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SOX Requirements, Best Practices, and State Legislation
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The Big Bam Foundation, a breast cancer charity founded by a breast cancer survivor, has been under investigation by the California and New York Attorneys General for allegations that it misspent donations on everything from an island vacation to supernatural guidance for its founder Fundraising revenue for the foundation was supposed to be directed toward free mammograms and to other breast cancer programs The nonprofit s board authorized a forensic audit, which found significant errors in the 2001 and 2002 Forms 990 Allegedly, the forms indicate that 100% of the charity s revenue, which amounted to approximately $250,000 yearly, went to management and administrative expenses in 2001 and 2002 The foundation claimed that 65% of donations went to charitable programs in 2003, but some former volunteers and contractors challenged the accuracy of those figures Bank records, furnished to The San Francisco Chronicle by former volunteers, highlighted a number of questionable charges, including: More than $1,000 in ATM withdrawals and requests for cash back when someone used the foundation s debit card A $1,100 charge to a clairvoyant Thousands of dollars in checks that Big Bam founder and president, Janice Bonadio, wrote to herself It s unclear whether anyone else approved the transactions Additional allegations assert that Bam s board never formally approved Bonadio s salary According to the Chronicle, Big Bam elected a new slate of board members on August 16, 2004, but didn t have any record of prior board meetings (Wallack, 2004)
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SOX Requirements, Best Practices, and State Legislature
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Overview
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The corporate scandals described in 1 raised the bar of accountability for all organizations private sector and nonprofits alike Although it may appear that SOX provisions apply strictly to publicly traded companies, the reality is that there are SOX compliance requirements that apply to all organizations, even nonprofits Because the level of accountability and transparency has been elevated for all organizations, the best practices that emerged from the SOX legislation present an added value for nonprofits This chapter will review the two requirements and the value that adopting the best practices will add to the nonprofit
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Objectives
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By the end of this chapter, you should be able to: Describe the two SOX requirements for all organizations, including nonprofits Describe SOX best practices and the benefits that these best practices provide to nonprofits Describe how the legislative environment has changed public expectations of nonprofit accountability and transparency Discuss the common themes and issue areas that are addressed through state legislation
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What Are Nonprofits Required to Do Under SOX
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As we learned in 1, the Public Company Accounting Reform and Investor Protection Act, commonly referred to as Sarbanes-Oxley and SOX after its sponsors, Senator Paul Sarbanes (D MD) and Representative Michael Oxley (R OH), was passed in 2002 in the wake of the Enron corporate scandal Although SOX was initially intended to raise the bar for integrity and competence for publicly traded companies, its effect has been to promote greater accountability within both the nonprofit and private sectors SOX Requirements for All Organizations Even Nonprofits! Currently, only two of the provisions in SOX directly apply to nonprofit organizations Nonprofits are required to adhere to Whistleblower Protection requirements, which provides protection to employees who report suspected fraud or other illegal activities Employees or volunteers of a nonprofit are shielded from retaliation for making reports of waste, fraud, or abuse
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What Are Nonprofits Required to Do Under SOX
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Nonprofits are also expected to have a fully functioning Document Preservation policy in place The Document Preservation policy has two aspects: preservation and archiving of documents for the purpose of timely retrieval, and a prohibition against the destruction or falsification of records or documents Whistleblower Protection The first obligation from SOX that applies to all organizations is the requirement for a documented Whistleblower Protection policy SOX requires all organizations, including nonprofits, to establish a means to collect, retain, and resolve claims regarding accounting, internal accounting controls, and auditing matters The system must allow such concerns to be submitted anonymously SOX provides significant protections to whistleblowers, and severe penalties to those who retaliate against them 9 elaborates on the policies and procedures that contain at least the following aspects: There is a confidential avenue for reporting suspected waste, fraud, and abuse There is a process to thoroughly investigate any reports There is a process for disseminating the findings from the investigation The employee filing the complaint will not be subjected to termination, firing, harassment, or miss out on promotion Even if the findings do not support the nature of the complaint, the employee or volunteer who made the complaint will not face any repercussions All employees and volunteers should have a copy of the whistleblower policy and it should be posted in clear view This policy should also be covered in any orientation or training programs the organization offers for its employees and volunteers Document Management and Preservation Policy Document storage and retention is another area within SOX that applies to all organizations The language in Section 802 describes the consequences for failing to implement a Document Retention system:
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Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 10 years, or both
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8 provides more insight into how this requirement needs to be tailored to address both paper files and electronic files
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