TOO MUCH INFORMATION: ACLU BOARD GIVES NEW MEANING TO THE WORD “NITWITS”

DATELINE: December 9, 2009, Chicago 

Today we awoke to news that the TSA has posted their top-secret security handbook online, providing a roadmap for terrorists who are still fascinated with airplanes and the destruction they can cause.  Whoever did this should be summarily fired.  That won’t happen, but expect to wait in longer and slower lines at the airport this holiday season.  

The ACLU had a similar mishap, which Stephanie Strom of the New York Times reports on today in Civil Liberties Group Loses $20 Million Donor.  The New York Attorney General should bring a lawsuit against the...

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offending board members, forcing their resignation from the ACLU’s board of directors, assuming the gift was made to the 501(c)(3) foundation rather than to the 501(c)(4) advocacy organization.  And we are not kidding about that.   For the remainder of this post, we will use the term "ACLU," with the understanding that technical legal consequences may differ depending on which arm of the ACLU received the gift. The ACLU should open an internal investigation designed to identify the gossips and remove them from the board regardless of whether the New York Attorney General has jurisdiction.

A longstanding donor gave significant sums to the ACLU beginning in the 1980s.  By 2008, according to Strom, this donor had increased his gifts to $22.5 million.  Common sense would suggest that any organization honor this donor’s request.  Common sense did not carry the day at the ACLU.   

Unfortunately for the ACLU, the donor is unable to make the gift this year, due to market conditions, according to Anthony D. Romero, the ACLU’s executive director. According to Strom, this fact was revealed in executive session to the board members who were present.  The executive director had the good sense not to reveal the identity of the donor to the board.  Nevertheless, Strom reports:  

Still, it is hard to keep secrets with a board of more than 80 members, most of whom report to state affiliates. “As soon as he started telling us, anyone who had a laptop with them was busy Googling” and figured out who the donor was, a national board member said.

The fact that Strom was able to reveal the donor’s name in her article indicates that someone leaked the news to the media. In fact--and this is takes real chutzpah--those who revealed the name requested anonymity.   

Some members of the ACLU’s board may not know it, but they have a legal duty of loyalty to the ACLU, which includes what we refer to as the “duty to shut up.”  We have  previously written about the duty to shut up in the context of the ACLU, asking the question:  Should those board members who dissent from substantive policy positions voice their dissent?  We tend to believe that they should, but also recognize that any association can establish rules and those who disagree with substantive policy always have the right to exit and start their own association.  In the case of more mundane matters involving finances, employment practices, litigation, and other more administrative matters, we believe that board members have a duty to shut up.  Of course, if there is wrongdoing (e.g., theft, embezzlement), there is a place for a whistleblower when other available avenues have been tried without success, but where the line exists is sometimes difficult to determine.   

In this case, no good could have come from revealing the donor’s name to the media, particularly when the ACLU apparently took significant sums from the donor over many years on the condition of anonymity.  If the facts are as Strom has reported, the revelation in our view constitutes a breach of the duty of loyalty.   

Why should the New York Attorney General become involved?  AGs get pretty disturbed when charities fail to honor donor restrictions, diverting charitable assets from the designated purpose to other purposes.   We view a request for anonymity as a form of donor restriction.  The New York Attorney General should be equally vigilant in enforcing that sort of donor restriction.   [We are assuming the gift was made to the charitable arm of the ACLU, if not, the New York AG may not have jurisdiction].

As for members of the public,  we simply can’t understand why anyone would donate money to the ACLU after this incident.  Let’s set aside the legality of the matter.  Why would anyone give money to an organization run by such stupid people?  A large “customer” makes an understandable and costless request.  The business intentionally and blatantly ignores the request.  That’s real smart.  Gossip is lots of fun.  Let’s hope it permanently costs the ACLU $22.5 million a year.  Let’s also hope the donor rewrites his estate plan if he provided for the ACLU in it.

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