How to Avoid Commingling
Question
The same company representatives serve on our company foundation board of directors and our Corporate Contributions Committee. Can we hold the meetings for both programs simultaneously?
Answer
No. While it is possible to hold the meetings for the corporate giving program and company foundation board back to back, the meetings should not be held jointly. The meeting for the foundation board, for example, should adjourn before the committee meeting begins.
The company foundation is a distinct legal entity and should be treated as such. While the same people may serve on both the contributions committee and the private foundation, and the goals of the foundation and giving program may be similar, individuals have different duties and obligations to the different programs. Most importantly, when individuals are sitting on the foundation board they have fiduciary obligations to the foundation and, consistent with those duties, are required to act in the foundation’s best interest. Acting consistent with those fiduciary duties would be difficult if, in the same meeting, an individual is acting simultaneously as a representative of the corporate giving program.
Commingling the business of the corporate giving program with the foundation also raises the potential for self-dealing. Imagine a situation where the group considers a grant proposal and decides to fund the grantee. Later, it is unclear whether the foundation or the company made the commitment. If, in fact, the grant was to be made by the corporation and the foundation paid it, such payment would be an act of self-dealing.
In addition to holding separate meetings, distinct minutes should be kept for each meeting. In particular, minutes from the foundation board of directors meeting should show clearly that the individuals were only addressing foundation, and not company, business during the meeting. While there is no obligation to maintain minutes of the committee meeting, they would help clarify what happened at the meeting if an issue ever arose.
