Discretion and Discernment: A Call to Action on Behalf of Our Young People

I’ve been thinking a lot about discernment and discretion in the past few weeks. I’ve been thinking about 9/11, Sandy Hook and Parkland and about the processes we put in place since then. I’ve been mulling what happens in the worst cases and the best cases of our policies being realized.

After Sandy Hook, schools across the country became lockdown facilities, even though Sandy Hook was a locked facility and it didn’t help. We had to do something! Hand wringing, prayers and fear weren’t getting us anywhere and many of us were devastated. Locking the doors was one roadblock we could erect.

After Parkland, many schools put in school resource officers even though Parkland had an officer outside who did nothing AND there’s ample evidence to suggest that the introduction of a school resource officer criminalizes behavior that otherwise would stay at the school level. It’s another roadblock, though I’m not convinced it’s the right roadblock.

We have reporting policies and after 9/11 have “see something say something” policies. We need those policies. We also need discretion and discernment in assessing the information that gets reported.

In an era when we have police officers being dispatched because there’s a random Black person in someone’s neighborhood or a college student asleep in the common room of his own dorm, we have to have a conversation about discretion and discernment.

Sensitive content warning:

Many years ago, when I ran a program for school age youth in Texas, I had a young staff member who heard the youngest of three boys in a family use the word blowjob. She immediately decided that that meant that kid was being sexually abused at home and she called Children’s Services.

This is one of those (countless) incidences when where you sit determines where you stand. She was young, right out of college and new to the field. Would a more experienced staff member have read the situation the same way? Would you have?

What happened when Children’s Services showed up at that family’s door? Does a kid with two older brothers using the word blowjob automatically indicate sexual abuse? How could that family prove the absence of child sexual abuse? Children’s Services had to make that call. They have processes in place to help them to do so. It’s an impossible position.

The law requires staff that work with youth be mandatory reporters of suspected child abuse or neglect. We have to report and we should!

But there should also be some discretion on the part of the person who takes the call of asking follow-up questions before they deploy resources.

This is hard. I don’t harbor any illusions that this is not hard. How do you decide from a phone call what’s really a threat and what is not? How do you decide who is in danger or who just has older siblings or was allowed to watch a show that perhaps he shouldn’t have been?

After that incident we added an addendum to our reporting policy that employees should speak with a supervisor before they made such a call. That policy (and the law) was very clear that the final decision was still the employee’s and we would never stop an employee for making that call but we did want to have a conversation around discernment.

Every time we deploy police officers, children service workers or security staff, we disengage the people whom they’re questioning. We put those people in the position of defending themselves, sometimes rightly; sometimes not.

We know that once the door opens to the criminal justice system, it can be a one-way door – especially for families that are already living on the edge.

How do we not get to that door for people who don’t need to walk through it? How do we protect the kids we are entrusted to serve, and hold accountable the people who are trying to hurt them? How do we respect the dignity of visitors and not feed the racism or fear of those who want to decide who “belongs?”

How do we protect our young people – and everyone – by putting in place the right policies to keep us safe, while also protecting people’s dignity and right to be heard? How do we not create spaces where fear breeds and every stranger is a danger?

We have to figure out how to deploy our resources in the right places, for the right reasons and not further alienate those we are also entrusted to serve. We have to build policies to take into account and discern actual harm from rumor, speculation, racism, implicit and explicit bias.

I understand and support the need for locked schools. I believe in roadblocks. We can never 100% protect against a threat but we can put as many roadblocks in place as possible. I support policies that keep people safe.  But I’ve also seen too many incidences of leaders hiding behind a policy that made something worse in an uneducated attempt to respond.

We’re the grown ups and the leaders. We decide what’s safe for our community’s children and what’s not. We decide what’s a reasonable policy and what’s rife for abuse. We assess what will protect us and what will get in the way.  Let’s have the policies, but, please, let’s also have a conversation around discretion and discernment. 

What are your ideas to introduce discretion and discernment?  Have you been successful in your community? What’s your experience creating policies that protect and also discern?  As always, I welcome your insight, feedback and experience. Please share your ideas or suggestions for blog topics and consider hitting the follow button to enter your email. A rising tide raises all boats.

The Implications of Donor Advised Funds on the Charity You Love

Donor Advised Funds (DAFs) were created to be a charitable option for those who have or have received a significant influx of funds. They are touted as a way to democratize philanthropy. DAFs have opened up vehicles for giving to midsize donors in a way that family foundations could not. For the first time, donors with sometimes four but more often five-figure gifts to donate could do so, long term.  Of course, they could always do so short term. 

Despite the DAF commercials you may have seen (Wells Fargo wins for the most appalling), it was always possible to donate a significant gift straight to the nonprofit of your choosing.  What wasn’t available was a long-term option, other than a family foundation, which is expensive to start and has significant compliance obligations.

The introduction of DAFs allow a donor to get an immediate tax deduction, while they – in theory – can research where they want to spend their philanthropic dollars, later.

To be clear, it’s called Donor ADVISED Funds for a reason.  The donor can advise the DAF sponsor on where they want the gift to go.  The DAF sponsor usually sends it to the intended destination but reserves the right not to based on the law, the mission of the recipient organization and the sponsor’s internal policies. For example, your local Jewish Foundation will likely grant your recommendation to send a gift to your local Jewish Community Center, but not likely to your local hate group. 

There are a few requirements of the donor.  DAF funds cannot be used to pay a pledge.  In fact, the donor can‘t receive any benefit from the gift – this is standard for any gift you want to deduct. It’s why you can’t deduct the full cost of the gala you went to last weekend but can deduct the cost of the ticket minus the expenses to the charity.  In the case of DAFs, you can’t buy the ticket with those funds at all, since you received a benefit (gala tickets) for your gift.

DAFs can be named for your family, or whatever or whomever you’d like.  You can name it your initials, or for your dog. That makes it difficult for charities to prospect, thank or steward gifts received from those who have DAFs, or even to know from whom their most recent donation arrived. 

Another challenge for our field is that there’s no requirement that money be given out. There’s also no requirement that the name of the donor be released. In fact, there are rules against their names being released. You read that right: a donor can park significant resources in a donor advised fund, which is then owned by the DAF sponsor, to be given out without attribution to the donor, at the donor’s leisure or not at all.  In all cases, the donor gets an immediate tax benefit.

Actual charities may get nothing. The government definitely gets nothing because it goes in and continues to grow tax free. No taxes get paid. The data  suggests that donor-advised funds have a net negative effect.

The only ones who consistently benefit is the donor and the fund owner, which may not actually be a charity at all, and likely will be a for profit company managing a “nonprofit spin off.”  Here’s the Chronicle’s explanation “Much of the criticism is directed at Fidelity Charitable and other sponsors of donor-advised funds that are nonprofit spinoffs of financial-service firms. These organizations typically pay their for-profit parent to manage the money in the funds, which means they have a financial incentive to accumulate assets and hold onto them.”

How it works is this: A donor sets up a donor advised fund, either at a community foundation, or at a for-profit company that manages “a charitable institution.” The word charity is used in the loosest way, meaning under the law it’s a charity, but in reality it provides no services other than as a vehicle to house funds which will be given out at a later date, maybe. It will generate annual fees for the sponsoring institution, often but not exclusively a for profit entity, in perpetuity.

That’s part of the challenge for the nonprofit field, and the government. DAFs take huge amounts of money out of the economy, and out of the charity designation pot each year that actual charities providing real services may never see. Unlike foundations, there’s no distribution rules. Even the DAFs housed in foundations have no distribution requirement.

In other words, you could sell a business for $100 million today and put some portion of that money in a donor advised fund.  You would get an immediate tax deduction and the donation could sit there … in perpetuity.

Those who are fans of Donor Advised Funds will argue that money is given out. They say that even more money is given out because of DAFs. But because most of the giving, the “owning” and the management of donor advised funds is done in secrecy, we don’t really know. The only thing that is reported is the amount of aggregate gifts given to actual charities by the institution. So it’s possible – and even likely – that one DAF giving significant (and actual) gifts is providing cover for the other funds providing no benefit to the community, and only benefit to the donor and the institution managing the DAFs.

A smaller challenge is that many agencies don’t know how to properly thank donors who send gifts from donor-advised funds.  Because they may not understand that the gift came from a DAF, meaning the deduction has already been granted, they may send a letter with tax deductible language. The donor may not notice when the letter comes in but totally notices when they’re trying to figure out their taxes at the end of the year.

To be clear, there is a fairly significant section of nonprofit leaders who like Donor Advised Funds and many leaders do not care from whom the money comes or by what vehicle it arrives, as long as it comes.  Some will say, and they will be right, that if you know your donors, you know who has a DAF and this is not a problem.  Is that true? Sometimes. 

It’s critical nonprofits know from whom they’re receiving gifts.  There are too many instance of charities taking money from people or companies who later embarrassed them, or publicly compromised their principles or values. If you don’t know, you can’t protect your organization.

Still, some leaders love DAFs.  Of course, leaders of community foundations love them.  Community Foundations are a huge holder of DAFs.  I appreciate that and if you insist on starting one, please consider the community foundation in your area. 

There are even some charities who have started managing DAFs themselves.  Many of the big nonprofits have started their own, often aligned with their organizational values and with a requirement that a portion of the funds go to them. Still, the charities and the community foundations don’t come close to the big companies.

As far as charitable recipients, Fidelity Charitable is at the top, coming in at #1 for the second year running and in the second spot for the five preceding years of charitable data. DAFs are so significantly represented that a full 50% of the top 10 recipients of charitable funds in 2017 are sponsors of funds and not community serving, program providing, (actual) charities.  One is a community foundation. 

The six largest recipients of charitable gifts are housing but not spending that money! That money is only benefiting the holder by accruing interest and fees for the institution. It is not immediately, or possibly ever going to an actual charity doing meaningful work in a community.

I fear Donor Advised Funds will eventually preclude our ability to do our work and affect change for our communities.

The DAF debate is happening at the same time that the field and the world is beginning to challenge status quo of philanthropy. 

The following questions are currently being discussed:

When does being donor focused come at the expense of the mission, clients or community?

Should deductions be tied to community need?

Does the current model of philanthropy promote inequity?

How do nonprofits distinguish themselves in a world of social enterprise?

Does big philanthropy reinforce the inequity it purports to address?

What’s your take on DAFS? Are you asking, and how do you answer the questions listed?  I welcome your feedback, insight and experience.  A rising tide raises all boats.