Chapter 128 — Trusts;
Charitable Activities
2011 EDITION
TRUSTS; CHARITABLE ACTIVITIES
PROTECTIVE PROCEEDINGS; POWERS OF
ATTORNEY; TRUSTS
PREPARATION OF TRUSTS
128.001 Limitations
on accepting payment for preparation of trust
PRIVATE FOUNDATION AND SPLIT INTEREST
TRUSTS
128.085 Limitations
on trustee’s administration of “private foundation” trust
128.090 Limitations
on trustee’s administration of “split-interest” trust
128.095 Trustee
may amend governing instrument of “private foundation” or “split-interest”
trust with prior consent of Attorney General and benefited organizations
DEPOSIT OF SECURITIES IN CLEARING
CORPORATIONS
128.100 Authority
of fiduciary to deposit securities in clearing corporation
UNIFORM PRUDENT MANAGEMENT OF
INSTITUTIONAL FUNDS ACT
128.305 Short
title
128.316 Definitions
for ORS 128.305 to 128.336
128.318 Standard
of conduct in managing and investing institutional fund
128.322 Appropriation
for expenditure or accumulation of endowment fund; rules of construction
128.326 Delegation
of management and investment functions
128.328 Release
or modification of restrictions on management, investment or purpose
128.332 Reviewing
compliance
128.334 Relation
to Electronic Signatures in Global and National Commerce Act
128.336 Uniformity
of application and construction
EMPLOYEES’ TRUSTS
128.510 Definitions
for ORS 128.520
128.520 Employees’
trust may be in perpetuity; accumulation of income
BUSINESS TRUSTS
128.560 “Business
trust” described
128.565 Business
trust permitted
128.570 Business
trusts and trustees not subject to bank and trust company regulations
128.573 Forms;
rules
128.575 Filing
with Office of Secretary of State required; fees; amendments
128.580 Business
trusts subject to certain corporate laws
128.585 Personal
liability of trustees, shareholders or beneficiaries of business trust
128.590 Filing
of trust instrument as conclusive evidence of compliance with laws; exception
128.595 Annual
report; due date; content; notice of requirement; effect of failure to file
128.597 Inactivation
of business trust
128.599 Reinstatement
of business trust following inactivation
128.600 Filing,
service, copying and certification fees
CHARITABLE TRUST AND CORPORATION ACT
128.610 Short
title
128.620 Definitions
for ORS 128.610 to 128.750
128.630 Application
of ORS 128.610 to 128.750
128.640 Exemptions
from application of ORS 128.610 to 128.750
128.650 Register
of charitable organizations; authority of Attorney General to maintain register
128.660 Filing
of articles of incorporation or other instrument with Attorney General
128.670 Filing
of reports; rules; fees; authority of Attorney General relating to reports;
civil penalty
128.680 Investigatory
authority of Attorney General
128.690 Order
for attendance by Attorney General; effect
128.710 Enforcement;
jurisdiction of court
128.720 Copies
of certain documents and notice to be provided Attorney General
128.730 List
of certain claims for exemptions from taxation to be provided Attorney General
128.735 Attorney
fees in action to enforce fiduciary or other duty
128.750 Uniformity
of interpretation
CHARITABLE SOLICITATIONS ACT
128.801 Definitions
for ORS 128.801 to 128.898
128.802 Registration
of professional fund raising firms required; fee; renewal; notice of change of
information
128.804 Fund
raising notice; contents
128.807 Required
submission of financial plan to nonprofit beneficiary
128.809 Required
disclosure of agency by solicitors
128.812 Required
submission of financial report after campaign
128.814 Presumption
of breach of fiduciary duty by officer or director of nonprofit beneficiary
128.821 Registration
of commercial fund raising firms required; fee; renewal; notice of change in
information
128.823 Designation
of amount to be paid to beneficiaries; manner of specification; minimum amount
payable
128.824 Disclosures
required in commercial fund raising solicitations
128.826 Commercial
fund raising contracts and notice; filing
128.841 Commercial
fund raising firm financial reports; contents; filing
128.846 Maintenance
of records by commercial fund raising firm
128.848 Accountings
required of commercial coventurer
128.856 Written
consent by beneficiary to use of name
128.861 Written
consent required for representations about use of tickets
128.866 Injunction
by Attorney General
128.871 Denial
or revocation of registration
128.876 Rules
128.881 Deposit
of fees and penalties; use
128.886 False
or misleading representations prohibited
128.891 Prohibited
representations; written notice
128.893 Use
of in-state address
128.898 Short
title
CIVIL PENALTIES
128.899 Civil
penalties for violation of ORS 128.610 to 128.750
CRIMINAL PENALTIES
128.992 Penalties
for ORS 128.610 to 128.750
128.995 Penalties
for ORS 128.801 to 128.898
PREPARATION OF TRUSTS
128.001 Limitations on accepting payment
for preparation of trust. (1) Except as provided in this
section, a person may not accept anything of value in exchange for the
preparation of a trust.
(2)
Subsection (1) of this section does not apply to an attorney who charges and
accepts a fee for the preparation of a trust for a client in the course of
representing that client.
(3)
Subsection (1) of this section does not apply to any trust company or financial
institution as defined in ORS chapter 706.
(4)
Subsection (1) of this section does not apply to a resulting or constructive
trust, a business trust that provides for certificates to be issued to the
beneficiary, an investment trust, a voting trust, a security instrument, a
trust created by the judgment of a court, a liquidation trust, a trust for the
primary purpose of paying dividends, interests, interest coupons, salaries,
wages, pensions, profits or employee benefits of any kind, an instrument in
which a person is nominee or escrowee for another
person or a trust created in deposits in any financial institution.
(5)
Nothing in this section authorizes any person to engage in the practice of law
in violation of ORS 9.160. [1997 c.806 §1; 2003 c.576 §383]
128.003 [1977 c.614 §10; repealed by 2005 c.348
§128]
128.005 [1977 c.614 §1; 2003 c.576 §384;
repealed by 2005 c.348 §128]
128.007 [1977 c.614 §2; 1995 c.157 §18;
repealed by 2005 c.348 §128]
128.009 [1977 c.614 §3; 1981 c.915 §1; 1989 c.73 §1; 1993 c.228 §1; 1995 c.157 §19; 2003 c.84 §13;
repealed by 2005 c.348 §128]
128.010
[Renumbered 128.055]
128.015 [1977 c.614 §4; 1993 c.228 §2; repealed
by 2005 c.348 §128]
128.020
[Amended by 1969 c.267 §1; renumbered 128.057]
128.021 [1977 c.614 §5; 1995 c.157 §20;
repealed by 2005 c.348 §128]
128.025 [1969 c.267 §3; renumbered 128.061]
128.026 [1977 c.614 §6; 1995 c.157 §21;
repealed by 2005 c.348 §128]
128.030
[Amended by 1977 c.614 §13; renumbered 128.065]
128.031 [1977 c.614 §7; repealed by 2005 c.348 §128]
128.035 [1977 c.614 §8; repealed by 2005 c.348 §128]
128.040
[Repealed by 1977 c.614 §14]
128.041 [1977 c.614 §9; repealed by 2005 c.348 §128]
128.045 [1977 c.614 §11; repealed by 2005 c.348
§128]
128.047 [1993 c.226 §3; repealed by 2005 c.348 §128]
128.050 [Repealed
by 1977 c.614 §14]
128.051 [1977 c.614 §12; repealed by 2005 c.348
§128]
128.055
[Formerly 128.010; repealed by 2005 c.348 §128]
128.057
[Formerly 128.020; 1979 c.382 §1; repealed by 1995 c.157 §26]
128.060
[Amended by 1973 c.827 §19; repealed by 1977 c.614 §14]
128.061 [1969 c.267 §3; formerly 128.025; repealed by 1979 c.382 §2]
128.065
[Formerly 128.030; 1995 c.157 §22; repealed by 2005 c.348 §128]
128.070
[Repealed by 1973 c.506 §46]
128.075 [1973 c.367 §16; renumbered 128.595]
128.080
[Amended by 1973 c.177 §2; repealed by 1973 c.506 §46]
PRIVATE FOUNDATION AND SPLIT INTEREST
TRUSTS
128.085 Limitations on trustee’s
administration of “private foundation” trust.
Notwithstanding any provision to the contrary in the governing instrument or
any law of this state, the trustee of a trust which is a “private foundation”
as defined in section 509 of the Internal Revenue Code of 1954 (including
nonexempt charitable trusts as defined in section 4947 (a) (1) of the Internal
Revenue Code of 1954) shall not engage in any act of self dealing as defined in
section 4941 (d) of the Internal Revenue Code of 1954; shall distribute its
income and, when necessary, amounts from principal at such time and in such
manner as not to subject the trust to the taxes on failure to distribute income
imposed by section 4942 of the Internal Revenue Code of 1954; shall not retain
any excess business holdings as defined in section 4943 (c) of the Internal
Revenue Code of 1954; shall not make any investments in such manner as to
subject the trust to the taxes on investments which jeopardize charitable
purpose imposed by section 4944 of the Internal Revenue Code of 1954; and shall
not make any taxable expenditures as defined in section 4945 (d) of the
Internal Revenue Code of 1954. [1971 c.197 §1]
128.090 Limitations on trustee’s
administration of “split-interest” trust. (1)
Notwithstanding any provision to the contrary in the governing instrument or
any law of this state, the trustee of a trust which is a “split-interest trust”
as defined in section 4947 (a) (2) of the Internal Revenue Code of 1954, shall
not engage in any act of self dealing as defined in section 4941 (d) of the
Internal Revenue Code of 1954; shall not retain any excess business holdings as
defined in section 4943 (c) of the Internal Revenue Code of 1954, unless the
trust is one exempted from the requirements of section 4943 by section 4947 (b)
(3) of the Internal Revenue Code of 1954; shall not make any investment in such
manner as to subject the trust to the taxes on investments which jeopardize
charitable purpose imposed by section 4944 of the Internal Revenue Code of
1954, unless the trust is one exempted from the requirements of section 4944 by
section 4947 (b) (3) of the Internal Revenue Code of 1954; and shall not make
any taxable expenditures as defined in section 4945 (d) of the Internal Revenue
Code of 1954.
(2)
This section shall not apply with respect to:
(a)
Any amounts payable under the terms of a trust to income beneficiaries, unless
a deduction was allowed under section 170 (f) (2) (B), section 2055 (e) (2)
(B), or section 2522 (c) (2) (B) of the Internal Revenue Code of 1954;
(b)
Any amounts in trust other than amounts for which a deduction was allowed under
section 170, section 545 (b) (2), section 556 (b) (2), section 642 (c), section
2055, section 2106 (a) (2) or section 2522 of the Internal Revenue Code of
1954, if such other amounts are segregated from amounts for which no deduction
was allowable; or
(c)
Any amounts transferred in trust before May 27, 1969. [1971 c.197
§2]
128.095 Trustee may amend governing
instrument of “private foundation” or “split-interest” trust with prior consent
of Attorney General and benefited organizations.
The trustee of a trust which is a private foundation to which ORS 128.085
applies or a split-interest trust to which ORS 128.090 applies may, with the
prior consent of the Attorney General, amend the terms of the governing
instrument to the extent necessary (1) to assure conformity of the governing
instrument with the requirements for exemption from the taxes imposed by
sections 4941 to 4945 of the Internal Revenue Code of 1954, including
amendments which broaden, extend, reduce or limit the charitable purposes for
which the trust is administered, or (2) to terminate the status of the trust as
a private foundation in a manner described in section 507 (b) (1) of the
Internal Revenue Code of 1954. Prior to giving consent, the Attorney General
shall determine that the proposed amendments are necessary or appropriate to
achieve the charitable purposes of the trust. If the trust is for the exclusive
benefit of one or more charitable organizations, the trustee shall also obtain
the prior consent of such organizations prior to amending the terms of the governing
instrument in the manner set forth in this section. [1971 c.197
§3]
DEPOSIT OF SECURITIES IN CLEARING
CORPORATIONS
128.100 Authority of fiduciary to deposit
securities in clearing corporation. (1)
Notwithstanding any other provision of law, any fiduciary holding securities in
a fiduciary capacity, any financial institution or trust company holding
securities as a custodian or managing agent, and any financial institution or
trust company holding securities as custodian for a fiduciary is authorized to
deposit or arrange for the deposit of the securities in a clearing corporation
as defined in ORS 78.1020. When the securities are deposited, certificates
representing securities of the same class of the same issuer may be merged and
held in bulk in the name of the nominee of the clearing corporation with any
other securities of the same class deposited in the clearing corporation by any
person regardless of the ownership of the securities, and certificates of small
denomination may be merged into one or more certificates of larger
denomination. The records of the fiduciary and the records of the financial
institution or trust company acting as custodian, as managing agent or as
custodian for a fiduciary shall at all times show the name of the party for whose
account the securities are deposited. Ownership of, and other interests in, the
securities may be transferred by bookkeeping entry on the books of the clearing
corporation without physical delivery of certificates representing the
securities. A financial institution or trust company depositing securities
pursuant to this section shall be subject to the rules and regulations as, in
the case of state-chartered institutions, the Department of Consumer and
Business Services and, in the case of national banking associations, the
Comptroller of the Currency may from time to time issue. A financial
institution or a trust company acting as custodian for a fiduciary shall, on
demand by the fiduciary, certify in writing to the fiduciary the securities
deposited by the financial institution or trust company in the clearing
corporation for the account of the fiduciary. A fiduciary shall, on demand by
any party to a judicial proceeding for the settlement of the fiduciary’s
account or on demand by the attorney for the party, certify in writing to the
party the securities deposited by the fiduciary in the clearing corporation for
its account as the fiduciary.
(2)
This section shall apply to any fiduciary holding securities in a fiduciary
capacity, and to any financial institution or trust company holding securities
as a custodian, managing agent or custodian for a fiduciary, acting on October
5, 1973, or who thereafter may act regardless of the date of the agreement,
instrument or court order by which it is appointed and regardless of whether or
not the fiduciary, custodian, managing agent or custodian for a fiduciary owns
capital stock of the clearing corporation. [1973 c.365
§§1,2; 1985 c.676 §59; 1985 c.762
§177; 1997 c.631 §414]
128.102 [1993 c.226 §5; 1997 c.659 §1; repealed
by 2005 c.348 §128]
128.110
[Amended by 1979 c.284 §108; repealed by 1981 c.66 §8]
128.115 [1981 c.66 §1; repealed by 2005 c.348 §128]
128.120
[Repealed by 1981 c.66 §8]
128.125 [1981 c.66 §2; repealed by 2005 c.348 §128]
128.130 [Amended
by 1979 c. 284 §109; repealed by 1981 c.66 §8]
128.135 [1981 c.66 §3; 1993 c.222 §6; 2003 c.279 §33a; repealed by 2005 c.348 §128]
128.140
[Repealed by 1981 c.66 §8]
128.145 [1981 c.66 §4; repealed by 2005 c.348 §128]
128.150
[Repealed by 1981 c.66 §8]
128.155 [1981 c.66 §5; 1991 c.331 §42; 1997 c.631 §415; repealed by 2005 c.348
§128]
128.160
[Repealed by 1981 c.66 §8]
128.165 [1981 c.66 §6; repealed by 2005 c.348 §128]
128.170
[Repealed by 1981 c.66 §8]
128.175 [1981 c.66 §7; repealed by 2005 c.348 §128]
128.177 [1993 c.222 §2; repealed by 2005 c.348 §128]
128.179 [1993 c.222 §3; repealed by 2005 c.348 §128]
128.180
[Repealed by 1981 c.66 §8]
128.181 [1993 c.222 §4; repealed by 2005 c.348 §128]
128.183 [1993 c.222 §5; repealed by 2005 c.348 §128]
128.185 [1993 c.222 §7; repealed by 2005 c.348 §128]
128.190
[Repealed by 1981 c.66 §8]
128.192 [1995 c.157 §1; repealed by 2005 c.348 §128]
128.194 [1995 c.157 §2; repealed by 2005 c.348 §128]
128.196 [1995 c.157 §3; repealed by 2005 c.348 §128]
128.198 [1995 c.157 §4; repealed by 2005 c.348 §128]
128.200
[Repealed by 1981 c.66 §8]
128.202 [1995 c.157 §5; repealed by 2005 c.348 §128]
128.204 [1995 c.157 §§6,7; repealed by 2005 c.348
§128]
128.206 [1995 c.157 §8; repealed by 2005 c.348 §128]
128.208 [1995 c.157 §9; repealed by 2005 c.348 §128]
128.210
[Repealed by 1981 c.66 §8]
128.212 [1995 c.157 §10; repealed by 2005 c.348
§128]
128.214 [1995 c.157 §11; repealed by 2005 c.348
§128]
128.216 [1995 c.157 §§12,14; repealed by 2005 c.348
§128]
128.218 [1995 c.157 §13; repealed by 2005 c.348
§128]
128.220
[Repealed by 1981 c.66 §8]
128.230
[Repealed by 1981 c.66 §8]
128.232 [1995 c.679 §1; repealed by 2005 c.348 §128]
128.234 [1995 c.679 §2; repealed by 2005 c.348 §128]
128.236 [1995 c.679 §3; repealed by 2005 c.348 §128]
128.238 [1995 c.679 §4; repealed by 2005 c.348 §128]
128.240
[Repealed by 1981 c.66 §8]
128.242 [1995 c.679 §5; repealed by 2005 c.348 §128]
128.244 [1995 c.679 §6; repealed by 2005 c.348 §128]
128.246 [1995 c.679 §7; repealed by 2005 c.348 §128]
128.250
[Amended by 1979 c.284 §110; repealed by 1981 c.66 §8]
128.255 [1997 c.151 §4; repealed by 2005 c.348 §128]
128.256 [2001 c.593 §1; 2005 c.348 §99;
renumbered 130.350 in 2005]
128.258 [2001 c.593 §1a; 2005 c.348 §100; renumbered 130.355 in 2005]
128.260
[Amended by 1979 c.284 §111; repealed by 1981 c.66 §8]
128.262 [2001 c.593 §2; renumbered 130.360 in 2005]
128.264 [2001 c.593 §3; 2005 c.348 §101;
renumbered 130.365 in 2005]
128.266 [2001 c.593 §4; 2003 c.14 §45; 2005 c.348 §102; renumbered 130.370 in 2005]
128.268 [2001 c.593 §5; renumbered 130.375 in 2005]
128.270
[Repealed by 1981 c.66 §8]
128.272 [2001 c.593 §6; 2005 c.348 §103;
renumbered 130.380 in 2005]
128.274 [2001 c.593 §7; renumbered 130.385 in 2005]
128.276 [2001 c.593 §7a; renumbered 130.390 in
2005]
128.278 [2001 c.593 §8; renumbered 130.395 in 2005]
128.280 [2001 c.593 §9; 2005 c.348 §121;
renumbered 130.400 in 2005]
128.282 [2001 c.593 §9a; renumbered 130.405 in
2005]
128.284 [2001 c.593 §9b; renumbered 130.410 in
2005]
128.286 [2001 c.593 §9c; renumbered 130.415 in
2005]
128.288 [2001 c.593 §9d; 2005 c.348 §104; renumbered 130.420 in 2005]
128.290 [2001 c.593 §10; 2005 c.348 §105;
renumbered 130.425 in 2005]
128.292 [2001 c.593 §11; renumbered 130.430 in 2005]
128.294 [2001 c.593 §12; 2005 c.348 §106;
renumbered 130.435 in 2005]
128.296 [2001 c.593 §13; renumbered 130.440 in 2005]
128.298 [2001 c.593 §14; renumbered 130.445 in 2005]
128.300 [2001 c.593 §15; 2005 c.348 §107;
renumbered 130.450 in 2005]
UNIFORM PRUDENT MANAGEMENT OF
INSTITUTIONAL FUNDS ACT
128.305 Short title.
ORS 128.305 to 128.336 may be cited as the Uniform Prudent Management of
Institutional Funds Act. [2007 c.554 §10]
128.308 [2001 c.636 §1; repealed by 2005 c.348 §128]
128.310 [1975 c.707 §11; repealed by 2007 c.554
§11]
128.315 [1975 c.707 §2; repealed by 2007 c.554 §11]
128.316 Definitions for ORS 128.305 to
128.336. As used in ORS 128.305 to 128.336:
(1)
“Charitable purpose” means the relief of poverty, the advancement of education
or religion, the promotion of health, the promotion of a governmental purpose
or any other purpose the achievement of which is beneficial to the community.
(2)
“Endowment fund” means an institutional fund or part of an institutional fund
that, under the terms of a gift instrument, is not wholly expendable by the
institution on a current basis. “Endowment fund” does not include assets that
an institution designates as an endowment fund for the institution’s own use.
(3)
“Gift instrument” means a record or records, including an institutional
solicitation, under which property is granted to, transferred to or held by an
institution as an institutional fund.
(4)
“Institution” means:
(a)
A person, other than an individual, organized and operated exclusively for
charitable purposes;
(b)
A government or governmental subdivision, agency or instrumentality, to the
extent that it holds funds exclusively for a charitable purpose; and
(c)
A trust that had both charitable and noncharitable
interests, after all noncharitable interests have
terminated.
(5)
“Institutional fund” means a fund held by an institution exclusively for
charitable purposes. “Institutional fund” does not include:
(a)
Program-related assets;
(b)
A fund held for an institution by a trustee that is not an institution;
(c)
A fund in which a beneficiary that is not an institution has an interest, other
than an interest that could arise upon violation or failure of the purposes of
the fund; or
(d)
A fund managed by the State Treasurer, moneys held by the State Treasurer for
investment or moneys managed or held for investment by or on behalf of the
State Treasurer under ORS chapter 293 or 348.
(6)
“Person” means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, public
corporation, government or governmental subdivision, agency or instrumentality,
or any other legal or commercial entity.
(7)
“Program-related asset” means an asset held by an institution primarily to
accomplish a charitable purpose of the institution and not primarily for
investment.
(8)
“Record” means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form.
[2007 c.554 §1]
128.318 Standard of conduct in managing
and investing institutional fund. (1) Subject
to the intent of a donor expressed in a gift instrument, an institution, in
managing and investing an institutional fund, shall consider the charitable
purposes of the institution and the purposes of the institutional fund.
(2)
In addition to complying with the duty of loyalty imposed by law other than ORS
128.305 to 128.336, each person responsible for managing and investing an
institutional fund shall manage and invest the fund in good faith and with the
care an ordinarily prudent person in a like position
would exercise under similar circumstances.
(3)
In managing and investing an institutional fund, an institution:
(a)
May incur only costs that are appropriate and reasonable in relation to the
assets, the purposes of the institution and the skills available to the
institution; and
(b)
Shall make a reasonable effort to verify facts relevant to the management and
investment of the fund.
(4)
An institution may pool two or more institutional funds for purposes of
management and investment.
(5)
Except as otherwise provided by a gift instrument, the following rules apply:
(a)
In managing and investing an institutional fund, the following factors, if
relevant, must be considered:
(A)
General economic conditions;
(B)
The possible effect of inflation or deflation;
(C)
The expected tax consequences, if any, of investment decisions or strategies;
(D)
The role that each investment or course of action plays within the overall
investment portfolio of the fund;
(E)
The expected total return from income and the appreciation of investments;
(F)
Other resources of the institution;
(G)
The needs of the institution and the fund to make distributions and to preserve
capital; and
(H)
An asset’s special relationship or special value, if any, to the charitable
purposes of the institution.
(b)
Management and investment decisions about an individual asset must be made not
in isolation, but instead in the context of the institutional fund’s portfolio
of investments as a whole and as a part of an overall investment strategy
having risk and return objectives reasonably suited to the fund and to the
institution.
(c)
Except as otherwise provided by law other than ORS 128.305 to 128.336, an
institution may invest in any kind of property or type of investment consistent
with this section.
(d)
An institution shall diversify the investments of an institutional fund unless
the institution reasonably determines that, because of special circumstances,
the purposes of the fund are better served without diversification.
(e)
Within a reasonable time after receiving property, an institution shall make
and carry out decisions concerning the retention or disposition of the property
or to rebalance a portfolio, in order to bring the institutional fund into
compliance with the purposes, terms and distribution requirements of the
institution as necessary to meet other circumstances of the institution and the
requirements of ORS 128.305 to 128.336.
(f)
A person that has special skills or expertise, or is selected in reliance upon
the person’s representation that the person has special skills or expertise,
has a duty to use those skills or that expertise in managing and investing
institutional funds. [2007 c.554 §2]
128.320 [1975 c.707 §3; 1995 c.79 §47; repealed
by 2007 c.554 §11]
128.322 Appropriation for expenditure or
accumulation of endowment fund; rules of construction.
(1) Subject to subsection (4) of this section and the intent of a donor
expressed in the gift instrument, an institution may appropriate for
expenditure or accumulate so much of an endowment fund as the institution
determines is prudent for the uses, benefits, purposes and duration for which
the endowment fund is established. Unless stated otherwise in the gift
instrument, the assets in an endowment fund are donor-restricted assets until
appropriated for expenditure by the institution. In making a determination to
appropriate or accumulate, the institution shall act in good faith, with the
care that an ordinarily prudent person in a like position would exercise under
similar circumstances, and shall consider, if relevant, the following factors:
(a)
The duration and preservation of the endowment fund;
(b)
The purposes of the institution and the endowment fund;
(c)
General economic conditions;
(d)
The possible effect of inflation or deflation;
(e)
The expected total return from income and the appreciation of investments;
(f)
Other resources of the institution; and
(g)
The investment policy of the institution.
(2)
To limit the authority to appropriate for expenditure or accumulate under
subsection (1) of this section, a gift instrument must specifically state the
limitation.
(3)
Terms in a gift instrument designating a gift as an endowment, or a direction
or authorization in the gift instrument to use only “income,” “interest,” “dividends”
or “rents, issues or profits,” or “to preserve the principal intact,” or words
of similar import:
(a)
Create an endowment fund of permanent duration unless other language in the
gift instrument limits the duration or purpose of the fund; and
(b)
Do not otherwise limit the authority to appropriate for expenditure or
accumulate under subsection (1) of this section.
(4)
The appropriation for expenditure in any year of an amount greater than seven
percent of the fair market value of an endowment fund, calculated on the basis
of market values determined at least quarterly and averaged over a period of
not less than three years immediately preceding the year in which the
appropriation for expenditure was made, creates a rebuttable presumption of
imprudence. For an endowment fund in existence for fewer than three years, the
fair market value of the endowment fund must be calculated for the period the
endowment fund has been in existence. This subsection does not:
(a)
Apply to an appropriation for expenditure permitted under law other than ORS
128.305 to 128.336 or by the gift instrument; or
(b)
Create a presumption of prudence for an appropriation for expenditure of an
amount less than or equal to seven percent of the fair market value of the
endowment fund. [2007 c.554 §3]
128.325 [1975 c.707 §4; repealed by 2007 c.554 §11]
128.326 Delegation of management and
investment functions. (1) Subject to any specific
limitation set forth in a gift instrument or in law other than ORS 128.305 to
128.336, an institution may delegate to an external agent the management and
investment of an institutional fund to the extent that an institution could
prudently delegate under the circumstances. An institution shall act in good
faith, with the care that an ordinarily prudent person in a like position would
exercise under similar circumstances, in:
(a)
Selecting an agent;
(b)
Establishing the scope and terms of the delegation, consistent with the
purposes of the institution and the institutional fund; and
(c)
Periodically reviewing the agent’s actions in order to monitor the agent’s
performance and compliance with the scope and terms of the delegation.
(2)
In performing a delegated function, an agent owes a duty to the institution to
exercise reasonable care to comply with the scope and terms of the delegation.
(3)
An institution that complies with subsection (1) of this section is not liable
for the decisions or actions of an agent to which the function was delegated.
(4)
By accepting delegation of a management or investment function from an
institution that is subject to the laws of this state, an agent submits to the
jurisdiction of the courts of this state in all proceedings arising from or
related to the delegation or the performance of the delegated function.
(5)
An institution may delegate management and investment functions to its
committees, officers or employees as authorized by law of this state other than
ORS 128.305 to 128.336. [2007 c.554 §4]
128.328 Release or modification of
restrictions on management, investment or purpose.
(1) If the donor consents in a record, an institution may release or modify, in
whole or in part, a restriction contained in a gift instrument on the
management, investment or purpose of an institutional fund. A release or
modification may not allow a fund to be used for a purpose other than a
charitable purpose of the institution.
(2)
The court, upon application of an institution, may modify a restriction
contained in a gift instrument regarding the management or investment of an
institutional fund if the restriction has become impracticable or wasteful, the
restriction impairs the management or investment of the fund or, because of
circumstances not anticipated by the donor, a modification of a restriction
will further the purposes of the fund. The institution shall notify the
Attorney General of the application, and the Attorney General must be given an
opportunity to be heard. To the extent practicable, any modification must be
made in accordance with the donor’s probable intention.
(3)
If a particular charitable purpose or a restriction contained in a gift
instrument on the use of an institutional fund becomes unlawful, impracticable,
impossible to achieve or wasteful, the court, upon application of an
institution, may modify the purpose of the fund or the restriction on the use
of the fund in a manner consistent with the charitable purposes expressed in
the gift instrument. The institution shall notify the Attorney General of the
application, and the Attorney General must be given an opportunity to be heard.
(4)
If an institution determines that a restriction contained in a gift instrument
on the management, investment or purpose of an institutional fund is unlawful,
impracticable, impossible to achieve or wasteful, the institution, within 60
days after notification to the Attorney General, may release or modify the
restriction, in whole or part, if:
(a)
The institutional fund subject to the restriction has a total value of less
than $25,000;
(b)
More than 20 years have elapsed since the fund was established; and
(c)
The institution uses the property in a manner consistent with the charitable
purposes expressed in the gift instrument.
(5)
The provisions of this section apply to property and other interests given by
private donors as a gift to a public body, as defined by ORS 174.109, or to any
instrumentality of a public body. This subsection does not limit any other
authority that a public body or an instrumentality of a public body may have to
release or modify a restriction contained in a gift instrument on the management,
investment or purpose of funds. [2007 c.554 §5]
128.330 [1975 c.707 §5; repealed by 2007 c.554 §11]
128.332 Reviewing compliance.
Compliance with ORS 128.305 to 128.336 is determined in light of the facts and
circumstances existing at the time a decision is made or action is taken, and
not by hindsight. [2007 c.554 §6]
128.334 Relation to Electronic Signatures
in Global and National Commerce Act. ORS 128.305
to 128.336 modify, limit and supersede the Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. 7001 et seq., but do
not modify, limit or supersede 15 U.S.C. 7001(a), or
authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). [2007 c.554 §8]
128.335 [1975 c.707 §6; repealed by 2007 c.554 §11]
128.336 Uniformity of application and
construction. In applying and construing ORS 128.305
to 128.336, consideration must be given to the need to promote uniformity of
the law with respect to its subject matter among states that enact the Uniform
Prudent Management of Institutional Funds Act. [2007 c.554
§9]
128.340 [1975 c.707 §7; repealed by 2007 c.554 §11]
128.345 [1975 c.707 §8; repealed by 2007 c.554 §11]
128.350 [1975 c.707 §10; repealed by 2007 c.554
§11]
128.355 [1975 c.707 §9; repealed by 2007 c.554 §11]
128.370 [2003 c.84 §1; 2005 c.348 §108;
renumbered 130.520 in 2005]
128.375 [2003 c.84 §2; 2005 c.348 §111;
renumbered 130.530 in 2005]
128.378 [2003 c.84 §3; 2005 c.348 §112;
renumbered 130.535 in 2005]
128.380 [2003 c.84 §4; renumbered 130.540 in 2005]
128.382 [2003 c.84 §5; renumbered 130.545 in 2005]
128.385 [2003 c.84 §6; 2005 c.348 §113;
renumbered 130.550 in 2005]
128.388 [2003 c.84 §7; 2005 c.348 §114;
renumbered 130.555 in 2005]
128.390 [2003 c.84 §8; 2005 c.348 §115; renumbered
130.560 in 2005]
128.392 [2003 c.84 §9; renumbered 130.565 in 2005]
128.395 [2003 c.84 §10; 2005 c.348 §116;
renumbered 130.570 in 2005]
128.397 [2003 c.84 §11; 2005 c.348 §117;
renumbered 130.575 in 2005]
128.398 [2003 c.84 §12; 2005 c.22 §99; 2005 c.348 §118; renumbered 130.240 in 2005]
128.400 [1987 c.813 §3; 1997 c.631 §416; 2001 c.796 §7; renumbered 97.923 in 2001]
128.405 [1987 c.813 §1; 2001 c.796 §16;
renumbered 97.925 in 2001]
128.407 [1987 c.813 §2; 2001 c.796 §17;
renumbered 97.927 in 2001]
128.410 [1953 c.639 §1; 1955 c.524 §1; 1959 c.691 §1; 1965 c.611 §14; 1967 c.359 §681; 1979 c.661 §1;
repealed by 1987 c.813 §17]
128.412 [1959 c.691 §2; 1967 c.359 §682; 1985 c.207 §23; 1987 c.813 §11; 1991 c.331 §43; 1997 c.631 §417; 1999 c.68 §1; 2001 c.796 §8;
renumbered 97.929 in 2001]
128.414 [1993 c.467 §3; 1995 c.325 §2; 2001 c.796 §9; renumbered 97.931 in 2001]
128.415 [1953 c.639 §2; 1955 c.524 §2; 1959 c.691 §3; 1981 c.484 §1; 1985 c.207 §24; 1987 c.214 §1; 1987 c.813 §12; 1989 c.171 §14; 2001 c.796 §10; renumbered 97.937 in 2001]
128.420 [1981 c.719 §9a; 1983 c.810 §26; 1987 c.158 §18b; repealed by 1987 c.813 §17]
128.421 [1987 c.813 §4; 1989 c.1048 §3; 2001 c.796 §11; renumbered 97.939 in 2001]
128.423 [1987 c.813 §5; 1989 c.1048 §1; 1995 c.720 §1; 2001 c.796 §12;
renumbered 97.941 in 2001]
128.425 [1987 c.813 §6; 1989 c.1048 §2; 1995 c.720 §2; 2001 c.796 §13;
renumbered 97.943 in 2001]
128.430 [1987 c.813 §7; 2001 c.796 §14;
renumbered 97.944 in 2001]
128.435 [1987 c.813 §8; 1995 c.144 §8; 2001 c.796 §15; renumbered 97.945 in 2001]
128.440 [1987 c.813 §8a; 2001 c.796 §18; renumbered 97.946 in 2001]
128.460 [1971 c.182 §1; repealed by 2005 c.348 §128]
128.470 [1971 c.182 §2; repealed by 2005 c.348 §128]
128.480 [1971 c.182 §3; repealed by 2005 c.348 §128]
128.490 [1971 c.182 §4; repealed by 2005 c.348 §128]
128.500 [1971 c.182 §5; repealed by 2005 c.348 §128]
EMPLOYEES’ TRUSTS
128.510 Definitions for ORS 128.520.
As used in ORS 128.520, “employees’ trust” means a trust of real or personal
property forming part of a pension, profit sharing, stock bonus, annuity,
disability or death benefit plan of an employer or group of employers for the
benefit of the employees of the employer or group of employers, to which
contributions are made by such employers or employees, or both, for the purpose
of distributing income or principal, or both, to such employees or the
beneficiaries of such employees. [1955 c.586 §1]
128.520 Employees’ trust may be in perpetuity;
accumulation of income. An employees’ trust may be
permitted to accumulate for such time as may be necessary to accomplish the
purpose for which it is created, and is not invalid as violating any rule of
law against perpetuities or the suspension of the power of alienation of title
to property. The income from any property held in an employees’ trust may
continue in perpetuity or in accordance with the terms of such trust, and the
plan of which such trust forms a part, for such time as may be necessary to
accomplish the purpose for which such trust is created. [1955 c.586 §2]
BUSINESS TRUSTS
128.560 “Business trust” described.
A “business trust” is any association, including a real estate investment
trust, engaged in or operating a business under a written trust agreement or
declaration of trust, the beneficial interest under which is divided into
transferable certificates of participation or shares, other than a trust
engaged solely in exercising the voting rights pertaining to corporate shares
or other securities in accordance with the terms of a written instrument. [1971
c.491 §1]
128.565 Business trust permitted.
A business trust is permitted as a recognized form of association for the
conduct of business within the State of Oregon. [1971 c.491
§2]
128.570 Business trusts and trustees not
subject to bank and trust company regulations.
Neither a business trust nor the trustees of such trust are subject to the
provisions of ORS chapters 706, 707 and 709. [1971 c.491
§3; 1997 c.631 §418]
128.573 Forms; rules.
Upon request, the Secretary of State may furnish forms for documents required
or permitted to be filed under ORS 128.560 to 128.600. The Secretary of State
may by rule require the use of the forms. [1995 c.215
§23]
128.575 Filing with Office of Secretary of
State required; fees; amendments. (1) Any
business trust desiring to do business in this state shall first submit to the
Office of Secretary of State a copy of the trust instrument creating the trust
and any subsequent amendments to the trust and a document setting forth:
(a)
The business trust name and the state or country of formation;
(b)
The names and addresses of its trustees;
(c)
The street address of the business trust’s registered office in this state and
the name of the registered agent;
(d)
A mailing address to which the Secretary of State may mail notices; and
(e)
Any additional identifying information that the Secretary of State by rule may
require.
(2)
The filing described in subsection (1) of this section shall be accompanied by
the applicable filing fee.
(3)
If the Secretary of State finds that the document contains the required
information, the Secretary of State, when all fees have been paid, shall file
the trust instrument and document and return an acknowledgment of filing to the
sender.
(4)
If a business trust amends its trust instrument it shall submit for filing a
copy of the amendment to the Office of Secretary of State. The amendment shall
set forth:
(a)
The name of the business trust as shown on the records of the Office of
Secretary of State; and
(b)
The information as changed. [1971 c.491 §4; 1973 c.367 §12; 1985 c.351 §21; 1985 c.728 §81a; 1987 c.94 §128; 1995 c.215 §24; 1999 c.486 §18]
128.580 Business trusts subject to certain
corporate laws. Any business trust shall be
subject to such provisions of law, now or hereafter enacted, with respect to
domestic and foreign corporations, respectively, as relate to the issuance of
securities, filing of required statements or reports, service of process, general
grants of power to act, right to sue and be sued, limitation of individual
liability of shareholders and rights to acquire, mortgage, sell, lease, operate
and otherwise to deal in real and personal property. Except as otherwise
provided in its trust agreement or declaration of trust, or any amendments
thereto, any business trust shall also be subject to the other provisions of
ORS chapter 60 and other rights and duties existing under the common law and
statutes of this state applicable to domestic and foreign corporations. Title
to any real or personal property may be held in the name of the trust, one or
more of the trustees or any other person as nominee. [1971 c.491
§5; 1973 c.367 §13; 1979 c.208
§6; 1987 c.94 §99]
128.585 Personal liability of trustees,
shareholders or beneficiaries of business trust.
The trustees, shareholders or beneficiaries of a business trust shall not, as
such, be personally liable for any obligations of such business trust arising
after June 25, 1971. Persons becoming trustees, shareholders or beneficiaries
after June 25, 1971, shall not be personally liable, as such, for obligations
of the business trust existing on June 25, 1971. [1971 c.491
§6; 1973 c.367 §14]
128.590 Filing of trust instrument as
conclusive evidence of compliance with laws; exception.
For purposes of ORS 128.585, filing of the trust instrument by the Secretary of
State shall be conclusive evidence that all conditions precedent required to be
performed by the business trust have been complied with and that the business
trust is authorized to do business in this state, except as against this state
in a proceeding to cancel or revoke the filing for violations of the provisions
of ORS 128.580. [1971 c.491 §7; 1985 c.728 §82]
128.595 Annual report; due date; content;
notice of requirement; effect of failure to file.
(1) A business trust by the trust’s anniversary date shall deliver to the
office of the Secretary of State for filing an annual report accompanied by the
annual fee.
(2)
The annual report shall contain the following:
(a)
The name of the business trust and the state or country under whose law the
business trust is formed;
(b)
The names and addresses of the business trust’s trustees;
(c)
The street address of the business trust’s registered office in this state and
the name of the trust’s registered agent at the registered office;
(d)
A mailing address to which the Secretary of State may mail notices;
(e)
A description of the primary business activity of the business trust; and
(f)
Any additional identifying information that the Secretary of State may require
by rule.
(3)
The annual report shall be on forms prescribed and furnished by the Secretary
of State. The information contained in the annual report shall be current as of
30 days before the anniversary of the business trust.
(4)
The Secretary of State shall mail the report form to any address shown for the
business trust in the current records of the office of the Secretary of State.
The failure of the business trust to receive the report form from the Secretary
of State does not relieve the business trust of the trust’s duty under this
section to deliver a report to the office.
(5)
If the Secretary of State finds the report conforms to the requirements of this
section, the Secretary of State shall file the report.
(6)
If the Secretary of State finds that the annual report does not conform to the
requirements of this section, the Secretary of State shall return the report to
the business trust. The business trust shall correct the annual report and
return the corrected report to the Secretary of State within 45 days after the
Secretary of State returns the report.
(7)
If no report is filed by the reporting date or if no corrected report is filed
within the 45-day period, the Secretary of State shall send to the business
trust a final notice advising that no report has been filed and it is,
therefore, assumed that the business trust is no longer active unless a report
is filed within 45 days after the mailing of such final notice.
(8)
Not less than 45 days after the date of mailing of the final notice provided
for by subsection (7) of this section, the Secretary of State may assume and
note on the records of the Secretary of State that the business trust is
inactive. [Formerly 128.075; 1983 c.717 §29; 1985 c.351 §22; 1985 c.728 §82b; 1987 c.94 §130; 1987 c.843 §18; 1993 c.190 §17; 1995 c.215 §25; 2007 c.186 §17; 2011 c.147 §25]
128.597 Inactivation of business trust.
The Secretary of State may commence a proceeding to inactivate the trust instrument
of a business trust if:
(1)
The business trust does not pay when due any fees imposed by ORS 128.560 to
128.600;
(2)
The business trust does not deliver its annual report to the Secretary of State
when due;
(3)
The business trust is without a registered agent or registered office in this
state;
(4)
The business trust does not notify the Secretary of State that its registered
agent or registered office has been changed, that its registered agent has
resigned or that its registered office has been discontinued; or
(5)
The business trust’s period of duration stated in the trust instrument expires.
[1995 c.215 §27]
128.599 Reinstatement of business trust
following inactivation. (1) A business trust that the
Secretary of State inactivated under ORS 128.597 may apply to the Secretary of
State for reinstatement within five years from the date of inactivation. The
application must state:
(a)
The name of the business trust and effective date of the business trust’s
administrative inactivation; and
(b)
That the ground or grounds for inactivation either did not exist or have been
eliminated.
(2)
If the Secretary of State determines that the application contains the
information required by subsection (1) of this section, that the information is
correct and that the business trust’s name satisfies the requirements of ORS
60.094, the Secretary of State shall reinstate the business trust.
(3)
When effective, the reinstatement relates back to and takes effect as of the
effective date of the administrative inactivation and the business trust is
considered to resume carrying on the business trust’s business as if the
administrative inactivation had never occurred.
(4)
The Secretary of State may waive the requirement under subsection (1) of this
section that the business trust apply for reinstatement within five years after
the date of administrative inactivation if the business trust requests the
waiver and provides evidence of the business trust’s continued existence as an
active concern during the period of administrative inactivation. [1995 c.215 §28; 2011 c.147 §26]
128.600 Filing, service, copying and
certification fees. The Secretary of State shall
collect the fees described in ORS 56.140 for each document delivered for filing
under ORS 128.560 to 128.600 and for process served on the secretary under ORS
128.560 to 128.600. The secretary may collect the fees described in ORS 56.140
for copying any public record under ORS 128.560 to 128.600, certifying the copy
or certifying to other facts of record under ORS 128.560 to 128.600. [1987 c.94 §129; 1991 c.132 §14; 1995 c.215 §26; 1999 c.652 §15]
CHARITABLE TRUST AND CORPORATION ACT
128.610 Short title.
ORS 128.610 to 128.750 may be cited as the Charitable Trust and Corporation
Act. [1963 c.583 §1; 1971 c.589
§1; 1981 c.593 §1; 1985 c.729
§25; 1985 c.730 §4]
128.620 Definitions for ORS 128.610 to
128.750. As used in ORS 128.610 to 128.750:
(1)
“Charitable corporation” means any nonprofit corporation organized under the
laws of this state for charitable or eleemosynary purposes and any similar
foreign corporation doing business or holding property in this state for such
purposes. The mere making of grants or donations to institutions or
beneficiaries within the State of Oregon, or the investigation of applicants
for such grants or donations, does not constitute doing business in this state.
However, the solicitation of funds for charitable purposes in this state shall
constitute doing business therein.
(2)
“Charitable organization” includes charitable corporations, trustees and other
charitable organizations not specifically exempted from the application of ORS
128.610 to 128.750.
(3)
“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.
(4)
“Religious organization” means any organized church or group organized for the
purpose of divine worship, religious teaching, or other directly ancillary
purposes.
(5)
“Trustee” means:
(a)
Any individual, group of individuals, corporation or other legal entity holding
property in trust pursuant to any charitable trust;
(b)
Any corporation that has accepted property to be used for a particular
charitable corporate purpose as distinguished from the general purposes of the
corporation; and
(c)
A corporation formed for the administration of a charitable trust, pursuant to
the directions of the settlor or at the instance of
the trustee. [1963 c.583 §§3,4; 1971 c.589 §2; 1981 c.593 §2; 1985 c.730 §5; 1989 c.334 §1; 2007 c.571 §2]
128.630 Application of ORS 128.610 to
128.750. (1) ORS 128.610 to 128.750 apply to all
charitable organizations holding property for charitable purposes over which
the state or the Attorney General has enforcement or supervisory powers.
(2)
ORS 128.610 to 128.750 shall apply regardless of any contrary provisions of any
instrument. [1963 c.583 §§2,14; 1971 c.589 §3; 1981 c.593 §3; 1985 c.729 §27; 1985 c.730 §6; 2007 c.571 §3]
128.640 Exemptions from application of ORS
128.610 to 128.750. (1) ORS 128.610 to 128.750 do
not apply to the United States, any state, territory or possession of the
United States, the District of Columbia, the Commonwealth of Puerto Rico, or to
any of their agencies or governmental subdivisions.
(2)
ORS 128.650 to 128.670 and 128.720 do not apply to:
(a)
Any religious corporation sole or other religious corporation or organization
which holds property for religious purposes, or to any officer, director or
trustee thereof who holds property for like purposes;
(b)
A cemetery that is registered with the State Mortuary and Cemetery Board under
ORS 692.275 or a historic cemetery listed with the Oregon Commission on
Historic Cemeteries under ORS 97.782;
(c)
A trustee that holds property for charitable purposes in the event that the
sole beneficiary of a charitable remainder trust serves as trustee; or
(d)
A child-caring agency regulated under ORS 418.215 to 418.265. [1963 c.583 §5; 1971 c.589 §4; 1981 c.593 §4; 1985 c.730 §7; 1989 c.334 §2; 1999 c.731 §10; 2003 c.173 §8]
128.650 Register of charitable
organizations; authority of Attorney General to maintain register.
The Attorney General shall establish and maintain a register of charitable
organizations subject to ORS 128.610 to 128.750 and of the particular trust or
other relationship under which the charitable organizations hold property for
charitable purposes and, to that end, may conduct whatever investigation is
necessary, and shall obtain from public records, court officers, taxing
authorities, trustees, and other sources, whatever information, copies of
instruments, reports and records that are needed for the establishment and
maintenance of the register. [1963 c.583 §6; 1971 c.589 §5; 1981 c.593 §5; 1985 c.729 §29; 1985 c.730 §8; 2007 c.571 §4]
128.660 Filing of articles of
incorporation or other instrument with Attorney General.
Every charitable organization subject to ORS 128.610 to 128.750 that has
received property for charitable purposes shall file with the Attorney General,
upon receiving possession or control of such property, a copy of the articles
of incorporation, trust agreement or other instrument providing for title,
powers or duties. [1963 c.583 §7; 1971 c.589 §6; 1981 c.593 §6; 2007 c.571 §5]
128.670 Filing of reports; rules; fees;
authority of Attorney General relating to reports; civil penalty.
(1) Except as otherwise provided, every charitable organization subject to ORS
128.610 to 128.750 shall, in addition to filing copies of the instruments
previously required, file with the Attorney General periodic written reports
setting forth information as to the nature of the assets held for charitable
purposes and the administration thereof by the corporation or trustee.
(2)
The Attorney General may classify trusts and other relationships concerning
property held for a charitable purpose as to purpose, nature of assets,
duration of the trust or other relationship, amount of assets, amounts to be
devoted to charitable purposes, nature of trustee, or otherwise, and may
establish different rules for the different classes as to time and nature of
the reports required to the ends that:
(a)
The Attorney General shall receive reasonably current, periodic reports as to
all charitable trusts or other relationships of a similar nature, which will
enable the Attorney General to ascertain whether they are being properly
administered; and
(b)
Periodic reports shall not unreasonably add to the expense of the
administration of charitable trusts and similar relationships.
(3)
The Attorney General may suspend the filing of reports as to a particular
charitable trust or relationship for a reasonable, specifically designated time
after the Attorney General has filed in the register of charitable trusts a
written statement that the interests of the beneficiaries will not be
prejudiced thereby and that periodic reports are not required for proper
supervision by the Attorney General’s office.
(4)
A copy of an account filed by the trustee in any court having jurisdiction of
the trust or other relationship, if the account substantially complies with the
rules of the Attorney General, may be filed as a report required by this
section.
(5)
The first report for a trust or similar relationship hereafter established,
unless the filing thereof is suspended as provided in subsection (3) of this
section, shall be filed not later than four months and 15 days following the
close of the first calendar or fiscal year in which any part of the income or
principal is authorized or required to be applied to a charitable purpose.
Subsequent annual reports shall be submitted not later than four months and 15
days following the close of each calendar or fiscal year adopted by the
charitable organization.
(6)
The Attorney General shall make rules as to the time for filing reports, the
contents thereof, and the manner of executing and filing them. The Attorney
General may make additional rules and amend existing rules as necessary for the
proper administration of the Charitable Trust and Corporation Act.
(7)(a)
A charitable organization, when filing a report required under this section,
shall pay a fee to the Department of Justice in accordance with a fee schedule
established by the department by rule.
(b)
The fee schedule shall consist of the following elements:
(A)
A fee that the department shall set according to a scale graduated on the basis
of the charitable organization’s receipts and income during the time covered by
the report, with a lower fee applying to lower receipts and income and a higher
fee applying to higher receipts and income. The minimum applicable fee is $10
and the maximum applicable fee is $400.
(B)
A fee based on a percentage of the fund balance the charitable organization has
at the close of the organization’s calendar or fiscal year. The department
shall set the fee under this subparagraph at not more than 0.02 of one percent
of the fund balance or $2,000, whichever is less.
(c)
The charitable organization shall pay a fee that consists of both elements set
forth in paragraph (b) of this subsection at the time the organization files a
report required under this section.
(d)
In calculating the fee element set forth in paragraph (b)(B) of this
subsection, the department may not include in the fund balance any fixed assets
that the charitable organization uses for operations.
(e)
The department shall ensure that the aggregate amount of fees paid under this
section is sufficient to pay the department’s expenses in administering ORS
128.610 to 128.750 and 128.801 to 128.898.
(8)(a)
If the charitable organization does not pay the fee prescribed by rules adopted
under subsection (7) of this section or fails to file a report by the date due,
the charitable organization, in addition to the fee due, shall pay a
delinquency fee in an amount the department specifies by rule. The department
may increase the delinquency fee or charge additional delinquency fees based on
the length of time the payment or report is delinquent.
(b)
In addition to charging any delinquency fee required under paragraph (a) of
this subsection, the Attorney General, in compliance with the procedures set
forth in ORS chapter 183, may take either or both of these actions:
(A)
Impose a civil penalty of not more than $1,000 on any charitable organization
that fails to file a delinquent report or fails to pay a delinquency fee or a
fee due under subsection (7) of this section within 90 days after receiving
notice of the delinquency; or
(B)
Order any charitable organization to cease soliciting contributions until the
charitable organization has paid a fee or delinquency fee imposed under this
section or has filed a report required under this section.
(c)
In any judicial review of the order of the Attorney General, the order shall be
reversed or modified only if the court finds that the Attorney General lacked
authority to issue the order or impose the penalty or that the amount of the
penalty imposed was unconscionable in the circumstances.
(d)
The Attorney General may grant an extension of time for a reasonable period for
filing a report upon written application filed by or on behalf of the
charitable organization stating the reason that additional time should be
allowed for filing the report beyond the ordinary due date. If the request is
submitted on or prior to the due date for filing the report, the delinquency
fee described in paragraph (a) of this subsection will not be due unless the
report and fee are thereafter not filed within the extended period granted for
filing the report, or, if the request is denied, within 10 days after the
denial is received by the corporation.
(9)
All fees and penalties received by the Department of Justice under subsections
(7) and (8) of this section shall be paid over to the State Treasurer monthly
for deposit in the Department of Justice Operating Account created under the provisions
of ORS 180.180. Amounts deposited pursuant to this subsection are continuously
appropriated to the Attorney General to pay the expenses of the Department of
Justice in administering ORS 128.610 to 128.750 and 128.801 to 128.898 and for
no other purpose. [1963 c.583 §8; 1971 c.589 §7; 1973 c.506 §40; 1973 c.775 §4; 1975 c.388 §5; 1981 c.593 §7; 1985 c.730 §9; 1991 c.734 §7; 2007 c.571 §1]
128.680 Investigatory authority of
Attorney General. The Attorney General may
investigate transactions and relationships of charitable organizations subject
to ORS 128.610 to 128.750 for the purpose of ascertaining whether or not the
purposes of the charitable organization are being carried out in accordance
with the terms and provisions of the articles of incorporation or other
instrument, whether a person or organization has engaged in a violation of ORS
128.610 to 128.750 or whether such a person or organization has breached a
fiduciary duty arising under the common law. The Attorney General may require
any agent, trustee, fiduciary, beneficiary, institution, association or
corporation, or other person to appear, at a named time and place, in the
county designated by the Attorney General, where the person resides or is
found, to give information under oath and to produce books, memoranda, papers,
documents of title, and evidence of assets, liabilities, receipts or
disbursements in the possession or control of the person ordered to appear. [1963
c.583 §10; 1971 c.589 §8;
1981 c.593 §9; 1985 c.729 §30;
1985 c.730 §11; 2007 c.571 §7]
128.690 Order for attendance by Attorney
General; effect. When the Attorney General
requires the attendance of any person, as provided in ORS 128.680, the Attorney
General shall issue an order setting forth the time when and the place where
attendance is required and shall cause the same to be delivered to or sent by
registered or certified mail to the person at least 14 days before the date
fixed for attendance. Such order shall have the same force and effect as a
subpoena and, upon application of the Attorney General, obedience to the order
may be enforced by any court having jurisdiction of charitable trusts in the
county where the trust may be in existence or administered or the person
receiving it resides or is found, in the same manner as though the notice were
a subpoena. The court, after hearing, for cause, and upon application of any
person aggrieved by the order, shall have the right to alter, amend, revise,
suspend or postpone all or any part of its provisions. [1963 c.583 §11]
128.700 [1963 c.583 §12; repealed by 1973 c.794
§34]
128.710 Enforcement; jurisdiction of
court. (1) The Attorney General may institute
appropriate proceedings to secure compliance with ORS 128.610 to 128.750 and to
invoke the jurisdiction of the court. Willful failure to comply with an order
of any court having jurisdiction of charitable trusts requiring an accounting
by a charitable corporation or trustee shall constitute grounds for removal of
the officers of such charitable corporation or of such trustee and the
appointment by the court of successor officers or trustee. The powers and
duties of the Attorney General provided in ORS 128.610 to 128.750 are in
addition to existing powers and duties.
(2)
Nothing in ORS 128.610 to 128.750 shall impair or restrict the jurisdiction of
any court with respect to any of the matters covered by it, except that no
court shall have jurisdiction to modify or terminate any trust of property for
charitable purposes unless the Attorney General is a party to the proceedings. [1963
c.583 §13; 1971 c.589 §9;
1981 c.593 §10; 1985 c.729 §31;
1985 c.730 §12]
128.720 Copies of certain documents and
notice to be provided Attorney General. Every person
who offers for probate any instrument which establishes a testamentary trust of
property for charitable purposes or who records in any county any inter vivos transfer of property for charitable purposes shall
furnish a copy of such document to the Attorney General. Upon filing the final
account and petition for a judgment of distribution of any estate through which
a residuary testamentary trust for charitable purposes is established, the
personal representative shall mail a copy thereof, and a copy of the notice
fixing the time for filing objections thereto, to the Attorney General not less
than 20 days before the time fixed in the notice. The custodian of the records
of a court having jurisdiction of probate matters or of charitable trusts shall
furnish such copies of papers, records and files of the office of the custodian
relating to the subject of ORS 128.610 to 128.750 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 128.750 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 to enforce any fiduciary or other duty arising
under ORS 128.610 to 128.750 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 officers of the charitable corporation or trustee of a
charitable trust, or may be paid out of the corpus of the trust. [1985 c.730 §2; 2007 c.571 §6]
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 128.750, 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]
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 128.750; 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 128.801 to 128.898 and 128.995.
(2)
Any material violation of ORS 128.801 to 128.898 or the rules adopted by the
Attorney General pursuant to ORS 128.801 to 128.898 and 128.995. [1985 c.729 §23; 1991 c.532 §12]
128.876 Rules.
The Attorney General shall make rules as to the filing and execution of reports
and registration statements required by ORS 128.610 to 128.650, 128.680,
128.710, 128.801 to 128.899, 128.995 and 646.608 and to the contents thereof.
The Attorney General may make additional rules and amend existing rules as
necessary for the proper administration of the Charitable Solicitations Act. [1985
c.729 §18; 2003 c.14 §46]
128.880 [1959 c.599 §9; 1967 c.359 §130;
renumbered 731.724]
128.881 Deposit of fees and penalties;
use. All fees and penalties received by the
Department of Justice under ORS 128.802 and 128.821 shall be paid over to the
State Treasurer monthly for deposit in the Department of Justice Operating
Account created under the provisions of ORS 180.180. Amounts deposited pursuant
to this section are continuously appropriated to the Attorney General to pay
the expenses of the Department of Justice in administering the Charitable Trust
and Corporation Act as established in ORS 128.610 and the Charitable
Solicitations Act. [1985 c.729 §20; 1991 c.532 §13]
128.886 False or misleading representations
prohibited. (1) No person shall make any false or
misleading representations in the course of any solicitation of contributions.
(2)
A representation may be any manifestation of any assertion by words or conduct,
including, but not limited to, a failure to disclose a fact.
(3)
No person shall have a cause of action under ORS 646.638 for an alleged
violation of any provision of this section if the alleged false or misleading
representation is made by a volunteer of an organization which is exempt from
federal taxation under section 501(c) of the Internal Revenue Code of 1954, as
amended, and the alleged false or misleading representation is not made at the
direction of paid personnel. [1985 c.729 §16; 1989 c.913 §2; 1991 c.532 §14]
128.890 [1959 c.599 §10; repealed by 1967 c.359
§704]
128.891 Prohibited representations; written
notice. (1) No solicitation for contributions
shall in any way use the fact or requirement of registration, or any filing of
any report pursuant to the Charitable Solicitations Act or ORS 128.610 to
128.750, with the intent to cause or in a manner tending to cause any person to
believe that such solicitation, the manner in which it is conducted, its
purposes, any use to which the proceeds will be applied, or the person or
organization conducting it have been or will be in any way indorsed, sanctioned
or approved by the Attorney General or any other governmental agency or office.
(2)
Any written or oral statement made in connection with a solicitation of
contributions that the person or organization conducting the solicitation is
registered or has filed, will file or is required to file any report with the
Attorney General, or any statement of similar import, shall be immediately
followed by a statement of equal prominence that such registration or report in
no way constitutes or implies any indorsement,
sanction or approval of the solicitation, its purposes, the manner in which it
is conducted or the person or organization conducting it, by the Attorney
General or any other governmental agency or officer. [1985 c.729
§19]
128.893 Use of in-state address.
(1) A person may not use an address in this state, including a return address,
in a solicitation, or in written material issued in connection with a
solicitation, made on behalf of a nonprofit organization unless:
(a)
The nonprofit organization actually maintains and staffs an office in this
state; or
(b)
The solicitation, or written material issued in connection with a solicitation,
discloses:
(A)
The address of the actual headquarters of the nonprofit organization; and
(B)
That the address in this state is a mail drop or that the address in this state
is solely the address of a mail handling facility.
(2)
If the disclosures described in subsection (1) of this section are required in
a written solicitation, or in written material issued in connection with a
solicitation, the disclosures shall be printed immediately proximate to the
address in this state and in a location and typeface no less prominent than the
address in this state. [2003 c.40 §2]
128.896 [1985 c.730 §13; 1991 c.734 §8;
renumbered 128.899 in 1991]
128.898 Short title.
ORS 128.801 to 128.898 and 128.995 may be cited as the Charitable Solicitations
Act. [1985 c.729 §2]
CIVIL PENALTIES
128.899 Civil penalties for violation of
ORS 128.610 to 128.750. (1) The responsible officers or
trustees of a corporation or trust which fails to register or file a report
required by ORS 128.610 to 128.750 or the Charitable Trust and Corporation Act
may be assessed a civil penalty not to exceed $1,000 by the Attorney General.
(2)
Civil penalties under this section shall be imposed as provided in ORS 183.745.
(3)
All penalties recovered under this section shall be credited to the Department
of Justice Operating Account as described in ORS 128.670 (9). [Formerly
128.896]
CRIMINAL PENALTIES
128.990 [1959 c.639 §3; subsections (2), (3), (4) enacted as 1971 c.589 §18; 1975 c.388 §7; 1981 c.593 §16; 1985 c.729 §21; 1987 c.813 §13; renumbered 97.992 in 2001]
128.991 [1987 c.813 §9; 1993 c.467 §4; 1995 c.325 §3; 2001 c.796 §19;
renumbered 97.994 in 2001]
128.992 Penalties for ORS 128.610 to
128.750. Filing or assisting in preparing or
filing a statement or report required by the Charitable Trust and Corporation
Act, ORS 128.610 to 128.750, that is false or fraudulent is a Class A
misdemeanor. [1985 c.730 §3]
128.995 Penalties for ORS 128.801 to
128.898. Violation of ORS 128.802, 128.821 or
filing or assisting in preparing or filing a statement or report required by
ORS 128.801 to 128.898 that is false or fraudulent is a Class A misdemeanor. [1985
c.729 §24; 1991 c.532 §23]
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