcategory of charities as one way of looking at it. You could look at it as nonprofits that are not, charities are one type of a thing and a registered charity or a charity is another thing. Nonprofits have a lot more flexibility as to how they operate and a lot less expectation on what they’re going to do. It could be everything from a group doing something that has some elements that sound charitable to amateur athletics, political parties and business associations. It’s very broad. It’s more about this concept of freedom of association and working together.
In Canada, in a day, you can set up a federal nonprofit corporation. It’s flexible and easy to run. You get the benefits of not having to pay taxes at the end of the year if you have a surplus. You don’t get some of the other benefits of being a charity. A charity or registered charity on the other hand is a highly regulated vehicle if you will, where it can only be dealing with foreheads of charity. You can’t do anything you want. It has to be dealing with either poverty, education, religion, or certain other things that have been accepted by the courts as being charitable. There has to be a public benefit.
[bctt tweet=”Negative media coverage doesn’t just affect the specific charity involved, it soils the reputation of the whole brand.” via=”no”]
I would describe it as being one of the more restrictive types of entities that we have. It has an important role to play in our society, but it gets huge benefits far more than in many countries around the world. Therefore, it is highly regulated because if you have 100 people, 98 people are going to think of it as being, “Let’s do something in a normal way.” One or two people are going to use it in a way that is highly inappropriate. In fact, a lot of the legislation governing charities is because of a small number of people who have abused charities. What I say to people is if you want complete flexibility to do whatever in life you want to do, you’re better off setting up a for-profit, not even a nonprofit.
If you don’t need to be issuing official donations, receipts, or receiving money from foundations, for example, often you’re better off to be a nonprofit and not a charity. The main downside of a nonprofit is that you can’t do profitable business activities. It doesn’t mean you can’t have a surplus at the end of the year, but you can’t do deliberately profitable business activities. Whereas funnily enough, a charity is allowed to, as long as it’s a related business, something related to its objects usually.
Otherwise, except in that case, which charities maybe have a little more flexibility than nonprofits for profitable business activities? In most cases, a charity has less flexibility than a nonprofit. The way I would put it is being a charity, it’s almost like a brand. If you think of a brand like Pizza Pizza or something like that. If you have people, a lot of different groups, 86,000 using it, if they use it well, it reflects well on the brand. People have positive views of what it means to be a registered charity. On the other hand, if some people are misusing it, it denigrates the whole brand and that’s unfortunate. The sector can go up or down. In some cases, it has little to do with what you personally are doing with your charity, but it has to do with other groups that are doing things that might not be appropriate.
We see that even with some of the work we do in helping organizations build their boards and recruiting people to be on their boards. The damage to the brand as a result of the WE Charity scandal has had prominent people saying, “Maybe I don’t want to take on a board position with an organization.” Not because of the organization itself is doing anything wrong, but the brand has been damaged. Mark, why do you think it’s hard for the great Canadian charities to get on the front page of The Globe and Mail for the good work that they do?
I think that charities when it comes to dealing with the media, it would be fair to say are not that sophisticated in general and they could do a better job, but it’s also partly that it takes an investment of time. There are some weeks where I’m spending 2, 3, or 4 hours of my time talking to the media. I’m not getting paid to do it. In about half the cases, I’m telling them that’s not a story that they want to write about. It’s a nonissue in which case there’s never going to be anything written about it. I’m telling them, “I’d prefer you not to use my name. I’ll just give you the stuff and the background.” That’s a lot of time I’m spending and it’s not even my job to do it. The long and the short of it is if a charity wants to have the media think of a top of mind and other things, it’s a whole process. It’s an industry like anything else in the media industries at the moment and under a lot of pressure as you know. What I would say is that if you look at the coverage of charity excluding the last few months with the whole WE Charity situation, it’s largely positive.
The media is doing a huge amount of positive stuff. I would argue much of it is fluff pieces, “They had a gala dinner and this is who came and all this are positive.” We don’t remember those articles. The only people who remember it maybe are the organizers, the events. We remember the negative articles. We remember when Kevin Donovan or the Toronto Star writes about some charity scam in excruciating detail and we’ll remember that for the next ten years. I would say proportionately, they do a positive thing and the media can be wonderful. Also, we have to realize media is an important stakeholder like government, your employees, and your donors. I’ve seen charities and it’s a terrible strategy. Let’s say you’re the media, but we don’t have to answer your questions. We respond to our donors. That’s the strategy and huge problems down the road. The sector could learn a lot more about media. Rarely, media people have an ax to grind.
Usually, they’re good people that have been thrown a story they got to write, they’ve got six hours to do it. They’re trying to understand, they’re trying to do the best job. They can do it. I say, if they can get the article 80% right, I’m happy. Often that’s not at that standard and it’s much less right than that but the point is, they need to be educated. The charity sectors, over 10% of our economy. You have full-time dedicated media people who are looking at the automotive sector, agriculture, things like that. I’m not aware of anyone in Canada who focuses only on the charity sector, which is too bad. After the WE scandal and some other things we can expect, there will be more media scrutiny. You’ll have a lot of media people or journalists who’ve never looked at charities before, who’s now spent two months looking at them who will say, “If this is a problem with this one charity, could it be a problem with another charity? Is there another story out there that we should be covering?” I would say, charities need to spend more time thinking about the media and it’s not your enemy, but they’re not necessarily your friend either. You’ve got to think about it carefully.
I want to turn our attention now in our conversation to what many organizations in our sector are facing right now. We’re coming into the final quarter of the calendar 2020. The giving season is upon us. What I’m hearing from a lot of our clients and other organizations is the board saying, “Tell us what’s going to happen. What’s the outcome of 2020 going to be whether their fiscal year is the end of December or the end of March? Where are we headed?” I’m seeing a lot of organizations focus intensely on projections right now. Our advice has been focused on execution, doing your good work, and your mission forward works to raise that money and put it into the community. What issues are you seeing boards are digging into and focusing on we’re all trying to make sense of this pandemic?
I would agree with you. It’s difficult now to do any projections or anything of the sort. You do the best you can and you’ll see where it goes. Are we going to have a second wave? Is your major donor going to have their business collapsed because of the COVID? There are many things. You need to focus on the stuff that you can control, not the stuff that you can’t control. I would say this, that there has been an unfortunate situation in the charity sector where at the best of times the data is not great. It’s not that we don’t have a lot of data. If you put all the charities and all the data they have together, it would be a huge amount of data, but it’s all disparate. It’s all over the place. Our T3010 asks for little information. It’s a once a year that you are filing. In about two years, we could have another conversation where we’ll talk about what was the impact of COVID on our charity sector. Until then, unfortunately, we’ll not have the data to be able to tell you much.
What I’ve seen is, for example, one major organization said that there’s been a 30% decline in revenue of charities in Canada and that I would describe as being a highly problematic or inaccurate description. It can lead to a certain fatalistic or negative view. Let me tell you that many charities are doing about the same as they were doing in 2019. In some cases, their need is the same. In some cases, it’s the last, whatever. Many are doing about the same, some are doing better than what they were in the past. There are many that are suffering. To say there’s a 30% decline is ridiculous because about 70% of the money, the charity sector comes from the government. That hasn’t declined at all. In fact, it’s been increased. If were to decline by 30% would mean all fundraising, all investments or business activities, everything achieved nothing for the period of the last 4 or 5 months. It doesn’t make any sense, but that’s the problem.
The problem is if you interview 200 charities and you pick a certain slice or it’s unrepresentative, it’s going to give you the completely wrong picture. I would say people need to do the best in what is an extremely difficult time. Don’t worry about what you had decided a year and a half ago or what is going to be the projection for 2020. You do the best you can and you have to manage it. In other words, if you expect it to take in $10 million and you’re only going to take in $7 million, you will need to make changes to your operations. The sooner you can do that, the better. Many charities also go up and down in months and years. It’s not necessarily because the charity is better. It just might be, they got one major gift or they did the capital campaign. I would say, do the best you can in what is difficult times.
One of the things we’re hearing from many of our clients is that they are tracking slightly or quite a bit ahead concerned about what the final months of 2020 are going to look like. That’s often where 30% to 40% of the revenue comes in, but the conversations we’re having match what you shared there. The other thing I would point out is many organizations that are highly dependent on events are finding out that when the events were canceled, their net revenue has gone down by less than 10%. This underlines the real cost of many of the charitable events that happen is much higher than the organizations themselves think they are. In their absence, they’re realizing that they have strength in other areas of the revenue streams, but also they’re not nearly as dependent on the events as they may have thought they were.
[bctt tweet=”Now is a good time for charity groups to rethink what they have been doing in the past decades and reset.” via=”no”]
It’s a golden opportunity for groups that have been doing the same thing for 10, 20, or 30 years to rethink what they’re doing. In the end, it’s about helping beneficiaries, having the most resources to be able to do it in the best way. Some groups, you get into a pattern, then you’re going to be doing this event and it might not be even advantageous to do it anymore. Now, it’s like a big reset. Not to say that all events will be gone, but many events shouldn’t have been done in 2019 or 2018. They were done because groups were doing it. It’s a big thing to say no to the volunteers maybe who are interested in it or something. Now it’s a good time to reset. I agree that the last couple of months will be important. One of the big mistakes some charities made was they ceased fundraising in the first month or two off the COVID thinking, “Everyone’s unemployed. It will be considered terrible if we approach people.” This is not a fair thing to say.
There are a lot of people, even if they’re working from home or they can’t work from home, but they’re still being paid. Some people have saved money. People who didn’t send their kids to summer camp might have saved tens of thousands of dollars or people who didn’t go traveling over the summer as they often did. In many cases they’ve saved money, people have more money and they want to help out. They’ve seen some amazing examples of what charities can do over the last little while, like in the healthcare area and in helping the elderly and all other things. If you take out the WE situation, you take out some other things in theory, the reputation of the charitable sector should have gotten better with COVID because of the great work that many charities did. In the end, we have to take everything that comes at you. Let’s hope that November, December will be good months, and that people will give a lot. If you don’t ask, generally you will not get, so you might as well ask and do the best you can with what you have.
Meet your donors where they are, and continue to have conversations about your mission. One of the things that you mentioned organizations that stopped fundraising, the organizations that I saw that are doing well in terms of their mission work and it helps their fundraising is that they’re continuing to put their mission first. There is a pandemic. What is the impact of that on cancer patients, arthritis research, and the food bank? Those organizations that have been able to blend or pair the messaging around the pandemic and the response to the pandemic with their core mission have seen many of their donors. Most of their donors stay with them and give more generously because they understand this is a special or critical time for the mission.
Everyone needs to be done. Society and charities are important in terms of many different facets of society. There’s no question that some donors have been laid off or their businesses have gone under. There will be an impact on that. It’s hard to say whether net it will be negative across the board because others have risen to the occasions. I’ve dealt with foundations who have increased dramatically their giving. What I’ve been telling donors and others is that with the pandemic, people are looking at things a bit differently. There’s a bit of desperation amongst some people as you can imagine and it makes perfect sense. There are a lot of mental health issues out there that are there that need to be dealt with. The long and the short of it is that there’s a lot of anger in society, anger at certain groups that what needs to be careful to be aware of when a person makes $10 billion during COVID and gives away $100 million as if they’re an angel.
You can imagine that they’re going to get some negative media publicity and some dislike from the public. People need to realize that and especially in the United States, that’s been much more the case. The days of, “You gave money to a charity, therefore you’re an angel,” are far gone. Sometimes people are asking other questions like, “What is the ulterior motive? What are you getting out of it?” The answer is there’s no ulterior motive story. It’s just you want to support a charity, but there’s enough stuff. People need to be more sophisticated in how they think about these issues and realize that in our society with great disparities between the rich and the poor.
With other issues that we have in terms of racism and other things that people are not going to look at the charity sector in the same way. They’re going to look at other things. The charity sector has to show that it is up to the challenge because some people have been looking at the charity sector and saying that it’s even more white than the business sector. How is that going to be the solution to the problem of racial justice in Canada? The charity sector is going to have to rise to the occasion and think about how to deal with these things if it wants to be a player and involved. That would be my thought on that.
There’s such tremendous opportunity for the sector to play a leading role there. The reality from my perspective is the world around the sector is changing much more quickly than the world within the sector. One of my great hopes for this reset or how we come out of this pandemic is that the sector can find ways to be moving more quickly than the world outside of it and areas of racial justice, economic equality, and fairness in general, writ large across our society. I’m optimistic. I think that there is a real opportunity for the sector to do so much more. A lot of the systems and structures that we have in place within our sector make it harder to move quickly. Hopefully, we’ll find a way to change those or mold those in a way that allows us to do what needs to be done.
I agree with you completely. When I looked at the first couple of months of COVID and the amount of change, for example, in terms of moving to digital transformation, making things more done online and things like that. The change was more than what I’ve seen in ten years within the sector. There’s no question. The sector when it’s back is up against the wall, when it has no choice, whether it’s do or die, then they can move quicker. It’s what they do now. I hope they learn from that and remember every group is different. A big hospital is not easy to flip around, but a foundation with two employees when someone says, “It takes us six months from the time that we think we want to give out a grant to making a grant.” It could take you six months. It could also take you six days if you want it to make it six days.
There are going to be different levels of questions being asked. I see it already in terms of the whole disbursement quota issue. They’re going to be questioned for large “wealthy organizations,” big charities that are going to be different than what is going to be thrown at the little charities. With the anger that I’m seeing out in the public, some charities are going to take a big hit within the next six months to a year in terms of their reputation. For example, if they’re sitting on a lot of money, multi-year amounts and they could have given out to help with what they say is their issue or concern and they didn’t, they sat on the money, then there could be some real interest by the media and the public in those groups.
There is real tension around the board tables in those organizations that sustainability and how do we make sure that the organization itself exists, which is in a lot of ways, the fiduciary responsibility of the board. Many of the donors are wanting to support the organization because of the mission it serves and the organization isn’t an end in itself. It’s the vehicle for advancing the mission. If there is a distance between those two things, the distance gets too far. That’s when donors turn on organizations and when organizations end up focusing too inwardly donors don’t get angry, they just walk away.
For example, some groups were running on with almost no reserve funds and then COVID hit, that’s not a good time to start building a reserve fund. It’s a bad time. Groups that were well-managed 1, 2, or 3 years ago, do better than those who are not well managed, who didn’t have any reserves, who weren’t thinking in terms of that. On the other hand, if you’re a theater and it’s shut everything down, it doesn’t matter how good your bylaws were. It doesn’t matter how wonderful your board is. You’re in a bad place right now. It’s a real mix of stuff, but I certainly think that a lot of the fundamentals that should be focused on including spending appropriate amounts on fundraising, on administration, things like that can be important for the long-term sustainability of the organization. With most charities, they are not thinking in terms of quarters or years. They are thinking in terms of potentially decades to deal with things. You have to have a long-term view and you don’t want to have to dissolve or wind up in bankruptcy because you poorly planned your cash for the year or something like that.
We’re coming to the end of our conversation, but there’s one topic I want to make sure to get to because, in my mind, you are the national expert in the field of charity mergers. The conversations I’m having with colleagues and others that we should expect a tidal wave of mergers coming out of this pandemic. The organizations through necessity or opportunity are going to be coming together to advance their missions or stay in existence. Mark, what do you think is going to happen? Are we going to see a tidal wave of mergers?
[bctt tweet=”Trust is critical to success in social profit. That is why charity organizations should do their utmost to protect their reputation.” via=”no”]
No, I don’t think so. It’s possible, but I doubt it. The first thing is that many organizations are too far gone and they will be wound up and there might not be that much there that makes the merger worthwhile. Mergers are sometimes done to make people feel better. One of the organizations is going to be ending its existence and some make them feel better. We merged with another thing which means a particular program that the other organization could have just set up was “taken over.” If you have three weak organizations merging, you’re not necessarily doing yourselves any favor. If that was a solution, I would say, “Let’s do lots of it.” We’ve overplayed the idea that we have too many charities in Canada and if you’re a cancer research group, you might think, “We’ve got many.”
In many areas, the problem isn’t, “We have too many.” We don’t even have charities dealing with a lot of the contemporary issues that we have to deal with because a lot of the money also is with some large organizations that are focused on the issues they’re focused on. Those may not be, shall we say, reflective of the true diversity of Canada. There’s too much of a fixation on too many organizations and the efficiencies that are going to be gained by merging where often you have to lean organizations that don’t spend enough on admin and don’t have good systems. It’s not like some business that was poorly run that has a lot of, shall we say, fat in it that can be dealt with, and you put three businesses together and you can have huge economies of scale and other things. In the charity sector often that’s not going to be the case. Your biggest cost is the staff.
When you bring three organizations together, it typically means everyone rises to the highest standard of the cost structure. It can be costly. I would say people shouldn’t just think of mergers like a bullet or something it’s not. That’s why even when I have discussions with groups where they’re talking about the potential of a merger, it doesn’t end up in an actual merger. The main thing I would say is to get legal advice early in the process because I see groups saying, “We’re going to do an amalgamation.” It’s like, “No, you can’t even do an amalgamation.” I see groups wasting huge amounts of time having discussions on mergers and the merger costs are high. The legal costs can be $10,000, $20,000, $100,000 or whatever it is, but the staff time can be in the millions of dollars. In some cases, you’re better off just to think hard about how you can make your organization better with the resources you have and with what you can do rather than trying to merge with someone else.
There’s a good role for mergers and I co-wrote a piece with Andrea Cohen Barrack for CPA Canada on mergers in nonprofits, and people might want to read it. There are a lot of good reasons to have mergers, but there are also a lot of reasons why in the end, you might end up with some of the parts that might be less than if the groups were just independent. Some hard thinking needs to take place but it is possible that we could have a lot of mergers. What will happen is some groups will go under, some will become dormant. Some will dramatically cut back their activities and others will merge. The merger, we think typically as either an asset transfer or an amalgamation. In many cases, there are much simpler ways of merging organizations like a membership takeover.
For example, by changing easily the bylaws of one organization, you create it so that it has one member and the other organization is the member. You move your members up to be members of that organization and things like that. That thing can be done in a month. It’s easy to do. It aligns with organizations. It doesn’t make one organization, but it has two aligned organizations. We’ll probably see more of that than real mergers because the mergers are time-consuming, expensive, and all that. There’s an impetus for mergers because the government pushes for the merger. Now, I’m not seeing as much. I was seeing more before COVID.
Now, governments are more careful to be careful what they say and suggest because they don’t want to be criticized for asking for things that might be unrealistic. It’s anyone’s guess as to whether we’ll see more of them, but it’s certainly an interesting area. It’s one we’ve done a lot of work in and it’s one of the things that can be one of the biggest challenges a charity will face in a 10, 20 or 30-year period is a merger. It’s good to get other people involved, whether they’re governance, consultants, lawyers, accountants, who are familiar with this stuff to help them think through the issues and help them with either due diligence or pulling the thing together as quickly as possible.
The other thing to point out on mergers is, there aren’t a lot of examples in Canada where donors have rewarded organizations for merging. Many of the organizations that merged see a significant decrease in the revenue from private sector donors and are often surprised that’s what happens so they think that the veil or the flag of efficiency will inspire donors. Donors as we all know are mostly inspired by the mission and the work that these organizations do. If you confuse people with mergers, it takes them a while to come back if they ever do at all.
Seeing a 70% of the revenue of the charity sector across the board comes from the government. If a government agency is going to provide three organizations, each $1 million but when you’re merged, they’re going to provide you with $2.2 million, you’re worse off. They call it a merger penalty. It’s not just a government and donors and other things. You have to look at all the factors. The good news is you can often quickly do this. The problem is in many groups, it’s like opening an onion and they spend two years thinking about it. The amount of time that is spent at the board table, thinking about these issues in an unenlightened way can be huge. I think to myself, “Even if the merger does go through, if that organization had focused on doing a better job with the programs that have and what it does, it would have achieved far more in some cases than a merger.” There are times for a merger and there are times where it’s not the right thing. It is dependent on the situation.
My final question for you, Mark, is what are you looking forward to? What are you optimistic about when you look at the social profit sector in Canada as we move into the fall of 2020?
First of all, I’m optimistic that within Canada, reasonably speaking, we have done a good job in terms of dealing with COVID compared to some other countries. That’s a great thing to have. I’m optimistic that charities, as they say, burning the candle at both ends and in some cases, working hard to respond to the changes. From what I’m seeing, they’re doing a good job within the parameters of what they have and what they can do. I think that’s good. It’s something we mustn’t take for granted the tremendous trust the public has in the charity sector. It’ll be interesting to see how things happen. That’s one of those situations and charities are used to this where a lot of things are out of control. It’s not within your own control. My thoughts would be for charities to focus on those things that they can do a better job.
It’s amazing to see the out-of-the-box thinking going on now in the charity sector and you sometimes smack yourself in the head and say, “Why couldn’t they have done that five years ago?” The answer is, they could have done it five years ago, but they didn’t do it. There’s much stuff is being done online and I’m not saying online is the same as in-person by any means, but for some people, it’s much better. If you’re in a wheelchair and it’s hard to get to a location for a one-hour session, wouldn’t it be better to just have it online? Having both would be the best. It’s thinking outside the box in the end. You had mentioned it’s about the mission it’s about doing that. It’s not about all the other extraneous stuff that sometimes gets a lot of attention. I’m hoping that they will be some good things coming in the future. When you’re in tough times you have to have hope or it’ll be quite bad. Sometimes it’s hard to have it. Mental health-wise, the population as a whole is suffering and will suffer tremendously.
Even before COVID, huge resources were needed in that area. Mental health addictions and other areas are going to increase in that. I’m seeing charities that are eyes wide open. They’re seeing that it does make a difference, things like governance and legal compliance. You don’t need the WE Charity scandal to convince you of this. No one wants to be in front of the finance committee grilled for a couple of hours asked, “Why didn’t you file your lobbyist forms? Why didn’t you file this? Why didn’t you do that?” There’s no better example as to why it is important. It’s not necessarily enough, but it is important that to have a well-run charity, you take care of the different compliance issues. You protect your reputation and I’m seeing most charities working diligently to try and do that stuff. That’s great.
I appreciate you underlining trust there because that trust around a board table, around a management team, through organizations with donors and with the larger community is what defines success in the sector. It’s important that we continue to hold onto that and protect that reputation. Thank you for all of the work that you do, not just on this show but daily. Those hours a week you give to talking to the media on behalf of the sector.
Thankfully, with the prorogue Parliament at the moment, I spend much less time dealing with the media so I can get on to other things. Doug, thank you for inviting me to the show. I appreciate it.
It’s great to have you. Thanks, Mark.
- Blumberg Segal LLP
- Andrea Cohen Barrack – article