Can Nonprofits Accept Money from Crooks? - Epsiode 38

Rav Avi: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times. I'm Rabbi Avi Killip, here with Rabbi Ethan Tucker, Rosh Yeshiva of Mechon Hadar, a center for higher Jewish learning based in New York City. How are you doing today?

Rav Eitan: Good, I'm doing great.

Rav Avi: Great. I'm excited about today's question. Alright -- I am really curious to hear what you have to say about this question. It's something I've certainly thought about and had conversations with people and never felt like I really got a clear or necessarily helpful answer. So the person writes: "I'm curious about the circumstances under which a Jewish non-profit would be obligated to reject a large donation due to its source. What if the donor's money were known to have been illegally gained? How about money earned legally but immorally or unethically? If the donor were a notorious public figure whose name is associated with immoral or illegal activity, how would that affect the decision?" And it's interesting that the questioner frames it in a Jewish non-profit's obligation -- I'm sure there are much broader implications of how we interact with money that we don't feel comfortable with.

Rav Eitan: Yeah. I mean, this is a really intense and heavy question. I think folks are dealing with this in the non-profit world, people who feel tremendous pressure to raise funds, and then the question is, you know, what are the limits of where I can accept things from? So, I want to lay out actually four different categories here that we might think about. Category one is, you're worried the money itself has been stolen, or it is coming from stolen funds. That is to say, that cash itself, that donation was actually belonged to someone else and was taken illegally from them. That's one category. Another category is that the money wasn't stolen, but it somehow got tainted. There was some kind of sin that was done with it that makes it kind of untouchable or undesirable. So again, it's not that it's stolen, but it somehow was involved in something inappropriate. A third factor, which is yet different, is simply the notion that by accepting the donation, you will somehow flatter an unsavory character who provided it, or create a kind of association with, let's say, a Jewish institution, a Torah institution, a values-based institution, a connection between that and an unsavory or even wicked figure.

Rav Avi: Yeah. I'll give an example of that. I remember when my husband was at Boston University Law School, there was discussion back and forth on whether or not they should let Howard Stern name the business school, whether they really wanted to be the Howard Stern Business School. And I don't know if they thought about whether his money were illegal or unethical; they just weren't sure that was the association that they wanted. And I actually can't remember which way it came out.

Rav Eitan: That's a great story. Yeah, I would imagine as long as they didn't let him do a broadcast, they might have been able to save the institution's reputation. But exactly. That's a great -- look, it's a great example, exactly of that. No one was claiming he stole the money, no one was claiming that money sort of was involved in some kind of sin, and yet to the extent this reputation wasn't the right match for this institution, there might be something wrong with the institution actually authorizing that. So these are three different ways of thinking about the money. A fourth category, which I think complicates things, is the fact that tzedakah, like, money given for public goods and to the poor, is actually meant to have an atoning quality in the Jewish tradition. Right? We all get up and we talk about on Rosh Hashanah, everyone screams out u'tfilah u'teshuvah u'tzedakah mavirin et roah hagezeirah, that in addition to repentance and prayer, tzedakah, charity, acts of charity in fact, you know, abate the evil decrees that are arrayed against people. And it's such a long and rich tradition that we say tzedakah tatzil mimavet, you know, charity will save from death, and this idea that if a person feels they've gone totally off the rails, one of the things you want them to do is to give money to charity. And of course, the people who need to repent are people who have done things that are wrong. So that's another element to kind of grapple with here.

Rav Avi: Yeah, I think actually you could make an argument in both directions.

Rav Eitan: Yeah, or at least you have to think about how you do it in a case like this, you know, without depriving tzedakah of that sort of redemptive quality. Let's come back to that, because I think it is really important. Let's start with actually the second piece that I mentioned. Because it's the most easily dismissed internally based on the sources, which is the idea that there might be something that is sort of tainted because of something inappropriate that was done with it, and that that gift is off-limits. So this is already mentioned in the Torah. The Torah, when it's talking about appropriate gifts to bring to the Temple, says that a person should not bring a prostitute's hire, an etnan zonah, to the house of the Lord your G-d for any vow that you make, because that is disgusting and abominable to G-d. Alright? Now, the idea here is very simple: for those familiar with the story of Yehuda and Tamar, where Yehuda goes and visits unwittingly his daughter-in-law who is posing as a prostitute and, you know, has this liaison with her by the side of the road, when he later seeks to pay her for the services she provided, he sends a goat, he sends her an animal. And among the things that were sent, you know, that were given as payment to prostitutes in the ancient world, were animals, including animals that would have been perfectly fit for offering up as a sacrifice on the altar in the Temple. And so this verse seems to be saying if a prostitute comes with a goat that she has, you know, earned, essentially, through working for the world's oldest profession and brings that to the Temple, that is not an appropriate animal to accept, and it seems it's not just limited to her, but essentially if that animal came into someone else's possession, an animal that essentially was associated with what the Torah understands to have been an illicit and inappropriate sexual transaction, that is not appropriate for the altar. Okay? Now, that becomes a kind of stand-in, as we'll see, for the notion that, right, that goat wasn't stolen, it wasn't obtained in any sort of illegal way, but it is sort of involved in a transaction that makes it inappropriate.

Rav Avi: This seems really tricky to me. Because I feel like it could be so subjective, what we consider immoral or what we consider unethical in terms of the businesses that we wouldn't accept money from. And, you know, I don't want to get into trouble by saying specifics, but I can think of at least two examples in the Jewish world of prominent donors who maybe have questionable businesses, you know, that it may not be a hundred percent clear that what they're doing is immoral, that it's certainly a question. So I don't know -- how would we have guidelines to determine that, or who gets to determine that?

Rav Eitan: Yeah, so the short answer is, the short answer to your question is that any meaningful application of this category gets almost immediately narrowed down to the vanishing point. So I deliberately gave the example of, you know, the goat that's given, and that can't be offered up as a sacrifice. Alright? The first thing that's assumed is, well, the only thing the Torah talks about, basically, is a prostitute's hire, but other than those very specific things mentioned in that verse, in Deuteronomy chapter 23, there is a clear sense that, well, formally we only care about things of that sort, and we're not chasing around all sorts of other inappropriate activities. That said, right, that said, even within the context of, let's say, an animal that was provided as a prostitute's hire, the Mishnah already makes clear, oh, but the kids born to that animal, they're totally fine to be offered on the altar. So it's only the original animal itself. And then most important, the Mishnah says if the man gave the prostitute money as opposed to a, you know, an animal, then the money can certainly be used to buy a sacrifice.

In other words, the way it gets whittled down is, the actual object used for the problematic action, only that used as is, as part of a cultic ritual, is a problem, but its financial worth is not. So, the analogy would be, let's say, I don't know, if someone produced, you know, some kind of inappropriate piece of clothing, let's just say, for instance, where there was some sense that this was not an appropriate line of business to be in, to use that as a parochet to cover the ark in the synagogue, that would be sort of the analogue, or to use it as a wrap for a Torah scroll itself, that would be the analogue to what the concern was here in the Biblical and Rabbinic text. But any profit that accrued from that, these texts essentially eliminate almost immediately. And this leads to an incredible source that I encountered when looking into this, which is Rabbenu Yirocham in medieval Spain uses this analysis to argue vociferously to accepting monetary donations from Jewish prostitutes, basically, to the synagogue.

And he says there's all sorts of people that want to say based on this category of a prostitute's hire that we shouldn't accept donations from these people, and he says absolutely not -- first of all, he questions whether they're really in the category of what the Torah is talking about at all, but he says since what they're providing at the end of the day is a monetary donation, there is no basis for excluding these people and rejecting their donation. It's a kind of fascinating window into the history of the Jewish community in medieval Spain.

Rav Avi: I have to say, once again, I feel pulled in two totally different directions, because on the one hand I want to say if it's at the prostitute level, of course I want them to be able to donate and to be a part of the community, especially because, you know, in this world many people are in that career because they don't have a lot of other options. And at the other hand, I feel like you are reading a source that has ancient roots of this idea that, like, white-collar crime is not really that bad. That, well, once it's just money, you know, it's one step removed from cartels and prostitutes and whatever the actual crime is, and at this point it's just money, and so money's fine. And so I have a real resistance to that.

Rav Eitan: Yeah. No, I hear you. I had a similar feeling when reading it too, and yet I'm also brought back to what you said a little earlier, which is where do you draw the lines here if it's just going to become a sort of open, subjective assessment of, well, I don't think that business is inappropriate, I don't think this is appropriate, and where does it sort of come out? But I agree with you -- there's something about this category where when you first encounter it, feels very promising for getting a discussion off the ground for tainted goods, tainted donations, and yet it almost immediately is neutralized from having any meaningful kind of effect. And yeah, I think you're conveying our potential ambivalence around that in an authentic and real way.

Rav Avi: Yeah. At some point you're right, you know, we can't, you can't condemn the whole economy from functioning because of course everything is interacting and dependent on trickling down into some of these difficult and potentially inappropriate uses, or trickling up from, I don't know.

Rav Eitan: Yeah. So, let's leave that there with noting that there is clearly a moral force to this category of the etnan zonah, the prostitute's hire, that we can imagine, perhaps, you know, sort of wanting to survive, even as when we're honest about the halakhic sources themselves, it's gonna be very hard to build a kind of cut-and-dry legal case in almost anything we would recognize from the non-profit world today as formally forbidding a donation based on this category. So instead, I want to pivot to a different and sort of more aggravated category, which is what about when we think the donation actually comes from a thief? Right? Where actually the money itself has been stolen? What is the obligation, if any, of the charity, of the recipient, to reject that gift, to investigate it, et cetera? So here there's a different set of sources.

Rav Avi: And this is an after-the-fact question. I already know that they're a thief at the time that they're making the donation, right?

Rav Eitan: Yeah, that's right. We can come back and talk about what if you find out later, but here's where you know there's something shady about this person's financial dealings, but they come and offer you a $10 million gift towards their endowment.

Rav Avi: Great. $10 million. That's very enticing.

Rav Eitan: That's the point. So, the Mishnah in Bava Kamma deals with an interesting set of "thieves," which is tax collectors. And lest, you know, the libertarians in the audience get too excited, the notion here as spelled out in the Talmud is that tax collectors are presumed to be thieves if and when they are essentially the old kind of tax collector, you know, the sheriff of Nottingham, where there is, there's no kitzbah, there's no sort of set, fixed, predictable amount of tax that's being collected -- right, in the United States today, in most modern industrialized countries, there's very clear tax brackets fixed by law and it's about filling that out, and everyone knows what they're gonna have to pay in advance if they would sit down and do it. Here we're talking about, though, a tax collector who essentially comes and tax farms for the government at will, and the Mishnah's perspective is that those people are basically thieves. Like, they don't really have a mandate to take things from anyone -- certainly there's been no democratically elected process to appoint them.

And therefore these mochsim, these tax collectors, are essentially to be treated as thieves. And the Mishnah says about them you may not make change from them, meaning to speak anachronistically, if you've got a $20 bill, you can't go up to a tax collector and say do you have two tens to make me change, because the actual stuff that they're walking around with is stolen. And the Mishnah adds on top of that, and you may not receive donations from them. Alright? That's very straightforward ruling, that that kind of donation must be refused, but then a fascinating coda -- but you are allowed to receive a donation from them that comes from their funds at home or from funds that they have from some business that they have in the market. Meaning, the Mishnah is trying here to strike the balance essentially of saying you may not accept a donation of stolen funds, but you don't disqualify a thief from giving tzedakah if the money comes from somewhere legitimate, or at least plausibly somewhere legitimate -- we'll get to that in a second.

Rav Avi: It's like an ancient money-is-fungible comment. Well, maybe this tzedakah didn't come from the dirty money pocket, it came from the clean money pocket!

Rav Eitan: Yeah. And the question of fungibility here, I think, is gonna get tricky, and we'll see that in a second. But the rule's pretty clear, right? Here we have a much clearer thing, which is yeah, if the money was actually stolen, you can't go anywhere near it, but there might be room to get something from that person from other sources of income. Alright, so this then triggers an interesting discussion of, well, when do you cross the threshold of it being kind of plausible that this money is not dirty money. And you have an amazing debate between Rav and Shmuel, and then an amazing debate about that debate.

So here's what they say. Rav says you can only accept donations from a thief provided a majority of that person's income or wealth, however you exactly define it, but a majority of their stuff is not stolen. Okay? You need to actually say this person has a problem with theft, but it's ultimately not the bulk of their assets, and until you reach that point, you actually can't accept anything from that person. That's Rav's position. Shmuel's position is no, as long as some of his goods are not stolen, and presumably what he means here, as long as, you know, the amount he's giving you in the donation could be covered by the amount of his wealth or his income that is legit, then it's okay, you can essentially tell the story of fungibility to your advantage, which is, well, this money, I assume, came from the legitimate pile. Right? That's the debate between the two of them. And then you have a statement by Rav Yehuda, who's a slightly later authority, who says you should follow Shmuel, to a certain person who was collecting tzedakah donations, he says you should be lenient, accept it from such-and-such thief, because they have enough money that's legitimate even though a majority of their stuff is clearly from theft. Alright? So that's a debate between Rav and Shmuel. Rav says the person's gotta be fundamentally not a thief, and Shmuel says they just gotta have assets that are available, that are okay, that are enough to cover the donation. So that's the debate between Rav and Shmuel as to whether, when someone becomes enough not a thief that you can accept their donation. So who do we follow? Do we follow Rav or Shmuel?

So now this triggers a second debate on top of this, which is really fascinating. The general principle that, like, post-Talmudic authorities followed is that we follow Rav whenever we're talking about ritual debates in Jewish law, and we follow Shmuel whenever we're dealing with monetary and civil law debates in Jewish law. So, it seems that this is a discussion about money, right -- I mean, this is about, basically, is someone a thief, is someone not a thief, and that's why most authorities assume we follow Shmuel. That is to say, we're sort of more lenient on the question of accepting donations as long as we can locate enough assets that aren't stolen, the person could be majority assets, you know, hot goods and a thief, but it's okay to accept the donation. And that's what, you know, figures like the Rambam and the Rosh, Rav Asher ben Yechiel, they rule that way. And the Shulkhan Arukh actually ends up ruling that way, that as long as there's enough non-stolen funds to cover the donation, it's no problem. However, Rabbenu Chananel, relatively early medieval authority, he rules like Rav. And what's so interesting about that is he seems to rule like Rav because he thinks that this is a ritual matter. That is to say, he seems to have seen this debate as more of a moral than a financial question.

So to someone like the Rambam, he says this fits in my general question of, you know, civil law and where I kind of accept and don't accept donations, so therefore I'm lenient to follow Shmuel in this case. But Rabbenu Chananel said that does not capture the valence of this question, which even though it does deal with when do you accept money into the coffers for charity, is actually about my moral relationship to someone that I do or don't consider to be a thief. And that, I think, is just a really interesting overarching question about this question that we got. You know, is this primarily a discussion of economic justice, or is this a certain kind of personal and institutional piety? And what this debate in the Middle Ages reveals is that this may have dramatic implications for how you think through the question. There's no question that the dominant mode of thinking on this in halakhah has been in economic terms with, you know, some degree of concern for institutional reputation, which we'll get to also. But I think those who have an instinct to be stricter in this area of Jewish practice, they're probably channeling some of Rabbenu Chananel here, which is that this feels like it might be a religious question as well, in a deep sense.

Rav Avi: So this is really helpful, I think, for me. It's helpful in the -- it's helpful in identifying why this question is phrased as who should a Jewish non-profit accept money from, and it's not a question, you know, we weren't submitted the question, who is a Jew allowed to go into business with? And I think that we as a community do much more scrutinizing of our non-profits and who they're tied to financially than we do of individuals, and say whoa, I heard so-and-so just went into business with this person who's sort of known as a crook -- I'm shocked to hear that he invested in the same company, you know, or that he invested in that company. And that maybe that's because the non-profit, Jewish non-profit world feels to us like it's veered into that ritual area, whereas when we stick strictly with who had a business partnership together, that feels like it's in the commerce area. And I would just zoom out and say the whole notion of separating those two at all is not necessarily intuitive, and so it's really interesting to hear that there was this tradition of different poskim, of different authorities, for each of those areas. The mere separating of those areas and saying ritual is one thing and commerce is another is fascinating to me.

Rav Eitan: Yeah. And look, I think at the end of the day, there's no question, right, and I want to be clear about this -- the Shulkhan Arukh and the vast majority of precedent goes on the side of being more lenient with accepting these kinds of donations. But that voice is out there, right? The Rabbenu Chananel voice is out there and it's still being captured today. It does, I think, invite us to ask, well, why does it go that way, right? Meaning, why is there this sort of drive to accept the donations from people who are, most of their resources, right, may come from theft? And look, you can offer the political-economic analysis, there's pressure to do that and there's an incentive, and I can't speak to all the kinds of historical dimensions around that.

But I do want to return to one of the things we spoke about at the beginning, which is one of the things that drives some of the leniency around accepting donations is that charity at the end of the day is one of the core means of making amends for wrongdoing. So, consider the following text -- remember that the tax collectors we were talking about? So, the Tosefta in Bava Metzia says how tax collectors, they have a very hard time repenting. Why? Because basically they don't know, they haven't kept track of everyone they stole from. So what can they possibly do? Normally you steal from someone, you return it to them. But someone who's kind of been serially involved in ripping off large parts of the population, how do they extricate themselves?

Rav Avi: Right, it's like, it makes me think that if you're working for Enron, you've just stolen from so many people. There's literally no way for you to make amends.

Rav Eitan: That's right. So, the Tosefta says what do you do with those people? So it says, well, they've got to find as many people as they can -- this is like when you get one of those little letters in the mail that you may be part of a class, you know, that's part of a class-action lawsuit, and you should register and all of that -- you do that as much as you can, and compensate those people .But then hashear osim bahen sorchei rabim, the rest of the money that you know is stolen but you don't know who it goes back to has to go to some kind of public works. Alright? Now, this text is kind of amazing, because, right, what it clearly says is you're a thief, you have money that you stole from other people, and what you are actually supposed to do with it is to give it to some kind of public good.

Now, on some base level, on some base level, what I think this text is trying to accomplish is to say if you make the person give to a public work, sorchei rabim, it will be widely beneficial, it will benefit all members of the community, including those that the person stole from, and that's basically the closest you can come to making sure that they repay those that they ripped off. I want to be clear: this text is not in any way licensing money laundering. It's not like, oh, I can steal, as long as I give it to public works, because we're talking about teshuvah here, right? We're talking about repentance. This is after there is some kind of sense of trying to change my ways.

Rav Avi: I think that's important. They're not an active thief.

Rav Eitan: That's correct. They seem to have, like, resigned their post or they're gonna do it more honestly, but what the text clearly pushes us to do is to think of donations as a kind of unmitigated good that can, at least if you're dealing with a penitent sinner, acn be an appropriate way of making amends with the people that you stole form. Now, it's not exactly like tzedakah, right? Sorchei rabim is more of a public works than it is giving to poor people, and you can imagine, you know, to steal money and then give it to a soup kitchen where you didn't steal from anyone who's eating in the soup kitchen, you can imagine a kind of synthetic take here saying, well, that's not okay, that's just stealing from one person to give to another. There may be a sense of a more communal institution -- like one example of this, Rav Moshe Feinstein is asked a question by this kind of thief, by a rabbi on behalf of this kind of thief, and he says you should donate the funds to the mikvah.

Rav Avi: I was gonna say the library.

Rav Eitan: Right? And there's this sense of, that's in theory a communal institution that anyone will benefit from. But again, what I find sort of so striking and challenging about this is there is a religious directive for the person to give the stolen funds to a public charity, to a public organization.

Rav Avi: So we've actually unpacked this question, and I see three very different dimensions, I think, from which perspective we are looking at the question, that from the perspective of me as the receiver of the money or the person taking the tzedakah, it's a ritual question. This is a question of who I am as a moral person or who our organization is morally, and whether or not we accept this money. From the perspective of the money itself, maybe it's a monetary or commerce question, and now you're bringing in this third element, which is that from the perspective of the donor, this is an interpersonal conversation. And that, you know, we have to both remember what's the status of the money itself, what's the status of me and how this is gonna affect me, my identity, my soul, who I am, and then maybe a third, really take into account who is this person trying to give the money, and why are they giving this money, and whether I accept it or not, how does that affect them as a different person about whom we need to care?

Rav Eitan: Yeah, I think that's a good summary of the pieces here. Just on the reputation piece you raised there, you know, that can cut, as we said, both ways. There's sort of the element of how might you relate to this person and think about being an opportunity for them to rehabilitate themselves, but then there's on the other hand this prohibition that's talked about in rabbinic sources as chanufah, as the kind of inappropriate flattering of wicked or dishonest figures. And this goes to, you know, the non-profits concern, appropriate concern, about their image and the kind of values that they're perceived to stand for. And it's beyond the scope of what we can do in this segment, but suffice it to say, there is some very strong language and very strong sources around making sure you don't lend your hand to legitimating people who you think are doing terrible things in the world.

And the sense in which those two link is what I think you're really looking for there is, how much do you have a sort of unmitigated, unrepentant sinner or dishonest person who feels like great, I'd also like to buy some good PR with, you know, with the rabbis, with the Jewish community, whatever it is. Those are the places where you really have to be firm and say no, like, I'm not gonna take your photo and it's not gonna be in my newsletter and I'm not gonna accept that kind of donation, as opposed to cases where maybe it would be more complicated, and it may be actually to the extent that the person has awareness for the things they've done and feel badly about it, there seems to be some kind of tikkun, some kind of repair that happens by giving tzedakah. And I think what I just want our listeners to understand is while there clearly is a place to criticize organisations that accept gifts in many of those contexts, we do have to be careful not to completely eviscerate the potential power, at least of tzedakah to perform a certain kind of atonement for, you know, the right kind of sincere donor and Jew.

Rav Avi: It's a very complicated question, and this balance of all of the different consideration we've discussed -- you know, and the consideration of, but if I take that money, how much good can I do with it? And maybe acknowledging that it's a certain level of privilege to be able to say I'm putting my reputation, I'm putting my beliefs first in saying I won't take money that's immoral, even when that sacrifices the good you could do with the money had you accepted it. Great, I feel like we probably opened up more questions than we did really give answers, but I hope this is a fruitful beginning of a conversation that we as a community more broadly we'll probably continue having for generations to come.

Rav Avi: Have a halakhic question you'd like answered on the show? Email us at [email protected]. And you can also leave us a phone message at (215) 297-4254. Responsa Radio is a project of the Center for Jewish Law and Values at Mechon Hadar, and is produced by Jewish Public Media, which creates, curates, and promotes excellent Jewish content.