March 31, 2018
These bylaws are a code of rules adopted by the New Mexico Philharmonic Foundation, Inc. (“NMPF”) for the registration and management of its affairs.
The Foundation is organized exclusively for charitable and educational purposes including the making of distributions to organizations that qualify as exempt organizations under Section 50l(c)(3) of the Internal Revenue Code of 1986, or the corresponding section of any future federal tax code. The Foundation is authorized to receive, hold, and/or invest contributions and pay them over to The New Mexico Philharmonic Inc., being an organization that is described in Section 50l(c)(3) and exempt from taxation under Section 501(a) and Section 170 of the Internal Revenue Code of 1986, or the corresponding section of any future federal tax code.
Article I Purpose
Purposes and Powers. The Foundation will have the purposes or powers that are stated in its Articles of Incorporation and such powers as are now or may be granted hereafter by the State of New Mexico, or any successor legislation. The primary purposes of the Foundation are charitable and educational using private funds exclusively for charitable purposes within the meaning of Section 501(c)(3), and, without limiting the generality of the foregoing, with emphasis on the following specific projects and activities to provide a vehicle to ensure long-term funding to the New Mexico Philharmonic, Inc., a New Mexico nonprofit corporation.
As stated in its Articles of Incorporation, the Foundation has the following purposes:
- to receive, hold, invest, administer, preserve and protect endowment funds and other financial resources to assist the New Mexico Philharmonic Inc. in providing quality classical music, education, enjoyment, cultural enrichments, and supplemental related services to the people of New Mexico;
- to maintain, utilize, and distribute funds for qualified charitable purposes and uses;
- to make periodic and appropriate expenditures to or for the benefit of the New Mexico Philharmonic, Inc., as set forth herein;
- to provide support in a timely manner that reflects the then circumstances of the New Mexico Philharmonic, the general economy, the nature of the investments and financial resources, the tax laws, the economic situations of the communities served, and the known needs and wishes of the Foundation donors, all as set forth herein;
- to perform any other charitable purpose that is permitted by New Mexico law and which is exempt from taxation under Section 50l(c) of the United States Internal Revenue Code, as such now exists or is hereafter amended.
Notwithstanding the foregoing, this non-profit corporation is organized and shall operate exclusively within the requirements specified in Section 501(c)(3) of the Code, including, for such purposes, the making of distributions to the New Mexico Philharmonic, Inc., an organization that qualifies as a public charity under Section 501(c)(3) of the Code in the State of New Mexico (the “State”), while inspiring audiences of all ages and background through its artistic excellence, innovative programming, and educational and community engagement.
Upon the dissolution of the New Mexico Philharmonic, Inc., distributions shall be made according to the total return / unitrust distribution standard to a professional symphonic orchestra within the meaning of Section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code; provided, however, no such distributions shall enable any purpose which is contrary to the provisions of Section 501(c)(3).
In the event of dissolution of the Foundation, all debts, obligations and liabilities of the Foundation are to be paid and discharged or adequate provision made thereof. All remaining property and assets of the Foundation will be transferred, conveyed or distributed by the Board prior to dissolution in accordance with the laws of New Mexico, and in accordance with the Internal Revenue Code requirements, to a foundation with comparable musical goals with the restriction of funding the New Mexico Philharmonic, Inc.
ARTICLE II CORPORATE OFFICE & AGENT
Section 1. Office. The principal office of the NMPF in the State shall be located at 3035 Menaul Blvd NE, #2, Albuquerque, New Mexico 87107 (the “Principal Office”). The NMPF may have such other offices, either within or without the State, as the NMPF’s Board of Directors (the “Board”) may determine or as the affairs of the NMPF may require from time-to-time. The number of Directors shall be set by the resolution of the Board; provided however that the Board cannot decrease the number of Directors to shorten the term of an existing Director.
Section 2. Registered Office & Agent. The NMPF shall have and continuously maintain a registered office in the State (the “Registered Office”), as well as a registered agent whose office is identical with the Registered Office, as required by the New Mexico Nonprofit Corporation Act The Registered Office may be, but need not be, identical with the Principal Office, and the address of the Registered Office may be changed from time-to-time by the Board at its discretion
ARTICLE III BOARD OF DIRECTORS
Section 1. The NMPF shall have no members. The affairs of NMPF shall instead be managed and governed by a Board of no less than four (4) and no more than fifteen (15) directors, each of whom are at least eighteen (18) years of age (each a “Director”). Directors shall be significant donors to the NMPF.
Section 2. Term of Office. Each of the Directors shall serve for a three-year term, which should be equally staggered. Each Director shall be eligible for re-election.
Terms shall begin with their election to the board. Directors elected to fill vacancies during a Term may start at any time, provided that they shall be assigned an August end-of-term at the time they are elected and service as a Director in any part of a term shall constitute a full year of service for purposes of this Section.
Section 3. Removal; Resignation. Any Director may be removed from the Board with or without cause by a two-thirds (2/3) vote of all Directors of the Board. Even though cause is not required for removal, cause could include, but is not limited to: conduct detrimental to the interests of NMPF; refusing to act in a manner consistent with NMPF’s mission and priorities; or failure to fulfill the Board’s duly adopted policies with respect to attendance and participation by Directors.
Any Director may resign, at any time, by giving written notice to the Board, the President, or the Secretary. Such resignation shall take effect on the day received, or as otherwise specified therein. Unexcused absences by a Director from three (3) consecutive Board meetings within a term shall, at the discretion of the Board, constitute a resignation by that Director. A term begins with the election to the Board.
Section 4. Compensation. No Director shall receive compensation for any service rendered to NMPF as a Director. However, if and to the extent that the Board may adopt a duly authorized policy so permitting, each Director may be reimbursed for actual expenses incurred in the performance of Board duties.
Section 5. Interim Action. A majority of the Executive Committee shall have the right to take emergency action between Board meetings as the Officers thereof shall deem necessary and prudent. Written notice of any such action so taken pursuant to this Section will be subsequently be distributed to all Directors in a timely manner.
ARTICLE IV RECRUITMENT, NOMINATION AND ELECTION OF DIRECTORS
Section 1. Recruitment. Throughout the year potential Director candidates shall be recruited from among New Mexico Philharmonic Foundation, Inc. patrons, sponsors, donors and other community members who reflect an earnest desire to support the Purpose of the NMPF and fulfill the requirements for Directors otherwise required by these Bylaws. Potential nominees who have expertise in areas beneficial to the operation and management of NMPF and the implementation of the NMPF’s strategic plans and vision (e.g., banking, finance, law, human resources, accounting, etc.) will be sought.
Section 2. Nominations. The secretary shall compile a list of candidates for nomination prior to the Annual Board meeting (which shall be the first Board meeting held in September of any given year), and present that list to the full Board at the Annual Meeting. Any Director may make further nominations at the Annual Meeting. If a vacancy occurs on the Board more than three (3) months prior to the Annual Meeting, then the secretary shall vet and propose nominees for election to the Board (and any Director may make further nominations). The secretary may make nominations at other times.
Section 3. Election. Election to the Board shall be by secret written ballot only when there are more nominees than positions. Otherwise, a majority vote of those Directors present will elect or re-elect a Director. Cumulative voting is not permitted.
ARTICLE V MEETINGS OF DIRECTORS
Section 1. Regular Meetings. Regular meetings of the Board shall be held at the discretion of the board but no less than twice a year. monthly (or less often as determined by a majority vote of the Board) with notice to the Directors, at such place and hour as may be fixed from time-to-time by resolution of the Board. The Board shall have the authority to enter executive session not open to the public or staff members to handle sensitive matters such as litigation or the evaluation of personnel, or receipt of the annual audit results.
Section 2. Special Meetings. Special meetings of the Board shall be held when called by the President, or by a majority of the Board, after not less than three (3) days’ notice to each Director.
Section 3. Meeting Participation by Remote Communication. Any Director may attend any Board or committee meeting by telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other, is used. Such participation counts towards quorum, and the remotely-participating Director shall have authority to cast any vote.
Section 4. Quorum. A quorum for the transaction of business shall consist of a simple majority of the current Board’s total number of Directors. Any question may be determined by a simple majority of the Directors present in person or participating by remote communication and voting at a meeting in which a quorum is present.
Section 5. Written Action. In lieu of a meeting of the Board, the Directors may nevertheless take any action required by law or otherwise deemed advisable by Board through the written action of all Directors. For purposes of this section, written action by a Director shall include verifiable communication by email or other written electronic means.
ARTICLE VI POWERS AND DUTIES OF THE BOARD
Section 1. Powers. The Board shall have the power to:
- Determine and establish policies governing the use and operation of NMPF. The Board has final responsibility and authority for all actions of the NMPF. If an Executive Director is eventually employed the Board may delegate responsibility for all administrative activity to the Executive Director.
- Require an annual audit of assets and liabilities and report this to the board.
- May Select, evaluate, retain or terminate the Executive Director .
Section 2. Duties. It shall be the duty of the Board to:
- Establish general policies for the NMPF. These include personnel, health care, fiscal, and quality assurance and improvement policies;
- Keep a complete record of all its acts and corporate affairs, including minutes which shall be kept at each meeting and be approved at a subsequent meeting;
- Establish and periodically update policies for NMPF to ensure consistency with legal and regulatory expectations, and the Purpose, vision, values and goals of NMPF;
- Solicit reports on a regular basis regarding the operation of NMPF;
- Consider and act on budgets, contracts, agreements, and other operational matters annually;
- Institute proper controls and oversight of major resource decisions. Monitor financial viability through tools such as monthly financial reports and annual audit findings;
- Evaluate annually NMPF’s mission, goals and objectives, and program and financial plans;
- Assure pursuit of NMPF’s goals and strategies through long-range and operational planning;
- Evaluate Board performance annually for efficiency, effectiveness, and compliance with set requirements;
- Identify and ensure necessary Board training and development, including training of new Directors;
- Act with diligence and care in carrying out Board responsibilities on behalf of the interests of the organization; and
- All Directors shall serve on at least one (1) committee of the Board.
ARTICLE VII OFFICERS AND THEIR DUTIES
Section 1. Enumeration of Officers. The officers of NMPF (the “Officers”) shall be: (i) President; (ii) Vice-President; (iii) Secretary; (iv) Treasurer; and (v) such other officers as the Board may from time-to time create by resolution.
Section 2. Election of Officers. Officers shall be elected by the Board bi-annually. The Board Development Committee shall submit a slate of candidates to the Board for all officer positions prior to the Annual Meeting. Additional nominations will be accepted by the Board prior to the election, up to and including the Annual Meeting itself. The Officers will be elected at the Annual Meeting by a two-thirds (2/3) majority vote of Board members present who are not candidates for the office subject to election. Any Director standing for election shall be permitted to vote.
Section 3. Age. All Officers shall have attained the official voting age of the State prior to their formal election as an Officer.
Section 4. Term; Limits. The officers of NMPF shall be elected by the Board and each shall hold office for a two (2) year term unless such Officer shall resign, or shall be removed, or otherwise disqualified to serve.
Section 5. Special Appointments. The Board may elect such other Officers as the affairs of NMPF may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine.
Section 6. Removal; Resignation. Any Officer may be removed with or without cause by a two thirds (2/3) vote of all Directors. Even though cause is not required for removal, cause could include, but is not limited to: conduct detrimental to the interests of NMPF; refusing to act in a manner consistent with NMPF’s mission and priorities; or any activity that brings disrepute to the organization.
Any Officer may resign at any time, giving written notice to the Board, the President, or the Secretary. Such resignation shall take effect on the day received, or as specified therein. Upon removal or resignation as an Officer, the Director so removed or resigned shall remain a Director unless and until such Director is removed or resigns as a member of the Board.
Section 7. Vacancies. A vacancy in any office may be filled by a two-thirds (2/3) majority vote of Directors present who are not candidates for the office. The Officer appointed to such vacancy shall serve for the remainder of the term of the Officer replaced.
Section 8. Multiple Offices. No person shall hold more than one of any of the other offices except in the case of the special appointments created pursuant to Section 5 of this Article.
Section 9. Duties. The duties of the Officers are as follows:
- President. The President shall: (i) preside at all meetings of the Board and shall see that orders and resolutions of the Board are carried out; (ii) advise and coordinate with the Vice-President, Secretary and Treasurer in connection with their respective responsibilities; (iii) sign any deeds, mortgages, bonds, contracts, or other certificates and documents which the Board has authorized on behalf of NMPF. Dual signatures with a second board member are required for expenditures greater than the amounts to be determined by the Board. (iv) In general supervise and control all of the business and affairs of the organization; and (iv) chair of the executive committee.
- Vice-President. The Vice-President shall: (i) act in the place and stead of the President in the event of the President’s absence, inability or refusal to act; (ii) in consultation with the President, have the primary responsibility to oversee the day-to-day practical and operational aspects of the NMPF’ s corporate life; (iii) chair the Volunteer Committee of the Board if any; and (iv) exercise and discharge such other duties as may be required by the Board.
- Secretary. The Secretary shall: (i) record or cause to be recorded the votes and minutes of all meetings and proceedings of the Board; and (ii) serve or cause to be served notice of meetings of the Board, and (iii) perform such other duties as may be required by the Board.
- Treasurer. The Treasurer shall: (i) have lead responsibility for monitoring performance in administering the financial policies adopted by the Board; (ii) review all financial information presented to the Board; (iii) maintain regular contact with the NMPF’s finance and accounts manager and investment advisor, as well as any independent accountants or auditors; (iv) chair the Finance and Audit Committees of the Board; and (v) and perform such other duties as required by the Board.
ARTICLE VIII COMMITTEES OF THE GOVERNING BOARD
Section 1. General. Committees of the governing Board shall be standing and ad hoc. The Board may establish such committees of the Board (in each case, a “Committee”) as it deems necessary and may delegate such of its powers to any such Committee as it determines to be appropriate. Persons may be appointed to Committees in an advisory and consulting capacity who are not Directors. But in all Committees, at least two (2) members of the Committee shall be a Director. All Committees of the Board shall maintain or cause to be maintained written minutes of their meetings which shall be available to the Board. They shall report in writing to the full Board as necessary, in the form of reports or recommendations. All Committees of the Board shall meet at such time and place as designated by the chairperson of the Committee and as often as necessary to accomplish their duties.
Section 2. Executive Committee. The Executive Committee shall consist of the standing Officers of the NMPF defined in Article VI, Section 9, above (President, immediate Past President, Vice President, Secretary, and Treasurer) and such other Director(s) as may be deemed necessary by the Board President. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business. The Executive Committee shall meet at such time and place as it may designate and shall keep or cause to be kept a record of all its proceedings.
Section 3. Finance Committee. The Finance Committee shall consist of the Treasurer who shall serve as chair, the Executive Director if any, the chief financial officer, if any, and additional Directors, to be decided annually. The Finance Committee shall act as financial advisor to the Board in all financial affairs of the NMPF. The Finance Committee shall meet at such time and place as it may designate and shall keep a record of all its proceedings.
Section 4. Other. By resolution, or upon the recommendation of the President, the Board as a whole may assume any Committee’s function as delineated at monthly meetings. The Board has the authority to appoint additional ad hoc Committees as necessary.
Article IX Operations
Section 1. Acceptance of Gifts: The Executive Committee or its designated representative(s) may accept on behalf of the Foundation any contribution, gift, bequest, or devise for the general purposes or for any special purpose of the Corporation.
Section 2. Receipt of Property and Funds: The Foundation may receive funds which are allocated or restricted for any purpose that is in accordance with the purposes of the Foundation. It may establish such fund(s) in trust or other financial vehicles for maintenance according to the wishes of the donor and within the limitations of the legal operations of the Corporation.
Section 3. Donor Advised Fund: The Board of Directors may establish a special Donor Advised Fund(s), together with appropriate committees or sub-committees, for future use in meeting the needs of the Corporation with minimums, standards, and fees that may be adjusted over time to reflect changed economic realities.
Section 4. Investment Account Manager: The Board shall select a professional investment account manager and professional investment advisor. The officers of the Foundation shall sign such managed account agreements presented by the investment account manager as are customary and reasonable, upon resolution of the Board of Directors. Investments may be in any type of investment that plays an appropriate role in achieving the investment goals of the Foundation, which investments shall be considered as part of the total investment portfolio. No reasonable category or type of investment shall be prohibited so long as same is the type or sort of investment, in the overall allocation of investments as would be made by a prudent person exercising reasonable care, skill and caution given the objectives, goals, and purposes as approved, from time to time by the Board of Directors.
Section 5. Distributions to the NMPHIL: Total Return or Unitrust Distribution Standard. In order to sustain and further the mission of the New Mexico Philharmonic, Inc., the Foundation shall make distributions at least quarterly to the New Mexico Philharmonic Inc. using a “total return” or “unitrust” approach. The Board of Directors shall reexamine the distribution percentage annually and may make changes so long as the distribution percentage is not less than 3% nor greater than 5%, with an additional 1% being available for administrative and overhead expense. The Corporation shall provide for the determined percentage payout using a 3-year adjusted average ending December 31st of the preceding year, the terms and implementation of this being adjusted over time by the Board of Directors to provide for a prudent means of income distribution which is consistent with the corporate purposes and the charitable purposes of the NMPhil, Inc. By way of illustration using a 5% payout distribution, if the corporation has a three-year average fair market value of $500,000 as of December 31, years 2018, 2019 and 2020, then total distributions of $25,000 would be made to the New Mexico Philharmonic Inc. during 2021. In making this determination, the Board of Directors shall take into account general economic conditions, projected current earnings and appreciation of the Foundation’s assets, projected inflation and its impact upon the assets of the Foundation, and the need for a sustainable permanent fund that is consistent with the purposes of the Foundation and the purposes and mission of the NMPhil, Inc. For all assets of the Foundation, the term “income” means an annual amount (the “distribution amount”) equal to a percentage (the “distribution percentage”) of the net fair market value of the Foundation’s assets, whether the assets, income, distributions, short term and long-term capital gains, or other benefits are considered income or principal under the laws of New Mexico, averaged over the preceding three calendar years. The Board of Directors has the right to withhold distributions should such action damage the intent of maintaining a permanent fund to benefit the NMPhil, Inc. Under no circumstances, however, may any distribution amount inure to the benefit of, or be distributed to the NMPhil Board Directors and NMPhil officers. The Total Return or Unitrust Distribution Standard is not subject to amendment.
ARTICLE X FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the NMPF shall be September January 1 to December 31.
ARTICLE XI AMENDMENTS AND CONFLICTS
Section 1. Amendments. The Board is authorized to amend these Bylaws. Such amendments shall be adopted at a regular or special meeting of the Board by a three-quarters (3/4) vote of the Directors present.
Section 2. Conflicts. In the case of any conflicts between the Articles of Incorporation and these Bylaws, the Articles shall control.
Section 3. Conflict of Interest. The Board shall have written policies prohibiting conflict of interest or appearance of conflict of interest. Directors and members of their immediate family are prohibited from being an employee of NMPF, or a spouse, child, parent, or sibling, by blood or marriage, of such an employee.
ARTICLE XII INDEMNIFICATION
Section 1. The NMPF shall indemnify each Director and Officer, whether or not then in office, and their respective heirs, administrators, successors and assigns, against any and all expenses, including but not limited to counsel fees, paid or incurred by such Director or Officer as the result of any action, suit or proceeding to which they may be a party by reason of being or having been a Director or Officer, if by a majority vote of a quorum of non-interested Directors, or, if such a quorum is not attainable (or even if attainable, if a quorum of non-interested Directors so directs) by independent legal counsel in a written opinion, it is found that the Director or Officer has acted in good faith, for the best interests of the NMPF. The foregoing rights of indemnification shall be cumulative and shall not be exclusive or in lieu of other rights by which a Director or Officer shall be entitled under laws, by a Bylaw, resolutions, contract or agreement.
ARTICLE XIV POLITICAL ACTIVITY
Section 1. No part of the activities of the NMPF shall be applied to carry on propaganda, or otherwise attempt to influence, or intervene in any political campaign on behalf of any candidate for public office.
ARTICLE XV NOTICE
Section 1. Whenever any notice is required to be given under the provisions of the New Mexico Nonprofit Corporation Act, or under the provisions of the Articles of Incorporation or the Bylaws of the NMPF, a waiver thereof in writing signed by the person or persons entitled to notice, whether before or after the time stated therein, is equivalent to the giving of notice.
The attendance of a Director in person or by proxy at a meeting constitutes a waiver of notice of the meeting except when attendance is for the sole purpose of objecting because the meeting is not lawfully called or convened.
SIGNATURE PAGE FOR BYLAWS OF NEW MEXICO PHILHARMONIC FOUNDATION
President, Maureen R. Baca / Date__________________
Secretary, David W. Peterson / Date__________________