An Alameda County bankruptcy court trustee is seeking a jury trial for the leaders of the now defunct Tri-Valley Community Foundation in an effort to collect $928,000 in appropriated funds that the foundation didn't have.
In all, the court estimated that the foundation claimed to have $2.5 million in its "donor advised funds" (DAF) as of March 26, 2012, which it didn't have. These are funds typically given by donors in written agreements with TVCF where they were promised that the contributions would not be spent prior to having the opportunity to designate where they should be spent.
That didn't happen and Attorney Steven B. Sacks, representing Michael G. Kasolas, Chapter 7 trustee, who filed the claim in Bankruptcy Court, contends that David Rice, the longtime president of TVCF and its board members, failed in their management and administration of the affairs of TVCF and should stand trial before a jury on those charges.
"Each of the defendant board members filed to adhere to their fiduciary duty to adopt policies, procedures and effective controls that would have prevented the comingling of funds, the misallocation of funds the spiraling of liabilities and ultimately the failure of TVCF," Sacks said in his complaint and demand for a jury trial.
David Rice was fired April 30, 2012, after an independent audit found discrepancies in the organization's finances and reserves. Ron Hyde, chairman of the Foundation's board of directors, was named chief executive and president. A former Alameda County Superior Court judge, Hyde had long been active in both the Foundation's charitable giving work and in other charities and philanthropies throughout the region.
"The board did an independent audit of expenses and other items," Hyde said. "Unfortunately, we found that there were a number of contracts and expenditures made that weren't properly cleared by the board and which we knew nothing about and never approved."
But Sacks argues that Hyde and other board members should have known about the discrepancies. In January 2010, Sacks stated, Rice, Hyde and board members Kirsten Niemeyer, Kenneth McCarthy, Michael Santimauro and Donald Lewis discussed the organization's liabilities and agreed to use the DAF endowment to pay down pass-through obligations owed to other nonprofit organizations, including funds contributed through workplace campaigns that Rice conducted.
But the payments continued to exceed available, non-committed (DAF) funds. According to TVCF's records, its liabilities of $113,901 at the end of fiscal 2008 spiraled to $839,811 by the end of June 2012.
By September, it was over. The Tri-Valley Community Foundation filed for Chapter 7 liquidation bankruptcy with more than $153,000 in debts, and leaving some charities without funds owed them, according to bankruptcy documents.
Among the debts left behind by the TVCF is $33,000 owed to the Tri-Valley Rotary Club; $25,000 owed to Amador Valley Education; and $11,000 owed to the Tri-Valley Housing Opportunity Center, court records show, along with many smaller debts, including $4,081 owed to the Livermore Valley Joint Unified School District.
The TVCF's offices were closed, its telephone and websites were disconnected, with Hyde acknowledging in an interview that the foundation was more than $3 million in debt and he expected it to file for liquidation bankruptcy. He also said the TVCF was seeking to file criminal charges against Rice.
The Alameda County District Attorney's Office said no charges have been filed against Rice.
Hyde also seemed unsurprised about the bankruptcy filing, saying he knew little else, and adding, "We haven't had a board meeting in months."
In his Bankruptcy Court filing, Sacks said that Rice, during the last two years of his presidency and at a time when financial discrepancies were known, raised what he said were additional funds that would be used to reduce liabilities.
He specifically targeted large donors who had the ability to make donations in excess of $100,000. But Rice assured donors that their donations would be held by TVCF and disbursed only once the donors gave advice or directions.
"Rice did not honor those assurances," Sacks stated. "The board was aware, or should have been aware, that funds were received by TVCF under such arrangements," but did not take any action to ensure that happened. Rice, in fact, with the board's approval, provided donors with a solicitation marketing brochure that affirmed that doors would have a say in how their contributions were used.
Instead, those funds were comingled with uncommitted donations that were not sufficient to meet the outgoing expenses and payments TVCF had promised, "continuing to misspend agency funds in a manner contrary to the representations it had made to donors," according to Sacks.
Sacks also criticized TVCF's auditors, Robert Lee & Associates, which, Sacks said, early in its report in May 2011 "failed to mention the ample information of financial irregularities that RLA uncovered."
"Most egregiously…it stated that TVCF had donor permission to use agency funds as working capital when donors had not given such permission," he said.
By the time of TVCF's bankruptcy filing, the agency has misspent and diverted millions of dollars in funds that had been earmarked for distribution to other charities or were subject to restrictions on their use, Sacks stated in his Bankruptcy Court report.
In fact, when a donor of agency funds would question why a pass-through contribution had not been delivered, Rice would find funds to make those payments.
"Spending by Rice continued apace through 2011 and into 2012," Sacks added, with Rice obtaining funds from TVCF investment accounts on his own authority without counter-signature from anyone on the board of directors. He accessed those funds whenever he felt that cash was needed for immediate needs without consultation with donors or directors.
Although TVCF is bankrupt, Bankruptcy Trustee Kasolas wants a jury to decide if Rice, Hyde and the board of directors have personal liability for TVCF's liabilities still outstanding, including insurance policies that would cover those liabilities.