Title 128 · ORS Chapter 128

to 128.769 as the Attorney General requires. [1963 c.583 �15; 1971

Citation: ORS 128.610

Section: 128.610

128.610 to 128.769 as the Attorney General requires. [1963 c.583 �15; 1971 c.589 �10; 2003 c.576 �385]

�� 128.730 List of certain claims for exemptions from taxation to be provided Attorney General. Every officer, agency, board or commission of this state, receiving applications for exemption from taxation of any corporation, charitable trust or similar relationship in which the corporation or trustee is subject to ORS 128.610 to 128.769 shall annually file with the Attorney General a list of all applications received during the year. [1963 c.583 �16; 1971 c.589 �11]

�� 128.735 Attorney fees in action to enforce fiduciary or other duty. (1) In any suit or action against a charitable organization or charitable fiduciary to enforce any fiduciary duty or other duty arising under ORS 128.610 to 128.769 or to enforce any fiduciary duty arising under the common law, the court in its discretion may award the prevailing party reasonable attorney fees at trial and on appeal and, as part of costs and disbursements, reasonable investigative expenses and reasonable expert witness fees.

�� (2) If the Attorney General prevails, the attorney fees, costs and disbursements of the Attorney General may, in the discretion of the court, be a judgment against the responsible charitable fiduciaries, or may be paid out of the corpus of the trust. [1985 c.730 �2; 2007 c.571 �6; 2014 c.8 �5]

�� 128.740 [1963 c.583 �17; 1971 c.589 �12; repealed by 1975 c.388 �8]

�� 128.750 Uniformity of interpretation. The Charitable Trust and Corporation Act, ORS 128.610 to 128.769, shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1963 c.583 �19; 1981 c.593 �11; 1985 c.730 �14]

�� 128.760 Issuance of disqualification order by Attorney General; hearing request; legal effect. (1) The Attorney General may issue an order disqualifying a charitable organization from receiving contributions that are deductible as charitable donations for the purpose of Oregon income tax and corporate excise tax if the Attorney General finds that the organization has failed to expend at least 30 percent of the organization�s total annual functional expenses on program services when those expenses are averaged over the most recent three fiscal years for which the Attorney General has reports containing expense information. The calculation of program services expenses and total functional expenses shall be based on the amounts of program services expenses and total functional expenses identified by the organization in the organization�s Internal Revenue Service Form 990 return or other Internal Revenue Service return required to be filed as part of the organization�s report to the Attorney General.

�� (2) A charitable organization may request a contested case hearing within 60 days after notification from the Attorney General that the Attorney General proposes to issue a disqualification order under this section. Notwithstanding a finding that the charitable organization�s program services expenses fall below the minimum percentage specified in subsection (1) of this section, the Attorney General may decline to issue a disqualification order if the organization establishes:

�� (a) That the organization made payments to affiliates that should be considered in calculating the organization�s program services expenses;

�� (b) That the organization is accumulating revenue for a specific program purpose consistent with representations in solicitations; or

�� (c) Such other mitigating circumstances as may be identified by the Attorney General by rule.

�� (3) A disqualification order under this section remains in effect until such time as the charitable organization submits sufficient information to the Attorney General to demonstrate that the organization�s program services expenses meet the minimum percentage specified in subsection (1) of this section. A charitable organization may submit information under this subsection no earlier than one year after the disqualification order becomes final, and may not submit information under this subsection more than once each year after the initial submission is made. The information submitted under this subsection must include all Internal Revenue Service Form 990 returns, or equivalent Internal Revenue Service returns, filed by the organization after the disqualification order became final.

�� (4) A disqualification order under this section may not be issued to:

�� (a) A private foundation as defined in section 509 of the Internal Revenue Code, as in effect on October 7, 2013;

�� (b) A community trust or foundation operating as described in 26 C.F.R. 1.170A-9(f)(10) and (11), as in effect on October 7, 2013;

�� (c) A qualified charitable remainder trust described in section 664 of the Internal Revenue Code, as in effect on October 7, 2013;

�� (d) An organization that does not qualify to receive tax deductible contributions;

�� (e) An organization that is not required to file annual reports with the Attorney General;

�� (f) An organization that is not required to file an Internal Revenue Service Form 990 return or an equivalent Internal Revenue Service return;

�� (g) An organization that receives less than 50 percent of the organization�s total annual revenues from contributions or grants identified in accordance with Internal Revenue Service Form 990 or an equivalent form; and

�� (h) An organization that has been in existence for less than four years.

�� (5) When a disqualification order is issued under this section, the charitable organization that is the subject of the order does not qualify for and may not claim exemption from taxation under ORS 307.130 for the tax year following the tax year in which the order went into effect and subsequent tax years in which the order remains in effect. [2013 c.260 �2]

�� 128.763 Disclosure of disqualification required in solicitations; legal effect of failure to disclose. (1) When a disqualification order issued under ORS 128.760 to 128.769 becomes effective, the charitable organization named in the order shall provide a disclosure as described in this section in all solicitations made by the organization to persons in Oregon. The disclosure must clearly and conspicuously state that contributions to the organization are not deductible as charitable donations for Oregon income tax purposes. The disclosure also must appear in any written document provided to a donor acknowledging the donation or referring to the amount of the donation. The Attorney General may specify additional disclosure requirements by rule.

�� (2) Failure to provide the disclosures required by this section is a false or misleading representation for the purposes of ORS 128.886. [2013 c.260 �3]

�� 128.766 Publication of disqualified organizations on Internet; report to Department of Revenue. (1) When a disqualification order issued under ORS 128.760 to 128.769 becomes effective, the Attorney General shall publish on the Internet and otherwise make publicly available information identifying the charitable organization named in the order, the date that the order became effective and the date that the information was published on the Internet.

�� (2) At least once every year the Attorney General shall file a written report with the Department of Revenue that:

�� (a) Identifies all charitable organizations that are subject to disqualification orders during the period covered by the report;

�� (b) The date the disqualification orders became effective;

�� (c) The date that information required by subsection (1) of this section was published on the Internet for each order; and

�� (d) The methods by which the public can obtain a listing of charitable organizations that are subject to disqualification orders. [2013 c.260 �4]

�� 128.769 Rules. The Attorney General may adopt all rules necessary for the implementation of ORS 128.760 to 128.769. [2013 c.260 �5]

CHARITABLE SOLICITATIONS ACT

�� 128.801 Definitions for ORS 128.801 to 128.898. As used in ORS 128.801 to 128.898:

�� (1) �Charitable purpose� means any purpose to promote the well-being of the public at large, or for the benefit of an indefinite number of persons, including but not limited to educational, literary or scientific purposes, or for the prevention of cruelty to children or animals, or for the benefit of religion, rehabilitation services, public recreation, civic improvement or services which lessen the burdens of government.

�� (2) �Commercial fund raising solicitation� means the solicitation of funds for nonprofit beneficiaries, whether named or unspecified, through the sale of goods or services, whether the goods or services are delivered to a purchaser or donated to third parties, and where the solicitation is conducted by a commercial fund raising firm or commercial coventurer. If donors receive insubstantial items or other benefits in return for contributions, such a solicitation of funds is not a commercial fund raising solicitation if the items or benefits received are considered premiums and do not affect the deductibility of the contributions for federal income tax purposes. A solicitation is conducted by a commercial fund raising firm or commercial coventurer if the soliciting agents are under the direction and control of a commercial fund raising firm or commercial coventurer; the fact that the solicitors are paid by the beneficiary is of no consequence.

�� (3) �Commercial coventurer� means any sole proprietorship, partnership, corporation or any other legal entity, organized for profit or formed as a nonprofit mutual benefit corporation, who is regularly and primarily engaged in trade or commerce in this state other than in conjunction with the raising of funds for nonprofit purposes and who conducts commercial fund raising solicitations on an infrequent basis.

�� (4) �Commercial fund raising firm� means any sole proprietorship, partnership, corporation or any other legal entity, organized for profit or formed as a nonprofit mutual benefit corporation, who, for compensation or other consideration regularly conducts commercial fund raising solicitations.

�� (5) �Professional fund raising firm� means any sole proprietorship, partnership, corporation or any other legal entity, organized for profit or as a nonprofit mutual benefit corporation, who, for compensation or other consideration, manages or conducts the solicitation of funds, not including commercial fund raising solicitations, on behalf of any nonprofit organization.

�� (6)(a) �Solicitation� means any oral or written request for a contribution, including the solicitor�s offer or attempt to sell any property, rights, services or other thing, in connection with which:

�� (A) The name of any nonprofit organization is used as an inducement for making the contribution or consummating the sale; or

�� (B) Any statement is made which implies that the whole or any part of the contribution or proceeds from the sale will be donated to any nonprofit organization.

�� (b) �Solicitation� does not include the making of any request or appeal on behalf of a candidate, political committee or measure as defined in ORS 260.005, unless the appeal states or implies that contributions will be used, in whole or in part, for a charitable purpose or includes a representation that a ticket to an event may be donated by a contributor to the solicitors for use by another. [1985 c.729 �3; 1991 c.532 �1]

�� 128.802 Registration of professional fund raising firms required; fee; renewal; notice of change of information. (1) No person shall act as a professional fund raising firm with respect to the solicitation of funds in this state on behalf of any nonprofit organization unless the professional fund raising firm is registered with the Attorney General.

�� (2) Applications for registration or reregistration shall be in writing, under oath, on a form prescribed by the Attorney General and shall be accompanied by a fee in the amount of $250.

�� (3) The application shall contain such information as the Attorney General shall require and which is consistent with ORS 128.801 to 128.898, including:

�� (a) The address of the principal place of business of the applicant and any local addresses if the principal place of business is not located in the state.

�� (b) The form of the applicant�s organization.

�� (c) The names and personal addresses of all principals of the organization, including all officers and all persons who own a 10 percent or more interest in the organization.

�� (4) Each registration is valid for one year and may be renewed for additional one-year periods upon application to the Attorney General and payment of the registration fee.

�� (5) The Attorney General shall be notified in writing of any change in the information contained in the application within seven days after the change occurs. [1991 c.532 �17]

�� 128.804 Fund raising notice; contents. (1) Prior to each solicitation campaign to be conducted in this state, where the services of a professional fund raising firm are employed, the firm shall file a completed fund raising notice on forms prescribed by the Attorney General. A copy of the written fund raising plan, described in ORS 128.807 and a copy of the written disclosure, when required by ORS 128.809, shall be attached to the notice.

�� (2) The fund raising notice shall be in writing, under oath, and shall include a description of the solicitation campaign, the projected starting date of the campaign, a description of the role of the firm, the bank account number and location where the solicited funds will be deposited, including the name of the organization or organizations that control the account and the address and telephone number of the headquarters for each campaign if different than the principal place of business identified on the firm�s registration form, as well as the person in charge of each such location. If the solicitation is being conducted by agents of the firm, the notice shall include a provision affirming that the solicitation material has been approved by the nonprofit beneficiary. [1991 c.532 �18]

�� 128.805 [1971 c.589 �14; 1981 c.593 �12; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.806 [1985 c.729 �4; repealed by 1991 c.532 �26]

�� 128.807 Required submission of financial plan to nonprofit beneficiary. (1) A professional fund raising firm shall not participate in a solicitation campaign in this state without first submitting a written financial plan to the nonprofit beneficiary. A nonprofit organization, utilizing the services of a professional fund raising firm, shall not solicit in this state unless it has obtained such a written financial plan from the firm. The written financial plan shall provide a good faith projection of the total expenses and revenue for each solicitation campaign contemplated by the agreement with the nonprofit beneficiary.

�� (2) In the case of solicitation campaigns which are directed at targeted individual donors, such as in telemarketing or direct mail solicitations, the plan shall specify whether each campaign is directed toward new donor acquisitions, individual donor renewals or some combination thereof. [1991 c.532 �19]

�� 128.809 Required disclosure of agency by solicitors. No person shall engage in an in-person solicitation as an agent of a professional fund raising firm, including a face-to-face or telephone solicitation, unless it is disclosed orally in the course of the solicitation but prior to asking for a commitment for a contribution from the solicitee, and in writing to any solicitee that makes a pledge to be delivered within 10 days of the date of the pledge that the solicitor is operating under the direction and control of a named professional fund raising firm. [1991 c.532 �20]

�� 128.810 [1959 c.599 �1; repealed by 1967 c.359 �704]

�� 128.811 [1985 c.729 �5; repealed by 1991 c.532 �26]

�� 128.812 Required submission of financial report after campaign. Within 90 days after a solicitation campaign has been completed, unless funds are to be collected by the nonprofit beneficiary, the professional fund raising firm shall file with the Attorney General a financial report for the campaign, including gross receipts and all expenditures incurred in the solicitation campaign. The report shall be completed on a form prescribed by the Attorney General. The report shall be signed by an official of the professional fund raising firm and an official from each beneficiary and they shall certify, under oath, that it is true to the best of their knowledge. A similar interim financial report shall be filed one year after the start of the solicitation campaign in the case of a solicitation campaign still in progress on that date. [1991 c.532 �21]

�� 128.813 [1975 c.388 �2; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.814 Presumption of breach of fiduciary duty by officer or director of nonprofit beneficiary. (1) There shall be a rebuttable presumption of a breach of fiduciary duty if an officer or director of a nonprofit beneficiary enters into an agreement with a professional fund raising firm:

�� (a) For a duration to exceed two years unless the nonprofit beneficiary has obtained written proposals from at least two other professional fund raising firms; or

�� (b) Where one of the stated or implied purposes of the solicitation campaign is to acquire an identified list of donors for use as a donor base for future solicitations by the nonprofit beneficiary, unless the nonprofit beneficiary has exclusive rights to the ownership and use of the list of donors.

�� (2) It shall be presumed that such donor list acquisition is a purpose of the campaign unless the agreement specifies otherwise.

�� (3) This section shall not prohibit a professional fund raising firm from retaining a security interest in a list for the limited purpose of recovering amounts owed to it pursuant to the terms of the contract. [1991 c.532 �22]

�� 128.815 [1971 c.589 �14a; 1981 c.593 �13; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.816 [1985 c.729 �6; repealed by 1991 c.532 �26]

�� 128.820 [1959 c.599 ��2,3,4,5; 1967 c.359 �125; renumbered 731.704]

�� 128.821 Registration of commercial fund raising firms required; fee; renewal; notice of change in information. (1) No person shall engage in solicitations for contributions for or on behalf of a commercial fund raising firm unless the commercial fund raising firm is registered with the Attorney General.

�� (2) Applications for registration or reregistration shall be in writing, under oath, on a form prescribed by the Attorney General and shall be accompanied by a fee in the amount of $250.

�� (3) The application shall contain such information as the Attorney General shall require and which is consistent with ORS 128.801 to 128.898, including:

�� (a) The address of the principal place of business of the applicant and any local addresses if the principal place of business is not located in the state.

�� (b) The form of the applicant�s organization.

�� (c) The names and personal addresses of all principals of the organization, including all officers and all persons who own a 10 percent or more interest in the organization.

�� (4) Each registration is valid for one year and may be renewed for additional one-year periods upon application to the Attorney General and payment of the registration fee.

�� (5) The Attorney General shall be notified in writing of any change in the information contained in the application within seven days after the change occurs. [1985 c.729 �7; 1991 c.532 �2]

�� 128.823 Designation of amount to be paid to beneficiaries; manner of specification; minimum amount payable. (1) No person shall engage in commercial fund raising solicitations unless there is a designated amount to be paid to nonprofit beneficiaries. Where the nonprofit beneficiary is identified in the solicitation campaign, the amount shall be specified in a contract or letter of agreement with such a beneficiary. The amount shall be specified in terms of:

�� (a) An amount per unit of the goods or services to be purchased;

�� (b) A specified percentage of the gross funds solicited; or

�� (c) A good faith estimate of the gross funds solicited.

�� (2) Nonprofit beneficiaries shall receive no less than 90 percent of the designated estimate under subsection (1)(c) of this section. Any designated amount shall exclude any amount which the nonprofit beneficiary is to pay as expenses of the solicitation campaign, such as all costs of the goods or services sold or cost of fund raising events staged. [1991 c.532 �5]

�� 128.824 Disclosures required in commercial fund raising solicitations. (1) All commercial fund raising solicitations shall include a clear and conspicuous disclosure of the identity of the commercial fund raising firm or commercial coventurer.

�� (a) In the case of a vending machine, it shall be disclosed on the device that the machine is owned and operated by the commercial fund raising firm or commercial coventurer.

�� (b) In the case of an in-person solicitation, including a face-to-face or telephone solicitation, it shall be disclosed orally in the course of the solicitation but prior to asking for a commitment for a contribution from the solicitee, and in writing to any solicitee that makes a pledge to be delivered within 10 days of the date of the pledge that the solicitor is operating under the direction and control of a named commercial fund raising firm or commercial coventurer.

�� (c) In the case of a solicitation by advertisement or mass distribution, including posters, leaflets, automatic dialing machines, publications and audio or video broadcasts, it shall be disclosed in the body of the solicitation material that the product or service is marketed by a named commercial fund raising firm or commercial coventurer.

�� (2) All commercial fund raising solicitations shall include a clear and conspicuous disclosure of the amount of the solicited funds to be paid to the nonprofit beneficiary as provided in ORS 128.823.

�� (a) In the case of a vending machine, the disclosure shall be on the device.

�� (b) In the case of an in-person solicitation, including a face-to-face or telephone solicitation, the disclosure shall be in the form of a written statement to any solicitee who makes a pledge, to be delivered within 10 days of the date of the pledge.

�� (c) In the case of a solicitation by advertisement or mass distribution, the disclosure shall be in the body of the solicitation material. [1991 c.532 �6]

�� 128.825 [1971 c.589 �15; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.826 Commercial fund raising contracts and notice; filing. (1) At least 10 days prior to the commencement of each commercial fund raising solicitation campaign, a commercial fund raising firm shall file with the Attorney General a completed fund raising notice on forms prescribed by the Attorney General. A copy of the contract or letter of agreement with any beneficiary and a copy of the disclosure material required by ORS 128.824 shall be attached to the notice.

�� (2) The fund raising notice shall be in writing, under oath, and shall include a description of the fund raising event or campaign, the projected starting and ending dates of the campaign, the bank account number and location where the solicited funds will be deposited, including the name of the organization or organizations that control the account, and the address and telephone number of the headquarters for each commercial solicitation campaign if different than the principal place of business identified on the commercial fund raising firm�s registration form as well as the person in charge of each such location. The notice shall include a provision affirming that the disclosure material described in subsection (1) of this section has been affirmed by all beneficiaries. [1985 c.729 �8; 1991 c.532 �3]

�� 128.830 [1959 c.599 �7; 1967 c.359 �126; renumbered 731.708]

�� 128.831 [1985 c.729 �9; repealed by 1991 c.532 �26]

�� 128.835 [1971 c.589 �16; 1981 c.593 �14; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.836 [1985 c.729 �10; repealed by 1991 c.532 �26]

�� 128.840 [1959 c.599 �6; repealed by 1967 c.359 �704]

�� 128.841 Commercial fund raising firm financial reports; contents; filing. Within 90 days after a commercial fund raising solicitation campaign has been completed, the commercial fund raising firm shall file with the Attorney General a financial report for the campaign, including gross receipts and all expenditures incurred in the solicitation campaign. The report shall be completed on a form prescribed by the Attorney General. The report shall be signed by an official of the commercial fund raising firm and an official from each beneficiary and they shall certify, under oath, that it is true to the best of their knowledge. A similar interim financial report shall be filed one year after the start of the solicitation campaign in the case of a solicitation campaign still in progress on that date. [1985 c.729 �11; 1991 c.532 �7]

�� 128.845 [1971 c.589 �17; 1981 c.593 �15; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.846 Maintenance of records by commercial fund raising firm. (1) A commercial fund raising firm shall maintain for a period of not less than three years from the completion of each fund raising campaign, the following records:

�� (a) The name and address of each contributor and the date and amount of the contribution, if the preceding is known to the commercial fund raising firm.

�� (b) The name and address of each paid solicitor and the dates and amount of compensation paid to each such solicitor.

�� (c) Records of all fund raising expenses incurred in the course of the fund raising campaign.

�� (2) If the commercial fund raising firm sells tickets to an event and represents that tickets will be donated for use by another, the commercial fund raising firm shall also maintain, for the same period as specified in subsection (1) of this section, the following records:

�� (a) The name and address of those contributors donating tickets and the number of tickets donated by each contributor; and

�� (b) The name and address of all organizations receiving donated tickets, including the number of tickets received by each organization.

�� (3) All records described in this section shall be available for inspection by the Attorney General upon request. [1985 c.729 �12; 1991 c.532 �8]

�� 128.848 Accountings required of commercial coventurer. A commercial coventurer shall keep a final accounting for each commercial fund raising solicitation that it conducts for a period of three years following the completion of the campaign. A commercial coventurer shall provide such an accounting for each commercial fund raising solicitation it conducts not later than 20 days after it is requested by the Attorney General or any nonprofit beneficiary. [1991 c.532 �16]

�� 128.850 [1959 c.599 �8; 1967 c.359 �128; renumbered 731.716]

�� 128.851 [1985 c.729 �13; repealed by 1991 c.532 �26]

�� 128.855 [1975 c.388 �3; 1977 c.467 �1; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.856 Written consent by beneficiary to use of name. No person, other than volunteers or employees under the direction and control of a nonprofit beneficiary, shall represent that any part of the contributions received will be given or donated to any named nonprofit beneficiary unless such organization has consented in writing to the use of its name, prior to the solicitation. The written consent shall be signed by an officer, director or trustee of the organization. [1985 c.729 �14; 1991 c.532 �9]

�� 128.860 [1959 c.599 �11; 1967 c.359 �129; renumbered 731.720]

�� 128.861 Written consent required for representations about use of tickets. A commercial fund raising firm shall not represent, in the course of its solicitation activities, that tickets to events will be donated for use by another unless it has complied with the following requirements:

�� (1) The commercial fund raising firm shall obtain commitments, in writing, from beneficiaries stating that they will accept donated tickets and specifying the number of tickets they are willing to accept;

�� (2) The commercial fund raising firm shall solicit and accept no more contributions of donated tickets than the number of ticket commitments it has received from beneficiaries; and

�� (3) A ticket commitment alone, as described in this section, shall not constitute written consent to use the organization�s name as described in ORS 128.856. [1985 c.729 �15; 1991 c.532 �10]

�� 128.865 [1975 c.388 �4; 1981 c.897 �37; repealed by 1985 c.729 �1; 1985 c.730 �15]

�� 128.866 Injunction by Attorney General. The Attorney General may obtain an injunction against solicitation of contributions until:

�� (1) The charitable organization, beneficiary, professional fund raising firm or commercial fund raising firm has complied with all registration and reporting requirements of the Charitable Solicitations Act and ORS 128.610 to 128.769; or

�� (2) Breaches of fiduciary duties have been corrected and the officers and directors responsible for the breaches have been removed. [1985 c.729 �17; 1991 c.532 �11; 2003 c.40 �3]

�� 128.870 [1959 c.599 �12; repealed by 1967 c.359 �704]

�� 128.871 Denial or revocation of registration. Subject to ORS chapter 183, the Attorney General may deny registration or revoke any registration issued pursuant to ORS 128.802 or 128.821 for a period not to exceed five years, if the Attorney General finds:

�� (1) A material misrepresentation or false statement to be in the application for registration or any other statement filed with the Attorney General as provided in ORS