By Rabbi Yair Hoffman for the Five Towns Jewish Times

Tzedakah organizations, as a general rule, raise funds for their mission, whether it is to help cancer patients, needy families, Yeshivos, or hospitals. Often they have hired staff members or representatives to raise funds on their behalf. At times, the representatives are paid only a salary. At other times, they are paid a salary as well as a bonus for reaching certain goals and milestones. Yet other representatives are given only a percentage of what they have raised with no general base salary.

Our question deals with the latter group of representatives and the halachic parameters of how this would work. Before we discuss the views of the Gedolei haPoskim, it might be prudent to see how the issue is dealt with in the secular world. Recently, the Clinton Foundation has been in the headlines.

The Clinton Foundation is classified as a charitable organization. It was established by former President of the United States Bill Clinton with the stated mission to “strengthen the capacity of people in the United States and throughout the world to meet the challenges of global interdependence.”

The Foundation’s tax returns from the year 2014 show, in fact, that less than 3% of the total funds donated to it were given to the various causes that the foundation claims to support.
One may view the Foundation’s returns on National Center for Charitable Statistics’ website. The reason for this is that as a charitable organization, the returns are public. The return is some 65 pages long.

The Clinton Foundation’s total revenue was listed as $177, 804,612 The total grants given to charity during that same period were $5,160,385. The amount given to charity comes to 2.90 percent.

The organization’s expenses amounted to $91,281,145 or 51.34 percent of what they had taken in. This number included the salaries for their 486 employees of slightly more than 34.8 million dollars which amounted to 19.59 percent. Other expenses of 50.4 million dollars were 28.36 percent of what they had taken in. The fundraising fees, whatever that includes, aside from the 50.4 million in other expenses were nearly one million dollars.

The takeaway from all this? The total end income to actual charity from the Clinton Foundation in 2014, no matter how you phrase it, came out to 2.90 percent. Let us, however, get to the halachic views of contemporary Poskim about the underlying issues.

The Gemorah in Kesuvos 105a discussed three particular judges who issued Gezairos in Yerushalayim. They took a salary from the Trumas HaLishka – the treasury of the Bais HMikdash. The salary was 9900 dinar per year or 99 maneh.

EXCESSIVE SALARY

It is interesting to note that the Gemorah further deals with a case of where the judge would be requesting more compensation. The Gemorah asks, “Are we dealing with evil-doers who would take more money than they need?” The Gemorah answers that we are dealing with a case of where the judge needs more because he is in difficulty. In such a case, the Gemorah explains, he is forced to take it. From this Gemorah, Rav Vosner rules ideally, since we are dealing with matters of a Mitzvah, a salary should not be taken. However, if this is how he makes his living – then it is permitted.

MAY A COMMISSION BE PAID?

But may a Tzedakah organization give a representative a commission instead of a regular salary? The answer to this is yes. This is clear from the rulings of the Steipler Gaon zt”l, and Rav Scheinberg zt”l, and Rav Vosner zt”l (Shaivet HaLevi Vol. II #122). In Volume III of Orchos Rabbeinu (page 139), the Steipler Gaon zt”l is cited to permit the Tzedakah organization to allow a commission of up to 35% of the charitable amount – excluding the expenses incurred.

In a Sefer entitled Maaseh haTzedakah page 43 note 4, Rav Chaim Pinchas Scheinberg zt”l is quoted as permitting up to 25% of the total amount given. B’dieved, however, he allows up to a threshold of less than fifty percent. The Knesses HaGedolah in Choshen Mishpat Siman 331 states that the accepted practice regarding such matters was either 25% or 33%.

As a parenthetic note, Dayan Weiss zt”l (Minchas Yitzchok Vol. X Siman 86) writes that the task of raising funds for a Yeshiva or a Tzedakah organization is a Dvar Mitzvah and even if the person is being compensated for it, one must still stand up for such a person. Rav Moshe Shternbuch Shlita (Teshuvos V’Hanhagos Vol. IV #218) , however, writes that the custom now is not to stand.

DRIVERS WHO TAKE 33%

There are people who drive the representatives around to the wealthy philanthropists who require the representatives to agree to allocate 33% of the donation. Although the propriety of taking such excess amounts is highly questionable, Rav Vosner (Shaivet HaLevi Vol. X #166) writes that there is absolutely no permission to unilaterally abrogate the agreement. Indeed, if the philanthropist states that he will give the money on condition that the driver not receive the agreed upon amount – the representative must tell him that he may not do so even if the donation will ultimately not be given.

BUT IS IT GNEIVAS DAAS?

The other question is whether it is permitted to take a commission when the donor is unaware that commissions are being taken. What if the person would never have written such a large check if he knew that over fifty percent of the amount would end up as the sales commission to this representative?

Generally speaking, accepted norms are the operative principle. The donor should be aware of what is common and accepted practice in that area. Thus, if the commission is beyond the norm of common practice it may perhaps be a violation of Gneivas Daas.

Another question arises in regard to Genaivas Daas. Lately, there have been a number of matching funds campaigns where it is stated that a major donor has agreed to match a certain donation
if the organization raises X amount of dollars in 24 or 48 hours.

But is this really true or is it some type of gimmick designed to give more money to the organization, as worthy as it may be? If it is a gimmick – is this genaivas daas?

The prohibition of genaivas daas – deceiving is a clear out and out prohibition according to all opinions. According to the Sefer Yereim and the Ritvah it is a biblical prohibition. According to the SMaK the prohibition is derabanan. But all hold that it is a full blown prohibition.

There is a fascinating Shaarei Teshuva (3:181) which states that the leniency of “Mutar l’shanos mipnei haShalom, sometimes it is permitted to tell a white lie to maintain peace” does not apply to Gneivas Daas. Gneivas Daas is an important and essential value in Torah Judaism.

Nonetheless, it is possible to structure the 24 hour or 48 hour fundraising idea in such a manner that it would not constitute Genaivas daas. Each person, of course, should seek advice from their own Rav or Posaik.

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