Presenter: Gene McCarty

Commission Agenda Item No. 6
Action
Nonprofit Partners, Employee Fundraising, and Youth-Appropriate Advertising
January 2002

I. Discussion: Senate Bill 305, 77th Legislature, (Sunset) requires the Parks and Wildlife Commission to promulgate regulations governing best practices for nonprofit partners of the department, requirements for nonprofit partners to comply with specified state standards and safeguards for accounting for state assets, and guidelines for the solicitation and acceptance of sponsorships from private entities by the official nonprofit partner. The Act further requires the Commission to adopt guidelines for the solicitation and acceptance of gifts of greater than, or equal to, $500 in value by department employees, and the types of advertising appropriate for viewing by youth.

Staff filed the proposed rules with the Texas Register which were published on December 14, 2001 issue for 30-day public comment (26 TexReg 10228). As of this writing, comments on these proposals were still being received. A summary of the comments will be provided at the presentation.

II. Recommendation: Staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts new 31 TAC §§51.165 - 51.168 (located in Exhibit A), concerning nonprofit partners, employee fundraising, and youth-appropriate advertising as published in the December 14, 2001 issues of the Texas Register (26 TexReg 10228).”

Attachments – 2
1. Exhibit A – Nonprofit Partner Policy Proposal Preamble
2. Exhibit B – Fiscal Note (Available upon request)


Commission Agenda Item No. 6
Exhibit A

Nonprofit Partner Policy
Proposal Preamble

1. Introduction

The Texas Parks and Wildlife Department proposes new §§51.165-51.168, concerning Nonprofit Partners, Sponsorships, Employee Fundraising, and Youth-appropriate Advertising. The new rules are necessary to comply with the provisions of Senate Bill 305, enacted by the 77th Texas Legislature, which require the commission to promulgate regulations governing best practices for nonprofit partners of the agency, guidelines for the solicitation and acceptance of sponsorships from private entities by the official nonprofit partner, guidelines for the solicitation and acceptance of gifts of greater than $500 in value by department employees, and the types of advertising appropriate for viewing by youth.

New §51.165, concerning Best Practices of the Official Nonprofit Partner, will function by establishing best practices criteria recommended by the Sunset Advisory Commission. The criteria will formalize the interactions among the agency, nonprofit partners, and the official nonprofit partner and standardize the policies and procedures used by each in cooperative furtherance of the agency’s mission. The purpose of the proposed new rule is to more clearly separate agency functions from private functions, provide for greater public accountability, and prevent the potential perception that conflicts of interest might exist in the absence of clear guidance.

New §51.166, concerning Sponsorships, will function by establishing protocols for solicitation and acceptance of financial contributions on behalf of the agency by nonprofit partners in exchange for public recognition of the sponsors’ involvement in furthering the mission of the agency. The purpose of the new section is to ensure that in the process of supporting and furthering the agency’s mission, sponsorship agreements between the nonprofit partner and private entities do not either detract from the agency’s mission or create the perception that the agency’s legislative and regulatory obligations are in any way being compromised.

New §51.167, concerning Employee Fundraising, sets forth the requirements for solicitation and acceptance of gifts equal to or greater than $500 in value by department employees and department employees acting on behalf of a nonprofit partner. The purpose of the new section is to track and record the activities of publicly funded fundraising efforts to ensure that the agency is in compliance with S. B. 305.

New §51.168, concerning Youth-appropriate Advertising, limits advertising that is appropriate for youth viewing to those advertisements that do not include alcohol or tobacco products.

2. Fiscal Note.

Emily Armitano, Policy Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to the department and no fiscal implications to other units of state and local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Ms. Armitano also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the conduct of cooperative interaction between public and private entities for the public good in a transparent and accountable manner.

(B) There will be a no effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Emily Armitano, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4682 or 1-800-792-1112 extension 4682 (e-mail: emily.armitano@tpwd.state.tx.us)

5. Statutory Authority.

The rules are proposed under Parks and Wildlife Code, Chapter 11, Subchapter J, which requires the commission to adopt rules governing best practices for nonprofit partners of the agency, and guidelines for the solicitation and acceptance of sponsorships from private entities by the official nonprofit partner. The rules are also proposed under Parks and Wildlife Code, Chapter 11, Subchapter B which requires the commission to adopt rules relating to guidelines for the solicitation and acceptance of gifts equal to or greater than $500 in value by department employees and the types of advertising that are appropriate for viewing by youth.

The proposed rules affect Parks and Wildlife Code, Chapter 11, Subchapters B and J.

§51.165.Best Practices of the Official Nonprofit Partner (ONP).

(a) Composition of the board.

(1) The Presiding Officer of the Texas Parks and Wildlife Commission shall appoint a majority of board members.

(2) Current TPW employees will not be eligible to serve as voting members of the Board.

(b) General provisions. The official nonprofit partner (ONP) shall:

(1) adopt a conflict of interest policy that precludes board members from benefiting financially from any business decision of the ONP;

(2) publish an annual report each year and make it available to the general public; and

(3) make its current IRS 990 return, its annual audit, and a copy of its application to the IRS for exempt status available to the general public upon request.

(c) TPW employee involvement.

(1) No TPW employee shall hold a paid position with the ONP nor will any employee receive direct personal benefits from the ONP.

(2) The ONP may, however, reimburse TPW employees for legitimate, documented expenses. Additionally, the ONP may award scholarships to TPW employees from private, donor-directed sources.

(3) A TPW employee soliciting or accepting gifts or donations of equal to or greater than $500 in value on behalf of the ONP shall comply with the provisions of §51.167 of this title (relating to Employee Fundraising Activities).

(d) Accounting and Reporting.

(1) The ONP shall adopt financial procedures that govern acceptance of and access to:

(A) donor-restricted funds;

(B) unrestricted funds; and

(C) state funds. All state funds will be spent in support of TPW-established priorities.

(2) TPW employees shall not directly spend or obligate ONP funds. The ONP and its employees will control all expenditures.

(3) An independent accounting firm shall audit the ONP annually. A copy of that audit shall be sent to the TPW executive director. Any state funds received by the ONP shall be subject to audit by the State Auditor’s Office.

(e) Compliance with state and federal requirements.

(1) Expenditures of state funds by the ONP for a TPW project shall meet all applicable state and federal requirements governing TPW spending.

(2) State funds held by the ONP shall be subject to investment according to Government Code, Chapter 2256. State funds held by the ONP shall be invested by competent investment professionals to yield the highest returns possible.

(f) Sponsorship. When consistent with the mission of TPW, the ONP may solicit and accept corporate sponsorships. The ONP shall follow the criteria set forth in §51.166 of this title (relating to Sponsorships) when seeking, accepting, and administering corporate sponsorships. Any interested party may submit a proposal for consideration. Sponsorship opportunities that include endorsements shall be made available to the public. All sponsorship proposals shall be given equal consideration.

(g) Lobbying. The ONP shall not use state funds to influence legislative action either by the ONP or by others funded by the ONP with state funds.

(h) Review. Not later than three years following the selection of an ONP by the commission, the commission shall assess whether the purposes for which the ONP was created still exist, if the ONP is serving those purposes, and if the ONP is still needed.

(i) The provisions of subsections (b), (c)(1), (c)(2), (d), and (e) of this section shall also apply to nonprofit partners as defined in Parks and Wildlife Code, §11.201.

§51.166.Sponsorship Requirements.

(a) The Official Nonprofit Partner (ONP) shall not accept sponsorship from any company or entity that has been determined by TPW to conflict with either the department’s mission or any legislative mandates.

(b) The ONP shall not accept sponsorship from any company or entity that is regulated by or in litigation with the department at the time of consideration. This does not prohibit accepting sponsorships from the holder of a noncommercial hunting or fishing license, or a license issued under Parks and Wildlife Code, Chapter 43, Subchapter D or F, or Parks and Wildlife Code §47.004.

(c) The ONP shall not agree to any sponsorship that would result in the role of TPW being less prominent than that of the sponsor.

(d) Sponsor recognition shall be solely in the context of the TPW program, event, or material that the sponsor has supported with a financial or in-kind contribution.

(e) Sponsor recognition shall be permitted only when the financial or in-kind contribution is greater than the costs associated with providing said recognition.

(f) Recognition shall not include signage of any kind on state-owned motor vehicles or trailers.

(g) The level of recognition accorded to a sponsor shall be based upon one or more of the following criteria:

(1) the level of contribution as a percentage of the total funding required to execute or produce the program, event, or material;

(2) the level of contribution as a percentage of total sponsorship dollars received;

(3) the scope of exposure (e.g. statewide, regional, local, or a single location); and

(4) the duration of exposure (e.g. one day, one month or one year).

(h) The Texas Parks and Wildlife Executive Office (EO) will approve levels and terms of recognition on a case-by-case basis, based on the criteria in subsection (g) of this section. The duration of any sponsorship arrangement must be clearly defined prior to approval by the EO. Multi-year agreements must be authorized by the EO, but may be renewed annually.

(i) A Sponsorship Recognition Report must be prepared by the ONP and submitted to the EO for all sponsors whose total financial contributions are valued at $10,000 or more in a calendar year.

(j) Payment of sponsorship financial contributions shall be made directly to the ONP. Agreements that were signed prior to the effective date of this section are not subject to the provisions of this section; however all renewals of sponsorship agreements following the adoption of this section shall comply with the provisions of this section.

§51.167.Employee Fundraising Activities.

This section applies only to the solicitation or acceptance of a gift equal to or greater than $500 in value by a person employed by the Texas Parks and Wildlife Department.

(1) An employee may solicit and accept a donation or gift in accordance with this section as a part of their officially authorized duties.

(2) An employee authorized to solicit or receive a gift or donation under this subchapter shall maintain an accurate record of all such activities undertaken at state expense, and shall forward such records quarterly to the executive director or his or her designee.

(3) An employee whose job duties include regulatory oversight of a business organization or other entity may not solicit or accept a gift or donation on behalf of the department from that entity. This does not prohibit soliciting or accepting a gift or donation from the holder of a noncommercial hunting or fishing license or a license issued under Parks and Wildlife Code, Chapter 43, Subchapter D or F.

(4) No employee may solicit or accept a gift or donation as a consequence of administering or enforcing state law or a department regulation or policy.

§51.168.Youth-appropriate Advertising.

Advertising that is appropriate for youth viewing, within the meaning of Parks and Wildlife Code, §11.0172(c), means advertising that does not include any alcohol or tobacco products.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on November 30, 2001.

TRD-200107452

Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department

Earliest possible date of adoption: January 13, 2002

For further information, please call: (512) 389-4775


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