Guest Blog Spot: Kelvin L. Spragley, Ph.D., M.Ed., B.S., A.A.
I get a lot of questions about non-profit businesses. So, I decided to turn to an expert. I’ve known Dr. Spragley for several years and he’s my go-to guy when it comes to questions about non-profits, education, programs, and advocacy groups. I’ve asked, and he generously agreed, to provide some thoughts on the topic of starting a non-profit. Enjoy!
So you want to start a “Non-Profit” business?
During the 15 years I have been involved with managing and/or providing services to non-profit organizations, there have been numerous encounters with individuals who have voiced an interest in establishing a non-profit. While there is great work to be done in the United States in areas such as eradicating poverty, tutoring at-risk, ending cancer, and a variety of other well-intentioned endeavors, there are a few items that non-profit entrepreneurs should keep in mind.
The first step in pursuing non-profit status is the task associated with completing the appropriate paperwork. While each state has its respective documents to complete, in order to achieve federal 501 (c) (3), non-profit status, individuals will need to complete IRS Form 1023. The application is approximately 30 pages in length and requires one to create bylaws, list board members, and outline program activities (amongst numerous other requirements). A major problem that many applicants experience is not making clear potential conflicts-of-interests between the organization, board members, program recipients, and vendors. In order to insure that no business or individual is benefiting unfairly, applicants should strongly consider that an attorney review the document prior to submitting it to the IRS.
Consider also the rules surrounding how a non-profit accrues revenue and the guidelines that dictate proper expenditures. As an example, individuals who operate a non-profit organization must make clear to the IRS if funds are being raised by a separate business or if gaming (Bingo, etc.) is a method of increasing revenue that will be used by the company. Note also that non-profit owners cannot spend funds on items that do not help them in meeting their organization’s objective. I have seen too many applications that do not make clear these distinctions. Consulting with an attorney and accountant, during and after the non-profit set-up process, is the best way to make sure an organization’s internal processes meet IRS regulation standards for revenue and expenditures.
Arguably, the most important issue owners of non-profits must be mindful of is the act of reporting. At the conclusion of each fiscal (financial) year, managers of non-profit organizations must submit a financial report outlining their revenue, expenditures, program/policy changes, or any change impacting the operation of the organization as reported to the IRS in the previous 12 months. Failure to submit this report can have severe consequences, from making it difficult to receive funds from donors or losing non-profit status completely. In 2011, the IRS noted that more than 300,000 non-profits lost their 501 (c) (3) status as a result of failing to file a report over a 3 year period.
To conclude, I would recommend anyone seeking to setup a non-profit business to consult with an attorney or someone with experience in the 501 (c) (3) arena. This will save you time (and heartache) in the long run.
Dr. Spragley and his associates can be contacted at The Spragley Group at http://www.spragleygroup.com
- Former IRS Director on Shadowy NonProfits: Investigate and Prosecute Them (crooksandliars.com)
- To Profit or Not to Profit? (coffeewithkath.wordpress.com)
- Group Challenges Different Treatment By IRS of Religious and Non-Religious Groups (jonathanturley.org)
- TurboTax – Charitable Contributions You Think You Can Claim but Can’t (turbotax.intuit.com)
- Non-Profit or For-Profit: The Social Entrepreneurs Dilemma (triplepundit.com)
Every day I’m in court, I see people struggling with not knowing what to do, where to go, or what to say. Even the attorneys. As a new attorney, I was fortunate enough to have a friend to show me around and give me the do’s/don’ts. Here’s a quick (ha!) guide to some of the basics.
I’m going to divide this post into a few sections: (1) What everyone should do, (2) What to do if you’re charged, (3) What to do if you’re an attorney. This article will focus on misdemeanor, traffic, and infraction issues. If you’re charged with a felony, you’re likely in custody or will be contacted by law enforcement (in which case you won’t need this article!).
What everyone should do
If you know that you need to attend district court in Wake County, there’s a few things you should know and do beforehand and on the day of the court appearance.
- Know what they tell you to expect: Go to http://www.nccourts.org/ and read the information under the section “Going to Court” (right in the middle of the page (or at http://www.nccourts.org/Citizens/GoToCourt/Default.asp)
- Know when/where to go: Still on http://www.nccourts.org/, go to “Criminal Court Dates” on the right-hand sidebar. Enter the defendant’s (person being charged) last name and select Wake County from the drop down menu. Click “Submit Query.” When the list comes up, find the right name and note the court date, the courtroom, the case number, and the session. You should check this site every week or so until the court date, then check again the day before and the night before the court date (the dates, locations, and sessions have been known to change). You can also visit the Clerk of Court‘s office.
Here’s a key to what you’ll find:
- Court rooms start with two zeros (example “002c”). The first number is the floor of the court room your case has been assigned to. The letter is which court room on the floor your case is assigned to. So, if it says 002c, you’ll be on the 2nd floor, court room C. They’re often referred to without the two zeros (example, you’ll here it referred to as “courtroom 2c”).
- WCCH means Wake County Court House
- AM/PM means which “session” of court your case is assigned to. The court has two sessions one starting at 9a and one starting at 2p.
- Courtroom 001 or 001a is special. This is so-called “disposition court.” In Disposition Court, you may show up anytime between 9a and 3p and have your case heard by the judge presiding over the courtroom. You may also speak with the prosecutor to try and resolve your case. Disposition Court is reserved for minor infractions and items that can be “disposed of” quickly with little discussion. You may find that you start out in Disposition Court and have your case moved to a different court on a different day/date if there’s something more than a basic charge.
Some other things to know about the Wake County Court House
- It’s downtown. That may seem obvious, but there it is. It can be hard to get to and parking is not always easy. If this is your first time, plan to get to the courthouse AT LEAST 1/2 ahead. You’ll need the time to find parking and walk to the courthouse.
- There’s a metal detector at each door. Anything confiscated at the metal detector will not be returned. Leave that pocketknife your son gave you at home.
- The elevators are antiquated and slow. Expect to be waiting a bit for the elevator. If you’re just going to the 2nd floor, or maybe even the 4th floor, take the stairs – it’ll be faster.
- The Clerk of Court (Criminal Division) is on the 1st floor. If you really don’t know what to do, go there first and plan some extra time (there’s often a wait and they don’t open until 8.30a).
What to do if you’re charged
If you’re the one charged (i.e. received the ticket/citation or the one called to the court), well, bummer. But beyond that here’s what you need to know/do on your court date:
- Plan the time: If you’re supposed to be in court, plan to spend the better part of the day there (even if it says 9a or 2p – they all say that). If your case is in the afternoon, you may not get out until 6 or 6.30p. If you’re supposed to be there for the morning, plan on being there from 8.45a until 12.30 or 1p. If you get done early, great – it’s a bonus, but there are few things that the court likes less than a defendant that leaves while their case is pending.
- Know where you’re supposed to go: you can check the website and the Clerk’s office. Additionally, there’s a “calendar” sheet outside each court room that lists the cases that will be heard in that court. Check all of them until you find your name – that’s your court room.
- Dress well: You don’t have to be in your “Sunday best,” but most judges take the court very seriously and expect you to show the court respect. For men, that means shirt tucked in (don’t laugh, I’ve heard of a judge giving someone 20 days in jail for not tucking their shirt in – now, that guy had a n attitude about it, but still…). If you can swing it guys, also try to wear long pants, socks, shoes-that-aren’t-flip-flops, and a collared shirt. No hats in court. For ladies, skirts or pants (even shorts generally) are fine. If you can ladies, go with something conservative – try to avoid halter, tube, or other revealing tops, flip-flops, and miniskirts. For men and women: NO shirts with rude or offensive sayings (I once heard of a defendant called before the judge, his t-shirt said “F%^& the Police,” the judge was not amused).
- Act well: Use your “yes sir,” and “yes ma’am.” If you have to talk during court, quietly go out into the hall to have your conversation. TURN YOUR CELLPHONE OFF (or at least to silent). I’ve seen cellphones confiscated during court and people admonished by the judge (probably didn’t help their sentence much either) for their phones going off in court.
- Be prompt: (in courtrooms other than 001) If your court session is at 9a, be there by 8.45a. If your court session is at 2p, be there at 1.45p. One of the first things that will happen in court is that the prosecutor will “Call the Calendar.” They will call the name of each defendant for that session. If you’re not there when your name is called, there’s a chance you will be marked absent (referred to as a “Failure to Appear“), which can lead to a warrant for your arrest. When the prosecutor Calls the Calendar, they’ll give you instructions on how to answer. If you have an attorney, DO NOT expect them to be there right at Calendar Call (it works a little different for attorneys).
- Be patient: Your case is probably the most important thing in your life, unfortunately the court has 50+ other cases to deal with that session, so you’re one of many. Also, the judge (believe it or not) and the prosecutors (believe it!) are underpaid and overworked (aren’t we all), but you *really* don’t want to make these folks mad. So, be patient, they will get to everyone, it just may take a while.
- Do not worry about the commotion: Typically, after the calendar call, there will be a bunch of attorneys talking to the prosecutor(s), there will be people being called up to the judge or to the prosecutor, the prosecutor may be talking to law enforcement officers, etc. Believe it or not, there’s a plan and a system. They’ll get to everyone (eventually). Some judges like to deal with pro se (meaning, defending yourself – no attorney) cases first, some like to deal with the attorneys first.
- When you’re called up to the prosecutor: They’re going to ask you “what do you want to do with your case today?” Do not say “I want to get this dismissed.” Instead, *briefly* explain the situation (4 sentences or less) and ask if they are willing to reduce the charge. Here’s the bad news: they almost never dismiss the charge outright. But, if you’ve fixed the issue (like lack of auto insurance), they’ll probably be willing to work with you. They may offer you something less than what you were charged with. However, they *can not* tell you if you should take the offer or what you should do. Prosecutors are strictly prohibited from offering legal advice to defendants – in some cases it can get them fired or cause them to lose their law license.
- When you’re called up to the judge: Come around the benches and stand in front of the judge. Do not talk over or interrupt the judge or the prosecutor. If you don’t understand something, ask. Be sure that you say “I don’t understand” or “can you explain.” DO NOT argue with the judge (“Well, I was told that…” or “You don’t understand that…” never go over well). The judge may ask you a few questions and will have you speak to the clerk sitting next to the judge. The clerk will give you some documentation (typically including a cost sheet, if you have to pay court costs or a “waiver” if you’re not asking the court to appoint an attorney).
- After you get your case decided: Go to the cashier on the 1st floor and pay your fine, court costs, etc. You must pay this by 5p the day of court. You can ask the judge for additional time to pay, but this will also require a $25 administrative fee to be added to your costs. The cashier does not accept checks or credit cards. Your only options are cash or money order (there’s an ATM in the courthouse lobby).
What to do if you’re the attorney
First, if you’re defendant and you’re still reading this, stop this section isn’t for you. The rules and procedures that apply to lawyers are different than for the general public – even those who are defending themselves.
- First, relative to many of the more rural court houses (and similar to counties like Mecklenburg), the courthouse is enormous. The Criminal Clerk of Court is on the 1st floor, the Civil Clerk of Court is on the 11th floor, unless you need Probate/Estates, which is on the 12th floor. The building itself is over capacity. The elevators are slow and the stairs get crowded. The a/c is not great and there is little or no cellphone reception in the misdemeanor court rooms. Parking is bad, plan on walking at least a couple of blocks to get to the court house. Also, unlike some county courthouses, *everyone* has to go through the metal detectors – even the attorneys.
- The misdemeanor court rooms are on the 1st (for Disposition Court, see above), 2nd (most of the court rooms and volume), and 5th (for DUI and special cases) floors. Find your clients court room like it says above. If your client is scheduled to be in two different court rooms on the same day or the same session, you need to “Gold Sheet” the cases together (It’s called a “Gold Sheet” because the paper *used to be* gold colored). You can get a Gold Sheet from any of the clerks in any of the court rooms, you have to fill it out starting with the “to” court room. Fill out the form and have the “receiving” judge and prosecutor sign the sheet, then go back to the “from” court room and have the “sending” judge and prosecutor sign the sheet, then hand it to the clerk and she’ll give you the file to take to the “to” court room.
- The files (if you’re not familiar with the colloquial) are referred to as shucks (as in, “have you pulled the shuck?” not as in “look at all these cases, aww shucks.”). The shuck is the official file of the courthouse and they take its movement out of the court room very seriously (due to some previous history in this particular courthouse).
- Before the calendar call (or anytime during the session), you can enter the court room, pass the gallery and proceed through the gate. Have a seat at the bench behind the tables (use this opportunity to get “the lay of the land” re: judge, prosecutor, other defense attorneys, etc.)
- At calendar call, the local protocol is “hold that open, please” or “hold that open for [insert your last name here], please”
- After the calendar call, the prosecutor or the clerk will arrange the shucks on the defense table. After they’ve finished, you can approach the table and pick out your shuck. After you have a chance to review the shuck, you’ll notice that lawyers start lining up to talk to the prosecutor-in-charge (there are generally two in district court, one for triage and talking to defendants; and one for agreeing to pleas and trials). Get in line. It could be a while before they get to you. Some prosecutors run a very smooth court keeping the judge fed shucks and moving the cases along. Some don’t. You’ll also note that the particular judge has a big impact on this (obviously), see also, the “be patient” above.
- Generally, you can approach the clerk at any time that they aren’t overwhelmed with what the judge is handing them and the defendant in front of them.
- Oh and get ready, in 2013 the courthouse is going to more than do
uble in size! Criminal court will be in the new building across Salisbury St, and civil court will take up the entire current courthouse.
Hope all that helps. Good luck!
- When DWI Conviction Dates Go Back in Time (blogs.wsj.com)
- Former Wake judge pleads guilty on altered DWI cases (newsobserver.com)
Ok, here’s another “bonus post.” This one is on the topic of Facebook and how it works versus how some people think it works.
I noticed a few people post a “status” in the last few days that starts something like
For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this…
Or something like that. It goes on:
PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated…” etc.
So let’s start analyze this:
- Nothing you post on your Facebook status/wall/etc. changes your fundamental rights or obligations with Facebook. The ownership of the content that you post on Facebook is governed by the Terms of Service (that’s why I – and any attorney I know – strongly recommend that you read the Terms of Service before you click “ok”). And, because this is a contractual agreement, you cannot unilaterally (meaning on your own without their approval) modify the agreement. “Ah!”, I hear you scream, “But Facebook makes changes all the time without MY approval!” Well, guess what, that’s in your Terms of Service. Facebook can make minor system changes, improvements, enhancements, etc without your express permission. Your recourse if you don’t like the changes? Don’t use Facebook.
So let’s think about the alternative… if what you posted on Facebook could modify the agreement, they would have to have an attorney (or someone) reading every post by every person ever to make sure that things haven’t changed. Not only is that patently ridiculous and no court would require them to do that, but you don’t want an attorney reading every post you ever made (attorneys with information and free time on their hands is a bad combination). Think of the trouble that would cause!
Lastly, legal issues aside, Stop Being Stupid on Facebook. Generally speaking, you have a right to protect your works (copyright) and ideas (trademark) and other intellectual property. However, that requires that YOU police others’ use or theft of that content and that you don’t knowingly give them express or implied permission to use your property. And, that also assumes that you know about the use/theft and that there’s an adequate remedy available. For example, imagine the Ridiculously Photogenic Marathoner (look it up), do you think he gave every website that used this picture express written permission to use the photo? Ok, who does he sue to enforce his rights? Everyone? He’d spend MILLIONS trying to recover a few dollars from each offender – totally not worth it, nor could he track down every single possible defendant.
Bottom line: if you don’t want it (at least potentially) available to anyone anywhere, don’t put it on the Internet. Not even Facebook.
Oh, one last thing: in the “notice” I saw posted by friends on Facebook, there was a citation to the UCC (the Uniform Commercial Code). The sections cited have NOTHING to do with topic of the posting. If you see something that quotes a law, rule, or regulation, look it up. Chances are, in cases like this, it’ll be immediately obvious that somethings amiss. Ar best, you’ll avoid looking like a doofus. At worst, you’ll know more than when you started.
- Posting Of Facebook ‘Privacy Notice’ Warning Is Completely Fake (inquisitr.com)
- Hoax Facebook Legal Disclaimer Goes Viral in Status Updates (valuewalk.com)
- Your Facebook “Privacy Notice” Is Unenforceable Nonsense (gizmodo.co.uk)
- I See You Asserted Your Privacy Rights on Facebook . . . (moolahlaw.com)
- Facebook Privacy Notice Is As Fake As It Gets (haudebaba.wordpress.com)
Ok boys and girls, today’s topic is one of my favorites: ”How the System Works” or “TV is not real.”
Do they have to handcuff you? Well, not necessarily. It’s standard procedure and they should do it unless the officer has a reason to believe handcuffs are not necessary or would cause harm to the person being arrested. For example, if you’re being arrested following an accident where your wrists were treated or injured, a note form the attending physician may be enough for you not to be cuffed. OF COURSE, they’re going to restrain you with handcuffs, chains, zip-ties, whatever, if you’re resisting or the officer(s) have reason to believe that you’ll hurt yourself or someone else.
They have to “read you your rights” when you’re cuffed right? Well, not necessarily. When you’re handcuffed, you’re not necessarily arrested. You might just be being “detained.” Even when you’re arrested, they don’t have to necessarily advise you of your rights right then. They don’t even need to tell you what you’re charged with – right then. You have a right to know what you’re charged with, but it is not necessarily an immediate thing – down at the police station may be fine. Oh, if you’re arrested, they have to advise you before they question you IF they want to use any thing you say during the questioning against you in court. Just because they can’t use it in court, doesn’t mean that they can’t use it. What you say – even when they can’t use it in court – may give them probable cause to, for example, add another charge, get a search warrant, charge someone else, etc.
I have the right to remain silent. All I’m gonna do is sit there. Well, not necessarily. According to a recent US Supreme Court case, you have to give the officers objective reason to believe that you’re invoking your right to remain silent. Either you need to say “I’m invoking my right to remain silent,” or somehow let them know that’s what you’re doing. Otherwise, SCOTUS says, NOT saying something may be construed as an answer to a question or a statement. How many of us have teenagers that don’t need to say anything to give us an answer? (typically an ill-advised one).
I have a right to a lawyer. Well, not necessarily. Only defendants with charges which carry a potential sentence of active jail time (and only over a certain threshold) have a right to counsel. Oh, and, just because you have a right to an attorney doesn’t mean its free. If you’re convicted, you still have to pay the attorney’s fees. Bummer.
Tune in for more “myths debunked” next time. Next time we’ll talk about bail!
In the meantime, check out our website at www.jslawcenter.com. Thanks!
- For examining the witnesses, the investigating officer need not disclose the purpose of examination of witnesses. If the investigating officer comes to the conclusion that the witnesses are acquainted with the facts of the case, then it is his statutory (nayayamargalu.wordpress.com)
- SCOTUS Upholds Pre-Jail Strip Searches for Everyone, No Matter How Minor the Offense (reason.com)
- Facing a DUI Charge? Here’s Some Helpful Advice (pevetolaw.typepad.com)
I have been writing about whatever strikes my fancy recently, but mostly of a legal sort. It occurs to me that doing so does drive home the passion, insight, (or discipline – quite frankly) of the writing and the topics.
A good friend suggested a simple way to address that particular problem is to put together an editorial calendar: what I’ll talk about and when. What a novel idea! It’ll seem like it was planned and everything!
So here is my shot at the editorial calendar moving forward (at least for a little while):
|April 30||All Things Beer-y|
|May 7||Business Law|
|May 14||Debtor/Creditor Law|
|May 21||Legal Basics (i.e. how the system works)|
|Jun 4||All Things Beer-y|
|Jun 11||Business Law|
|Jun 18||Debtor/Creditor Law|
|Jun 25||Legal Basics (i.e. how the system works)|
I’ll try to use this as a basic outline over the next several weeks. Let’s see if we can get into a rhythm of covering information that’s useful, somewhat detailed, and – at times, at least – fun.
Let me know what you think? Is this the right schedule? Sound interesting?
- 5 Keys to an Editorial Calendar that Keeps Your Content on Track (contentmarketinginstitute.com)