California Proposition 6 (1978)–Briggs Initiative. Proposal to ban gays and lesbians from being teachers. Ballot summary & arguments. The proposition was defeated.
Bob Jones University is a nonprofit corporation located in Greenville, S.C. Its purpose is “to conduct an institution of learning . . giving special emphasis to the Christian religion and the ethics revealed in the Holy Scriptures.” . . . Bob Jones University is not affiliated with any religious denomination, but is dedicated to the teaching and propagation of its fundamentalist Christian religious beliefs. It is both a religious and educational institution. Its teachers are required to be devout Christians, and all courses at the University are taught according to the Bible. Entering students are screened as to their religious beliefs, and their public and private conduct is strictly regulated by standards promulgated by University authorities.
There is to be no interracial dating.
1. Students who are partners in an interracial marriage will be expelled.
2. Students who are members of or affiliated with any group or organization which holds as one of its goals or advocates interracial marriage will be expelled.
3. Students who date outside of their own race will be expelled.
4. Students who espouse, promote, or encourage others to violate the University’s dating rules and regulations will be expelled.
There can thus be no question that the interpretation of § 170 and § 501(c)(3) announced by the IRS in 1970 was correct. That it may be seen as belated does not undermine its soundness. It would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which “exer[t] a pervasive influence on the entire educational process.” Whatever may be the rationale for such private schools’ policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the “charitable” concept discussed earlier,[p596] or within the congressional intent underlying § 170 and § 501(c)(3).
Petitioners contend that, even if the Commissioner’s policy is valid as to nonreligious private schools, that policy cannot constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs. As to such schools, it is argued that the IRS construction of § 170 and § 501(c)(3) violates their free exercise rights under the Religion Clauses of the First Amendment. This contention presents claims not heretofore considered by this Court in precisely this context.
This Court has long held the Free Exercise Clause of the First Amendment to be an absolute prohibition against governmental regulation of religious beliefs . . .
On occasion, this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct. In Prince v. Massachusetts, 321 U.S. 158 (1944), for example, the Court held that neutrally cast child labor laws prohibiting sale of printed materials on public streets could be applied to prohibit children from dispensing religious literature. The Court found no constitutional infirmity in “excluding [Jehovah’s Witness children] from doing there what no other children may do.” Id. at 171. Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.
The governmental interest at stake here is compelling. As discussed in Part II-B,supra, the Government has a fundamental, overriding interest in eradicating racial discrimination in education — discrimination that prevailed, with official approval, for the first 165 years of this Nation’s constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, see United States v. Lee, supra, at 259-260; and no “less restrictive means,” see Thomas v. Review Board of Indiana Employment Security Div., supra, at 718, are available to achieve the governmental interest.
The Court points out that there is a strong national policy in this country against racial discrimination. To the extent that the Court states that Congress, in furtherance of this policy, could deny tax-exempt status to educational institutions that promote racial discrimination, I readily agree. But, unlike the Court, I am convinced that Congress simply has failed to take this action and, as this Court has said over and over again, regardless of our view on the propriety of Congress’ failure to legislate, we are not constitutionally empowered to act for it.
I have no disagreement with the Court’s finding that there is a strong national policy in this country opposed to racial discrimination. I agree with the Court that Congress has the power to further this policy by denying § 501(c)(3) status to organizations that practice racial discrimination. But as of yet, Congress has failed to do so. Whatever the reasons for the failure, this Court should not legislate for Congress.
Petitioners are each organized for the “instruction or training of the individual for the purpose of improving or developing his capabilities,” and thus are organized for “educational purposes” within the meaning of § 501(c)(3). Petitioners’ nonprofit status is uncontested. There is no indication that either petitioner has been involved in lobbying activities or political campaigns. Therefore, it is my view that, unless and until Congress affirmatively amends § 501(c)(3) to require more, the IRS is without authority to deny petitioners § 501(c)(3) status. For this reason, I would reverse the Court of Appeals.


STATE of North Carolina v. Donald Paul BINDYKE.
*526 Rufus L. Edmisten, Atty. Gen., Archie W. Anders, Associate Attorney, Raleigh, for the State.
Harris & McEntire, Mitchell M. McEntire, Graham, and Loflin & Loflin, Thomas F. Loflin, III, Durham, for defendant-appellant.
The first assignment of error which defendant brings forward on appeal to this Court is that the trial judge erred in overruling his motion for judgment of nonsuit on all counts in the "Information and Waiver of Indictment." We consider first his contention that the evidence was insufficient to establish a conspiracy among him, Montgomery and Moon to set fire to the Mayor's bushes or fence as charged in the first count. Upon a motion for nonsuit in a criminal action, the court considers the evidence in the light most favorable to the State, resolves all contradictions and discrepancies therein in its favor, and gives it the benefit of every reasonable inference which can be drawn from the evidence. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). The State contends that when the evidence is evaluated under the foregoing rule it survives the motion, and we agree.
A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Littlejohn, 264 N.C. 571, 142 S.E.2d 132 (1965). To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object. "`A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.'" State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301 (1953), quoting State v. Connor, 179 N.C. 752, 103 S.E. 79 (1920). The conspiracy is the crime and not its execution. State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932). Therefore, no overt act is necessary to complete the crime of conspiracy. As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964).
Once a conspiracy has been shown to exist the acts and declarations of each conspirator, done or uttered in furtherance of a common illegal design, are admissible in evidence against all. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951); see State v. Goldberg, supra; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322 (1950). The existence of a conspiracy may be established by direct or circumstantial evidence. To this end the unsupported testimony of a coconspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969); State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954). However, "[d]irect proof of the charge [conspiracy] is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Whiteside, 204 N.C. 710, 712-13, 169 S.E. 711, 712 (1933).
Applying the foregoing principles of law, the evidence in this case is sufficient to establish the following facts which point unerringly to the existence of a conspiracy.
In June 1974, the Board of Aldermen of Gibsonville were considering whether to dismiss defendant as the Town's Chief of *527 Police. In consequence, defendant was upset and resentful, especially toward the Mayor and Mayor Pro Tem, both of whom favored his dismissal. Defendant and Montgomery, a police sergeant who worked under him, were good friends. Defendant had given Montgomery a key to his house and Montgomery came and went at will, staying there whenever he chose. In early June defendant discussed with Montgomery his uncertain tenure as Chief of Police. He told Montgomery he might need help in retaining his position.
On June 3rd defendant told Montgomery to send Gregory Moon, a friend of defendant and Montgomery's "good friend," to his home. Montgomery delivered the message to Moon and that same afternoon the three men met at defendant's home and "talked." Defendant was upset with the Aldermen and the Mayor, and discussed with Montgomery and Moon various scare tactics which he had used in Pennsylvania. These included threatening telephone calls, throwing rocks through windows, sending "the target" a coffin, and hanging dummies in his yard. On June 4th, pursuant to Montgomery's direction, Moon telephoned defendant. Defendant told him he was getting tired of harassment from the Board and the Mayor; that they needed some pressure put on them; and that he had in mind a bomb. Moon said he would be willing to help and that he would keep in touch with defendant through their mutual friend, Montgomery. After this conversation Moon began to harass the Mayor. He threw two socks filled with rocks through the Mayor's picture window, reported a false case of "drug overdose" and ordered an ambulance sent to his home. He also had a load of concrete delivered there. Moon reported all his activities to defendant, who was both pleased and amused.
Sometime during the week of June 4th defendant promised Moon that those involved in the activities against the Mayor and Aldermen would "be given amnesty" and that they "could more or less run the town" without fear of retribution. On 9 June defendant told Montgomery he didn't believe the Mayor was scared enough and he "needed a fire in his bushes or on his fences." The next day, June 10th, Montgomery related to Moon just exactly what defendant had said and then drove Moon by the Mayor's home to show him its location. On this trip they spotted the Mayor's 1967 Buick parked in the driveway.
The circumstances which confronted defendant in June 1974; his decision to try to save his position as Chief of Police by terrorizing the Mayor and Mayor Pro Tem; the fact that he had engaged Montgomery and Moon to execute his scare tactics; and that they had already begun to implement his suggestions, create a strong inference that the conspiracy charged in the first count was complete when Montgomery, pursuant to defendant's direction, "passed the word" to Moon that Mayor Younger might "need a fire in his bushes or on his fence" and Montgomery then drove Moon by the Mayor's house to show him where the Mayor lived. Direct proof of a conspiracy is not essential or often obtainable, for the parties to it do not put their agreement in writing; nor do they discuss it in the formal language of contracts. However, "`[a]s soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.' . . . [T]he situation of the parties and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately deducible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, ample ground for concluding that a conspiracy exists." State v. Whiteside, supra at 712-13, 169 S.E. at 711, 712. Based upon the foregoing evidence, there can be no doubt that there was at least a tacit and implied agreement among defendant, Moon and Montgomery to burn the Mayor's property. The fact that neither bushes nor fences were actually burned is immaterial to the existence of the conspiracy. See State v. Goldberg, supra.
*528 Defendant's second contention is that no evidence in the record indicates that he knew about, approved of, or assisted Moon in his attempt to burn the Mayor's car by the use of an incendiary device. In support of this contention, defendant points to the fact that Montgomery testified that the idea to firebomb the car originated when he drove Moon by the Mayor's house. According to Montgomery's testimony Moon, upon seeing the Buick parked in the driveway, said he would "go for" it with a Molotov cocktail. The inference from Montgomery's testimony so defendant contends is that Moon formulated the plan to attack the car and defendant was unaware of this specific activity. From this, defendant further argues that since there is no evidence he participated in a conspiracy to burn the Mayor's fences or bushes, he cannot be held "vicariously liable" for an act "which Moon thought up himself and carried out without any assistance or even prior knowledge of the defendant." We necessarily reject this contention, having concluded that the evidence is sufficient to establish a conspiracy to terrorize and coerce the Mayor and Mayor Pro Tem by burning the Mayor's bushes and fences, throwing rocks through windows, and making telephone calls threatening fire. See 4 W. Blackstone's Commentaries *143.
Defendant correctly concedes that, once a conspiracy is shown, each conspirator "is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design." State v. Smith, 221 N.C. 400, 405, 20 S.E.2d 360, 364 (1942). See also State v. Brooks, 228 N.C. 68, 44 S.E.2d 482 (1947). "Conspiracy implies concert of design and not participation in every detail of execution, and it is not necessary that each conspirator should have taken part in every act, or known the exact part performed or to be performed by the others in the furtherance of the conspiracy." 15A C.J.S. Conspiracy § 40 (1967). "The act of one conspirator done in the effort to achieve the main object of the criminal plan will be imputed to the other even if the other was not present and the act deviates from the agreed-upon method of perpetration. . . [However,] if one conspirator unexpectedly goes entirely outside the purpose of the combination to commit a crime he alone is guilty thereof." R. Perkins, Criminal Law Ch. 6, § 5 at 633-34 (2d Ed. 1969).
We have no doubt that the attempted firebombing of the Mayor's automobile in the driveway beside his house was done in furtherance of the basic purpose of the conspiracy, which was to intimidate the Mayor and Mayor Pro Tem by damaging their real and personal property and by general threats of fire. Thus, even if defendant were correct in asserting that there was no evidence to indicate that he knew about the firebombing or participated in it, defendant would, nonetheless, be criminally responsible for the attempted firebombing, since it was a natural and foreseeable consequence of the conspiracy which he had entered.
An alternate basis for our conclusion that the trial judge correctly denied defendant's motion to dismiss the second count is that, in our view, the evidence is sufficient to support a finding that defendant actually formulated and knew about the plan to firebomb the Mayor's vehicle. As defendant correctly points out Montgomery testified that this idea was Moon's alone. Defendant, however, ignores the fact that Moon testified that Montgomery told him that defendant wanted him "to firebomb the 1967 Buick parked in the driveway." In addition, both Moon and Montgomery testified that a little after 9:00 p. m. Montgomery advised Moon the Buick was still in the Mayor's driveway. Moon and Bobby Glenn proceeded to make a firebomb while Montgomery went to the home of defendant, where they "just sat there and talked."
*529 From the foregoing evidence the jury could legitimately conclude that defendant had transmitted to Moon through Montgomery his direction to bomb the Mayor's car and that Montgomery had informed defendant Moon would do as directed. Under this evidence the unlawful agreement of defendant and the others encompassed the very act that was done, and defendant is therefore criminally responsible for it regardless of whether the attempted burning of the car was a foreseeable consequence of the more restricted conspiracy charged in the first count of the information.
Although the third count charges that defendant feloniously aided and abetted others in maliciously damaging real property by the use of incendiary material a felony under G.S. 14-49(b) the trial judge submitted the issue to the jury on the theory that defendant's conduct was a violation of G.S. 14-127, a misdemeanor. In this State, as in all common law jurisdictions, "[t]he distinction between principals and accessories is made only in felonies. All persons who participate in treason or in misdemeanors, whether present or absent, are indictable and punishable as principals." State v. Bennett, 237 N.C. 749, 752, 76 S.E.2d 42, 43 (1953). Thus, if the information was sufficient to support a conviction under G.S. 14-127 there could be no fatal variance.
G.S. 14-49(b), under which the third count was drawn, provides: "Any person who wilfully and maliciously damages or attempts to damage any real or personal property of any kind or nature belonging to another by the use of any explosive or incendiary device or material is guilty of a felony."
G.S. 14-127 provides: "If any person shall wilfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, he shall be guilty of a misdemeanor and shall be punished by fine or imprisonment or both, in the discretion of the court."
Although the language of the third count in the information does not follow exactly the language of either G.S. 14-49(b) or G.S. 14-127, it does allege specific acts which would constitute a violation of either section. "The fact that an indictment fails to follow the language of the statute, or fails to specify the statute under which it was drawn, is not a vitiating defect if the pleading charges facts sufficient to enable the court to proceed to judgment." 4 Strong's N.C.Index 2d Indictment and Warrant § 9 (1968). We hold that upon the facts here the third count charging a violation of G.S. 14-49(b) also embraces a charge under G.S. 14-127 and therefore supports the verdict. Id. § 18.
For the reasons stated defendant's first assignment of error is overruled.
We note that under the evidence, defendant, as a party to the conspiracy to burn *530 Laughlin's yard, was equally guilty with the other participants as a principal. However, this was not the theory upon which the solicitor drew the third count of the information. We also note that in sentencing defendant upon the second count, a felony for which the punishment prescribed is imprisonment in the State's prison for not less than five nor more than thirty years, Judge Chess only imposed a sentence of two to three years.
Defendant's final assignment of error raises the question whether the judge's inadvertent violation of G.S. 9-18 in failing to dismiss the alternate juror who remained in the jury room from three to four minutes after the jury retired to consider its verdict, nothing else appearing, infringed his right to trial by jury as guaranteed by N.C.Const. art. I, § 24. At the outset we note (1) that the judge summarily recalled and dismissed the alternate without making any effort whatever to ascertain whether the jury had begun its deliberations; and (2) that defense counsel did not move for a mistrial on this ground then or later.
In pertinent part, N.C.Const. art. I, § 24 provides: "No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for the trial de novo."
N.C.Gen.Stat. § 9-18 provides for the selection of one or more alternate jurors after the regular jury has been impaneled so that if, before the case is submitted to the jury, a juror dies, becomes unable or disqualified to serve, or is discharged for any reason, an alternate may be substituted in his stead. If he has not been substituted and becomes a part of the regular panel, the statute requires that "[a]n alternate juror . . . shall be discharged upon the final submission of the case to the jury."
Many decisions evidence this Court's commitment to preserving inviolate the right of trial by jury as at common law.
In Whitehurst v. Davis, 3 N.C. (2 Haywood's Law & Equity) 113 (1800), the error assigned was that a caveat had been tried by thirteen jurors. In awarding a new trial the Court said: "It may be said, if 13 concur in a verdict, 12 must necessarily have given their assent. But any innovation amounting in the least degree to a departure from the ancient mode may cause a departure in other instances, and in the end, endanger or prevent this excellent institution from its usual course: therefore, no such innovation should be permitted."
In State v. Alston (and Battle), 21 N.C. App. 544, 204 S.E.2d 860 (1974), the defendants were tried jointly upon identical indictments charging felonies. A thirteenth juror was selected and seated as an alternate. When the case was submitted to the jury all thirteen jurors retired, deliberated, and returned verdicts of guilty as charged. The Court of Appeals ordered a new trial upon the authority of Whitehurst v. Davis, supra.
In State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934), in holding the alternate juror statute (G.S. 9-18, enacted as N.C.Sess. Laws, ch. 103 (1931)) constitutional, the Court pointed out that it preserved all the essential attributes of the common law jury system, including the number of jurors since the alternate becomes a juror only when the judge, for cause, substitutes him for a member of the original panel. "From the beginning to the end of the trial the number never varies, and, by a jury of twelve men the verdict is declared." Id. at 512, 174 S.E. at 425. Here we note that it required a constitutional amendment (passed at the general election of 1946) to make the women of the State eligible for jury service. See State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944); N.C.Sess.Laws, ch. 634 (1945); N.C.Const. art. I, § 26.
An unbroken line of North Carolina cases hold that in felony trials the accused must be tried by a jury of twelve and he cannot consent to a lesser number. The rule is stated and authorities cited in State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971).
*531 Thus, there can be no doubt that the jury contemplated by our Constitution is a body of twelve persons who reach their decision in the privacy and confidentiality of the jury room. There can be no question that the presence of an alternate juror in the jury room after a criminal case has been submitted to the regular panel of twelve is always error. The requirements of G.S. 9-18 and N.C.Const. art. I, § 24, and similar statutes and constitutional provisions in other jurisdictions, are mandatory. The question is whether this error is prejudicial per se or are there circumstances under which it can be considered harmless?
The rule formulated by the overwhelming majority of the decided cases is that the presence of an alternate, either during the entire period of deliberation preceding the verdict, or his presence at any time during the deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict, if rendered. And this is the result notwithstanding the defendant's counsel consented, or failed to object, to the presence of the alternate. See United States v. Beasley, 464 F.2d 468 (10th Cir. 1972); United States v. Virginia Erection Corporation, 335 F.2d 868 (4th Cir. 1964); People v. Britton, 4 Cal. 2d 622, 52 P.2d 217 (1935); People v. Adame, 36 Cal. App. 3d 402, 111 Cal. Rptr. 462 (1973); People v. Bruneman, 4 Cal. App. 2d 75, 40 P.2d 891 (1935); Berry v. State, 298 So. 2d 491 (Fla.App. 4th Dist. 1974); Glenn v. State, 217 Ga. 553, 123 S.E.2d 896 (1962); State Highway Comm. v. Dunks, Mont., 531 P.2d 1316 (1975); People v. King, 13 A.D.2d 264, 216 N.Y.S.2d 638 (1961); Brigman v. State, 350 P.2d 321 (Okl.Cr.App.1960); Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (1949); State v. Cuzick, 85 Wash. 2d 146, 530 P.2d 288 (1975); Annot., Alternate or Additional Jurors, 84 A.L.R.2d 1288, 1312-14 (1962); 50 C.J.S. Juries § 123 c and d (1947).
We have found the California decisions cited above particularly instructive. In People v. Bruneman, 4 Cal. App. 2d 75, 40 P.2d 891 (1935), two alternates, instructed to listen but not to discuss the case in any way, retired with the jury to the jury room with the consent of the defendant's counsel. They remained with the jury until its verdict was returned. On appeal, the court granted the defendant a new trial on the ground that the California Constitution guaranteed him the right of trial by jury as the right existed at common law, and one of the essential characteristics of the common law jury is "that twelve persons, not more nor fewer, shall pass upon and determine the issues of fact." Id. at 79, 40 P.2d at 893. The court also emphasized the common law tenet "that the jury are entitled, and bound, to deliberate in private," and that, under it, the presence of the two alternates was an intrusion upon the privacy and confidence of the jury room, "tends to defeat the purpose for which they are sent out." Their presence was "an error so far destructive" of their right to trial by jury that it could not be cured by the consent of defendant's attorney. Id. at p. 81, 40 P.2d at 893. Accord, People v. Britton, 4 Cal. 2d 622, 52 P.2d 217 (1935).
In People v. Adame, 36 Cal. App. 3d 402, 111 Cal. Rptr. 462 (1973), the California Court of Appeal again considered the issue. In Adame, the alternate juror retired with the jury and was present for one hour and forty minutes while the jury deliberated. Upon learning of her presence the trial judge immediately removed her, and the jury continued its deliberations until they were sent home for the night. The next day, having deliberated a total of four and one half hours, the jury returned its verdict. The trial court, having concluded that the presence of the alternate during the jury's deliberations constituted prejudicial error of constitutional stature, granted defendant a new trial, and the State appealed. Relying on Britton and Bruneman, the Court of Appeal affirmed the trial judge's ruling. The State had sought to distinguish Bruneman and Britton on the basis that those cases involved the presence of the alternate in the jury room during the entire period of *532 deliberation and the reaching of a verdict, whereas in Adame the alternate was present in the jury room for only an hour and forty minutes of the four and one half hours of deliberation. The court said, "This argument suggests that early deliberations of the jury are of less significance to the verdict than later deliberations. Not only is appellant's position untenable insofar as suggesting that the jury's early deliberations are disrelated to its ultimate decision, but it is entirely contrary to the ratio decidendi of Bruneman and Britton. These cases in substance declare that it is the very sanctity of the jury room with only the regular jurors present which is protected by Article I, Section 7 of the State Constitution." Id. at 408, 111 Cal. Rptr. at 465.
In a footnote, the California Court said that in any hearing to determine prejudice the defendant should not be forced to rely on the memory of an alternate juror as to what transpired in the jury room. It noted that this problem was particularly apparent in Adame where the alternate testified, "I think I was in there around five to ten minutes until the bailiff came and got me out. It might have been a little longer than that." In fact, she was in the jury room for approximately one hour and forty minutes. Id., n. 4 at 407, 111 Cal. Rptr. at 465.
In United States v. Beasley, supra, the alternate juror retired with the original twelve and remained with them for twenty minutes before the court removed her. Upon defendant's motion for a mistrial the judge conducted a hearing and ascertained that during the twenty minutes the thirteen had elected a foreman and then voted to go to lunch. The judge found "no prejudice" and denied the motion. In considering defendant's appeal from a conviction, the United States Court of Appeals for the Tenth Circuit said "the authorities on this point" presented the trial judge with two alternatives: (1) He could conduct a hearing, question the jurors, or some of them, to see how far their deliberations had progressed and how the alternate juror had participated therein and thus attempt to determine whether any prejudice to the defendant had occurred; or (2) he could proceed on the assumption that a mistrial was required if the alternate participated in any proceeding commenced by the jury itself after it retired to deliberate.
In rejecting the first alternative the court reasoned: (1) To provide or apply an appropriate standard or test of prejudice could be "difficult"; (2) An inquiry at a hearing under a standard which requires a showing of prejudice would itself be a dangerous intrusion into the proceedings and privacy of the jury; and (3) The purpose sought to be achieved at such a hearing is not of sufficient importance to warrant such an inquiry in comparison to the possible harm or appearance of interference.
The decision in Beasley was that the trial court's "inquiry is limited to determining whether the jury has begun its function as a separate entity. The facts here show that this point had been passed and the alternate was present. Thus a mistrial is necessary." Id., 464 F.2d at 471.
In State v. Cuzick, supra, the Supreme Court of Washington also rejected the alternative of a factual inquiry into the extent of the alternate juror's participation in the deliberations on the ground that it would be unlikely to shed much light on the actual effect of the alternate's presence in the jury room. The court reasoned (1) that it would be impossible to recreate every move, every expression he might have made during the time he was in the jury room; (2) that even if it were possible to determine exactly what he did or said, it could not be known how or whether his actions affected the others; and (3) that the primary effect of such an inquiry would be to further invade the jury room and impose on those who served in it.
In Commonwealth v. Krick, supra, the defendant appealed his conviction, assigning as error that the trial judge, at the time he submitted the case to the jury, had permitted two alternate jurors to retire with the twelve to the jury room where they *533 remained for ten minutes before they were withdrawn. The appellate court considered defendant's appeal as based on the denial of a constitutional right and awarded a new trial. The court said it could not be known whether the alternates deliberated with the jurors during those ten minutes or in any way influenced the verdict. The court reasoned, however, that to have allowed the alternates any opportunity to deliberate with the others was a direct violation of the Act which forbade alternates to "retire with the jury of twelve after the case is submitted to it." Id., 164 Pa.Super. at 521, 67 A.2d at 749.
At least one court does not agree with the majority view, delineated in the authorities cited and discussed above, that the presence of an alternate during the jury's deliberations automatically necessitates a new trial. This court, although recognizing that such presence is error, require the defendant to show prejudice from the actions or presence of the alternate juror. To provide a defendant this opportunity the trial court is required to hold a hearing to determine what transpired in the jury room during deliberations. This was the conclusion reached and the procedure followed in United States v. Allison, 481 F.2d 468 (5th Cir. 1973), cert. denied, 416 U.S. 982, 94 S. Ct. 2383, 40 L. Ed. 2d 759, hearing aff'd, 5 Cir., 487 F.2d 339. As authority for its decision the court in Allison cited United States v. Nash, 414 F.2d 234 (2nd Cir. 1969), cert. denied, 396 U.S. 940, 90 S. Ct. 375, 24 L. Ed. 2d 242 and United States v. Hayutin, 398 F.2d 944 (2nd Cir. 1968), cert. denied, 393 U.S. 961, 89 S. Ct. 400, 21 L. Ed. 2d 374. These two cases involved factual situations differing from that of Allison. In Nash and Hayutin the alternates were never in the presence of the jury in the jury room during deliberations.
After considering the decisions expounding both the majority and minority views we are constrained to adopt the majority rule and hold that the presence of an alternate in the jury room during the jury's deliberations violates N.C.Const. art. I, § 24 and G.S. 9-18 and constitutes reversible error per se. We find the rationale upon which this rule is based irrefutable: (1) Participation of an alternate in the deliberations of the jury negates a defendant's right to trial by jury as it existed at common law, that is, by a jury of twelve in the inviolability, confidentiality and privacy of the jury room. (2) Public policy and practical considerations preclude any hearing to determine whether the alternate's presence in the jury room during deliberations affected the jury's verdict or prejudiced the defendant in that (a) any such hearing would necessarily be inconclusive because no adequate standards can be devised for determining whether the alternate's presence affected the jury; (b) upon a hearing in which a defendant attempts to show prejudice he would have to rely upon either the testimony of the alternate juror, members of the panel or both; and (c) an inquiry into what transpired in the jury room during the alternate's presence itself invades the sanctity, confidentiality, and privacy of the jury process and gives the appearance of judicial interference with the jury.
We cannot adopt a rule which would allow the trial judge to attempt to determine whether the alternate was present in the jury room a "substantial" length of time during deliberations or had participated in the deliberations to defendant's prejudice. Where would the court draw the line between insubstantial and substantial presence? In Beasley the court held that presence for twenty minutes invalidated the verdict; in Krick, ten minutes voided the trial. We hold that at any time an alternate is in the jury room during deliberations he participates by his presence and, whether he says little or nothing, his presence will void the trial.
There is, however, no substitute for common sense, and the foregoing rule has no application where the alternate's presence in the jury room is inadvertent and momentary, and it occurs under circumstances *534 from which it can be clearly seen or immediately determined that the jury has not begun its function as a separate entity. In People v. Rhodes, 38 Ill. 2d 389, 231 N.E.2d 400 (1967), at the time the original twelve retired, the alternate went into the jury room for the sole purpose of obtaining her coat before leaving the courtroom, and she left before deliberations began or the foreman was chosen. The Illinois Supreme Court sensibly held that the fact "the alternate juror was allowed to remove her coat from the jury room could at the most extreme characterization be considered as an irregularity and is not sufficient to require a reversal of his [defendant's] conviction." Id. at 395, 231 N.E.2d at 403.
The California Supreme Court has also held that the momentary presence of an alternate in the jury room immediately after the jury has retired, and under circumstances which negate the beginning of its deliberations, will not invalidate the verdict. People v. French, 12 Cal. 2d 720, 87 P.2d 1014 (1939).
Obviously, once the jury has retired to the jury room and shut the door, the judgeto whom the jury room is off limits cannot know for certain when deliberations have begun. After the jury has been "out" for a "substantial" length of time, it must be assumed that it has begun the business for which it was impaneled. Yet, as all trial judges and courtroom personnel know, it would be a rare case in which the jurors begin their deliberations the instant the last member is inside the jury room and the door is closed. If the judge's charge was a lengthy one, or if the jury had been sitting continuously for an appreciable length of time before retiring, each juror would most likely want to make himself comfortable before beginning the decision process. The length of time this would require would depend upon many variables and differ from case to case.
During that relatively short period, however, if the inadvertent presence of the alternate in the jury room is discovered, and no deliberations have begun before he is removed, his mere temporary presence would not invalidate the trial. Therefore, if the judge, from his trial experience and knowledge of the circumstances of the particular case, believes it probable that the jury has not begun its consideration of the evidence, he may properly recall the jury and the alternate and, in open court, inquire of them whether there had been any discussion of the case. If the answer is NO, the alternate will be excused and the jury returned to consider its verdict. If the answer is YES, there must be a mistrial. No inquiry into the extent or nature of the deliberations is permissible.
In our view, in this case, the trial judge could have properly conducted this limited inquiry. However, he did not do so. The Court of Appeals, after noting that the judge removed the alternate from the jury room "after only three or four minutes had elapsed," adjudicated that "the alternate did not participate in the deliberation and verdict of the other twelve. His brief visit to the jury room was not prejudicial." State v. Bindyke, 25 N.C.App. 273, 277, 212 S.E.2d 666, 668 (1975).
This assumption, unsupported by any evidence in the record, cannot be sustained. It is quite possible that one or more jurors, including the alternate, had expressed an opinion as to defendant's guilt or innocence, or commented on the evidence. If so, as pointed out in Adame, supra, it cannot be assumed that observations and discussions which take place during the first few minutes after the jurors retire are less significant to the verdict than later deliberations.
As much as we regret the necessity of imposing upon the State the penalty of a retrial of this case we are persuaded that higher considerations require it, and that the rule which we have adopted will, in the long run, create certainty and promote judicial economy. That rule, as previously stated is this: The presence of an alternate juror in the jury room at any time during the jury's deliberations will void the trial. *535 The alternate has participated by his presence; and the court will conduct no inquiry into the nature or extent of his participation. However, if through inadvertence, the alternate retires with the jury at the time the case is submitted to it, and his presence in the jury room is discovered so promptly that the trial judge believes it probable no deliberations have begun, he may recall the jury and the alternate and make the limited inquiry whether there has been any discussion of the case or comment with reference to what the verdict should be. If the answer is YES, the judge must declare a mistrial; if the answer is NO, the jury will retire to begin its deliberations.
Finally, we would impress upon the trial judges that the requirement the alternate jurors be discharged before the final submission of the case to the jury should be strictly observed. The most elementary precautions will prevent an alternate from entering the jury room upon the panel's retirement to deliberate, and surely this case proves that these precautions should be taken.
Analysis of the decisions cited in the majority opinion leads me to conclude that defendant's conviction should be upheld.
Basically, the authorities relied on by the majority hold that a new trial is required if the alternate juror is present during deliberations of the jury. There is nothing in this record to support the notion that any deliberations had taken place during the brief presence of the alternate juror. Indeed, all the attendant circumstances suggest the contrary.
The trial of this case consumed the better part of three days. The case itself involves conspiracy, the law dealing with malicious attempts to damage personal property, and aiding and abetting such offenses. Following the charge to the jury dealing with these difficult legal principles, the trial judge inadvertently allowed the alternate juror to retire to the jury room with the twelve. After "three or four minutes" the jury and alternate were recalled to the courtroom and the alternate was dismissed. The jury returned to the jury room and ultimately rendered a verdict of guilty on all counts. The majority holds that the presence of the alternate juror in the jury room "during the jury's deliberations" violates Article I, section 24 of our Constitution and G.S. 9-18 and constitutes reversible error per se. To my way of thinking, that holding violates the following quotation from the majority opinion: "There is, however, no substitute for common sense, and the foregoing rule has no application where the alternate's presence in the jury room is inadvertent and momentary, and it occurs under circumstances from which it can be clearly seen or immediately determined that the jury had not begun its function as a separate entity."
The circumstances negate the majority's assumption that the jury had begun its deliberations during the brief presence of the alternate juror. This conclusion is supported by common knowledge that jurors rarely begin their deliberations the instant the last juror enters the jury room and the door is closed. Reason dictates that this jury, after a three-day trial and a lengthy charge, spent the first three or four minutes after it retired "making itself comfortable," lighting up a cigarette, and inspecting the coffee pot. These preliminaries ordinarily consume more than four minutes. Few restrooms will accommodate twelve people simultaneously. Thus, application of reason to the facts and circumstances impels the conclusion drawn by the Court of Appeals that the alternate juror did not participate in the deliberations and verdict *536 of the jury and "his brief visit to the jury room was not prejudicial."
Defendant's co-conspirators pled guilty to one charge of malicious damage to personal property by the use of an incendiary device, testified for the State in this case, and each is now serving a prison sentence of two to three years. Proof of this defendant's guilt is overwhelming.
Despite overcrowded dockets, our courts are faced with ever-increasing demands for speedy trials, and I am unwilling to impose upon the State and the courts the penalty of a retrial of this case. In my view defendant has had a fair trial free from prejudicial error. The record shows that at the time the trial judge recalled the jury and dismissed the alternate he consulted with prosecution and defense counsel at the bench. Defendant raised no objection based on the inadvertence and made no motion for a mistrial. This suggests that defendant regarded the brief presence of the alternate juror as harmless and perceived no prejudice to his cause. He should not be permitted now to assume a different stance. Moreover, it is my view that the trial judge should never declare a mistrial based upon the inadvertent presence of the alternate juror, even after limited inquiry as to whether there has been any discussion of the case, unless defendant either seeks or consents to a mistrial. Otherwise, a plea of double jeopardy upon retrial may present serious problems.
For the reasons stated, I respectfully dissent from the majority opinion and vote to affirm the decision of the Court of Appeals.
COPELAND and EXUM, JJ., join in this dissent.


The Grand Island Public Schools Foundation will enhance student educational opportunities through its support of the Grand Island Public Schools by seeking, securing, and managing resources for scholarships, projects, and programs.
1. Endowed accounts that are restricted in nature (ie scholarships/other) will be subject to an annual administrative fee determined in November each year by the Foundation Board of Directors (currently 1.5% of total value).
be considered "incubating" and will not be assessed an annual administrative fee until the fund reaches the $10,000 benchmark or it has been in existence for 5 years. After which time the "incubating" fund will be assessed an administrative fee as determined by the Foundation Board of Directors.
Note: Although exceptions may arise, funds that are considered "incubating" will not pay out scholarships or other program needs until they reach $10,000 in value.
3. Graduated Fees - Funds that have reached a value of $500,000 will be charged a 1% administrative fee.
1. All pass-through scholarships will be charged a $50 fee regardless of value. This amount may be paid in addition to the scholarship or subtracted from the amount of the scholarship.
2. Pass-through scholarships that are from school related organizations, including booster clubs, PTA's, Coaches Association, and others will be charged a $25 fee to process each scholarship.
value when determining scholarship awards.
4. Scholarships may be combined by donors/organizations that are like-minded in order to meet the $500 level.
5. Donors wishing to give annual scholarship dollars that are not subject to a pass-through fee may give directly to the Foundation's Academic Aristocrat General Fund. This fund provides annual scholarships to students who graduate in the top 15% of their class at Grand Island Senior High.
1. Accounts that are maintained by the Foundation for separate organizations such as booster clubs, the Grand Island Literacy Coalition, and the Grand Island Multi-cultural Coalition will be subject to an annual administrative fee based upon the organization's income.
2. Said fee will be charged against all income, fundraising, and other, except student paid fees for trips etc.
3. The annual fee will be assessed by the Foundation Board of Directors each year after the Foundation's audited financials are accepted (usually in December or after). Fees will be assessed in arrears from the previous fiscal year's audit. The Foundation Board of Directors has determined the current rate of the fee to be 2.5% of annual income or $2,000 – whichever is less. The minimum administrative fee charged to member organizations will be $250. This rate is subject to change by a two-thirds majority vote of the Board.
4. If an organization does not generate income in a given year, but has assets of $10,000 or more, said organization will be assessed a minimum annual administrative fee of $250.
5. The annual fee will be payable to the Foundation within 30 days of billing each year.
7. The Foundation Finance Committee will meet with the booster club chairs and treasurers, and the chairs/treasurers of other umbrella groups semi-annually to share information.
Foundation's designated depository or the Foundation's internal operating account based on the size and goals of the affiliated organization.
Foundation's umbrella will sign the Foundation's "Umbrella Organization Practices and Procedures" document annually in order to function as part of the Foundation.
The purpose of the conflict of interest policy is to protect the interest of the Grand Island Public Schools Foundation (Organization) when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Foundation or might result in a possible excess benefit transaction. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit and charitable organizations.
Compensation includes direct and indirect remuneration as well as gifts of favors that are not insubstantial.
In connection with any actual or possible conflict of interest, an interested person must disclose the existence of the financial interest and be given the opportunity to disclose all material facts to the directors and members of committees with the governing board delegated powers considering the proposed transaction or arrangement.
a. If the governing board or committee has reasonable cause to believe a member has failed to disclose actual or possible conflicts of interest, it shall inform the member of the basis for such belief and afford the member and opportunity to explain the alleged failure to disclose.
b. A voting member of any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Organization, for services is precluded from voting on matters pertaining to that member's compensation.
e. Discloses current employment, business interests and/or organizational affiliations, and amends as required.
b. Whether partnerships, joint ventures, and arrangements with management organizations conform to the Organization's written policies, are properly recorded, reflect reasonable investment or payments for goods and services, further charitable purposes and do not result in inurnment, impermissible private benefit or in an excess benefit transaction.
1. To allow the Grand Island Public Schools Foundation and all of its member Umbrella Organizations to enter into contracts for services that are deemed necessary to enhance the educational experience for GIPS students.
1. All persons or businesses offering services for which payment shall be made, will be required to complete a W-9 tax form prior to receiving payment.
2. In January of each year, Foundation Staff will send 1099 tax returns to all persons or businesses who have provided services according to criteria as defined by the IRS.
3. Contracts with GIPS Staff Members – From time to time, it may be necessary for the Foundation or its Umbrella Organizations to enter into an agreement with a GIPS Employee for a specific service based on the talents and abilities of that employee. Examples include: hiring employees to play instruments in a pit orchestra for the Fall Musical; hiring an employee to organize a tournament or event; hiring an employee to coach a camp, etc.
a.) Payment for the contract will be made to GIPS and the Payroll Department will be notified of the amount to attribute to the GIPS Employee's next scheduled check.
Exception – If the GIPS Employee owns, or holds an ownership stake in a business from which the services are being contracted, the payment for service shall be made to the business using the procedures outlined in 1 and 2 above. When this is the case, the business shall have a separate identification number from the GIPS Employee's personal social security number and the service shall be an "arms length" transaction and therefore the GIPS Employee shall not have any part in authorizing the payment for the service.
4. The Foundation Board reserves the right to require any other documentation of services rendered that they deem necessary.
5. All transactions are subject to examination by internal and external auditors.
1. To allow Grand Island Public Schools Foundation personnel and Umbrella Organization members access to efficient and alternative means of payment for approved expenses related to business travel and supplies.
2. To improve managerial reporting related to credit card purchases.
3. To improve efficiency and reduce costs of payables processing.
1. Corporate credit cards will be issued to individuals only with approval of the Finance Committee.
2. Credit cards will be issued to Foundation Staff and representatives from Umbrella Organizations.
3. Credit cards will be used for business purposes only. Personal purchases of any type are not allowed.
5. Cash advances on credit cards are not allowed.
6. Cardholders will be required to sign an agreement indicating they accept these terms. Individuals who do not adhere to these policies and procedures risk revocation of their credit card privileges and/or disciplinary action.
7. The card may be revoked at any time based on change of assignment. The card is not an entitlement, nor reflective of title or position.
8. All transactions are subject to examination by internal and external auditors.
1. Credit cards may be requested for prospective cardholders by written request to the Foundation Finance Committee.
2. Detailed receipts must be submitted to the Foundation office by the 20th of each month to enable timely payments of amounts due.
3. In the case of meals and entertainment, each receipt must include the names of all persons or groups involved in the purchase, and a brief description of the business purpose of the purchase, in accordance with Internal Revenue Service regulations.
4. All receipts submitted must include the initials of the cardholder.
The Grand Island Public Schools Foundation takes seriously its obligation to preserve information relating to litigation, audits and investigations. The Sarbanes-Oxley Act of July 30, 2002, makes it a crime to alter, cover up, falsify, or destroy any document to prevent its use in an official proceeding. Failure on the part of employees to follow this policy can result in possible civil and criminal sanctions against GIPS Foundation and its employees and possible disciplinary action against responsible individuals (up to and including termination of employment).
Each employee has an obligation to contact the Executive Director or Board President of a potential or actual litigation, external audit, investigation or similar proceeding involving the GIPS Foundation. The information listed in the retention schedule listed below is intended as a guideline and may not contain all the records the GIPS Foundation may be required to keep in the future. Questions regarding the retention of documents not listed in this chart should be directed to the Executive Director. Any documents with a signature require a hard copy.
The Grand Island Public Schools Foundation has adopted the Donor Bill of Rights as written by the Association of Fundraising Professionals (AFP). The Donor Bill of Rights is reprinted and adopted with permission from AFP.
Contact information: name, address, telephone number, class year (if applicable), e-mail address, and date of death if deceased.
The Grand Island Public Schools Foundation uses the above information from our constituency to understand their interest in our mission and to update them on the Foundation's and/or School District's plans or activities. This information is shared with staff, board members, volunteers and consultants only on a "need to know" basis. Additionally, donors may be listed in publications such as the Foundation's annual report. All requests for anonymity will be honored.
The Grand Island Public Schools Foundation assures our constituency that their names and addresses will not be sold, rented, or leased to any third party with the following exception: Alumni contact information may be shared with publishers or contractors whose primary business is the development of alumni directories.
Private giving helps ensure Grand Island Public Schools Foundation’s excellence in services offered to support the on-going needs of students of the Grand Island Public Schools. Private gifts allow the Foundation to fund scholarships, programs, equipment, building and campus renovations, and new facilities. The Grand Island Public Schools Foundation office plans, coordinates, and implements fund-raising programs with parents, community members, friends, corporations, and foundations.
The Grand Island Public Schools Foundation (the Foundation) will enhance student educational opportunities through its support of the Grand Island Public Schools by seeking, securing, and managing resources for scholarships, projects and programs.
The Foundation exists to secure private gifts for the benefit of Grand Island Public School students, programs and facilities. The Foundation is an organized corporation, exempt from federal tax liability by Internal Revenue Code Section 501(c)(3), and qualifies as a Public Charity under Internal Revenue Code Section 509.
Principle 1: A gift shall not be accepted by the Foundation if such acceptance would not be in the interest of the donor.
A determination of the donor’s “interest” shall include, but not be limited to, the donor’s financial situation and philanthropic interests, as well as any tax or other legal matters revealed while planning for a gift. The Foundation shall not encourage any gifts that are inappropriate in light of the donor’s personal or financial situation.
Principle 2: The Foundation will accept only gifts that support the Foundation’s mission. The Foundation reserves the right to accept or deny any gift.
In certain unique cases, a gift may be considered inappropriate due to particular restrictions imposed by the donor, or the nature of the gift. By its very definition, a gift cannot be associated with a private benefit that would jeopardize the charitable contribution deduction under IRC section 170 if the donor and beneficiary of the restriction have less than an arms-length relationship.
There must be a distance between the donor and recipient such that the recipient does not receive benefits that are otherwise not available to colleagues of similar status and interest. For example, in the capacity of donor, an individual cannot subsidize his/her own salary, travel funds, or fringe benefits.
While this document is intended to provide guidance to the Foundation Office and other Foundation personnel regarding acceptance of prospective gifts, donors are ultimately responsible for ensuring that the proposed gift furthers their charitable, financial, and estate planning goals. The Foundation Office does not provide legal, accounting, tax, or other advice to prospective donors. Therefore, each prospective donor is urged to seek the advice of independent legal counsel in the gift planning process.
A gift is consideration given for which the donor receives no direct benefit and requires nothing in exchange beyond an assurance that the intent of the contribution will be honored. A gift may also include a “quid pro quo contribution” within the meaning of section 6115 of the Internal Revenue Code where goods or services may be provided to the donor in recognition of the consideration given by the donor. Where there is a quid pro quo contribution, the disclosure and substantiation requirements of the Internal Revenue Code will be complied with. Gifts made to the Foundation and gifts made directly to Grand Island Public Schools are both processed and reported by the Foundation Office.
Gifts which, because of some qualifier or restriction, are considered non-routine. Conditional gifts may commit the Foundation to act within a specified time or use a gift for a specific purpose. A conditional gift may also include a bargain sale of property to the Foundation where the acquisition price paid for the property will be less than the property’s fair market value and there is a donative intent in establishing the acquisition price of the property below its fair market value.
These gifts are typically gifts of cash, stocks, bonds, real property, tangible personal property, or gifts-in-kind.
Pledges are commitments to give a specific dollar amount according to a fixed time schedule.
Planned gifts generally are gifts or commitments made in the present with the benefit to the Foundation "deferred" until a future date. Planned gifts may include outright gifts of appreciated property (securities and real estate) or gifts of tangible personal property.
A gift of at least $12,500 (assuming x 4% = $500 annual distribution) to be invested for the purpose of producing present and future income that may be expended or reinvested with the original gift. The principal of the endowment is kept intact. Income is expended according to the donor’s stipulation and may be unrestricted or restricted.
Such appraisals are customarily obtained by the donor to support the allowance of specific income tax charitable deductions. Qualified appraisals are required when the claimed deduction for the donated property, other than money or publicly traded securities, is more than $5,000, or $10,000 for non-publicly traded securities. Property may be valued internally by using the fair market value as determined by qualified appraisals supplied by the donor.
Gifts to the Foundation may be in the form of outright gifts, pledges, or deferred commitments.
Cash and cash equivalents. Cash is often the easiest way to give and most frequently received form of gift accepted by the Foundation. These gifts can take the form of currency, check, or credit card contribution. Cash may be delivered in person, by mail, by Electronic Funds Transfer (EFT), or by wire transfer. Cash gifts are reported the date the cash is received in the Foundation office. If gifts are transferred by EFT or wire, the date of the gift is the date that the money is transferred into the Foundation’s bank account. Credit card gifts are reported on the date that the credit card charges are processed.
Is less than $1,500 in currency per donor, per 12-month period (checks or other forms of payment are not considered against this annual currency threshold).
Securities (1) listed on an exchange in which quotations are published daily; (2) regularly traded in national or regional over-the-counter markets for which published quotations are available; or (3) that are shares of a mutual fund for which quotations are published on a daily basis in a newspaper of general circulation throughout the United States, will be accepted as outright gifts or toward pledges. The value of securities is determined on the recognized gift date, which is established when the donor relinquishes control of the securities. The average of the high and low trading prices on the gift date determine the value of securities for reporting purposes.
Donations made shall be liquidated at fair market value upon being entrusted into the professional money manager’s care and reinvested immediately into the Foundation’s portfolio.
The Foundation shall examine any issue that is not publicly traded prior to its acceptance as a gift and may decline a gift of such securities if it deems them difficult to value or not easily marketable. The Finance Committee must approve gifts of non-publicly held securities prior to acceptance.
Real property includes improved or unimproved land, personal residences, farmland, commercial property, rental property, and mineral interests. If it is the intention of the donor that the Foundation not immediately dispose of real property, an agreement must be made in writing between the Foundation and the donor before the Foundation may accept such property. All gifted real estate must be tested to be in conformity with state and federal laws, including EPA regulations, and the donor must provide satisfactory evidence of environmental compliance.
The Foundation may consider gifts of personal property, including but not limited to works of art, patents, copyrights, antiques, stamp and coin collections, jewelry, furniture, rare books, manuscripts, or any other item that has a determinable value. The Finance Committee may approve such donations only after a review indicates that the property is either readily marketable or needed by the Foundation or Grand Island Public Schools. It is the policy of the Foundation to sell or otherwise dispose of all gifts of personal property, unless the items can be used by the Foundation in a manner related to, education, discovery, or engagement. The Foundation’s intention to either resell the property or to retain and use it to further its charitable activities shall be communicated to the donor in writing at the time of the gift.
Gifts-in-kind for which donors are eligible for a charitable gift deduction in accordance with current IRS regulations should be reported at the fair market value placed on them by an independent, expert appraiser. Only those gifts in-kind that can be converted to cash, or items such as equipment, books, artworks, etc. that can be used in support of delivery of education or support programs, should be reported. Receiving departments must agree to use the in-kind materials before accepting the gift. Depending on the appraised value of the donated item, IRS Form 8283 may be submitted to the Foundation. If the donor does not supply a value, someone in the receiving department who has knowledge of the general type of item should provide a statement of condition. Internal values of donated items are not to be shared with donors.
Pledges are commitments to give a specific dollar amount according to a fixed time schedule. All pledges are required to be in writing.
changes to original pledges must be documented in writing.
Anticipated matching gifts will not be included in pledge amounts.
Pledges and expected matching gifts will qualify for donor recognition in appropriate giving level groups.
Under- and over-paid pledges (as a result of either rounding, gift valuation, or incremental giving) will be noted as paid in full when donors’ intents are clearly to pay commitments in full.
Before defaulted pledges are written off, pledge deactivation requests must be reviewed and approved by the Executive Director and Board President.
Gifts which do not fall into one of the foregoing categories will be evaluated on a case by case basis in accordance with this Policy.
Donors can make charitable bequests to the Foundation in wills or living trusts.
A charitable remainder trust is established when a donor irrevocably transfers money or securities to a trustee who invests the assets to pay annual lifetime income to the donor or others chosen by the donor. At the end of the beneficiaries’ lives, the remaining trust assets are distributed to the Foundation.
Annuity trusts provide the tax advantages of current contributions with the security of fixed, lifetime incomes, generally for the donors and their spouses. The agreed-upon annual payments remain unchanged regardless of how the investments perform. The unitrust differs from the annuity trust by providing a variable income. Payment is based on a fixed percentage of the net fair market value of the trust assets as valued annually.
This type of gift provides an income stream for a specified period of time to the Foundation. The Foundation receives the income from the trust and applies it to the specific project. The principal is then returned at the end of the set period to whomever the donor designates.
Gifts of life insurance may name the Foundation beneficiary of the policy or as beneficiary and owner. Said policies should be reviewed on the policy anniversary date to ensure adequate funding to sustain the policy.
Donors can receive a sizable charitable income tax deduction by making a gift to the Foundation of their personal residence or farm, while retaining full use and rights to the property during their lifetime.
Through a written agreement, the donor transfers assets to a trustee. Income is paid to the donor for the term of the trust.
To assure the acceptability of endowment gifts, the Executive Director will notify the Finance Committee which has the authority to recommend approval for standard agreements.
Unique, nonstandard endowment agreements may require additional review and approvals. It is the responsibility of the Executive Director to obtain recommendations from the Finance Committee before final approval.
The Finance Committee shall review all gifts of significant risk. All such gifts shall be documented by a written understanding between the donor and the Foundation, and must be approved by the Finance Committee before the GIPS Foundation may accept the gifts. Once a gift has been accepted, the Grand Island Public Schools Foundation Office is responsible for recording and acknowledging it.
The committee shall meet as necessary to approve specific gifts.
Decisions of the committee must be made by consensus. If consensus cannot be reached, gifts will be forwarded to the Board of Directors for review and final decision.
Based upon the recommendation of the appropriate department all other gifts may be accepted by the Foundation Office.
Conditional gifts are those gifts that, because of some qualifier or restriction, are considered non-routine. Conditional gifts may commit the Foundation to act within a specified time or use a gift for a specific purpose. If, in any instance, a gift offered by a donor would put the Foundation in an embarrassing or untenable position with the general public, the Foundation will decline acceptance. Time limits for holding a conditional gift may be reviewed by the Finance Committee. Gift acceptance agreements should specify a time period for meeting the conditions for the gift and should also indicate what will happen to the gift if conditions are not met. Primary choices are to move the gift to a different account or to refund the gift. The Executive Director will draft an acknowledgment of a conditional acceptance for appropriate signature. This will be sent to a donor within 10 days of approval of this form. A second acknowledgment letter will be sent when conditions have been satisfied.
In rare instances, the Foundation may deem it necessary to refund gifts, either because it is in the best interest of the Foundation or because conditions agreed to in accepting a gift cannot or will not be met. Requests for refunds may come either from the donor or from the recipient department and must include a statement of reason addressed to the Finance Committee.
When conditions of acceptance cannot be met or cannot be agreed to.
When it is in the Foundation’s interest and when continuing to hold a gift would not enhance Grand Island Public Schools reputation either with the donor or with the general public.
The Foundation recognizes that corporations or private individuals may offer significant discounts on materials or services to Grand Island Public Schools. While these “gifts” do not qualify as tax-deductible donations, it is important to acknowledge and recognize these items through the Foundation’s formal stewardship programs. Donor acknowledgement of a significant discount on materials or services will be made by the Foundation and the receiving department at its discretion.
The Grand Island Public Schools Foundation, Board of Directors has a responsibility for the fiscal management of resources entrusted into its care. This includes, but is not limited to, management and investment of resources (over both short and long terms) to achieve the goals of the Foundation. The following investment goals, objectives, and strategies will be implemented to fulfill the responsibility of the Foundation Board.
The following are the stated investment goals of the Foundation.
To structure assets so that the Foundation's investments portfolio will provide above average results (as compared to the S&P 500) in a variety of economic and market environments, as measured over meaningful periods of time.
The stated investment goals may be affected adversely by investment or market conditions over which the Board of Directors has no control.
1. The Foundation shall establish a relationship with a professional money manager/financial advisor/financial services firm under the prudent professional standard, which shall be responsible for managing the Foundation's resources under this investment policy and under the following, but not limited to, conditions.
a. Detailed monthly investment reports shall be mailed or otherwise delivered to the Foundation's Executive Director.
b. Annually, or more often if the board deems advisable, the Foundation shall review the performance of the professional money manager/financial advisor /financial services firm and receive a report in person concerning the historical performance of the Foundation's portfolio, general financial health, financial concerns, if any, and suggested strategies to achieve the Foundation's stated goals.
c. Every ten years the Foundation shall conduct an evaluation and in-depth review of its relationship with the financial service firm. The purpose is to seek assurance that factors such as investment performance, cost, services and expertise are satisfactory for the Foundation's goals. The review may include an examination of other financial service firms. The Foundation may seek Requests for Qualifications (RFQ)'s from area financial managers for the purpose of reviewing qualified money managers available and interested in working with the Foundation's investments. At the conclusion of the review the Board may elect to extend its relationship with the current financial service firm or establish a new relationship with another firm. This will be done by a 2/3 majority vote of its members.
d. Not withstanding c, the Foundation may terminate its relationship with the money manager/financial advisor/financial services firm without cause at any time.
3. In determining the overall asset allocation the Foundation will consider its cash flow levels and variability, projected liquidity needs, need for current income and long term objectives. The Foundation will have at least 30% but not more than 80% of its total assets allocated to equities.
5. Donations made shall be liquidated at fair market value upon being entrusted into the professional money manager's care and reinvested immediately into the Foundation's portfolio.
6. Each year in November, after seeking the professional money manager's recommendations, the Foundation Board will by 2/3 majority vote, declare a percentage of the restricted investments to be paid in scholarships awarded the following spring. The Foundation Board reserves the right to use dividends paid by funds to make up all or part of the percentage of restricted investments declared.
7. Additionally, each year in November, after seeking the professional money manager's recommendations, the Foundation Board will by 2/3 majority vote, declare a percentage of the unrestricted investments to be paid for unrestricted foundation business.
8. Investment arrangements made by the Foundation prior to the adoption of this investment policy are hereby "grandfathered" in and are not subject to said policy.
As needed, the Grand Island Public Schools Foundation will apply for a Nebraska State Small Lottery and Raffle License in accordance with the Nebraska Small Lottery and Raffle Regulations (35-400:35-504).
This license will be used from time to time by the Grand Island Public Schools Foundation or one of its umbrella organizations for fundraising purposes.
In accordance with Regulation 35-403, the Grand Island Public Schools Foundation names the Treasurer of the Foundation as "Utilization of Funds Member" with responsibility to adhere to all regulations set forth by Nebraska law.
The Grand Island Public Schools Foundation Board will approve up to one special use permit annually for groups and organizations wishing to conduct raffles that generate more than $5,000.
For this service the Foundation will incur additional operational expenses. Therefore, organizations wishing to conduct a raffle/lottery will be required to pay the Foundation's standard 2.5% fee on all raffle income raised as well as any actual out-of-pocket expense that the Foundation may incur.
The Foundation will open a specific bank account in which to deposit all lottery/raffle funds. This bank account will be owned and accounted for by the Grand Island Public Schools Foundation.
I. Policy intent. The intent of this Policy for Scholarship Grants to Individuals (hereinafter referred to as "the Policy") is to define the procedures which the Grand Island Public Schools Foundation (hereafter referred to as "the Foundation") will use to ensure that scholarship grants are awarded on an objective and nondiscriminatory basis as provided in I.R.C. §4945(g) and to further make provisions so that the Foundation shall have no donor advised funds as provided in I.R.C. §4966.
II. Donor advised fund. For purposes of this Policy, a donor advised fund means a fund or account as described in I.R.C. §4966 which is separately identified by reference to contributions of a donor or donors, which is owned and controlled by the Foundation and with respect to which a donor (or any person appointed or designated by such donor ) has, or reasonably expects to have, advisory privileges with respect to the distribution or investment of amounts held in such fund or account by reason of the donor's status as a donor.
(c) All grants from such fund or account shall be awarded on an objective and nondiscriminatory basis pursuant to the procedure contained in this Policy and to be approved by the Board of Directors of the Foundation as provided in I.R.C. §4945(g) and all grants from such fund or account shall constitute a scholarship grant which would be subject to the provisions of I.R.C. §117(a) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) and shall be used for study at an educational organization described in I.R.C. §170(b)(1)(A)(ii) as provided in I.R.C. §4945(g)(1).
IV. Scholarship grants to individuals.
(a) Eligibility. Except as otherwise provided by the specific terms of an grant agreement, only students, alumni and employees of the Grand Island Public School are eligible to receive scholarship grants from the Foundation. The specific terms of a grant agreement may provide for scholarship grants to recipients other than students, alumni and employees of the Grand Island Public Schools.
(b) Private benefit. Notwithstanding anything herein to the contrary, the person or persons who select recipients of scholarship grants shall not be in a position to derive a private benefit, directly or indirectly, if certain potential grantees are selected over others. In addition, the Foundation will follow its Conflict of Interest Policy as to employees, officers, a member of the Board of Directors or a member of a committee of the Foundation.
(c) Selection of scholarship grant recipients. Scholarship Grant recipients will be selected on an objective and nondiscriminatory basis as provided in I.R.C. §4945(g) and all scholarship grants shall constitute a scholarship grant which would be subject to the provisions of I.R.C. §117(a) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) and shall be used for study at an educational organization described in I.R.C. §170(b)(1)(A)(ii) as provided in I.R.C. §4945(g)(1). A scoring system may be developed and used in regard to the selection of scholarship grant recipients. When feasible, applicants for scholarship grants will be scored in anonymity. The selection of recipients shall be fair and impartial. An equity committee may be established to determine that the selection of recipients shall be fair and impartial. All members of the equity committee shall be subject to all of the provisions of this Policy.
(d) Selection criteria specific to funds separately identified by reference to contributions from a donor. The criteria to be used in selecting scholarship grant recipients in regard to funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation must be based on criteria that are appropriate to the intent of the fund and described in any donor agreement when the fund was created. When the criteria stated in the original donor agreement is no longer relevant, a revised document (with donor consent and/or approval of the Board of Directors of the Foundation) may be substituted therefor. Notwithstanding anything herein to the contrary, any donor agreement shall be subject to the requirements of I.R.C. §4945(g)(1) as provided herein and any scholarship grants from funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation shall be awarded on an objective and nondiscriminatory basis subject to the requirements of I.R.C. §4945(g) as provided herein and as required by I.R.C. §4966.
(e) Selection criteria specific to all scholarship grants. For all scholarship grants including, but not limited to, grants in regard to funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation, criteria may include (but not be limited to) the following: prior academic performance, performance on tests designed to measure ability and aptitude for college work, recommendations from instructors, financial need, and the conclusions which the selection committee might draw from a personal interview as to the individual's motivation, character, ability and potential. Criteria may also include the applicant's place of residence, past or future attendance at a particular school, past or proposed course of study, and evidence of his or her artistic, scientific, or other special talent.
(f) Application process. Applicants for scholarship grants shall be required to submit such application forms and supporting materials as the Foundation may deem appropriate on a schedule to be determined by the Foundation.
(g) Scholarship/grant payments. Scholarships and grants will ordinarily be awarded for a period of one (1) year or a period of four (4) years as determined by the Board of Directors of the Foundation and/or the donor agreement. Scholarship recipients will have up to eleven (11) months after the award is made to claim (or begin claiming in the case of an award of four (4) years) their scholarship grants. If the scholarship grant recipient does not claim his or her scholarship in this designated period, the scholarship will be forfeited. The Foundation shall pay all scholarship grants directly to the educational institution described in I.R.C. §170(b)(1)(A)(ii). The Foundation shall require by agreement that each such institution agree to use the scholarship grant funds to defray the scholarship grant recipient's tuition and related expenses as defined in I.R.C. §117(a) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986). Generally, scholarships will be paid in equal installments to the educational institution. Scholarship grants that are $500 or less will be paid in one (1) installment (unless the recipient has a cumulative scholarship total with the Foundation of greater than $500). Scholarship grant recipients shall verify with the Foundation their enrollment in an educational institution described in I.R.C. §170(b)(1)(A)(ii) in order to have scholarship grants released to such educational institution. Scholarship grant recipients shall also provide other information as is deemed necessary by the Foundation.
(h) Selection Committees. The Foundation shall appoint all members of any selection committee charged with evaluating candidates for scholarship grants. Appointments shall be made by the Board of Directors. Nominations for any selection committee may be made by a committee duly appointed by the Board of Directors of the Foundation, the awards and grants committee of the Foundation or any designated employees of the Foundation. Subject to the requirements of Article III, a donor (or any person appointed or designated by such donor) may, in regard to scholarship grants from funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation, participate in the selection process as a minority member of a selection committee; provided that no combination of persons consisting of a donor (or any person appointed or designated by such donor) or persons related to such persons shall control, directly or indirectly, such committee. Each member of any selection committee charged with evaluating applicants for scholarship grants shall be obligated to disclose to the Foundation any personal knowledge of and relationship with any potential scholarship grant recipient under consideration. A member of a selection committee shall not participate in the selection process when there is a circumstance where he or she would derive, directly or indirectly, a private benefit if any potential grantee or grantees are selected over others. In the event that a relative of a member of a selection committee submits an application for a scholarship grant, that respective member of the selection committee who is a relative of the applicant shall resign for that year. The Board of Directors shall appoint a replacement for that year.
(i) Restrictions on Scholarship Grants. As to scholarship grants from funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation, no such scholarship grant shall be awarded to any relative of a member of a selection committee unless such member of the selection committee resigns for that year as provided hereinabove. Nothing herein shall prevent the award of a scholarship grant to an officer of the Foundation, a member of the Foundation's Board of Directors or any employee of the Foun¬dation or any relative of any officer of the Foundation, a member of the Foundation's Board of Directors or any employee of the Foundation; provided that the officer, member of the Board of Directors or employee who is an applicant or a relative of an applicant shall not participate in the selection of recipients for scholarship grants. In the event that a member of the Board of Directors or a relative of a member of the Board of Directors is selected as a recipient of a scholarship grant, the member of the Board of Directors who is selected or is the relative of the applicant selected as a recipient of a scholarship grant by the selection committees shall abstain from any discussion or vote on the approval of the recommendations of the selection committees and shall comply with the Foundation's Conflict of Interest Policy. Any employee of the Foundation may receive, accumulate and compile materials from applicants to submit to the selection committees but shall not participate in the selection of recipients for scholarship grants. Notwithstanding anything herein to the contrary, any relative of an officer of the Foundation, a member of the Foundation's Board of Directors or any employee of the Foundation shall be eligible for an Academic Aristocrat scholarship grant if such scholarship grant is awarded solely on the basis that such person meets the criteria of ranking in the top fifteen percent (15%) of his or her class and there is no discretion of the award of such scholarship grant to such person on the part of a selection committee. An applicant related to a donor (or any person appointed or designated by such donor) will not be eligible for a scholarship grant from funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation in regard to which the applicant is related to such donor (or any person appointed or designated by such donor) that is part of the Academic Aristocrat program but will be eligible for a Academic Aristocrat scholarship grant from any funds separately identified by reference to contributions of a donor or donors which are owned by the Foundation in regard to which the applicant is not related to the donor (or any person appointed or designated by such donor) or from any funds that are not separately identified by reference to contributions of a donor or donors which are owned by the Foundation.
(j) Approval by Board of Directors of the Foundation. Each selection committee established under this Policy shall forward its recommendations to the Foundation in such form as established by the Foundation. The Board of Directors of the Foundation shall approve each scholarship grant made under this Policy; provided, however, that any member of the Board of Directors who is selected or is a relative of an applicant selected as a recipient of a scholarship grant by the selection committees shall abstain from any discussion or vote on the approval of the recommendations of the selection committees and shall comply with the Foundation's Conflict of Interest Policy as provided hereinabove.
(k) Use of Scholarship Grants. All scholarship grants shall be used only for study at an educational institution described in I.R.C. §170(b)(1)(A)(ii). Scholarship grants must be used for tuition and related expenses as defined in I.R.C. §117(a) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986).
(iii) Any additional criteria and procedures for renewal are objective and nondiscriminatory.
(m) Reports. The Foundation shall obtain reports to determine whether the scholarship grant recipients have performed the activities that the grants are intended to finance.
(iii) Specification of the amount and purpose of the scholarship grant.
The retention of records shall be subject to the Document Retention/Destruction Policy of the Foundation.
(o) Policy of Nondiscrimination. All scholarship grants shall be awarded on a nondiscriminatory basis consistent with the requirements of I.R.C. §4945(g) as provided herein and shall not be based on race, creed, color or national origin; provided that the Foundation may establish funds for minority students or otherwise based on ethnicity or other criteria having the effect of furthering educational purposes in a manner supporting a policy of nondiscrimination.
The Grand Island Public Schools Foundation requires all employees to observe the highest standard of business and personal ethics in the conduct of their duties and responsibilities. As representatives of the Foundation, employees must practice honesty and integrity in fulfilling responsibilities and comply with all applicable laws and regulations.
It is the responsibility of all employees to comply with the law and to report violations or suspected violations in accordance with this Whistleblower Policy.
No employee who in good faith reports a violation shall suffer harassment or retaliation, nor will he or she suffer an adverse employment consequence. An employee who retaliates against someone who has reported a violation in good faith is subject to discipline up to and including termination of employment. This Whistleblower Policy is intended to encourage and enable employees and others to raise serious concerns within the Foundation prior to seeking resolution outside the Foundation.
In most cases, an employee's supervisor is in the best position to address an area of concern. However, if an employee is not comfortable speaking with his or her supervisor, or is not satisfied with the supervisor's response, the employee is encouraged to speak with anyone in management that he or she is comfortable in approaching. Supervisors and managers are required to report suspected violations to the Foundation's Executive Director. If an employee is not satisfied with the Executive Director's decision, the employee should contact the Foundation's Board Officer directly.


§ 385-1 Stop intersections established.
§ 385-2 Posting of signs.
§ 385-3 Violations and penalties.
§ 385-4 Effect of provisions.
§ 385-5 Parking prohibited at all times.
§ 385-6 Violations and penalties.
§ 385-8 Training of officers.
§ 385-9 Effect of provisions.
§ 385-10 Speed limits established.
§ 385-11 Violations and penalties.