An independent “governance review” conducted by a prominent law firm that specializes in philanthropic issues concluded in December 2010 that the Clinton Foundation had a weak, rubber stamp board of directors and that many of its donors had “an expectation of a quid pro quo benefits in return for gifts.”
The blistering review — made public Thursday by WikiLeaks — described a tax-exempt public foundation with none of the independent oversight required under federal charity law. The Clinton Foundation reported $187 million in net assets in 2011.
The decision to conduct the review was bitterly opposed by Bill Clinton’s long-time friends and political advisers.
The review was conducted by the New York law firm of Simpson Thacher and was requested by Chelsea Clinton who had profound misgivings about the operation of her parent’s foundation. Leading the review was Victoria Bjorklund, one of the nation’s top-ranked legal experts on good-governance practices for foundations and charities. She came out of retirement to lead the review.
She created and previously headed Simpson’s tax-exempt group which advises public charities, private foundations, boards, and donors. Bjorklund was named “2014 Nonprofit Lawyer of the Year” by Best Lawyers Magazine.
Simpson Thacher found numerous weaknesses in the Clinton Foundation’s management structure, including a board consisting entirely of insiders loyal solely to Bill and Hillary Clinton, the board’s failure to oversee finances properly, inherent conflict of interests and the use of audits based on cash accounting rather than the federally mandated accrual basis.
But most serious disclosure in the review was that donors expected a “quid pro quo” in return for their contributions. “Some interviewees reported conflicts of those raising funds or donors, some of whom may have an expectation of quid pro quo benefits in return for gifts.”
The reviewers did not identify the fundraisers or the donors. But many prominent foreign leaders gave millions to the foundation, ranging from Middle East sheiks, Eastern European tycoons, African mining magnets and American billionaires.
“This was bright line illegal,” Wall Street analyst and philanthropy expert Charles Ortel told The Daily Caller News Foundation. “This is a rogue charity that was out of control for years. And the trustees elected to not correct them. We’re not talking about people with no knowledge of the laws. These are people who can’t claim ignorance.”
The foundation was then led by director Terry McAuliffe, Bill’s most successful political fundraiser and former chairman of the Democratic National Committee who is now Virginia’s governor. McAuliffe gave the Clintons a $1.35 million gift that allowed them to buy their 11-room Chappaqua, New York, mansion in 1999.
Simpson Thacher found the board played no meaningful role in deciding either the Clinton Foundation’s strategic policies or in evaluating the effectiveness of the organization’s global programs for the poor.
“Failures by boards of directors in fulfilling their fiduciary responsibilities may arise when a board leaves governing responsibility to a small number of people, some of whom may have conflicts of interest that can mar their judgment,” the review said.
While foundations of comparable size meet on a quarterly basis, the review found that the Clinton Foundation board meetings were convened only once a year and appeared to be held mainly to satisfy state and federal charity laws.
“We believe that one meeting a year is inadequate for public charities of this size and complexity,” the review charged. “The foundation’s outside auditors noted as a material weakness the lack of board meetings and that board minutes are not signed. This weakness was not corrected even after being noted by the auditors. In addition, minutes appear to have been cloned from one year to the next.”
The reviewers also found that none of the board members had “strong financial know-how to participate in the annual audit process. We recommend that the board appoint an audit committee consisting of independent directors with strong financial know-how.”
The review said “conflicts are not timely disclosed” and “when staff becomes aware of conflicts, they are unsure how to raise and clear these conflicts. Finally, board members do not appear to be following the policy when they become aware of conflicts.”
“This appears to be a case study in charity fraud,” Ortel told TheDCNF. “And nonetheless, afterwards the record shows no changes were made, this charity even went around the world raising even more money.”
The law firm’s findings were delivered to Clinton Foundation chief Bruce Lindsey and to John Podesta, a close confidant of the Clintons. Podesta was White House chief of staff under Bill and is now Hillary’s national campaign chairman.
The unrelentingly critical review was likely shared with Hillary while she was secretary of state.
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