13 TAC §11.9
The Texas Historical Commission proposes amendments to §11.9,
relating to Donations. These changes are needed to comply with Texas Government
Code §2255.001, which provides that an agency that has a relationship
with an affiliated nonprofit entity shall adopt rules defining the relationship
between the agency and the affiliated nonprofit entity. The proposed amendments
will define when a contractual relationship could be established with an affiliated
nonprofit agency, the handling of funds by the entity, the relationship of
agency employees with the entity, the governance of the entity, and the use
of agency property by the entity.
F. Lawerence Oaks, Executive Director, has determined that for the first
five-year period the amendments are in effect there will not be fiscal implications
for state or local governments as a result of enforcing or administering the
amended rule.
Mr. Oaks has also determined that for each year of the first five year
period the amendments are in effect the public benefit anticipated as a result
of these amendments will be having a formal relationship established with
affiliated nonprofit entities and public scrutiny of any such relationship.
Additionally, Mr. Oaks has determined that there will be no effect on small
and micro businesses. There will be no anticipated economic cost to persons
who are required to comply with the amendments as proposed.
Comments on the proposal may be submitted to F. Lawerence Oaks, Executive
Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711.
Comments will be accepted for 30 days after publication in the
Texas Register.
The amendments are proposed under Texas Government Code, §442.005(q)
which provides the Commission with authority to promulgate rules that it considers
proper for the effective administration of this chapter and Texas Government
Code §2255.001, which provides that an agency that has a relationship
with an affiliated nonprofit entity shall adopt rules defining the relationship
between the agency and the affiliated nonprofit entity.
Texas Government Code §442.005(p) is affected by this proposal.
§11.9.Donations and Relationship with Affiliated Non-Profit Organizations .
(a)
Donations
(1)
[
Use and place of deposit.
] All funds
received from donations to the commission will be deposited to the state treasury
and used for the purpose specified by the donor, or for general commission
programs when no purpose is specified.
(2)
[
(b) Serving as officer or director. No
employee of the commission may serve as an officer or director in any organization
making donations to the commission.
]
[
(c)
Supplementation of salary.
] Donations
to the commission will not be used for supplementation of salary of any employee
of the commission.
(3)
[
(d) Contributions from grant recipients
or organizations and individuals with projects under review.
] The commission
will not accept donations from organizations or individuals administering
grants from the commission or which have projects undergoing review by the
commission.
(4)
Donations other than money may be accepted
at the discretion of the commission.
(b)
Relationship with Affiliated Non-Profit
Organization
(1)
The commission is authorized to participate in the establishment
and operation of an affiliated nonprofit organization whose purpose is to
raise funds for or provide services or other benefits to the commission by
Texas Government Code §442.005(p).
(2)
The commission, by vote of the commission in a duly posted
meeting, may authorize the establishment of a contractual relationship with
a non-profit organization for any purpose authorized by law and in compliance
with this section.
(3)
The contract or other agreement with the affiliated non-profit
organization shall set out fully the relationship between the commission and
the affiliated non-profit organization, and shall meet the following requirements:
(A)
Administration and investment of funds received by the
organization for the benefit of the commission.
(i)
All records of the affiliated non-profit organization shall
be available for inspection or audit by the commission or its designee.
(ii)
A representative of the affiliated non-profit organization
shall regularly report to the commission on the operations of the affiliated
non-profit organization.
(iii)
Funds or other assets of the affiliated non-profit organization
shall be administered and invested in a manner to be provided in the contract
or other agreement. At a minimum, funds received by the affiliated non-profit
organization shall be handled as follows:
(I)
Funds shall be placed in an account at a financial institution
within ten business days of receipt.
(II)
Funds shall be placed in an interest-bearing or other
investment account in accordance with the investment policy of the affiliated
nonprofit organization.
(III)
Funds shall be used only to support approved projects
of the commission or to pay administrative expenses of an affiliated non-profit
organization.
(IV)
Employees of the commission shall not be signatories on
accounts of an affiliated non-profit organization.
(B)
Use of an employee or property of the agency by the affiliated
non-profit organization.
(i)
Staff of the commission may assist in the operation of
the affiliated non-profit organization during regular work hours only with
the written approval of the executive director.
(ii)
Staff involved in regulatory functions of the commission
shall not participate in the management of the affiliated non-profit organization
except on a case-by-case basis with the written approval of the executive
director. All staff involved in the development of grant proposals may provide
subject-matter expertise for the grant proposals, including, with the written
approval of the executive director, participating in the presentation of grant
proposals to potential donors.
(iii)
Property of the commission may be used in support of
an affiliated non-profit organization so long as the use serves a public purpose
and is within the limitations of this section and any contract or agreement
between the commission and the affiliated non-profit organization. Any state
property entrusted to the affiliated non-profit organization must remain on
the inventory of the commission and be properly accounted for in accordance
with state agency requirements.
(iv)
The commission may provide office space, pay utilities,
and pay other expenses of an affiliated non-profit organization as long as
any such expense serves a public purpose and is within the limitations of
this section and any contract or agreement between the commission and the
affiliated non-profit organization.
(4)
Prohibitions in relationship with affiliated non-profit
organization.
(A)
An employee of the commission may not serve as an employee,
elected officer or director of an affiliated non-profit organization. An employee
of the commission may serve as an ex officio, non-voting director of an affiliated
non-profit organization.
(B)
A commissioner or employee of the commission shall not
receive monetary enrichment from the affiliated non-profit organization except
with the approval of the executive director, or, in the case of the executive
director or a commissioner, with the approval of the commission.
(5)
The commission may recommend or nominate individuals to
serve as officers, directors, or employees of an affiliated non-profit organization.
(6)
The commission shall have a formal liaison committee or
other, similar group to monitor the operation of an affiliated non-profit
organization.
(7)
An affiliated non-profit organization will not knowingly
accept donations from organizations or individuals administering grants from
the commission or which have contracts with the commission. Should such a
donation be accepted, it shall be returned upon discovery of such a relationship.
(8)
An affiliated non-profit organization may not expend funds
for the purpose of influencing legislative action, either directly or indirectly.
(9)
The commission shall review its relationship with an affiliated
non-profit organization on a schedule to be established by the commission,
but not less than once every 10 years.
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 August 4, 2006.
TRD-200604030
F. Lawerence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: September 17, 2006
For further information, please call: (512) 936-4323