Rejection of a professional fund-raising counsel registration renewal has sparked a battle between an attorney and the Secretary of State of North Carolina regarding the confidential nature of where a fundraiser resides, and the ability to safely raise money for sometimes controversial causes.
The rejection came about because of a law requiring fundraising counsel to provide their home address on registration forms. Such a law might prove to be a problem in the nonprofit sector, and North Carolina is not the only state that has such a mandate.
Mark Fitzgibbons, president of corporate and legal affairs at American Target Advertising, Inc. in Manassas, Va., is engaged in an battle of letters and press releases with Elaine F. Marshall, the Secretary of State of North Carolina, regarding the requirement that fundraising counsel give their residence address, as well as a business address, on initial registration and renewal forms.
Most states require a business address, and Fitzgibbons has no problem with that, but North Carolina is one of 10 states requiring fundraising counsel or fundraising consultants to provide a home address on or attached to registration forms.
Fitzgibbons said he believes that the situation can be indirectly related to a case decided in 1958 by the U.S. Supreme Court, National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449. That case, which was settled only after a protracted battle through state and federal courts, overturned a requirement that the NAACP submit a membership list to the state of Alabama before it could set up offices in the state. The Supreme Court ruled that the requirement was simply an intimidation tactic to prevent the organization from operating in the state.
Fitzgibbons noted the difference in the two situations, in that the Alabama case came about because of a subpoena and in North Carolina it is a state law. Not only is the legal requirement unnecessary, Fitzgibbons maintained, but it also poses a danger, such as to individuals fleeing abusive relationships and needing to keep their whereabouts a secret. He cited various sources about protection of individuals seeking shelter, but he said that he is not aware of any crime victim who works as a fundraising counsel and has had to disclose a residence.
Fitzgibbons considers this aspect of the situation to be important because Marshall recently won the Democratic primary to challenge Republican incumbent Richard Burr for the U.S. Senate seat from North Carolina. Marshall has made protecting abused individuals one of the hallmarks of her campaign. That particular seat, once held by former presidential and vice presidential candidate John Edwards, has been especially harsh on incumbents, with Sam Ervin of Watergate fame being the last to gain re-election, in 1968.
Liz Proctor, public information officer for the North Carolina Secretary of State, said that the requirement is a state law, part of North Carolina General Statute 131F, the Solicitation of Contributions statute, meaning it would take the legislature, which imposed it in the first place, to remove it. The Secretary of State cannot simply revoke it.
Further, Proctor said, the state Attorney General’s office is the home of the information, and there is a shield law in place, the Address Confidentiality Program. Under that, people can request that their addresses be kept from the public. Anyone wanting to contact shielded fundraisers at home would write care of the Attorney General’s office, which would then forward the correspondence to the fundraiser.“We’ve had one person who has ever complained, out of hundreds who have filed,” Proctor said. Fitzgibbons is that one person, she said.
When asked about the NAACP vs. Alabama case, Proctor said she saw no parallel at all between a requirement that was imposed to prevent civil rights activity and one that is meant to help potential donors keep informed about the organizations that are soliciting them for money.
Fitzgibbons acknowledged the address requirement is a state law that the Secretary of State simply can’t ignore, but he said Marshall should be using the influence of her office to get the law changed. He said no one else complains because they fear retribution.
He also said the shield law makes no difference, first because people are probably unaware of it, and second because the victim of a crime or a battered spouse should not have to give out residence information. Also, people who work for controversial nonprofits are often targeted for harassment or intimidation.
Finally, Fitzgibbons said that even if the information must be collected, it goes beyond the summary information mandated by the statute and that Marshall is exceeding her authority by posting the information online.
“It is our department’s practice to make such public records available, and by law they are public records and must be available,” Proctor said. “Our sole motivation is that we provide information to help the giving public make informed decisions.”
In addition to North Carolina, the states of Alabama, Alaska, California, Connecticut, Florida, Hawaii, Kentucky, New Jersey and Pennsylvania require home addresses on the registration forms for either fundraising counsel or fundraising consultants. Georgia requires it of paid solicitor agents. Louisiana requires it of professional solicitors, and Missouri requires it of professional fundraisers.
Fitzgibbons said he has contacted other states about their requirement but has not pursued it with them because he has found them willing to accept a business address on registration forms.
Fitzgibbons cited the June 24, 2010 United States Supreme Court opinion in Doe v. Reed, Washington Secretary of State, following a long line of precedent that disclosure statutes are subject to exacting scrutiny, and there must be a substantial relation between any disclosure requirement and an important government interest. But even in that case, he said, the state official did not publish on the Internet residential addresses gathered for ballot initiatives.
Karl Emerson, an attorney with Montgomery, McCracken, Walker and Rhoads, LLP in Philadelphia, and formerly the director of the Pennsylvania Bureau of Charities, said he did not see any big deal with the North Carolina law.
“I assume it’s in the event if a state needed to get in touch with someone there would be an alternate address,” Emerson said, adding that such laws were passed before the arrival or widespread availability of the Internet.
Emerson works with national charity registrations, adding that he deals with many clients in Maryland and Mississippi, states that require alternate business address but not home addresses.Emerson said if a client of his wanted to register in a state requiring a home address he would advise the client to provide it and in a state not requiring it he would not. Either way, he did not attach much importance to it.
“The bottom line in this day and age is that people can find out things about other people quite easily,” Emerson said. “If someone wants to find out where you live, they can do that online. They can get maps, even get aerial pictures of what your neighborhood or your house looks like. They can see what kind of a lawn you have.” NPT