A. 2118--A 2
S 3. Section 701 of the not-for-profit corporation law is amended by
adding a new paragraph (c) to read as follows:
(C) AN EMPLOYEE OR A SPOUSE, DOMESTIC PARTNER, SIBLING (BY WHOLE OR
HALF BLOOD), SPOUSE OR DOMESTIC PARTNER OF A SIBLING (BY WHOLE OR HALF
BLOOD), CHILD, GRANDCHILD, GREAT-GRANDCHILD, AND SPOUSE OR DOMESTIC
PARTNER OF A CHILD, GRANDCHILD, AND GREAT-GRANDCHILD OF THE EMPLOYEE AT
A PUBLIC CHARITY, AS THAT TERM MAY BE DEFINED BY THE INTERNAL REVENUE
SERVICE FROM TIME-TO-TIME, MAY NOT QUALIFY TO SIT ON THE BOARD OF DIREC-
TORS OF THE CORPORATION WHERE THEY ARE EMPLOYED REGARDLESS OF ANY STATE-
MENT TO THE CONTRARY IN THE CERTIFICATE OF INCORPORATION OR BYLAWS OF
THE CORPORATION. THE CERTIFICATE OF INCORPORATION OR THE BYLAWS MAY,
HOWEVER, PROVIDE FOR AN EMPLOYEE AT A PUBLIC CHARITY, AS THAT TERM MAY
BE DEFINED BY THE INTERNAL REVENUE SERVICE FROM TIME-TO-TIME, TO BE
EX-OFFICIO, A NON-VOTING MEMBER OF THE BOARD OF DIRECTORS.
S 4. Paragraph (a) of section 702 of the not-for-profit corporation
law, as amended by chapter 549 of the laws 2013, is amended to read as
follows:
(a) [The] FOR NOT-FOR-PROFIT CORPORATIONS WITH ANNUAL GROSS RECEIPTS
IN AN AMOUNT THAT WOULD TRIGGER AN AUDIT BY A CERTIFIED PUBLIC ACCOUNT-
ANT, THE number of directors constituting the entire board shall be not
less than FIVE, OTHERWISE THE ENTIRE BOARD SHALL NOT BE LESS THAN three.
Subject to such limitation, such number may be fixed by the by-laws or
by action of the members or of the board under the specific provisions
of a by-law allowing such action, or by any number within a range set
forth in the by-laws. [If] FOR NOT-FOR-PROFIT CORPORATIONS WITH ANNUAL
GROSS RECEIPTS EQUAL TO OR ABOVE TWO HUNDRED FIFTY THOUSAND DOLLARS, IF
not otherwise fixed under this paragraph, the number shall be FIVE,
OTHERWISE IT SHALL BE three.
S 5. Paragraph (a) of section 706 of the not-for-profit corporation
law is amended to read as follows:
(a) Except as limited in paragraph (c) OF THIS SECTION, any or all of
the directors may be removed for cause, WHICH IS EITHER A VIOLATION OF
THE BY-LAWS, THE DUTY OF DIRECTORS AND OFFICERS OF SECTION SEVEN HUNDRED
SEVENTEEN (COMPENSATION OF EXECUTIVES), OR AS OTHERWISE DEFINED IN THE
BYLAWS IN THE WRITTEN CONFLICT OF INTEREST POLICY OF THE CORPORATION, by
vote of the members, or by vote of the directors provided there is a
quorum of not less than a majority present at the meeting of directors
at which such action is taken.
S 6. Paragraph (b) of section 708 of the not-for-profit corporation
law, as amended by chapter 549 of the laws of 2013, is amended to read
as follows:
(b) Unless otherwise restricted by the certificate of incorporation or
the by-laws, any action required or permitted to be taken by the board
or any committee thereof may be taken without a meeting if all members
of the board or the committee consent to the adoption of a resolution
authorizing the action, WHERE SAID WRITING, OR UNANIMOUS CONSENT IN LIEU
OF A MEETING, IS DELIVERED, SUBMITTED AND SIGNED SEPARATELY BY ALL
MEMBERS OF THE BOARD OR THE COMMITTEE AND SUBMITTED BY ELECTRONIC-MAIL,
OR OTHER ELECTRONIC MEANS WITH AN ELECTRONIC RETURNED RECEIPT, OR SIMI-
LAR MESSAGE ATTACHED, DEMONSTRATING THAT THE UNANIMOUS CONSENT IN LIEU
OF A MEETING WAS INDEED DELIVERED PROPERLY. Such consent may be written
or electronic. If written, the consent must be executed by the director
by signing such consent or causing his or her signature to be affixed to
such consent by any reasonable means including, but not limited to,
facsimile signature. If electronic, the transmission of the consent
must be sent by electronic mail and set forth, or be submitted with,
A. 2118--A 3
information from which it can reasonably be determined that the trans-
mission was authorized by the director. The resolution and the written
consents thereto by the members of the board or committee shall be filed
with the minutes of the proceedings of the board or committee.
S 7. Paragraphs (b) and (d) of section 711 of the not-for-profit
corporation law are amended to read as follows:
(b) The by-laws may prescribe what shall constitute notice of meeting
of the board, OR WAIVER OF NOTICE, AND MAY BE DELIVERED VIA ELECTRONIC-
MAIL, OR OTHER ELECTRONIC MEANS WITH AN ELECTRONIC RETURNED RECEIPT, OR
SIMILAR MESSAGE ATTACHED, DEMONSTRATING THAT THE NOTICE, OR WAIVER OF
NOTICE, WAS INDEED DELIVERED PROPERLY. A notice, or waiver of notice,
need not specify the purpose of any regular or special meeting of the
board, unless required by the by-laws.
(d) A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. If the
by-laws so provide, notice of any adjournment of a meeting of the board
to another time or place shall be given to the directors who were not
present at the time of the adjournment, AND MAY BE DONE BY
ELECTRONIC-MAIL, OR OTHER ELECTRONIC MEANS WITH AN ELECTRONIC RETURNED
RECEIPT, OR SIMILAR MESSAGE ATTACHED, DEMONSTRATING THAT THE NOTICE, OR
WAIVER OF NOTICE, WAS INDEED DELIVERED PROPERLY, and, unless such time
and place are announced at the meeting, to the other directors.
S 8. Subparagraph 3 of paragraph (a) of section 712 of the not-for-
profit corporation law, as amended by chapter 549 of the laws of 2013,
is amended to read as follows:
(3) The fixing of compensation of the directors OR OFFICERS for serv-
ing on the board or on any committee, AND THE FIXING OF COMPENSATION FOR
KEY EMPLOYEES, AS THAT TERM MAY BE DEFINED BY THE INTERNAL REVENUE
SERVICE FROM TIME-TO-TIME, OR OTHER AGENTS OF THE CORPORATION AT ANY
TIME.
S 9. Paragraph (a) of section 713 of the not-for-profit corporation
law is amended to read as follows:
(a) The board may elect or appoint a president, one or more vice-pre-
sidents, a secretary and a treasurer, and such other officers as it may
determine, or as may be provided in the by-laws. These officers may be
designated by such alternate titles as may be provided in the certif-
icate of incorporation or the by-laws. [Any] NO two or more offices may
be held by the same person[, except the offices of president and secre-
tary, or the offices corresponding thereto].
S 10. Paragraph (a) of section 713 of the not-for-profit corporation
law, as amended by chapter 549 of the laws of 2013, is amended to read
as follows:
(a) The board may elect or appoint a chair or president, or both, one
or more vice-presidents, a secretary and a treasurer, and such other
officers as it may determine, or as may be provided in the by-laws.
These officers may be designated by such alternate titles as may be
provided in the certificate of incorporation or the by-laws. [Any] NO
two or more offices may be held by the same person[, except the offices
of president and secretary, or the offices corresponding thereto].
S 11. Section 713 of the not-for-profit corporation law is amended by
adding a new paragraph (g) to read as follows:
(G) AN OFFICER OR A SPOUSE, DOMESTIC PARTNER, SIBLING (BY WHOLE OR
HALF BLOOD), SPOUSE OR DOMESTIC PARTNER OF A SIBLING (BY WHOLE OR HALF
BLOOD), CHILD, GRANDCHILD, GREAT-GRANDCHILD, AND SPOUSE OR DOMESTIC
PARTNER OF A CHILD, GRANDCHILD, AND GREAT-GRANDCHILD OF THE OFFICER AT A
PUBLIC CHARITY, AS THAT TERM MAY BE DEFINED BY THE INTERNAL REVENUE
A. 2118--A 4
SERVICE FROM TIME-TO-TIME, MAY NOT RECEIVE COMPENSATION OR REMUNERATION
OF ANY KIND WHATSOEVER, EXCEPT TO BE REIMBURSED FOR REASONABLE EXPENSES
IN THE FULFILLMENT OF THEIR DUTIES TOWARD THE CORPORATION, WHERE SAID
PROHIBITION CANNOT BE CONTRAVENED IN THE CERTIFICATE OF INCORPORATION OR
BY-LAWS OF THE CORPORATION.
S 12. Paragraph (d) of section 715 of the not-for-profit corporation
law, as amended by chapter 549 of the laws of 2013, is amended to read
as follows:
(d) Unless otherwise provided in the certificate of incorporation or
the by-laws, the board shall have authority to fix the compensation of
directors OF A PRIVATE FOUNDATION, AS THAT TERM MAY BE DEFINED BY THE
INTERNAL REVENUE SERVICE FROM TIME-TO-TIME, for services in any capaci-
ty. AT NO TIME MAY THE DIRECTORS OF A PUBLIC CHARITY, AS THAT TERM MAY
BE DEFINED BY THE INTERNAL REVENUE SERVICE FROM TIME-TO-TIME, RECEIVE
COMPENSATION OR REMUNERATION OF ANY KIND WHATSOEVER, EXCEPT TO BE REIM-
BURSED FOR REASONABLE EXPENSES IN THE FULFILLMENT OF THEIR DUTIES TOWARD
THE CORPORATION, WHERE SAID PROHIBITION CANNOT BE CONTRAVENED IN THE
CERTIFICATE OF INCORPORATION OR BY-LAWS OF THE CORPORATION.
S 13. Paragraph (e) of section 715 of the not-for-profit corporation
law, as amended by chapter 549 of the laws of 2013, is amended to read
as follows:
(e) The fixing of salaries of officers[, if not done in or pursuant to
the by-laws, shall require the affirmative vote of a majority of the
entire board unless a higher proportion is set by the certificate of
incorporation or by-laws] IN PUBLIC CHARITIES, AS THAT TERM MAY BE
DEFINED BY THE INTERNAL REVENUE SERVICE FROM TIME-TO-TIME, IS STRICTLY
PROHIBITED.
S 14. Paragraph (a) of section 717 of the not-for-profit corporation
law, as amended by chapter 490 of the laws of 2010, is amended to read
as follows:
(a) Directors and officers shall discharge the duties of their respec-
tive positions in good faith and with the care an ordinarily prudent
person in a like position would exercise under similar circumstances.
The factors set forth in subparagraph one of paragraph (e) of section
552 (Standard of conduct in managing and investing an institutional
fund), if relevant, must be considered by a governing board delegating
investment management of institutional funds pursuant to section 514
(Delegation of investment management). For purposes of this paragraph,
the term institutional fund is defined in section 551 (Definitions).
FURTHERMORE, ANY COMPENSATION PROVIDED TO DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS OF THE CORPORATION MUST BE REASONABLE AND, WHERE APPLI-
CABLE, IS SUBJECT TO SECTION SEVEN HUNDRED TWENTY-SEVEN (COMPENSATION OF
EXECUTIVES).
S 15. Paragraph (a) of section 719 of the not-for-profit corporation
law is amended by adding a new subparagraph 6 to read as follows:
(6) THE PROVISION OF EXCESSIVE COMPENSATION TO DIRECTORS, OFFICERS,
KEY EMPLOYEES, AS THAT TERM MAY BE DEFINED BY THE INTERNAL REVENUE
SERVICE FROM TIME-TO-TIME, AND OTHER AGENTS OF THE CORPORATION IN
VIOLATION OF SECTION SEVEN HUNDRED TWENTY-SEVEN (COMPENSATION OF EXECU-
TIVES), WHERE APPLICABLE.
S 16. Paragraph (d) of section 719 of the not-for-profit corporation
law is amended by adding a new subparagraph 6 to read as follows:
(6) UPON REIMBURSEMENT TO THE CORPORATION OF THE AMOUNT OF ANY EXCES-
SIVE COMPENSATION PROVIDED IN VIOLATION OF SECTION SEVEN HUNDRED TWEN-
TY-SEVEN (COMPENSATION OF EXECUTIVES), TO BE SUBROGATED TO THE RIGHTS OF
THE CORPORATION AGAINST A DIRECTOR, OFFICER, KEY EMPLOYEE, AS THAT TERM
A. 2118--A 5
MAY BE DEFINED BY THE INTERNAL REVENUE SERVICE FROM TIME-TO-TIME, OR
OTHER AGENT WHO RECEIVED THE EXCESSIVE COMPENSATION.
S 17. Clauses (A) and (B) of subparagraph 1 of paragraph (a) of
section 720 of the not-for-profit corporation law, as amended by chapter
549 of the laws of 2013, is amended to read as follows:
(A) The neglect of, [or] THE failure to perform, or ANY other
violation of his OR HER duties in the management and disposition of
corporate assets committed to his OR HER charge.
(B) The acquisition by himself OR HERSELF, transfer to others, loss or
waste of corporate assets due to any neglect of, [or] THE failure to
perform, or ANY other violation of his OR HER duties, INCLUDING
VIOLATIONS OF SECTION SEVEN HUNDRED TWENTY-SEVEN (COMPENSATION OF EXECU-
TIVES), PURSUANT TO SECTION SEVEN HUNDRED SEVENTEEN (DUTY OF DIRECTORS
AND OFFICERS).
S 18. The not-for-profit corporation law is amended by adding a new
section 727 to read as follows:
S 727. COMPENSATION OF EXECUTIVES.
(A) DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, UNLESS OTHERWISE
EXPRESSLY STATED OR CONTEXT CLEARLY REQUIRES:
(1) "COMPENSATION" MEANS THE AGGREGATE VALUE OF ECONOMIC BENEFITS
CONFERRED IN EXCHANGE FOR THE PERFORMANCE OF SERVICES THAT ARE INCLUDED
FOR PURPOSES OF DETERMINING REASONABLENESS UNDER SECTION 26 U.S.C. 4958,
AS FURTHER SPECIFIED IN 26 CFR S53.4958-4(B)(II)(B), OR SUCCEEDING
PROVISIONS.
(2) "EXECUTIVE" MEANS ANY PERSON IN A POSITION TO EXERCISE SUBSTANTIAL
INFLUENCE OVER THE AFFAIRS OF A PROVIDER OF SERVICES, THAT DOES NOT SIT
ON THE GOVERNING BODY OF THE TAX-EXEMPT ORGANIZATION AS REFERENCED IN 26
U.S.C. S4958(F)(1)(A) AND FURTHER SPECIFIED IN 26 CFR S53.4958-3(C), OR
SUCCEEDING PROVISIONS.
(3) "FAMILY MEMBER" MEANS A SPOUSE, DOMESTIC PARTNER, SIBLING (BY
WHOLE OR HALF BLOOD), SPOUSE OR DOMESTIC PARTNER OF A SIBLING (BY WHOLE
OR HALF BLOOD), CHILD, GRANDCHILD, GREAT-GRANDCHILD, AND SPOUSE OR
DOMESTIC PARTNER OF A CHILD, GRANDCHILD, AND GREAT-GRANDCHILD.
(B) COMPENSATION EXCHANGED BY A NOT-FOR-PROFIT CORPORATION FOR THE
PERFORMANCE OF SERVICES BY AN EXECUTIVE MUST NOT BE EXCESSIVE AND THE
GOVERNING BODY (I.E., THE BOARD OF DIRECTORS, BOARD OF TRUSTEES, OR
EQUIVALENT CONTROLLING BODY) SHALL CONSIDER FACTORS INCLUDING, BUT NOT
LIMITED TO: COMPENSATION LEVELS PAID BY SIMILARLY SITUATED NOT-FOR-PRO-
FIT CORPORATIONS AS DEFINED IN SECTION ONE HUNDRED TWO (DEFINITIONS);
THE AVAILABILITY OF SIMILAR SERVICES IN THE GEOGRAPHIC AREA OF THE
APPLICABLE PROVIDER OF SERVICES; CURRENT COMPENSATION SURVEYS COMPILED
BY INDEPENDENT FIRMS; AND ACTUAL WRITTEN OFFERS FROM SIMILAR INSTI-
TUTIONS COMPETING FOR THE SERVICES OF THE APPLICABLE EXECUTIVE.
FOR THE PURPOSES OF THIS SECTION, WHETHER AN ORGANIZATION IS SIMILARLY
SITUATED SHALL BE DETERMINED BASED ON FACTORS INCLUDING, BUT NOT LIMITED
TO: GROSS ANNUAL REVENUE; GEOGRAPHIC LOCATION; AND THE DIVERSITY AND
COMPLEXITY OF PROGRAMS.
(C) ANNUAL COMPENSATION EXCHANGED BY A NOT-FOR-PROFIT CORPORATION FOR
THE PERFORMANCE OF SERVICES BY AN EXECUTIVE SHALL BE CONSIDERED REASON-
ABLE IF IT FALLS AT OR BELOW THE LEVEL I OF THE FEDERAL GOVERNMENT'S
RATES OF BASIC PAY FOR THE EXECUTIVE SCHEDULE PROMULGATED BY THE UNITED
STATES OFFICE OF PERSONNEL MANAGEMENT AND NO OTHER ACTION UNDER THIS
SECTION NEEDS TO BE TAKEN.
(D) ANNUAL COMPENSATION EXCHANGED BY A NOT-FOR-PROFIT CORPORATION FOR
THE PERFORMANCE OF SERVICES BY AN EXECUTIVE THAT DOES EXCEED LEVEL I OF
THE FEDERAL GOVERNMENT'S RATES OF BASIC PAY FOR THE EXECUTIVE SCHEDULE
A. 2118--A 6
SHALL BE PRESUMED TO NOT BE EXCESSIVE IF EACH OF THE FOLLOWING FOUR
CONDITIONS OCCUR:
(1) THE COMPENSATION IS APPROVED IN ADVANCE BY THE GOVERNING BODY
(I.E., THE BOARD OF DIRECTORS, BOARD OF TRUSTEES, OR EQUIVALENT CONTROL-
LING BODY) OF THE NOT-FOR-PROFIT CORPORATION THAT IS COMPOSED ENTIRELY
OF INDIVIDUALS WHO DO NOT HAVE A CONFLICT OF INTEREST WITH RESPECT TO
THE COMPENSATION ARRANGEMENT.
(A) FOR THE PURPOSES OF DETERMINING WHETHER THE REQUIREMENTS OF THIS
PARAGRAPH HAVE BEEN MET WITH RESPECT TO A SPECIFIC COMPENSATION ARRANGE-
MENT, AN INDIVIDUAL IS NOT INCLUDED IN THE GOVERNING BODY WHEN IT IS
REVIEWING A TRANSACTION IF THAT INDIVIDUAL MEETS WITH OTHER MEMBERS ONLY
TO ANSWER QUESTIONS, AND OTHERWISE RECUSES HIMSELF OR HERSELF FROM THE
MEETING AND IS NOT PRESENT DURING DEBATE AND VOTING ON THE COMPENSATION
ARRANGEMENT.
(B) A MEMBER OF THE GOVERNING BODY DOES NOT HAVE A CONFLICT OF INTER-
EST WITH RESPECT TO A COMPENSATION ARRANGEMENT ONLY IF THE MEMBER:
(I) IS NOT AN EXECUTIVE PARTICIPATING IN, OR ECONOMICALLY BENEFITING
FROM, THE COMPENSATION ARRANGEMENT;
(II) IS NOT IN AN EMPLOYMENT RELATIONSHIP SUBJECT TO THE DIRECTION OR
CONTROL OF ANY EXECUTIVE, OR THE FAMILY MEMBER OF ANY EXECUTIVE, PARTIC-
IPATING IN OR ECONOMICALLY BENEFITING FROM THE COMPENSATION ARRANGEMENT;
(III) DOES NOT RECEIVE COMPENSATION OR OTHER PAYMENT SUBJECT TO
APPROVAL BY ANY EXECUTIVE, OR THE FAMILY MEMBER OF ANY EXECUTIVE,
PARTICIPATING IN OR ECONOMICALLY BENEFITING FROM THE COMPENSATION
ARRANGEMENT;
(IV) HAS NO MATERIAL FINANCIAL INTEREST AFFECTED BY THE COMPENSATION
ARRANGEMENT; AND
(V) DOES NOT APPROVE A TRANSACTION PROVIDING ECONOMIC BENEFITS TO ANY
EXECUTIVE, OR THE FAMILY MEMBER OF ANY EXECUTIVE, PARTICIPATING IN THE
COMPENSATION ARRANGEMENT, WHO IN TURN HAS APPROVED OR WILL APPROVE A
TRANSACTION PROVIDING ECONOMIC BENEFITS TO THE MEMBER.
(2) (A) THE GOVERNING BODY OBTAINED AND RELIED UPON APPROPRIATE DATA
AS TO COMPARABILITY PRIOR TO MAKING ITS DETERMINATION AND GIVEN THE
KNOWLEDGE AND EXPERTISE OF ITS MEMBERS, IT HAS INFORMATION SUFFICIENT TO
DETERMINE WHETHER THE COMPENSATION ARRANGEMENT IN ITS ENTIRETY IS
REASONABLE. RELEVANT INFORMATION INCLUDES, BUT IS NOT LIMITED TO:
COMPENSATION LEVELS PAID BY SIMILARLY SITUATED NOT-FOR-PROFIT CORPO-
RATIONS AS DEFINED IN SECTION ONE HUNDRED TWO (DEFINITIONS); THE AVAIL-
ABILITY OF SIMILAR SERVICES IN THE GEOGRAPHIC AREA OF THE APPLICABLE
PROVIDER OF SERVICES; CURRENT COMPENSATION SURVEYS COMPILED BY INDEPEND-
ENT FIRMS; AND ACTUAL WRITTEN OFFERS FROM SIMILAR INSTITUTIONS COMPETING
FOR THE SERVICES OF THE APPLICABLE EXECUTIVE.
(B) FOR PURPOSES OF THIS PARAGRAPH, CONTROL BY AN APPLICABLE NOT-FOR-
PROFIT CORPORATION MEANS:
(I) IN THE CASE OF A STOCK CORPORATION, OWNERSHIP (BY VOTE OR VALUE)
OF MORE THAN FIFTY PERCENT OF THE STOCK IN SUCH CORPORATION;
(II) IN THE CASE OF A PARTNERSHIP, OWNERSHIP OF MORE THAN FIFTY
PERCENT OF THE PROFITS INTERESTS OR CAPITAL INTERESTS IN THE PARTNER-
SHIP;
(III) IN THE CASE OF A NONSTOCK ORGANIZATION (I.E., AN ENTITY IN WHICH
NO PERSON HOLDS A PROPRIETARY INTEREST), THAT AT LEAST FIFTY PERCENT OF
THE DIRECTORS OR TRUSTEES OF THE NOT-FOR-PROFIT CORPORATION ARE EITHER
REPRESENTATIVES (INCLUDING TRUSTEES, DIRECTORS, AGENTS, OR EMPLOYEES)
OF, OR DIRECTLY OR INDIRECTLY CONTROLLED BY, AN APPLICABLE TAX-EXEMPT
ORGANIZATION; OR
A. 2118--A 7
(IV) IN THE CASE OF ANY OTHER ENTITY, OWNERSHIP OF MORE THAN FIFTY
PERCENT OF THE BENEFICIAL INTEREST IN THE ENTITY.
(3) THE GOVERNING BODY ADEQUATELY DOCUMENTED THE BASIS FOR ITS DETER-
MINATION CONCURRENTLY WITH MAKING THAT DETERMINATION.
(A) FOR A DECISION TO BE DOCUMENTED ADEQUATELY, THE WRITTEN OR ELEC-
TRONIC RECORDS OF THE GOVERNING BODY MUST NOTE:
(I) THE TERMS OF THE TRANSACTION THAT WAS APPROVED, AND THE DATE IT
WAS APPROVED;
(II) THE MEMBERS OF THE GOVERNING BODY WHO WERE PRESENT DURING DEBATE
ON THE TRANSACTION THAT WAS APPROVED, AND THOSE WHO VOTED ON IT;
(III) THE COMPARABILITY DATA OBTAINED AND RELIED UPON BY THE GOVERNING
BODY, AND HOW THE DATA WAS OBTAINED; AND
(IV) ANY ACTIONS TAKEN WITH RESPECT TO CONSIDERATION OF THE TRANS-
ACTION BY ANYONE WHO IS OTHERWISE A MEMBER OF THE GOVERNING BODY BUT WHO
HAD A CONFLICT OF INTEREST WITH RESPECT TO THE TRANSACTION.
(B) IF THE GOVERNING BODY DETERMINES THAT THE EXECUTIVE'S COMPENSATION
FOR A SPECIFIC ARRANGEMENT IS HIGHER OR LOWER THAN THE RANGE OF COMPAR-
ABILITY DATA OBTAINED, THE GOVERNING BODY MUST RECORD THE BASIS FOR ITS
DETERMINATION. FOR A DECISION TO BE DOCUMENTED CONCURRENTLY RECORDS MUST
BE PREPARED BEFORE THE LATER OF THE NEXT MEETING OF THE GOVERNING BODY
OR SIXTY DAYS AFTER THE FINAL ACTION OR ACTIONS OF THE GOVERNING BODY
ARE TAKEN. RECORDS MUST BE REVIEWED AND APPROVED BY THE GOVERNING BODY
AS REASONABLE, ACCURATE AND COMPLETE WITHIN A REASONABLE TIME PERIOD
THEREAFTER.
(4) THE COMPENSATION PROVIDED TO THE EXECUTIVE BY THE GOVERNING BODY
DOES NOT EXCEED THE HIGHEST COMPENSATION PROVIDED BY A SIMILARLY SITU-
ATED ORGANIZATION FOR SIMILAR SERVICES, AS IDENTIFIED IN THE COMPARABIL-
ITY DATA, BY MORE THAN TWENTY PERCENT.
(E) IF THE FOUR CONDITIONS OF PARAGRAPH (D) OF THIS SECTION ARE SATIS-
FIED, THEN THE PERSON OR ENTITY BRINGING AN ACTION FOR RELIEF PURSUANT
TO THIS SECTION MAY REBUT THE PRESUMPTION THAT ARISES UNDER PARAGRAPH
(D) OF THIS SECTION ONLY IF IT DEVELOPS SUFFICIENT CONTRARY EVIDENCE TO
REBUT THE PROBATIVE VALUE OF THE COMPARABILITY DATA RELIED UPON BY THE
GOVERNING BODY. WITH RESPECT TO ANY FIXED PAYMENT, REBUTTAL EVIDENCE IS
LIMITED TO EVIDENCE RELATING TO FACTS AND CIRCUMSTANCES EXISTING ON THE
DATE THE PARTIES ENTER INTO THE CONTRACT PURSUANT TO WHICH THE PAYMENT
IS MADE (EXCEPT IN THE EVENT OF SUBSTANTIAL NONPERFORMANCE). WITH
RESPECT TO ALL OTHER PAYMENTS, REBUTTAL EVIDENCE MAY INCLUDE FACTS AND
CIRCUMSTANCES UP TO AND INCLUDING THE DATE OF PAYMENT.
(F) A NOT-FOR-PROFIT IS PROHIBITED FROM, AND MAY THUS BE REFERRED TO
THE ATTORNEY GENERAL FOR FURTHER INQUIRY TO BE OFFICIALLY RESPONDED TO
WITHIN NINETY DAYS OF RECEIPT, BY THE PERSON OR ENTITY BRINGING AN
ACTION FOR RELIEF PURSUANT TO THIS SECTION: (1) ENGAGING IN ANY ACT THAT
THE INTERNAL REVENUE SERVICE DETERMINES CONSTITUTES AN "EXCESS BENEFIT
TRANSACTION" UNDER SECTION 4958 OF THE INTERNAL REVENUE CODE; OR (2)
ENGAGING IN ANY ACT THAT WOULD CONSTITUTE AN "EXCESS BENEFIT TRANS-
ACTION" UNDER THE STANDARDS OF SECTION 4958 OF THE INTERNAL REVENUE
CODE.
S 19. Section 104-A of the not-for-profit corporation law, as added by
chapter 591 of the laws of 1982, paragraphs (a), (c), (d), (e), (g),
(l), (m), (n) and (p) as amended by chapter 166 of the laws of 1991 and
paragraph (r) as amended by chapter 198 of the laws of 1984, is amended
to read as follows:
S 104-A. Fees.
Except as otherwise provided, the department of state shall collect
the following fees pursuant to this chapter:
A. 2118--A 8
(a) For filing a certificate of type of not-for-profit corporation
pursuant to section one hundred thirteen of this [chapter] ARTICLE,
thirty dollars.
(b) For the reservation of a corporate name pursuant to section three
hundred three of this chapter, ten dollars.
(c) For the resignation of a registered agent for service of process
pursuant to section three hundred five of this chapter, thirty dollars.
(d) For service of process on the secretary of state pursuant to
section three hundred six or three hundred seven of this chapter, forty
dollars. If the service is in an action brought solely to recover a sum
of money not in excess of two hundred dollars and the process is so
endorsed, or the process is served on behalf of a county, city, town or
village or other subdivision of the state, ten dollars.
(e) For filing a certificate of incorporation pursuant to section four
hundred two of this chapter, [seventy-five] EIGHTY-FIVE dollars.
(f) For filing a certificate of amendment pursuant to section eight
hundred three of this chapter, [thirty] FORTY dollars.
(g) For filing a certificate of change pursuant to section eight
hundred three-A of this chapter, [twenty] THIRTY dollars.
(h) For filing a restated certificate of incorporation pursuant to
section eight hundred five of this chapter, [thirty] FORTY dollars.
(i) For filing a certificate of merger or consolidation pursuant to
section nine hundred four of this chapter, [thirty] FORTY dollars.
(j) For filing a certificate of merger or consolidation of domestic
and foreign corporations pursuant to section nine hundred six of this
chapter, [thirty] FORTY dollars.
(k) For filing a certified copy of an order of approval of the
supreme court pursuant to section nine hundred seven of this chapter,
thirty dollars.
(l) For filing a certificate of dissolution pursuant to section one
thousand three of this chapter, thirty dollars.
(m) For filing a certificate of annulment of dissolution pursuant to
section one thousand twelve of this chapter, [thirty] FORTY dollars.
(n) For filing an application by a foreign corporation for authority
to do business in New York state pursuant to section thirteen hundred
four of this chapter, one hundred [thirty-five] FORTY-FIVE dollars.
(o) For filing a certificate of amendment of an application for
authority by a foreign corporation pursuant to section thirteen hundred
nine of this chapter, [thirty] FORTY dollars.
(p) For filing a certificate of change of application for authority by
a foreign corporation pursuant to section thirteen hundred ten of this
chapter, [twenty] THIRTY dollars.
(q) For filing a certificate of surrender of authority pursuant to
section thirteen hundred eleven of this chapter, thirty dollars.
(r) For filing a statement of the termination of existence of a
foreign corporation pursuant to section thirteen hundred twelve of this
chapter, thirty dollars. There shall be no fee for the filing by an
authorized officer of the jurisdiction of incorporation of a foreign
corporation of a certificate that the foreign corporation has been
dissolved or its authority or existence has been otherwise terminated or
cancelled in the jurisdiction of its incorporation.
(s) For filing any other certificate or instrument, thirty dollars.
S 20. The not-for-profit corporation law is amended by adding a new
section 116 to read as follows:
S 116. STATE BOARD TRAINING CONSORTIUM.
A. 2118--A 9
(A) NOT-FOR-PROFIT BOARD MEMBERS ARE ENTRUSTED WITH THE OVERALL
MANAGEMENT AND OVERSIGHT OF NON-PROFITS AND HAVE LEGAL AND ETHICAL OBLI-
GATIONS TO KEEP THEMSELVES FULLY INFORMED REGARDING THEIR ORGANIZATION,
ITS FINANCES AND ITS OVERALL OPERATION AND IN ASSURING THAT PROGRAM
STAFF AND ADMINISTRATION EFFECTIVELY CARRY OUT THE ORGANIZATION'S
MISSION. THE STATE BOARD TRAINING CONSORTIUM IS INTENDED TO EMPOWER
BOARD MEMBERS OF NOT-FOR-PROFIT ORGANIZATIONS WHO CONTRACT WITH THE
STATE OF NEW YORK WITH THE INFORMATION AND TOOLS NECESSARY TO CARRY OUT
THEIR VERY IMPORTANT RESPONSIBILITIES, ROLES AND OBLIGATIONS. THE STATE
BOARD TRAINING CONSORTIUM WILL BE A COMPREHENSIVE STATE-WIDE TRAINING
EFFORT, DELIVERED REGIONALLY, IN-PERSON, TOGETHER WITH A NUMBER OF
TAILORED AGENCY SPECIFIC ONSITE TRAININGS, SOME VIRTUAL WEBINARS, AND
THE LIKE, AND STATE WORKFORCE TRAININGS ON THE SAME OR SIMILAR SUBJECTS.
ANY TRAINING CONDUCTED UNDER THE AUSPICES OF THE STATE BOARD TRAINING
CONSORTIUM WILL BE FREE TO VERIFIED MEMBERS OF NOT-FOR-PROFIT BOARDS OF
DIRECTORS WHO CONTRACT WITH THE STATE OF NEW YORK.
(1) FEES GENERATED FROM THE TEN DOLLAR INCREASE IN THE FILING FEES
ASSOCIATED WITH CERTIFICATES OF INCORPORATION, AMENDMENT, CHANGE, MERGER
OR CONSOLIDATION, ANNULMENT OF DISSOLUTION, AUTHORITY BY A FOREIGN
CORPORATION, AN AMENDMENT OF SAME OR A CHANGE IN THE AUTHORITY OF A
FOREIGN CORPORATION, SHALL BE USED TO FUND THE STATE BOARD TRAINING
CONSORTIUM.
(2) SAID FEES SHALL BE MAINTAINED IN THE STATE BOARD TRAINING CONSOR-
TIUM FUND, AS ESTABLISHED BY SECTION NINETY-SEVEN-J OF THE STATE FINANCE
LAW, TO SUPPORT THE STATE BOARD TRAINING CONSORTIUM ESTABLISHED BY THIS
SECTION.
(B) THE STATE BOARD TRAINING CONSORTIUM SHALL BE ADMINISTERED BY THE
DEPARTMENT OF STATE THROUGH A CONTRACT UNDER COUNSEL'S OFFICE. A QUALI-
FIED NOT-FOR-PROFIT CORPORATION WILL BE CONTRACTED WITH BY THE DEPART-
MENT OF STATE TO PROVIDE THE TRAINING AND ASSOCIATED SERVICES DELIVERED
UNDER THE STATE BOARD TRAINING CONSORTIUM, TOGETHER WITH MANAGING ALL
DAY-TO-DAY OPERATIONS, MARKETING EFFORTS, CURRICULUM UPDATES, PRINTING
AND RECORD-KEEPING. THE CONTRACT SHALL HAVE A FIVE YEAR TERM, RENEWABLE
FOR THREE ADDITIONAL YEARS, AND A STANDARD REQUEST FOR PROPOSALS/REQUEST
FOR QUALIFICATIONS PROCESS WILL BE UTILIZED AT THE INCEPTION OF EACH
CONTRACT.
(1) THE COMMISSIONERS OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES, OFFICE OF MENTAL HEALTH, OFFICE OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES, OFFICE OF CHILDREN AND FAMILY SERVICES, AND
DEPARTMENT OF HEALTH, HAVING PRIOR EXPERIENCE IN THE STATE BOARD TRAIN-
ING CONSORTIUM AS ADMINISTERED BY OFFICE OF ALCOHOLISM AND SUBSTANCE
ABUSE SERVICES, AND THE DEPARTMENT OF HEALTH, AIDS INSTITUTE, SHALL
JOINTLY:
(I) DEVELOP A CONTRACT FOR THE STATE BOARD TRAINING CONSORTIUM ALONG
THE LINES ALREADY PROMULGATED BY THEIR AGENCIES;
(II) ESTABLISH UNIFORM PROCEDURES TO MONITOR ATTENDANCE AT TRAININGS
CONDUCTED UNDER THE STATE BOARD TRAINING CONSORTIUM AND IN REPORTING THE
SAME TO THE ATTENDING BOARDS OF DIRECTORS.
(2) THE COMMISSIONERS OF OTHER AGENCIES, INCLUDING BUT NOT LIMITED TO
THE OFFICE FOR THE AGING, DEPARTMENT OF AGRICULTURE AND MARKETS, COUNCIL
ON THE ARTS, OFFICE OF COURT ADMINISTRATION, DIVISION OF CRIMINAL
JUSTICE SERVICES, EMPIRE STATE DEVELOPMENT, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, OFFICE OF GENERAL SERVICES, NEW YORK STATE CANAL CORPO-
RATION AND THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE SHALL
ESTABLISH PROCEDURES TO MONITOR ATTENDANCE AT TRAININGS CONDUCTED UNDER
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THE STATE BOARD TRAINING CONSORTIUM AND IN REPORTING THE SAME TO THE
ATTENDING BOARDS OF DIRECTORS.
(C) ALL NOT-FOR-PROFIT CORPORATIONS THAT CONTRACT WITH THE STATE OF
NEW YORK MAY ATTEND THE STATE BOARD TRAINING CONSORTIUM TRAININGS FREE
OF CHARGE.
S 21. The state finance law is amended by adding a new section 97-j to
read as follows:
S 97-J. STATE BOARD TRAINING CONSORTIUM FUND. 1. THERE IS HEREBY
ESTABLISHED IN THE JOINT CUSTODY OF THE COMMISSIONER OF TAXATION AND
FINANCE AND THE COMPTROLLER A FUND TO BE KNOWN AS THE "STATE BOARD
TRAINING CONSORTIUM FUND."
2. SUCH FUND SHALL CONSIST OF FEES GENERATED FROM THE TEN DOLLAR
INCREASE IN FILING FEES IN PARAGRAPHS (E), (F), (G), (H), (I), (J), (M),
(N), (O) AND (P) OF SECTION ONE HUNDRED FOUR-A OF THE NOT-FOR-PROFIT
CORPORATION LAW, ASSOCIATED WITH CERTIFICATES OF INCORPORATION, AMEND-
MENT, CHANGE, MERGER OR CONSOLIDATION, ANNULMENT OF DISSOLUTION, AUTHOR-
ITY BY A FOREIGN CORPORATION, AN AMENDMENT OF SAME OR A CHANGE IN THE
AUTHORITY OF A FOREIGN CORPORATION, PROMULGATED BY THE CHAPTER OF THE
LAWS OF TWO THOUSAND FOURTEEN THAT ADDED THIS SECTION, AND ALL OTHER
MONEYS CREDITED OR APPROPRIATED FOR TRANSFER THERETO FROM ANY OTHER FUND
OR SOURCE ACCORDING TO LAW.
3. MONEYS IN THE STATE BOARD TRAINING CONSORTIUM FUND SHALL BE KEPT
SEPARATE AND SHALL NOT BE COMMINGLED WITH ANY OTHER MONEYS IN THE CUSTO-
DY OF THE STATE COMPTROLLER. MONEYS IN THE FUND MAY BE INVESTED BY THE
COMPTROLLER PURSUANT TO THE PROVISIONS OF SECTION NINETY-EIGHT-A OF THIS
ARTICLE AND ANY INCOME RECEIVED BY THE COMPTROLLER FROM SUCH INVESTMENTS
SHALL BE ADDED TO AND BECOME PART OF, AND SHALL BE USED FOR THE PURPOSES
OF SUCH FUND. ALL DEPOSITS OF SUCH MONEY SHALL, IF REQUIRED BY THE COMP-
TROLLER, BE SECURED BY OBLIGATIONS OF THE UNITED STATES OR OF THE STATE
OF MARKET VALUE EQUAL AT ALL TIMES TO THE AMOUNT OF THE DEPOSIT AND ALL
BANKS AND TRUST COMPANIES ARE AUTHORIZED TO GIVE SUCH SECURITIES FOR
SUCH DEPOSITS.
4. MONEYS IN THE FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
SHALL BE ALLOCATED UPON A CERTIFICATE OF APPROVAL OF AVAILABILITY BY THE
DIRECTOR OF THE BUDGET SOLELY FOR THE PURPOSES SET FORTH IN THIS
SECTION.
5. ALL MONEYS IN THE FUND SHALL BE MADE AVAILABLE PURSUANT TO APPRO-
PRIATION FOR USE IN FUNDING THE STATE BOARD TRAINING CONSORTIUM ESTAB-
LISHED PURSUANT TO SECTION ONE HUNDRED SIXTEEN OF THE NOT-FOR-PROFIT
CORPORATION LAW.
S 22. Absent explicit language expressly and unequivocally stating a
legislative intent to the contrary, all provisions of this act are irre-
futably presumed to operate in a wholly prospective manner. Provisions
shall be considered to operate retroactively, and therefore in violation
of this act, if applied in such a manner as to alter, change, affect,
impair or defeat any rights, obligations, duties or interests accrued,
incurred or conferred prior to the effective date of this act. Further-
more, the provisions of this act shall neither apply to, nor be applied
based upon the occasion of, acts occurring prior to it becoming law.
S 23. This act shall take effect on the one hundred eightieth day
after it shall have become a law; provided that:
(a) the amendments to sections 702, 708, 712, 715 and 720 of the not-
for-profit corporation law made by sections four, six, eight, twelve,
thirteen and seventeen of this act shall take effect on the same date
and in the same manner as sections 67, 68, 70, 74 and 78, respectively,
of chapter 549 of the laws of 2013, take effect;
A. 2118--A 11
(b) the amendments to section 713 of the not-for-profit corporation
law made by section ten of this act shall take effect on the same date
and in the same manner as section 73 of chapter 549 of the laws of 2013,
takes effect; and
(c) the amendments to paragraph (a) of section 104-A of the not-for-
profit corporation law made by section nineteen of this act shall not
affect the repeal of such paragraph and shall be deemed repealed there-
with.