The Wall Street Journal recently carried an article about how irate donors are going after university boards of trustees that used restricted funds to cover operating deficits. While the article didn’t address other NFP entities, the same logic applies there as well. While I am not a lawyer, I think I can offer NFP boards some advice on this topic
I would be willing to bet that most of these university boards did not simply raid the endowment, as the article states. The mechanism tapping these funds was probably borrowing against the endowment. The intention was to pay the endowment back with interest at the going rate. If that plan was successful, then all would be well. The Board would have accomplished its fiduciary duty to both sides of the transaction. The university program succeeded, and the loan was paid back. However, when the plan goes sideways, there are problems. To put it simply, the cash is gone, no matter how its transfer to the operating budget of the university was categorized or papered. The uncomfortable reality is the board was “on both sides of the transaction.” It has a fiduciary duty to protect the endowment while at the same time being responsible for the financial well-being of the college. The failure of the program harms not only the university but the endowment too.
I am also sure that board counsel has taken care of all of the legal niceties when it papered the loan. Nevertheless, it may not be enough. Irate donors who thought their money was going to a pet project only to find it was going someplace else can easily find an attorney who will sue on their behalf. The goal may not be to win but to bring bad publicity to the university, especially during recruiting season. The university administration may then settle to avoid the publicity.
If the university has trustees and officers’ insurance, the real target of the litigation is the D&O policy ( unless the trustees have substantial independent wealth). The insurance company and the insurance policy provide deep pockets for potential litigants. The insurance company will control the legal defense and can determine when to settle. The point is this: what is legally correct may not be morally correct. Of for that matter, even “publicity correct.” Directors and trustees need to make sure their “Is” are dotted and their “Ts are crossed paperwork-wise. They also have to ask themselves, what will happen if the borrowing from the endowment fails and becomes public? What type of media scrutiny will this generate? Can we afford the bad publicity? If the answer to that question is no, perhaps the whole funding strategy will need to be rethought.