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August 2, 2005
Air America: Another Legal Consultation

Earlier, New York attorney Eric Costello reviewed the known facts and allegations surrounding the scandal at Air America and gave us his trenchant observations. He laid out the possibilities for legal action and criminal investigation, if the reporting from the New York Sun and the blogosphere proved correct. In a follow-up e-mail, he reviews the applicable laws in more depth and points out where Air America and Gloria Wise might face some tough scrutiny, assuming Eliot Spitzer ever decides to get involved.

Further to my email of this morning, I had a bit of free time on my hands, so I went spelunking into the various areas of New York State laws and regulations regarding not-for-profits. A few items of interest turned up, which I pass on to you for whatever you think it's worth. You may quote me on this.

In this email, "EL" stands for the Executive Law, "NPCL" stands for the Not-for-Profit Corporation Law, and "NYCRR" stands for the New York Code of Rules and Regulations (i.e., New York's equivalent of the CFR).

In no particular order:

(1) Investments

I did find out that Section 512 of the NPCL, entitled "Investment Authority," fairly broad discretion in the types of investments that not for profits may make. BUT --

Section 717(a) of the NPCL imposes duties on directors and officers with regard to this power, as follows:

"In the administration of the powers to make and retain investments pursuant to section 512 (Investment authority) [...], a governing board shall consider among other relevant considerations the long and short term needs of the corporation in carrying out its purposes, its present and anticipated financial requirements, expected total return on its investments, price level trends, and general economic conditions."

So query if the investment by Gloria Wise in Air America was subject to this analysis, and whether it met any of these tests. In particular, did the investing of hundreds of thousands of dollars in an unliquid enterprise have an impact on the needs of the corporation? Given that Wise, it seems, has gone bust, that's an interesting question.

(2) Reports

Section 172-b of the EL requires various types of reports to be filed annually with the Attorney General. Depending on the levels of gross revenue and support, there are different requirements. Assuming Gloria Wise had gross revenue and support of >$250,000 in any fiscal year, that would require them to file, by the 15th day of the fifth month after the end of their fiscal year (whenever that is -- check their bylaws), an annual financial statement with audited financials from an independent certified public accountant, with audit report. The president and chief fiscal officer have to certify, under penalties of perjury, that the financial statements are true and correct to the best of their knowledge. Rather like a corporation filing with the SEC.

Some of the specifics about these annual financial reports can be found in 13 NYCRR Part 92.3. Among other things, even if the registrant doesn't file an IRS 990 with the IRS, they must file it with the NYAG (Part 92.3(b)(2)).

Bottom line: just as with Enron's 10-Ks filed with the SEC, there's stuff filed under oath out there that we, the public, can look at. See next item. What kind of disclosure there will be regarding related party transactions, the terms of the note(s), default(s), would be interesting to know.

(3) Public availability

13 NYCRR Part 100.1 says very specifically:

"Unless otherwise exempt from disclosure pursuant to State or Federal law, [...] financial reports and other documents required to be filed pursuant to [...] Article 7-A of the Executive Law become public records of the Attorney General."

Section 172(b), cited above, is part of Article 7-A of the EL.

13 NYCRR Part 100.2 says:

"Copies of all [...] annual financial reports and other documents filed with the Attorney General and not exempt from disclosure pursuant to State and/or Federal law shall be open to public inspection subject to the following requirements:

(a) A request for inspection shall be made in writing and shall include the name and address of the person seeking the inspection.
(b) Such inspection shall be subject to the applicable provisions of Article 6 of the Public Officers Law.
(c) Such inspection shall at all times be subject to the supervision and control of the Attorney General or his assistants.
(d) The Attorney General is authorized to charge a reasonable fee for copying and postage.
(e) Filings may be inspected, by prior appointment, at the offices of the Charities Bureau during regular business hours or will be mailed to the requestor upon payment of all copying and postage fees."

Bottom line: anyone can ask for Wise's financials. Including the MSM.

(4) Spitzer Nastygrams

The NYAG, under Section 175 (2)(e)(i) of the EL, can take action "in the name and in behalf of the people of the State of New York" if an organization:

has failed or is failing to apply the funds solicited from the public in a manner substantially consistent with its charitable purposes or solicitation

Even more interesting, the NYAG can take action to enforce Section 172-d(1) of the EL, which prohibits making:

any material statement which is untrue in [...] [a] financial report or any other forms or documents required to be filed pursuant to [Article 7-A of the EL]; or fail to disclose a material fact in [...] [a] financial report [...]

Bottom line: the NYAG has no shortage of nasty questions to ask the directors and officers of Gloria Wise. Should he feel the urge, naturally. Where this would lead is another Good Question.

All of this, I hope, is of interest to you and your other readers, who might decide they'd like to do a little investigating on their own. I believe the NYAG still has offices at 120 Broadway in New York City.

If you happen to find yourself in the neighborhood, why not drop by AG Spitzer's offices and ask them why they haven't yet taken a look at the shenanigans at Gloria Wise.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at August 2, 2005 12:45 PM

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