440.44
440.44
Regulation of professional fund-raisers. 440.44(1)(a)(a) No professional fund-raiser may solicit in this state for a charitable organization that is required to be registered under
s. 440.42 (1) unless the professional fund-raiser is registered under this subsection.
440.44(1)(b)
(b) The department shall promptly register a professional fund-raiser that does all of the following:
440.44(1)(b)1.
1. Submits to the department an application for registration on a form provided by the department.
440.44(1)(c)
(c) The department shall issue a certificate of registration to each professional fund-raiser that is registered under this subsection. Renewal applications shall be submitted to the department, on a form provided by the department, on or before the date specified in
s. 440.08 (2) (a) and shall include the renewal fee specified in
s. 440.08 (2) (a) and evidence satisfactory to the department that the professional fund-raiser maintains a bond that is approved under
sub. (2).
440.44(1)(d)
(d) Within 20 days after receiving an application for registration or for renewal of a registration under this subsection, the department shall notify the professional fund-raiser of any deficiencies in the application, bond or fee payment.
440.44(2)
(2) Bond. At the time of applying for registration under
sub. (1), a professional fund-raiser shall file with and have approved by the department a bond, in which the professional fund-raiser is the principal obligor, in the sum of $20,000, with one or more responsible sureties whose liability in the aggregate as sureties at least equals that sum. If a professional fund-raiser does not at any time have custody of any contributions, the bond shall be in the sum of $5,000. The professional fund-raiser shall maintain the bond in effect as long as the registration is in effect. The bond, which may be in the form of a rider to a larger blanket liability bond, shall run to the state and to any person who may have a cause of action against the principal obligor of the bond for any liabilities resulting from the obligor's conduct of any activities as a professional fund-raiser or arising out of a violation of this subchapter or the rules promulgated under this subchapter.
440.44(3)
(3) Solicitation notice. Before performing services under a contract with a charitable organization that is required to be registered under
s. 440.42 (1), a professional fund-raiser shall file with the department a completed solicitation notice in the form prescribed by the department. The charitable organization on whose behalf the professional fund-raiser is acting shall file with the department a written confirmation that the solicitation notice and any accompanying material are true and complete to the best of its knowledge. The solicitation notice shall include all of the following:
440.44(3)(b)
(b) The projected period during which the soliciting will take place.
440.44(3)(c)
(c) The location and telephone number from which the soliciting will be conducted.
440.44(3)(d)
(d) The name and residence address of each person responsible for directing and supervising the conduct of services under the contract described in
sub. (4).
440.44(3)(e)
(e) A statement of whether the professional fund-raiser will at any time have custody of contributions.
440.44(3)(f)
(f) A full and fair description of the charitable purpose for which solicitations will be made.
440.44(4)(a)(a) A professional fund-raiser and a charitable organization that is required to be registered under
s. 440.42 (1) shall enter into a written contract that clearly states the respective obligations of the professional fund-raiser and the charitable organization and states the amount of gross revenue, raised under the contract, that the charitable organization will receive. The amount of the gross revenue that the charitable organization will receive shall be expressed as a fixed percentage of the gross revenue or as an estimated percentage of the gross revenue, as provided in
pars. (b) to
(d).
440.44(4)(b)
(b) If the compensation received by the professional fund-raiser is contingent upon the amount of revenue received, the amount of the gross revenue that the charitable organization will receive shall be expressed as a fixed percentage of the gross revenue.
440.44(4)(c)
(c) If the compensation received by the professional fund-raiser is not contingent upon the amount of revenue received, the amount of the gross revenue that the charitable organization will receive shall be expressed as an estimated percentage of the gross revenue. The estimate shall be reasonable and the contract shall clearly disclose the assumptions upon which the estimate is based. The assumptions shall be based upon all of the relevant facts known to the professional fund-raiser regarding the solicitation to be conducted and upon the past performance of solicitations conducted by the professional fund-raiser. If the amount of the gross revenue that the charitable organization will receive is expressed as an estimated percentage of the gross revenue, the contract shall also guarantee that the charitable organization will receive a percentage of the gross revenue that is not less than the estimated percentage minus 10% of the gross revenue.
440.44(4)(d)
(d) The estimated or fixed percentage of the gross revenue that the charitable organization will receive excludes any amount which the charitable organization is to pay under the contract as expenses, including the cost of merchandise or services sold or events staged.
440.44(5)
(5) Reporting changes. Within 7 days after any material change occurs in information filed with the department under this section, the professional fund-raiser shall report the change, in writing, to the department.
440.44(7)
(7) Financial report. Within 90 days after completing services under a contract described in
sub. (4), and on the anniversary of the signing of a contract described under
sub. (4) lasting more than one year, the professional fund-raiser shall, if the charitable organization is required to be registered under
s. 440.42 (1), account in writing to the charitable organization for all contributions received and all expenses incurred under the contract. The charitable organization shall retain the accounting for at least 3 years and make it available to the department upon request.
440.44(8)
(8) Depositing contributions. A professional fund-raiser shall deposit, in its entirety, a contribution of money received by the professional fund-raiser, on behalf of a charitable organization required to be registered under
s. 440.42 (1), in an account at a financial institution within 5 days after its receipt. The account shall be in the name of the charitable organization. The charitable organization shall have sole control of all withdrawals from the account.
440.44(9)(a)(a) During the period in which a contract described in
sub. (4) is in effect and for not less than 3 years after its completion, a professional fund-raiser shall retain all of the following records:
440.44(9)(a)1.
1. The name and, if known to the professional fund-raiser, the address of each person contributing and the date and amount of the contribution.
440.44(9)(a)2.
2. The name and residence address of each employee, agent or other person involved in the solicitation.
440.44(9)(a)3.
3. A record of all contributions that are at any time in the custody of the professional fund-raiser.
440.44(9)(a)4.
4. A record of all expenses incurred by the professional fund-raiser which the charitable organization is required to pay.
440.44(9)(a)5.
5. A record of the location and account number of each financial institution account in which the professional fund-raiser deposits contributions.
440.44(9)(b)
(b) If under a contract described in
sub. (4) the professional fund-raiser sells tickets to an event and represents that the tickets will be donated to an organization for use by others, the professional fund-raiser shall retain for the period specified in
par. (a) all of the following:
440.44(9)(b)1.
1. The name and address of the donors and the number of tickets donated by each donor.
440.44(9)(b)2.
2. The name and address of the organization receiving donated tickets and the number of donated tickets received by the organization.
440.44(9)(c)
(c) The professional fund-raiser shall make all records described in this subsection available for inspection by the department upon request.
440.44(10)
(10) Nondisclosure. The department may not disclose information under
sub. (9) (a) 1. to any person except to the extent necessary for investigative or law enforcement purposes and except that the department may, if requested under
s. 49.22 (2m), disclose information regarding the name, address or employer of or financial information related to an individual to the department of workforce development or a county child support agency under
s. 59.53 (5).
440.45
440.45
Charitable sales promotions. If a commercial coventurer conducts a charitable sales promotion on behalf of a charitable organization that is required to be registered under
s. 440.42 (1), the commercial coventurer shall disclose in each advertisement for the charitable sales promotion the dollar amount, or percentage of price, per unit of goods or services purchased or used that will benefit the charitable organization or charitable purpose. If the actual dollar amount or percentage cannot reasonably be determined on the date of the advertisement, the commercial coventurer shall disclose an estimated dollar amount or percentage. The estimate shall be based upon all of the relevant facts known to the commercial coventurer and to the charitable organization regarding the charitable sales promotion.
440.45 History
History: 1991 a. 278.
440.455
440.455
Solicitation disclosure requirements. 440.455(1)
(1) Except as provided in
sub. (4), if a professional fund-raiser or unpaid solicitor solicits a contribution for a charitable organization that is required to be registered under
s. 440.42 (1), the professional fund-raiser or unpaid solicitor shall, at the time of the solicitation or with a written confirmation of a solicitation, prior to accepting a contribution, make the following disclosures to the person from whom the contribution is solicited:
440.455(1)(a)
(a) The name and location of the charitable organization.
440.455(1)(b)
(b) That a financial statement of the charitable organization disclosing assets, liabilities, fund balances, revenue and expenses for the preceding fiscal year will be provided to the person upon request.
440.455(1)(c)
(c) A clear description of the primary charitable purpose for which the solicitation is made.
440.455(2)
(2) The financial statement under
sub. (1) (b) shall, at a minimum, divide expenses into categories of management and general, program services and fund-raising. If the charitable organization is required to file an annual financial report under
s. 440.42 (3) (a), the financial statement under
sub. (1) (b) shall be consistent with that annual financial report.
440.455(3)
(3) In addition to the requirements under
subs. (1) and
(2), except as provided in
sub. (4), if a professional fund-raiser solicits on behalf of a charitable organization that is required to be registered under
s. 440.42 (1), all of the following apply:
440.455(3)(a)
(a) If a solicitation is made orally, including a solicitation made by telephone, the professional fund-raiser shall send a written confirmation, within 5 days after the solicitation, to each person contributing or pledging to contribute. The written confirmation shall include a clear and conspicuous disclosure of the name of the professional fund-raiser and that the solicitation is being conducted by a professional fund-raiser.
440.455(3)(b)
(b) The professional fund-raiser may not represent that any part of the contributions received by the professional fund-raiser will be given or donated to a charitable organization unless that charitable organization has, prior to the solicitation, consented in writing, signed by 2 authorized officers, directors or trustees of that other charitable organization, to the use of its name.
440.455(3)(c)
(c) The professional fund-raiser may not represent that tickets to an event will be donated to an organization for use by others unless all of the following conditions are met:
440.455(3)(c)1.
1. The professional fund-raiser has a commitment, in writing, from the organization stating that the organization will accept donated tickets and specifying the number of donated tickets that the organization is willing to accept.
440.455(3)(c)2.
2. The professional fund-raiser solicits contributions for donated tickets from no more contributors than the number of tickets that the organization has agreed to accept under
subd. 1.
440.455(4)
(4) A charitable organization that operates solely within one community and that received less than $50,000 in contributions during its most recently completed fiscal year may apply to the department for an exemption from the disclosure requirements under this section. The department shall promulgate rules specifying the criteria for eligibility for an exemption under this paragraph, and shall grant exemptions from the disclosure requirements under this section to a charitable organization that satisfies those criteria.
440.455 History
History: 1991 a. 278,
315.
440.455 Cross-reference
Cross Reference: See also ch.
RL 5, Wis. adm. code.
440.46
440.46
Prohibited acts. 440.46(1)(1) No person may, in the planning, management or execution of a solicitation or charitable sales promotion, do any of the following:
440.46(1)(a)
(a) Use an unfair or deceptive act or practice.
440.46(1)(b)
(b) Imply that a contribution is for or on behalf of a charitable organization or use any emblem, device or printed matter belonging to or associated with a charitable organization without first being authorized in writing to do so by the charitable organization.
440.46(1)(c)
(c) Use a name, symbol or statement so closely related or similar to that used by another charitable organization that the use of the name, symbol or statement would tend to confuse or mislead a person being solicited.
440.46(1)(d)
(d) Represent or lead anyone in any manner to believe that the person on whose behalf a solicitation or charitable sales promotion is being conducted is a charitable organization or that the proceeds of the solicitation or charitable sales promotion will be used for charitable purposes if that is not the fact.
440.46(1)(e)
(e) Lead anyone in any manner to believe that another person sponsors, endorses or approves a solicitation or charitable sales promotion if the other person has not sponsored, endorsed or approved the solicitation or charitable sales promotion in writing.
440.46(1)(f)
(f) Use the fact of registration to lead any person to believe that the registration constitutes an endorsement or approval by the state.
440.46(1)(g)
(g) Represent directly or by implication that a charitable organization will receive a fixed or estimated percentage of the gross revenue raised greater than that established under
s. 440.44 (4).
440.46(2)
(2) In deciding whether an act or practice is unfair or deceptive within the meaning of
sub. (1) (a), definitions, standards and interpretations relating to unfair or deceptive acts or practices under
chs. 421 to
427 apply.
440.46 History
History: 1991 a. 278.
440.47
440.47
Administration and investigations. 440.47(1)
(1)
Public records. Except as provided in
ss. 440.43 (5) and
440.44 (10), registration statements, applications, reports, contracts and agreements of charitable organizations, fund-raising counsel, professional fund-raisers and unpaid solicitors and all other documents and information retained by or filed with the department under this subchapter are available for inspection or copying under
s. 19.35 (1).
440.47(2)
(2) Fiscal records; inspection; retention. All charitable organizations, fund-raising counsels, professional fund-raisers and unpaid solicitors shall keep true records concerning activities regulated by this subchapter in a form that will enable them accurately to provide the information required by this subchapter. Upon demand, those records shall be made available to the department for inspection and copying. The records shall be retained by the charitable organization, fund-raising counsel, professional fund-raiser or unpaid solicitor for at least 3 years after the end of the fiscal year to which they relate.
440.47(3)
(3) Exchange of information. The department may exchange with the appropriate authority of any other state or of the United States information with respect to charitable organizations, fund-raising counsel, professional fund-raisers, unpaid solicitors and commercial coventurers.
440.47(4)
(4) Examination of documents and witnesses. 440.47(4)(a)(a) If the department or the department of justice has reason to believe a person has violated or is violating this subchapter or the rules promulgated under this subchapter, it may conduct an investigation to determine whether the person has violated or is violating those provisions. The department of justice may subpoena persons and require the production of books and other documents to aid in its investigations of alleged violations of this subchapter.
440.47(4)(b)
(b) A person upon whom a notice of the taking of testimony or examination of documents is served under this subsection shall comply with the terms of the notice unless otherwise provided by the order of a court of this state.
440.47(4)(c)
(c) The department of justice may file in the circuit court for the county in which a person resides or in which the person's principal place of business is located, or in the circuit court for Dane County if the person is a nonresident or has no principal place of business in this state, and serve upon the person, a petition for an order of the court for the enforcement of this subsection. Disobedience of a final order entered under this paragraph by a court is punishable as a contempt of court under
ch. 785.
440.47(5)
(5) Substitute service upon department of financial institutions. A charitable organization, fund-raising counsel, professional fund-raiser or commercial coventurer that has its principal place of business outside of this state or is organized under laws other than the laws of this state and that is subject to this subchapter shall be considered to have irrevocably appointed the department of financial institutions as its agent for the service of process or notice directed to the charitable organization, fund-raising counsel, professional fund-raiser or commercial coventurer or to any of its partners, principal officers or directors in an action or proceeding brought under this subchapter. Service of process or notice upon the department of financial institutions shall be made by personally delivering to and leaving with the department of financial institutions a copy of the process or notice. That service shall be sufficient service if the department of financial institutions immediately sends notice of the service and a copy of the process or notice to the charitable organization, fund-raising counsel, professional fund-raiser, commercial coventurer or other person to whom it is directed by registered mail, with return receipt requested, at the last address known to the department of financial institutions.
440.47 History
History: 1991 a. 278;
1995 a. 27.
440.475
440.475
Disciplinary actions. 440.475(1)
(1) The department may deny, limit, suspend or revoke the registration of a charitable organization, fund-raising counsel or professional fund-raiser, or may reprimand a charitable organization, fund-raising counsel or professional fund-raiser that is registered under this subchapter, if the department finds that the charitable organization, fund-raising counsel or professional fund-raiser has made a false statement in any registration statement, annual report or other information required to be filed under, or has otherwise violated, this subchapter or the rules promulgated under this subchapter.
440.475(2)
(2) In addition to or in lieu of a reprimand or a denial, limitation, suspension or revocation of a certificate under
sub. (1), the department may assess against any person who violates this subchapter or the rules promulgated under this subchapter a forfeiture of not less than $100 nor more than $1,000 for each violation.
440.475 History
History: 1991 a. 278.
440.48
440.48
Penalties and enforcement. 440.48(1)(a)(a) The department of justice may bring an action to prosecute a violation of this subchapter or the rules promulgated under this subchapter, including an action for temporary or permanent injunction.
440.48(1)(b)
(b) Upon finding that a person has violated this subchapter or the rules promulgated under this subchapter, the court may make any necessary order or judgment, including but not limited to injunctions, restitution and, notwithstanding
s. 814.04, award of reasonable attorney fees and costs of investigation and litigation, and, except as provided in
par. (c), may impose a forfeiture of not less than $100 nor more than $10,000 for each violation.
440.48(1)(c)1.1. A person who violates
s. 440.47 (4) (b) may be required to forfeit not more than $5,000, unless the person establishes reasonable cause for the violation.
440.48(1)(c)2.
2. A person who, with intent to avoid, prevent or interfere with a civil investigation under this subsection, does any of the following may be required to forfeit not more than $5,000:
440.48(1)(c)2.a.
a. Alters or by any other means falsifies, removes from any place, conceals, withholds, destroys or mutilates any documentary material in the possession, custody or control of a person subject to notice of the taking of testimony or examination of documents under
s. 440.47 (4).
