MILWAUKEE COUNTY

Late philanthropist left $1 million for Irish dancers, but which ones? Courts deciding

Bruce Vielmetti

Milwaukee Journal Sentinel

Scores of straight-backed young Irish dancers will bounce, jig and jump on stage at Milwaukee's Irish Fest this weekend, some likely dreaming of someday joining the Trinity Irish Dance Company, a world-renowned professional troupe with deep Milwaukee roots — and a messy legal predicament.

As Trinity plans its nationwide tour, lawyers are appealing a judge’s decision earlier this year that the group should get $50,000 a year from a trust left to a Milwaukee nonprofit that was Trinity Irish Dance Company for almost two decades, until it felt forced to give up the brand.

“How, as a nonprofit, do you not own your own name?” asked Joan Rudnitzki, board chair of what is now called American Company of Irish Dance.

The Trinity Irish Dance Company and the board of its former nonprofit have been engaged in a yearslong divorce. Lawyers are now appealing a decision over who should get a $1 million gift willed to Trinity when it was a single organization.

The court ruling follows a drawn-out divorce of American from Trinity Director Mark Howard, widely credited with inventing progressive Irish dance and introducing it to a wider audience on the "Tonight Show Starring Johnny Carson" and other shows in the late 1990s and 2000s.

Without the annual grant, American Company of Irish Dance faces a struggle to survive. Its board felt Howard used the organization to profit personally, what’s known in nonprofit management as "excess benefits," by getting paid outsized royalties for dances he created but the organization believed it owned.

1999: Trinity Irish Dancers perform before a packed Irish Fest crowd at Maier Festival Park.

Howard’s attorneys argued the board misunderstood who owned the rights to Trinity’s name and choreography and was no longer doing what Bill Borchert Larson intended — providing an outlet for girls to perform Irish dance.

Howard did not respond to interview requests made through his agents and on social media. In court papers, his attorney said a “power hungry” Rudnitzki “forced out (Trinity’s) founder, guiding light and artistic soul.”

Larson, a Shorewood philanthropist and the grandson of Otto Borchert, who owned the Milwaukee Brewers in the 1920s, died in 2006. He left $1 million with the Greater Milwaukee Foundation to support Trinity Irish Dance Company, described as a nonprofit Irish dance company primarily for girls.

But the extra money only brought trouble. Soon after, Trinity’s board tried to impose more financial discipline for the money-losing venture. It sought to clean up the books, get a clean audit and apply for grants. It canceled a 2008 tour unless Howard could show a detailed budget to avoid yet more losses.

Bill Borchert Larson and his mother, Florence Mila Borchert, are memorialized in a statue at the Milwaukee County Zoo. Larson was a major donor to the zoo and also left $1 million with a foundation to support Trinity Irish Dance Company. The dance group's nonprofit board and the troupe's founder are now in court over who should get the money.

That led to legal threats from a promoter and escalating legal, accounting and administrative expenses for the board, which began burning up big chunks of its annual grants from the Larson gift.

As the dispute wore on, the organization stopped putting on performances while Howard continued staging shows as Trinity Irish Dancers and running a Chicago school under the name Trinity Academy of Irish Dance, both for-profit ventures.

Joan Rudnitzki, chair of the board of directors of the American Company of Irish Dance.

Rudnitzki, with 30 years of experience in nonprofits, said consultants found contracts for private, corporate performances, “cash cows,” with Trinity crossed out and replaced with Howard’s for-profit company, Modern Gaelic Productions.

“Had the company been able to keep those corporate show payouts, it wouldn’t be in the red,” she said.

At one point, she said, the organization had to acknowledge excess benefits in its 990s, the financial disclosure form nonprofit groups must file with the IRS.

“We were protecting that (nonprofit) status first and foremost,” Rudnitzki said. “That’s what we had to do legally and ethically.”

But Howard asserted that he owned the rights to the Trinity name and its popular dances. A 1997 agreement required Trinity Irish Dance Company to pay royalties to Howard’s for-profit organization, Modern Gaelic Productions, for each performance of dances he created, like "Johnny," "The Black Rose" and "Jump, Jive and Jig."

According to court records, Howard signed the deal for both entities.

In 2012, the Trinity board asked the U.S. Patent Trial and Appeal Board to cancel Modern Gaelic's trademarks for Trinity Irish Dance Company and Trinity Irish Dancers but later withdrew its petition in 2014 after it and Howard finally reached a deal.

The Milwaukee nonprofit renamed itself the American Company of Irish Dance. Howard, in turn, created a new Trinity Irish Dance Company and forgave more than $120,000 in loans he said he’d made to the nonprofit in the past. In 2015, the new Trinity Irish Dance Company became a registered nonprofit.

Foundation caught in the middle

The Greater Milwaukee Foundation found itself caught in the middle. It made its last grant to the original Trinity in 2011 and in 2012 warned the board that Larson’s gift might go to its alternate beneficiary, the University of Chicago, because the group had been dormant as far as developing and presenting Irish dance.

Rudnitzki and the rest of the volunteer board explained its fight to protect its nonprofit status, and its name, and that it was planning its return as a more active dance company once everything settled. The foundation gave it a long list of things it wanted to see happen in a few months and a second chance to get the payments reinstated.

In 2016, after the name change, the board submitted what it considered was everything the foundation demanded but didn’t get an answer until late that year when it learned the foundation had gone to court.

A Greater Milwaukee Foundation spokeswoman, Laura Glawe, said in statement that it relies on language in documents to discern a donor's intent after the donor dies, but disagreements can arise and on few occasions, it has turned to the courts for help in resolving them.

"Donor directives are a sacred trust for community foundations," Glawe's statement reads.

Foundation lawyers told the judge that if it was merely a question of whether American was now compliant with the donation’s parameters, it could have decided the matter on its own. But also in 2016, the new Trinity, Howard’s group, appeared and said it was the rightful beneficiary of Larson’s gift. Now the foundation wanted the court to decide which group was the lawful successor.

In February, Milwaukee County Circuit Judge Marshall Murray heard two days of testimony. Rudnitzki and her son, A.J. Rudnitzki, secretary of the organization, said its books were a mess in 2006 and the board wanted to clean them up, get a clean audit and become eligible for grants.

But Murray shut off their attorney’s repeated attempts to go into what he saw as Howard’s excess benefits. If there was anything like embezzlement, Murray said, the board should have called a prosecutor. He focused only on which organization should be considered the successor to the original Trinity Irish Dance Co. named in Larson’s gift.

Rudnitzki argued there was no successor; American was and is the same nonprofit, with the same tax identification number, with only a changed name.

The board’s attorney, Tom Frenn, said the new Trinity was trying to suggest that Larson’s gift had the added words “as controlled by Mark Howard.” Larson was a sophisticated philanthropist who could have included such words, or made a gift directly to Howard, if that was his intention, Frenn said.

Howard “is not entitled to take the grant with him when he leaves the company,” Frenn said.

For Trinity, Murray heard testimony from a New York choreographer about Howard’s groundbreaking artistic style in Irish dance, and from two women who joined Trinity as associate artistic directors about how their experience has empowered them as women and artists, and even from former longtime Journal Sentinel dance critic Tom Strini, now in Oregon, about how Trinity’s national success reflected well on Milwaukee.

In the end, Murray was convinced that Larson intended to fund “this avant-garde, this very beautiful dance put on by women of the Trinity Irish Dance Company,” which is currently a very going concern.

American, on the other hand, was not actively conducting the “live progressive Irish dance performances which clearly captivated Mr. Larson,” Murray ruled. “That is what he funded. That’s what I think he was interested in.”

That American still has the same tax ID number as the group Larson once endowed was irrelevant, Murray found.

Rudnitzki, the board chair of American, said the group has reformed and is moving ahead regardless of how its appeal turns out. She said it presented a new company at two shows in 2016, has new artistic directors who are alumni of Riverdance, a roster of dancers and a business plan going forward, with new fundraising efforts.

"The only thing between us and going out on the road again is money," she said.