(a) “Fundraising counsel for charitable purposes” is defined as any individual, corporation, unincorporated association, or other legal entity who is described by all of the following:
(1) For compensation, other than as a percentage of the funds, assets, or property received as a result of a solicitation campaign, plans, manages, advises, counsels, consults, or prepares material for, or with respect to, the solicitation in this state of funds, assets, or property for charitable purposes.
(2) Does not solicit funds, assets, or property for charitable purposes.
(3) Does not receive or control funds, assets, or property solicited for charitable purposes in this state. An individual, corporation, unincorporated association, or other legal entity is deemed to receive or control funds, assets, or property if any of the following apply:
(A) It has the right to approve or veto any payment from an escrow account to which funds received from a solicitation for charitable purposes are subject.
(B) It maintains an interest in an account into which solicited funds are deposited.
(C) It has the right to access funds, assets, or property received from a solicitation for charitable purposes and held by a caging company.
(D) It has any ownership or management interest in any other entity that receives or controls the funds, assets, or property solicited for charitable purposes, including, but not limited to, an escrow agent or caging company, but not including any federally insured financial institution.
(E) It receives any financial benefit, directly or indirectly, from any other individual or entity that receives or controls the funds, assets, or property solicited for charitable purposes, other than the trustee or charitable corporation soliciting the funds, assets, or property for charitable purposes.
(4) Does not employ, procure, or engage any compensated person to solicit, receive, or control funds, assets, or property for charitable purposes.
Any individual, corporation, unincorporated association, or other legal entity who, for compensation, plans, manages, advises, counsels, consults, or prepares material for, or with respect to, the solicitation in this state of funds, assets, or property for charitable purposes, but does not meet the qualifications of a fundraising counsel for charitable purposes in this subdivision, shall be deemed to be a commercial fundraiser for charitable purposes as described in subdivision (a) of Section 12599, unless excluded by that section.
A commercial fundraiser for charitable purposes shall not include a “trustee” as defined in Section 12582 or 12583, a “charitable corporation” as defined in Section 12582.1, or any employee thereof. A commercial fundraiser for charitable purposes shall not include an individual who is employed by or under the control of a commercial fundraiser for charitable purposes registered with the Attorney General. A commercial fundraiser for charitable purposes shall not include any federally insured financial institution that holds, as a depository, funds received as a result of a solicitation for charitable purposes, or an escrow agent or caging company that receives or controls funds received as a result of a solicitation for charitable purposes. For purposes of this section, a caging company is a business that receives contributions, processes donor mail, and deposits all contributions into an account under the sole control of the charitable organization.
(b) “Fundraising counsel for charitable purposes” does not include any of the following:
(1) An attorney, investment counselor, or banker who in the conduct of that person’s profession advises a client when actually engaged in the giving of legal, investment, or financial advice.
(2) A trustee as defined in Section 12582 or 12583.
(3) A charitable corporation as defined in Section 12582.1, or any employee thereof.
(4) A person employed by or under the control of a fundraising counsel for charitable purposes, as defined in subdivision (a).
(5) A person, corporation, or other legal entity, engaged as an independent contractor directly by a trustee or a charitable corporation, that prints, reproduces, or distributes written materials prepared by a trustee, a charitable corporation, or any employee thereof, or that performs artistic or graphic services with respect to written materials prepared by a trustee, a charitable corporation, or any employee thereof, provided that the independent contractor does not perform any of the activities described in paragraph (1) of subdivision (a).
(6) A person whose total annual gross compensation for performing any activity described in paragraph (1) of subdivision (a) does not exceed twenty-five thousand dollars ($25,000).
(c) A fundraising counsel for charitable purposes shall, prior to managing, advising, counseling, consulting, or preparing material for, or with respect to, the solicitation in this state of funds, assets, or property for charitable purposes, register with the Attorney General’s Registry of Charitable Trusts on a registration form provided by the Attorney General. Renewals of registration shall be filed with the Registry of Charitable Trusts by January 15 of each calendar year in which the fundraising counsel for charitable purposes does business and shall be effective for one year.
A registration or renewal fee of two hundred dollars ($200) shall be required for registration of a fundraising counsel for charitable purposes, and shall be payable by certified or cashier’s check to the Attorney General’s Registry of Charitable Trusts at the time of registration and renewal. The Attorney General may adjust the annual registration or renewal fee, or means of payment, as needed pursuant to this section. The Attorney General’s Registry of Charitable Trusts may grant extensions of time to file annual registration as required, pursuant to subdivision (b) of Section 12586.
(d) A fundraising counsel for charitable purposes shall file annually with the Attorney General’s Registry of Charitable Trusts on a form provided by the Attorney General, a report listing each person, corporation, unincorporated association, or other legal entity for whom the fundraising counsel has performed any services described in paragraph (1) of subdivision (a), and a statement certifying that the fundraising counsel had a written contract with each listed person, corporation, unincorporated association, or other legal entity that complied with the requirements of subdivision (f).
(e) Not less than 10 working days prior to the commencement of the performance of any service for a charitable organization by a fundraising counsel for charitable purposes, or not later than commencement of solicitation for solicitations to aid victims of emergency hardship or disasters, the fundraising counsel shall file with the Attorney General’s Registry of Charitable Trusts a notice on a form prescribed by the Attorney General that sets forth all of the following:
(1) The name, address, and telephone number of the fundraising counsel for charitable purposes.
(2) The name, address, and telephone number of the charitable organization with whom the fundraising counsel has contracted.
(3) The projected dates when performance under the contract will commence and terminate.
(4) The name, address, and telephone number of the person responsible for directing and supervising the work of the fundraising counsel under the contract.
(f) There shall be a written contract between a fundraising counsel for charitable purposes and a charitable organization for each service to be performed by the fundraising counsel for the charitable organization, that shall be signed by the authorized contracting officer for the fundraising counsel and by an official of the charitable organization who is authorized to sign by the organization’s governing body. The contract shall be available for inspection by the Attorney General and shall contain all of the following provisions:
(1) The legal name and address of the charitable organization as registered with the Registry of Charitable Trusts unless the charitable organization is exempt from registration.
(2) A statement of the charitable purpose for which the solicitation campaign is being conducted.
(3) A statement of the respective obligations of the fundraising counsel and the charitable organization.
(4) A clear statement of the fees and any other form of compensation, including commissions and property, that will be paid to the fundraising counsel.
(5) The effective and termination dates of the contract and the date services will commence with respect to solicitation in this state of contributions for a charitable organization.
(6) A statement that the fundraising counsel will not at any time solicit funds, assets, or property for charitable purposes, receive or control funds, assets, or property solicited for charitable purposes, or employ, procure, or engage any compensated person to solicit, receive, or control funds, assets, or property for charitable purposes.
(7) A statement that the charitable organization exercises control and approval over the content and frequency of any solicitation.
(8) A provision that includes all of the following statements:
(A) The charitable organization has the right to cancel the contract without cost, penalty, or liability for a period of 10 days following the date on which the contract is executed.
(B) The charitable organization may cancel the contract by serving a written notice of cancellation on the fundraising counsel.
(C) If mailed, service shall be by certified mail, return receipt requested, and cancellation shall be deemed effective upon the expiration of five calendar days from the date of mailing.
(9) A provision that includes all of the following statements:
(A) Following the initial 10-day cancellation period, the charitable organization may terminate the contract by giving 30 days’ written notice.
(B) If mailed, service of the notice shall be by certified mail, return receipt requested, and shall be deemed effective upon the expiration of five calendar days from the date of mailing.
(C) In the event of termination under this subdivision, the charitable organization shall be liable for services provided by the fundraising counsel to the effective date of the termination.
(10) Any other information required by the regulations of the Attorney General.
(g) It shall be unlawful for any fundraising counsel for charitable purposes to manage, advise, counsel, consult, or prepare material for, or with respect to, the solicitation in this state of funds, assets, or property for charitable purposes unless the fundraising counsel for charitable purposes has complied with the registration or annual renewal and financial reporting requirements of this article.
(h) A fundraising counsel for charitable purposes is subject to the Attorney General’s supervision and enforcement to the same extent as a trustee for charitable purposes under this article.
(i) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or application of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
(Amended by Stats. 2015, Ch. 299, Sec. 5. (AB 556) Effective January 1, 2016.)