Nonprofit Management: Duties and Liabilities of Officers and Directors

There are almost forty-thousand nonprofit organizations in Massachusetts, and many have volunteer officers and directors who help to manage, guide, and operate them. You may even find yourself volunteering to help lead an organization you support. If so, you should know the people who manage a nonprofit have duties and liabilities they must fulfill, and these responsibilities apply whether the person is a paid employee or a volunteer.

The most basic duties that an officer or director has are the duties of care and loyalty to the nonprofit. These encompass the responsibility to act in an honest manner; to work for the best interests of the nonprofit; to be diligent in preparing for, attending, and participating in meetings; to reasonably consider all relevant factors before making decisions regarding the nonprofit; to remain informed regarding statutory or regulatory compliance; and to carefully monitor delegated responsibilities. Officers and directors must act as fiduciaries and must manage the nonprofit and its property in the strictest good faith.

A nonprofit can limit or eliminate personal liability of its officers and directors in its articles of organization; however, this does not apply when the officer or director has breached their duties to the nonprofit, its members, or its beneficiaries. When a duty of care or loyalty has been breached by an officer or director, enforcement actions can be brought by many different parties, including the nonprofit itself, other directors, members of the nonprofit, beneficiaries of the nonprofit’s services, donors, members of the public, the attorney general, or governmental agencies that assert a violation of law or regulation.

If you serve as a director or officer of a nonprofit, and have any questions about your obligations or the actions of your nonprofit, contact me at mgove@govelawoffice.com or 413-570-3170.

“Related Services”: Special Education Services May Be Broader Than You Think

After a student undergoes an evaluation for special education services, the IEP team will determine if the student is eligible to receive special education services. If so, some of the services provided to the student will be aimed directly at overcoming the obstacles created by the student’s disability.

Related services, however, are not aimed directly at the student’s disability, but instead assist the student to access or benefit from the special education services already being provided. Because of this, the need for related services can be easily overlooked, but they can be instrumental in helping a student succeed throughout their education and parents should consider asking the school district to provide them when appropriate.

Some examples of related services include transportation assistance, speech-language pathology, audiology testing and assistance, interpretation services, psychological testing and therapy, physical therapy, recreational programs, social work services, counseling, assistance from school nurse staff, mobility services, and diagnostic medical services. Related services can even include counseling, therapy, and home services for the student’s family, if these will assist with implementation of the student’s IEP. This list, however, is not exhaustive, and if the IEP team determines that something else is necessary to assist a student with a disability, then that can also be provided as a related service.

If you have any questions about your child’s receipt of special education services, or their eligibility for related services like those described above,
contact me at mgove@govelawoffice.com or 413-570-3170.

Why Use Written Contracts?

When two parties have reached an agreement, and have exchanged something of value, they have a contract. Often, to ensure that everyone understands their obligations, the terms of the agreement are memorialized in a written contract. Contracts can capture the details of all types of business transactions and should spell out the entire arrangement between the parties. When drafting a written contract, some common elements should be addressed:

1. Parties – A written contract should clearly identify the parties to the agreement, including any person or entity who may be responsible for undertaking action ancillary to the contract.

2. Scope of Work – A written contract should describe the services or work that will be provided or performed. This section may cover the duration of the contract, the methods or materials to be used, or the amount of direction to be provided to the parties.

3. Payment or Consideration – A written contract should identify the payment to be provided in exchange for the work being performed.

4. Warranties and Representations – A written contract provides an opportunity for any of the parties to describe additional warranties or guarantees of its product or services, or to make or disclaim any representations.

5. Default, Termination, and Remedies – When using a written contract, the parties can identify specific actions or times that a party will be deemed in default of the contract, when the contract may otherwise be terminated, and each party’s remedies for these situations. These remedies can include the payment of liquidated or actual damages, consequential damages, and costs of collection including attorneys’ fees, filing fees, and other expenses.

Written contracts should aim to use clear language and to define terms that may be vague or subject to dispute. Sometimes, statutes or regulations that apply to an industry may require additional terms in a written contract. While written contracts can seem intimidating, their ability to define the terms of an agreement can provide all parties with more certainty.

Heating Season is Here Again

Are you a landlord or a tenant? With summer coming to a close, it’s important to remember that, unless the tenant is responsible for providing heat to a residential rental unit, the landlord is obligated to ensure certain temperature minimums are met from September 15th through June 15th. During these months, every habitable room, and every room containing a toilet, shower, or bathtub, must be heated to at least 68ºF between 7:00 A.M. and 11:00 P.M. and at least 64ºF between 11:00 P.M. and 7:00 A.M., though the temperature should not be higher than 78ºF at any time.

Even if the tenant is responsible for providing heat, the landlord still has to provide operational heating facilities that can meet the requirements described above. A number of types of space heaters are prohibited by the State Sanitary Code (see 105 C.M.R. 410.200), and any space heaters that are allowed (except electrical space heaters) must be properly vented to a chimney or other outdoor vent.

If you have any questions about your responsibilities as a landlord or tenant, contact me at mgove@govelawoffice.com or 413-570-3170.

Taking Care of Your Smallest “Children”

For many of us (myself included), pets play an important role in our lives. Whether dogs, cats, birds, small mammals, reptiles, or other animals, they become part of your family and, in exchange for providing comfort and love, they ask only for shelter, food, and the occasional belly rub. But what will happen to your pets if you’re no longer available to take care of them? In Massachusetts, under G.L. c. 203E, § 408, you can create a Trust for Care of an Animal (a “Pet Trust”) to provide for your pet’s needs when you’re not able to.

To ensure that your pet receives the care they deserve, and that trust funds are being used for that purpose and are not expended frivolously, a Pet Trust should identify people to serve in at least three roles. The first role is the trustee. The trustee is the person in charge of maintaining and investing the funds held by the trust, providing an accounting of the funds when requested, and disbursing the funds for the care of your pet when needed.

The second role is a caretaker. The caretaker is the person who will actually house, feed, or care for your pet, and will make requests to the trustee for the costs of this care. This person should be someone who cares about animals, has a close tie to you or your pet, and who would have the ability and time to care for your pet.

The third role is the trust enforcer. The enforcer is the person who will act on your pet’s behalf, and who can force the trustee to take action or to disburse funds for the care of your pet. (The caretaker can also force the trustee to take action, but having separate people fill these roles will help ensure the requests for funds are both reasonable and balance the immediate needs of the pet against the desire to maintain trust principal for the pet in the future.)

You can provide additional guidance within the Pet Trust to describe the care your pets should receive, to address different situations that might arise, and to name one or more people that the trustee, caretaker, and enforcer could refer to when big decisions need to be made. A Pet Trust will continue to exist until the death of your last pet. If necessary, the probate court can name the trustee or enforcer, and an application to do so can be made by any interested individual or charitable organization, but naming these individuals (along with alternates) in your trust document will allow you to choose the right people to fill those roles, and will give you security that your pets will be well cared for no matter what.

If you have any questions about the creation of pet trusts, or any other estate planning issues, contact me at mgove@govelawoffice.com or 413-570-3170.

Court Extends Prohibition Against Solicitation of Past Clients

A recent U.S. District Court case found that a non-solicitation provision signed by a former employee is enforceable even when the employee was first contacted by the employer’s client.  The defendant was a salesman for the plaintiff, and was prohibited from soliciting the plaintiff’s clients for one year after his employment ended.  The defendant left his position and went to work for a competitor.  The competitor announced that the defendant had changed jobs, and then the defendant was contacted by a client of the plaintiff.  The client and the defendant argued that, because the contact was first made by the client, it did not violate the non-solicitation clause in the defendant’s contract with the plaintiff.  Judge Woodlock disagreed when issuing a preliminary injunction, finding that it was the communication itself that determined whether solicitation had occurred.  The Court did note that the competitor could not be prohibited from “receiving” business from clients of the plaintiff, but that the competitor’s action in sending an announcement to those clients fell within the “plain meaning” of the defendant’s agreement to not “solicit, divert, or entice away” the plaintiff’s clients.

If you have any questions about this case, non-solicitation agreements in general, or want to discuss other business issues that commonly arise, contact me at mgove@govelawoffice.com or 413-570-3170.

Eight Tips (and a Bonus) for a New School Year

The beginning of the school year is a busy time for any parent or guardian, but if you have a student receiving special education services, there are even more things you have to do to get ready.  Here are some tips:

  1. Get Organized: Purchase a new loose-leaf binder to contain all of the IEPs, notices, communications, evaluations, and reports you’ll receive during this year.  Purchase a separate large folder to hold all of the school work your student brings home so you can easily monitor and document his or her progress.  Keep a smaller notebook available to document incidents or notes you have with your student.  Start by reviewing how the summer was – this can be important if you plan to ask for Extended School Year services next summer.
  2. Review the IEP: Go over the objectives and benchmarks your student should be achieving in both the short-term and long-term.  Make sure you understand what services the school has agreed to provide, and contact the school if you have any questions about how those services will be provided.
  3. Meet the Teacher: Introduce yourself to your student’s teacher.  Bring extra copies of your student’s IEP so you and the teacher can review and discuss it, and so you can answer any questions the teacher may have about your student.
  4. Don’t Forget the School Nurse and Aides: Stop by the nurse’s office to talk about your student, and to discuss the current medication status and any changes that have been made since the previous year.  If you can, introduce yourself to the aides and therapists that your student will be meeting and working with.
  5. Check-ups and Evaluations: Consider having your student evaluated again by a private specialist.  This will help you get a “baseline” picture of your student at the start of the year that will make it easier to follow your student’s progress.  If possible, try to have evaluations done by the same specialists who have always seen your student, as their impression will carry more weight if there is a dispute.
  6. Contact the Local Parent Advisory Council:  The local Parent Advisory Council (PAC) is a valuable source of support and information.  If you haven’t been involved with them before, attend a few meetings, get to know the coordinators, and meet other parents of students in the special education programs.  If you can, offer to help organize a meeting, bring in a guest speaker, or volunteer to be the coordinator.
  7. Catch-up on Developments: There are many places you can get updates on changes in special education laws, regulations, or practices.  You can stay in contact with the local PAC, research issues online, attend a talk by a special education specialist, subscribe to special education blogs by special education attorneys (like this one), or meet with a special education advocate or attorney.
  8. Monitor Progress: Throughout the school year, make sure your student’s teachers and aides are sending you regular progress reports and updates.  Compare these over time, and compare them with the objectives and benchmarks outlined in the IEP.  If you think your student is not progressing appropriately, don’t hesitate to meet with the teacher or school representatives to ask what can be done.

Bonus Tip:  As busy as you might be, don’t forget to make sure your student knows you love them and you’re there to support them.  After all, in the end, that’s the most important thing you can do.

Dealing With Negative Online Reviews

When running any company, positive online reviews by customers can be an important source of new business.  Conversely, negative online reviews can make potential customers wary to spend their money with you.  Managing your company’s online reputation should be a regular part of the day for any business owner, because that reputation can help drive people to, or away from, your door.  Some suggestions on how to avoid the results of an unhappy customer:

  1. Monitoring.  The first step to managing your online reputation is to be aware whenever someone is talking about you or your business online.  You should consider “claiming” your business listing for major listing services like Google Places, Yellow Pages, Yelp, or Angie’s List.  In addition, you should set up a Google Update with the names and addresses of your business and the names of your key employees.  This way, you’ll be notified whenever a review (positive or negative) is posted online. 
  2. Prevention.  Often a customer will write a negative online review only after they’ve contacted the company and felt their issue was not addressed effectively.  This first point of contact is crucial: you should train all of your staff to deal with negative feedback in a constructive manner, to quickly pass complaints to their supervisor, and for your supervisors to address those complaints in a way that keeps the customer engaged and accommodated.  Make sure you have a way to contact the unhappy customer, and do everything you can to reach a compromise that is satisfactory.  Online reviews live forever, and granting concessions to avoid one will likely prevent losing future sales exceeding the value of the concession. 
  3. Protection.  The best response to a negative online review is a long history of positive reviews and content from customers satisfied with your service or product.  Encourage customers to write positive reviews by offering them a discount coupon or promotion while directing them to a link to a listing website.  When you are notified of a positive review, share it on your website or other listing services if possible.  Start now, and the occasional negative review will be drowned out by the many positive comments potential customers will see.  (Do not write positive reviews yourself, or hire others to do it for you: these can be easily distinguished from actual reviews and just raise more questions about the company.)
  4. Respond, Privately.  As a business owner, it’s natural to take criticism of your service or product personally, and natural that your first instinct will be to respond with a long post explaining why the customer’s review does not have all the facts or is otherwise wrong.  DO NOT DO THIS – responding right away in a defensive and public manner will just lead to a back-and-forth debate, and potential customers are likely to side with the reviewer.  Instead, take some time to cool down, then evaluate the customer’s complaint with a dispassionate eye.  (If you’re having trouble doing this, bring in another person whose judgment you value.)  Then try to contact the customer with a private response that recognizes the complaint and suggests ideas for how the complaint can be addressed.  If you can reach a resolution with the customer, ask if they’ll be willing to retract their negative review, or willing to revise it to not their issue was resolved.
  5. Consider Responding Publicly, But Be Careful.  If you’ve been able to resolve the customer’s complaint, and they’ve refused (or failed) to revise or delete their initial negative review, then you can respond publicly to the review with a note that the company was happy to have addressed the complaint.  If you’ve been unable to resolve the complaint, but believe the negative review is wrong or omits important facts, you can consider adding a short response correcting the mistaken facts and stating that the company did try to address the issue.  If you’ve determined that the customer’s complaints were valid, but were not able to mollify the customer in any way, consider adding a short response offering a sincere apology and a promise that the situation won’t be repeated.

 No matter what, if you respond publicly to a negative online review, your ability to appear apologetic, reasonable, and conciliatory in the face of complaints will go a long way towards assuring potential customers that you will do the same for them.

If you have any questions about your business, or want to discuss other common issues that might arise, contact me at mgove@govelawoffice.com or 413-570-3170.

Basics of Individualized Education Plans (IEPs)

If you are the parent or guardian of a student who has been referred for a special education evaluation, one of the first acronyms you will hear is “IEP”.  An IEP, or Individualized Education Plan, is the document that governs the delivery of special education services to a student.  After a special education evaluation is completed, and at least annually thereafter, a “Team Meeting” will be held.  The “Team” consists of you, representatives from the school district, the student’s teachers or aides, and anyone else you want to include, such as outside evaluators or therapists, a special education advocate, or your special education attorney.  The Team should also include the student when appropriate.  The goal of the Team Meeting is for you and the school district representatives to cooperatively develop the IEP, using input from teachers, aides, and professional evaluators.

An IEP will address many issues, but should start by outlining a broad vision for the student which can extend beyond the immediate school year.  The IEP should identify what the student has already achieved academically, socially, physically, and emotionally.  It should then set out goals for the student to meet in the upcoming year.  These goals must be broken down into specific objectives and benchmarks.  Each benchmark should contain objectively measurable targets which pinpoint exactly what tasks the student should be able to accomplish, and when the student should be able to accomplish those task.

The IEP will then list all of the services and support to be provided by the school, including out-of-district placements and other related services.  It should also address the student’s involvement in statewide assessment tests and, if the student is over the age of fourteen, outline how the student will be prepared for the transition into adult life.  Over the course of the IEP, the school district is required to provide these services, as well as regular reports on the student’s progress toward the benchmarks and objectives set out in the IEP.

If you have any questions about an IEP, are concerned that your school district is not providing the services required by the IEP, or are concerned that the services being provided are not leading to effective progress, contact me at mgove@govelawoffice.com or 413-570-3170.