California Nonprofit Corporation Law Section 5056

Founders of startup charities challenge vital decisions well before submitting the files for federal tax-exempt standing. Should the proposed new company incorpoprice – or run as an association or a charitable trust? Should it be director-driven or member-driven?State regulation applies to these selections. Although tright here are many kind of similarities in the nonprofit legislations of the various jurisdictions in the United States, they are not similar.For the initially of these 2 inquiries, the option is reasonably straightforward. Many kind of, though not all, 501(c)(3) charities opt for the corporate format because it provides a level of defense versus personal liability. In The golden state, an organization (various other than a religious group) that will qualify for a 501(c)(3) federal tax exemption will certainly incorpoprice under the state Nonprofit Public Benefit Corporation Law. Unfavor a for-profit organization, the entity does not have actually shareholders. The board of directors will govern the team. The following decision – around offering memberships – have the right to, and should be, an extra very closely thought about issue. A public benefit corporation in this state may, but is not compelled to, have “members.” There’s additionally a crucial distinction in between “statutory” (voting) members and honorary members. No issue how they are explained by the company, state regulation governs which is which. And the significance cannot be overstated, particularly if the team wants to protect against the kind of unexpected and also catastrophic coup d’etat and ugly, protracted litigation defined in “Memberships: What Could Possibly Go Wrong for a 501(c)(3)?”

Memberships: What are They?

“As to the idea of ‘members’, the term itself is the source of endmuch less confusion for members of nonprofit institutions, board members, members of the public, and also members of the legal profession….”

Essentially, the term is provided in two ways. First, it describes what might be described as corpoprice members: those people who have some legal legal rights in the company, usually the appropriate to elect or provide a slate to the board of directors, and approve of significant corpoprice changes. * * * The other form of member is ssuggest one that in rerotate for a membership fee or various other donation receives a advantage of some sort, commonly a newsletter, use of the organization’s facility, or wanted seating or admission. This type of member has actually no legal civil liberties or legal standing in the company.

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The California Attorney General offers this summary:

Q. What is the distinction in between honorary and also statutory members? A. Unlike the honorary members, statutory members are provided legal civil liberties to protect their membership interests. They are permitted to inspect corporate records, attend meetings, and have other privileges outlined previously in the chapter. Honorary members are normally contributing donors that carry out not have actually legal legal rights as members. Consult the bylegislations of your organization to determine your condition.

In component bereason California permits the flexibility of statutory vs. honorary members, “public advantage corporations commonly perform not have voting members….Not just is this simpler to carry out, the nonprofit does not run the threat of having actually outsiders attempt to hijack the organization.” The “…a lot of common administration structure under the California Nonprofit Public Benefit Corporations Law today” is the “board-elected board of directors.” How does it work?

he sitting Board of Directors elects its successors as vacancies are produced, whether by resignation, removal, fatality, or expiration of term. A non-member corporation deserve to still have dues-paying members, however its bylaws need to state plainly that they do not deserve to vote for directors or upon various other major corpoprice decisions.

See more: Nonprofit Or Non-Profit Ap Style Book, Nine Common Ap Style Blunders

There are various other methods to create methods for dues-paying – but nonvoting – members to get involved in governance. They deserve to “be asked to respond to interior opinion surveys or have the right to be polled on nominations for the Board.” They and other people outside of the Board deserve to be readily available positions on an advisory council or board.

How to Create – or Negate – Voting Memberships

In The golden state, the term “member” is explicitly characterized as a person that, under a “particular provision” of the corporation’s short articles of incorporation or bylaws, “has actually the best to vote for the election of a director or directors or on a displace of all or substantially all of the assets of a corporation or on a merger or on a dissolution.” Although a public advantage corporation has actually the power to develop classes of members and also market membership to people or corporate entities, tbelow is no requirement at all that a public advantage corporation in this state have members at all. “Depfinishing on the byregulations, members may be vested via considerable voting and other statutory rights, or they might sindicate be donors that reap honorary membership without voting or statutory civil liberties.” Here’s just how these rules and meanings are set out in the California Nonprofit Public Benefit Law. Under The golden state Corporations Code section 5310(a) –

A corporation may admit persons to membership, as offered in its articles or bylaws, or might provide in its posts or bylegislations that it shall have actually no members. In the absence of any kind of provision in its posts or byregulations giving for members, a corporation shall have no members. (bolding added)

The definitional statute is at The golden state Corporations Code section 5056(a):

‘Member’ means any kind of person who, pursuant to a specific provision of a corporation’s short articles or bylaws, has actually the best to vote for the election of a director or directors or on a disposition of all or substantially every one of the assets of a corporation or on a merger or on a dissolution …. ‘Member’ likewise indicates any perkid that is designated in the posts or bylegislations as a member and also, pursuant to a particular provision of a corporation’s articles or bylaws, has actually the appropriate to vote on transforms to the short articles or byregulations.

Tbelow is a caveat in subsection (b): “The write-ups or bylaws may confer some or all of the legal rights of a member, collection forth in this component and also in Parts 2 through 5 of this department, upon any kind of person or persons who perform not have actually any kind of of the voting rights referred to in subdivision (a).”Section 5332(a) provides clear that “… corporation might refer to persons linked through it as ‘members’ also though such persons are not members within the interpretation of Section 5056….”Memberships have the right to be issued “for no consideration or for such consideration as is determined by the board”; that is, individuals that achieve either statutory or honorary memberships civil liberties might not need to pay them. It’s completely a matter of board policy and also determination. Customarily, though, there are some dues payments required for membership or, in the case of honorary memberships, they may be issued in rerotate for dues payments, ticket sales or various other purchases, or solutions.

More Member Rights

Under The golden state regulation, voting members have the ideal not only to elect (and remove) directors, yet additionally are entitled to:

Inspect certain corpoprice records;Receive notice of meetings;Sue the directors in derivative actions, or third parties on behalf of the corporation, under particular circumstances and also topic to stated limitations;Other rights spelled out in the statutes and also in the corporation’s bylaws.

These civil liberties can be enforced in a lawsuit in civil court.


The California statute is remarkably flexible. It works well in many circumstances.Organizations that make the cautious, reasoned decision to adopt a “member-driven” create of corporate administration desire and also need a trustworthy and clear-cut roadmap; it’s provided by these legislations.Other institutions – neighborhood teams prefer arts and social institutions, for circumstances – want the choice to invite the basic public to assistance them by providing “membership” condition and also recognition – without risking an insurgency. The statute gives for this, also. Everyone is clear about these honorary, non-voting memberships. When, for example, a PBS viewer calls in during pledge week, orders that distinct 3-volume, 2-CD set of retirement-planning tips, and also becomes a brand-new member, that perboy isn’t buying anypoint various other than financial peace-of-mind.