CHAPTER 8. PROFESSIONAL FUNDRAISER CONSULTANT AND SOLICITOR REGISTRATION
IC 23-7-8
Chapter 8. Professional Fundraiser Consultant and Solicitor
Registration
IC 23-7-8-1
Definitions
Sec. 1. As used in this chapter:
"Bona fide employee" means a person who is a regular,
nontemporary employee of a charitable organization under the direct
and exclusive control of the organization. The term does not include
a person that:
(1) solicits contributions for a charitable organization under the
direction, supervision, instruction, or employ of a professional
solicitor;
(2) is engaged or employed as a professional solicitor by any
other person; or
(3) solicits contributions for more than one (1) charitable
organization.
"Charitable organization" means any organization described in
Section 501 of the federal Internal Revenue Code.
"Contribution" means a promise or pledge of money, a payment,
or any other rendition of property or service. It does not include the
payment of membership dues, fines or assessments, or payments for
property sold or services rendered by the charitable organization, if
not sold or rendered in connection with a solicitation, and does not
include a charitable organization that resells used clothing or
household items.
"Division" means the consumer protection division, office of the
attorney general.
"Person" includes any individual, organization, trust foundation,
association, partnership, limited liability company, or corporation.
"Professional fundraiser consultant" means any person who is
hired for a fee to plan, manage, advise, or act as a consultant in
connection with soliciting contributions for, or on behalf of, a
charitable organization, but who does not actually solicit
contributions as a part of the person's services or employ, procure, or
engage a compensated person to solicit contributions. The term does
not include a charitable organization, or a bona fide officer,
employee, member, or volunteer of a charitable organization, that
solicits on its own behalf.
"Professional solicitor" means a person who, for a financial
consideration, solicits contributions for, or on behalf of, a charitable
organization, either personally or through agents or employees
specifically employed for that purpose, including agents or
employees specifically employed by or for a charitable organization
who solicit contributions under the direction, supervision, or
instruction of a professional solicitor. The term does not include a
charitable organization, or an officer, a bona fide employee, or a
volunteer of a charitable organization, that solicits on its own behalf.
"Solicit" means:
(1) to request, other than as described in subdivision (2),
directly or indirectly, financial assistance in any form on the
representation that the financial assistance will be used for a
charitable purpose; or
(2) to sell, offer, or attempt to sell any advertisement,
advertising space, membership, or tangible item:
(A) in connection with which any appeal is made for any
charitable organization or purpose;
(B) where the name of any charitable organization is used or
referred to in any appeal made for any charitable
organization as an inducement or reason for making a sale
described in this subdivision; or
(C) when or where in connection with a sale described in
this subdivision any statement is made that the whole or any
part of the proceeds from the sale will be used for any
charitable purpose or benefit any charitable organization.
A solicitation shall be considered to have taken place whether or not
the person making the solicitation receives any contribution.
As added by P.L.245-1983, SEC.1. Amended by P.L.12-1986, SEC.2;
P.L.248-1987, SEC.1; P.L.24-1989, SEC.2; P.L.8-1993, SEC.319;
P.L.135-1999, SEC.7; P.L.245-2005, SEC.1.
IC 23-7-8-2
Registration; required disclosure of information; term; renewal;
contract; notice
Sec. 2. (a) A person may not act as a professional fundraiser
consultant or professional solicitor for a charitable organization
unless the person has first registered with the division. A person who
applies for registration shall disclose the following information while
under oath:
(1) The names and addresses of all officers, employees, and
agents who are actively involved in fundraising or related
activities.
(2) The names and addresses of all persons who own a ten
percent (10%) or more interest in the registrant.
(3) A description of any other business related to fundraising
conducted by the registrant or any person who owns ten percent
(10%) or more interest.
(4) The name or names under which it intends to solicit
contributions.
(5) Whether the organization has ever had its registration
denied, suspended, revoked, or enjoined by any court or other
governmental authority.
(b) A registrant shall notify the division in writing within one
hundred eighty (180) days of any change in the information
contained in the registration. However, if requested by the division,
the solicitor has fifteen (15) days to notify the division of any change
in the information.
(c) Before acting as a professional fundraiser consultant for a
particular charitable organization, the consultant must enter into a
written contract with the organization and file this contract with the
division. The contract must identify the services that the professional
fundraiser consultant is to provide, including whether the
professional fundraiser consultant will at any time have custody of
contributions.
(d) Before a professional solicitor engages in a solicitation, the
professional solicitor must have a contract which is filed with the
division. This contract must specify the percentage of gross
contributions which the charitable organization will receive or the
terms upon which a determination can be made as to the amount of
the gross revenue from the solicitation campaign that the charitable
organization will receive. The amount of gross revenue from the
solicitation campaign that the charitable organization will receive
must be expressed as a fixed percentage of the gross revenue or
expressed as a reasonable estimate of the percentage of the gross
revenue. If a reasonable estimate is used, the contract must clearly
disclose the assumptions or a formula upon which the estimate is
based. If a fixed percentage is used, the percentage must exclude any
amount that the charitable organization is to pay as expenses of the
solicitation campaign, including the cost of the merchandise or
services sold. If requested by the charitable organization, the person
who solicits must at the conclusion of a charitable appeal provide to
the charitable organization a final accounting of all expenditures.
The final accounting may not be used in violation of any trade secret
laws. The contract must disclose the average percentage of gross
contributions collected on behalf of charitable organizations that the
charitable organizations received from the professional solicitor for
the three (3) years preceding the year in which the contract is formed.
The contract also must specify that, at least every ninety (90) days,
the professional solicitor shall provide the charitable organization
with access to and use of information concerning contributors,
including the name, address, and telephone number of each
contributor and the date and amount of each contribution. A
professional solicitor may not restrict a charitable organization's use
of contributor information.
(e) Before beginning a solicitation campaign, a professional
solicitor must file a solicitation notice with the division. The notice
must include the following:
(1) A copy of the contract described in subsection (d).
(2) The projected dates when soliciting will begin and end.
(3) The location and telephone number from where solicitation
will be conducted.
(4) The name and residence address of each person responsible
for directing and supervising the conduct of the campaign.
However, the division shall not divulge the residence address
unless ordered to do so by a court of competent jurisdiction, or
in furtherance of the prosecution of a violation under this
chapter.
(5) If the solicitation is one described under section 7(a)(3) of
this chapter, the solicitation notice must include a copy of the
required written authorization.
(f) Not later than ninety (90) days after a solicitation campaign
has ended and not later than ninety (90) days after the anniversary of
the commencement of a solicitation campaign lasting more than one
(1) year, a professional solicitor shall submit the following
information concerning the campaign to the division:
(1) The total gross amount of money raised by the professional
solicitor and the charitable organization from donors.
(2) The total amount of money paid to or retained by the
professional solicitor.
(3) The total amount of money, not including the amount
identified under subdivision (2), paid by the charitable
organization as expenses as part of the solicitation campaign.
(4) The total amount of money paid to or retained by the
charitable organization after the amounts identified under
subdivisions (2) and (3) are deducted.
The division may deny or revoke the registration of a professional
solicitor who fails to comply with this subsection.
(g) The charitable organization on whose behalf the professional
solicitor is acting must certify that the information filed under
subsections (e) and (f) is true and complete to the best of its
knowledge.
(h) At the beginning of each solicitation call, a professional
fundraiser consultant and a professional solicitor must state all of the
following:
(1) The name of the company for whom the professional
fundraiser consultant or professional solicitor is calling.
(2) The name of the professional fundraiser consultant or
professional solicitor.
(3) The phone number and address of the location from which
the professional fundraiser consultant or professional solicitor
is making the telephone call.
(4) The percentage of the charitable contribution that will be
expended for charitable purposes after administrative costs and
the costs of making the solicitation have been satisfied.
(i) At least every ninety (90) days, a professional solicitor shall
provide each charitable organization on whose behalf the
professional solicitor is acting with access to and use of information
concerning contributors, including the name, address, and telephone
number of each contributor and the date and amount of each
contribution. A professional solicitor may not restrict a charitable
organization's use of information provided under this subsection.
As added by P.L.245-1983, SEC.1. Amended by P.L.248-1987,
SEC.2; P.L.24-1989, SEC.3; P.L.48-1998, SEC.1; P.L.135-1999,
SEC.8; P.L.155-2003, SEC.1; P.L.97-2004, SEC.86; P.L.245-2005,
SEC.2.
IC 23-7-8-3
Public records; inspection
Sec. 3. All registration statements and information required to be
filed under this chapter with the division, are public records. The
division shall maintain these records for at least two (2) years, and
shall make them available to the general public for inspection and
photocopying for a charge, during the normal business hours.
As added by P.L.245-1983, SEC.1.
IC 23-7-8-4
Registration fees; disposition; update to registration
Sec. 4. (a) A professional fundraiser consultant or professional
solicitor who applies for registration shall pay a fee of one thousand
dollars ($1,000). A partnership, limited liability company,
corporation, or other entity that intends to act as a professional
fundraiser consultant, or professional solicitor, may register for and
pay a single registration fee of one thousand dollars ($1,000) on
behalf of its members, officers, agents, and employees.
(b) The fees collected shall be used, in addition to funds
appropriated by the general assembly, for the administration of this
chapter.
(c) Before July 2 of each year, a professional fundraiser
consultant or professional solicitor registered under this chapter must
file an update to the registration. A renewal fee of fifty dollars ($50)
must accompany this update.
As added by P.L.245-1983, SEC.1. Amended by P.L.24-1989, SEC.4;
P.L.8-1993, SEC.320; P.L.48-1998, SEC.2.
IC 23-7-8-5
Accurate fiscal records; requirement
Sec. 5. (a) Every professional fundraiser consultant and
professional solicitor required to register under this chapter shall
keep accurate fiscal records regarding its activities in Indiana. A
professional fundraiser consultant or professional solicitor shall
retain the records for at least three (3) years after the end of the
period of registration to which they relate.
(b) Records maintained under subsection (a) shall be made
available for inspection and copying by the division upon oral or
written request of the division at any time during the normal business
hours of the professional fundraiser consultant or professional
solicitor.
As added by P.L.245-1983, SEC.1. Amended by P.L.24-1989, SEC.5;
P.L.48-1998, SEC.3.
IC 23-7-8-6
Required disclosures at time of solicitation; written confirmation
Sec. 6. (a) A professional solicitor subject to registration under
this chapter or a person who is employed to solicit or act on behalf
of a professional solicitor subject to registration under this chapter
shall disclose at the time of the solicitation and before the donor
agrees to make a contribution:
(1) the name and, upon request, the address of the charitable
organization that is being represented;
(2) the fact that the person soliciting the contribution is, or is
employed by, a professional solicitor, and the fact that the
professional solicitor is compensated;
(3) the full name of the professional solicitor and, upon request,
the telephone number the person being solicited can call to
confirm the information provided under this section; and
(4) the charitable purpose for which the funds are being raised.
(b) If a person solicits in writing or in person, the disclosures
required by subsection (a)(1) and (a)(2) shall be in writing. If a
person solicits by telephone, the disclosures required by subsection
(a)(1) and (a)(2) shall be made orally.
(c) A written confirmation shall be mailed within ten (10) days
after each solicitation in which a contribution has been given. This
confirmation must include the disclosures required under subsection
(a)(1) and (a)(2).
(d) All disclosures required by this section must be clear and
conspicuous.
(e) A contributor has the right to cancel a pledge for monetary
contribution at any time prior to making the contribution.
As added by P.L.245-1983, SEC.1. Amended by P.L.248-1987,
SEC.3; P.L.24-1989, SEC.6; P.L.48-1998, SEC.4.
IC 23-7-8-7
Prohibited acts
Sec. 7. (a) A person who solicits charitable contributions may not:
(1) use the fact of registration as an endorsement by the state;
(2) misrepresent that the person is an officer or employee of a
public safety agency;
(3) use the name "police", "law enforcement", "trooper",
"rescue squad", "firemen", or "firefighter" unless a bona fide
police, law enforcement, rescue squad, or fire department
authorizes its use in writing;
(4) misrepresent to anyone that the contribution will be used for
a charitable purpose if the person has reason to believe the
contribution will not be used for a charitable purpose;
(5) misrepresent to anyone that another person endorses the
solicitation unless that person has consented in writing to the
use of the person's name for the purpose of endorsing the
solicitation;
(6) misrepresent to anyone that the contribution is solicited on
behalf of anyone other than the charitable organization that
authorized the solicitation; or
(7) collect or attempt to collect a contribution in person or by
means of a courier unless:
(A) the solicitation is made in person and the collection or
attempt to collect is made at the time of the solicitation; or
(B) the contributor has agreed to purchase goods or items in
connection with the solicitation, and the collection or
attempt to collect is made at the time of delivery of the
goods or items.
(b) A person who solicits charitable contributions shall not
represent that tickets to events will be donated for use by another,
unless the following requirements have been met:
(1) The paid solicitor has commitments, in writing, from
charitable organizations stating that they will accept donated
tickets and specifying the number of tickets they are willing to
accept.
(2) No more contributions for donated tickets are solicited than
the number of ticket commitments received from charitable
organizations.
As added by P.L.245-1983, SEC.1. Amended by P.L.248-1987,
SEC.4; P.L.24-1989, SEC.7; P.L.48-1998, SEC.5; P.L.155-2003,
SEC.2.
IC 23-7-8-8
Complaints; injunctive relief; violations; fines
Sec. 8. (a) The division may receive, investigate, and prosecute
complaints concerning the activities of professional fundraiser
consultants and professional solicitors who:
(1) may be subject to this chapter; or
(2) have or may have violated this chapter.
All complaints must be in writing, signed by the complainant, and
filed with the division.
(b) The attorney general may subpoena witnesses, send for and
compel the production of books, records, papers, and documents of
professional fundraiser consultants and professional solicitors who
are subject to registration under this chapter, for the furtherance of
any investigation under this chapter. The circuit or superior court
located in the county where the subpoena is to be issued shall enforce
any such subpoena by the attorney general.
(c) The attorney general may bring an action to enjoin a violation
of this chapter. In this action, the court may order a person who has
violated this chapter to pay the reasonable costs of investigation and
prosecution incurred by the attorney general, may award the state
civil penalties up to five hundred dollars ($500) for each violation,
and may order the professional fundraiser consultant or professional
solicitor to repay money unlawfully received from aggrieved
solicitees. In ordering injunctive relief, the division is not required to
establish irreparable harm but only a violation of a statute or that the
requested order promotes the public interest. It is an affirmative
defense to the assessment of civil penalties under this subsection that
the defendant acted pursuant to a good faith misunderstanding
concerning the requirements of this chapter.
(d) A person who knowingly or intentionally:
(1) fails to file a registration statement or other information;
(2) files a statement or other information which is materially
false; or
(3) fails to make a disclosure;
as required by this chapter, commits a Class B misdemeanor.
However, the offense is a Class A misdemeanor if the person has a
previous unrelated conviction under this subsection.
(e) A local unit of government may adopt an ordinance which
regulates professional fundraisers and solicitors if the ordinance does
not conflict with this chapter.
(f) A professional fundraiser consultant, or a professional
solicitor, who has the person's principal place of business outside of
Indiana, or who has organized under the laws of another state, and
who solicits contributions from persons in Indiana, is subject to this
chapter and shall be considered to have appointed the secretary of
state as his agent. All service of process under this subsection shall
be made on the secretary of state under Rule 4.10 of the Indiana
Rules of Trial Procedure.
(g) Under rules adopted by the attorney general, the attorney
general may impose fines on professional fundraiser consultants and
professional solicitors for the late filing of information required to be
filed under this chapter.
As added by P.L.245-1983, SEC.1. Amended by P.L.248-1987,
SEC.5; P.L.24-1989, SEC.8; P.L.1-1998, SEC.128; P.L.48-1998,
SEC.6; P.L.135-1999, SEC.9.
IC 23-7-8-9
Assurance of voluntary compliance; form; filing
Sec. 9. (a) In the administration of this chapter, the attorney
general may accept an assurance of voluntary compliance with
respect to any violation of this chapter. The assurance of voluntary
compliance may include any of the following:
(1) Stipulation for the voluntary payment by the person of the
costs of investigation.
(2) Payment of an amount to be held in escrow pending the
outcome of an action or as restitution to aggrieved persons.
The assurance of voluntary compliance must be in writing. It must be
filed with the court having jurisdiction over the violation and is
subject to the court's approval.
(b) The giving of an assurance of voluntary compliance under this
section is not, for any purpose, considered an admission of a
solicitation or failure to register in violation of this chapter.
However, any violation of the terms of the assurance constitutes
prima facie evidence of a violation of this chapter. An investigation
or court action terminated on the basis of the giving of an assurance
of compliance under this section may be reopened by the attorney
general at any time for further proceedings that are in the public
interest.
As added by P.L.12-1986, SEC.3. Amended by P.L.24-1989, SEC.9.