A provision pointed the other way
Every other section in the Florida Trust Code addresses trustees, beneficiaries, settlors or courts. This one addresses state agencies and local governments, and tells them what they may not require. It was added in 2010, four years after the rest of Part XII, and it does not concern trust administration at all.
The first prohibition covers information about the organization’s own people.
A charitable organization, private foundation trust, split interest trust, or a private foundation as defined in s. 509(a) of the Internal Revenue Code may not be required by a state agency or a local government to disclose the race, religion, gender, national origin, socioeconomic status, age, ethnicity, disability, marital status, sexual orientation, or political party registration of its employees, officers, directors, trustees, members, or owners, without the prior written consent of the individual or individuals in question.
Section 736.1211(1), Florida Statutes.
Two features are worth isolating. The list of characteristics is eleven items long and identical in all four subsections. And the prohibition is not absolute. It operates without the prior written consent of the individual or individuals in question. The protection belongs to the person, not to the organization, and the person can give it up.
The same protection, one step down
Subsection (2) extends the disclosure protection beyond the organization to the people it funds. A foundation, private foundation trust, split interest trust or grant-making organization may not be required to disclose those characteristics of any person, or of the people of any entity that has received monetary or in-kind contributions from or contracted with it.
That is a wider reach than subsection (1), and it introduces a defined term. A grant-making organization is one that makes grants to charitable organizations but is not itself a private foundation, private foundation trust or split interest trust. So the protection covers grantmakers that fall outside the tax categories Part XII otherwise uses.
The same individual consent qualification applies.
Board composition, and a separate rule about families
Subsection (3) prohibits an agency or local government from requiring that the governing board or officers include an individual or individuals of any particular listed characteristic.
It then adds something that has nothing to do with the eleven characteristics, and is easy to read past.
Further, a state agency or a local government may not prohibit service as a board member or officer by an individual or individuals based upon their familial relationship to each other or to a donor or require that the governing board or officers include one or more individuals who do not share a familial relationship with each other or with a donor.
Section 736.1211(3), Florida Statutes, second sentence.
That addresses the family foundation directly. Many private foundations are run by the donor’s family, and the sentence forbids a government both from excluding relatives and from requiring that outsiders be added.
Where the money goes
Subsection (4) prohibits an agency or local government from requiring a covered organization to distribute its funds to or contract with any person or entity based on the listed characteristics of that person or of the entity’s people. There is a further ground. The requirement may not be based on the populations, locales, or communities served by the person or entity.
And it ends with the only exception anywhere in the section that is not about individual consent.
except as a lawful condition on the expenditure of particular funds imposed by the donor of such funds.
Section 736.1211(4), Florida Statutes, closing words.
A government may not impose such a condition. A donor may. That is consistent with the rest of chapter 736, where the settlor’s or donor’s expressed intention generally controls, and with section 736.1210, which directs that Part XII be interpreted to preserve, foster and encourage gifts to charitable organizations.
Who is covered
The categories are drawn from section 736.1201 and from federal tax law. They are a charitable organization described in section 501(c)(3) of the Internal Revenue Code and exempt under section 501(a), a private foundation trust, a split interest trust, and a private foundation as defined in section 509(a). Subsection (2) adds grant-making organizations.
Note that the section covers foundations that are not trusts at all. A private foundation organised as a corporation is within it, even though the rest of chapter 736 has nothing to do with corporations.
No court has cited this section
Our review found no citing decision at any precedential status in any court we searched.
Several things are therefore untested, and they are the things that would decide a real dispute. What counts as a requirement by an agency, and whether a condition attached to a discretionary grant or licence is one. Whether the section reaches a request made informally rather than by rule. And what remedy an organization has if an agency asks anyway, since the section states prohibitions without providing an enforcement mechanism.
We set out what the section says and leave the policy debate to others. Our purpose here is to record accurately what the statute provides, which is what a reader looking up this section number needs.