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Document Preservation Policy
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In all three instances, a Document Preservation policy would have obligated the organizations to have protocols for preservation, storage, and archiving of documents The policy would also contain a prohibition against the destruction of documents related to an inquiry Had that policy been in place and enforced, the PWC auditors would have had access to the carloads of documents that Mr Suer allegedly removed from the UWNCA offices upon his retirement A Document Preservation policy at the James Beard Foundation would have meant that the board was sufficiently engaged to actively supervise Mr Pickell It also could have meant that Mr Pickell would have had to produce documentation of his professional background in the form of copies of college diplomas or transcripts and possibly even a CPA certification A Document Preservation policy would have also identified the appalling lack of internal controls in the Foundation s financial management
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The American Red Cross s National Headquarters had been under pressure since 1991 from the FDA s head, Dr David Kessler, to establish and enforce a document preservation policy for its biomedical operations In response to the FDA s increasing sanctions, the Red Cross brought in Elizabeth Dole in 1991 as president Ms Dole s considerable political capital seemed to keep the FDA at bay until the Clinton Administration reappointed Dr Kessler as head of the FDA in 1992 The pressure for appropriate documentation continues to this day The Liberty Fund crisis was, in many ways, a recurring scandal in this organization The pattern of events includes Congressional inquiry and outrage, but the organization s charter remains intact even though crises related to fundraising and operations occur on a regular basis Compliance with SOX Whistleblower Protection and Document Preservation provisions would have meant a sea change in the board and organizational culture of all three of these organizations All three boards would have had to have a level of accountability that would have facilitated their recognizing the fraud that was occurring within their organizations They would have had to be fully present to their governance and fiduciary obligations Most importantly, they would have had to recognize and accept that aggressive intervention was necessary to stop the fraud and change the dysfunction within their nonprofit s cultures
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SOX Best Practices
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The best practices that emerge from SOX provisions and standards serve as the framework for a transparent organization This section examines how the implementation of best practices could have averted these crises or reduced their impact SOX best practices include: Board independence and accountability Audit committee whose role is to oversee the annual audit or financial review (for small nonprofits) and to upgrade the financial literacy of the board Enhanced detail and accuracy in the preparation of IRS Form 990 Conflict of Interest policy and Code of Ethics that facilitate greater focus on decision-making for the good of the nonprofit Internal controls, particularly as these relate to financial operations, and compliance with all laws and regulations at the federal, state, and local levels Board Independence and Accountability The board played a pivotal role in each of these crises In all three cases, the boards were not at all independent The Red Cross board was split between the political appointees and the Red Cross insiders whose allegiance was to an inbred organizational
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tradition The UWNCA board was largely window-dressing The Executive Committee was handpicked by Mr Suer, who kept their allegiance firmly under his control Similarly, Mr Pickell, through his use of guile, ensured that his board was firmly under his control Because none of the boards appeared to have any understanding of its legal obligations of care, loyalty, and obedience, the implementation of board performance standards would have been a significant means of establishing accountability Board orientations are essential in transmitting the information and protocols that board members need in order to conduct business in a transparent manner Board member selection and screening are important elements in ensuring board independence The board needs to be comprised of individuals whose experience and professional credentials are in line with the governance needs of the nonprofit Boards who are selected by the nonprofit s executive by definition lack the degree of independence needed to adhere to SOX best practices Audit Committee The audits of these nonprofits present a red flag In the cases of the UWNCA and the James Beard Foundation, the same firm and/or individual conducted the audits over many years The auditors were aware of inappropriate dealings, but chose to keep these quiet Best practices necessitate that auditors are rotated every three to five years Both Messrs Suer and Pickell had been at the helm of their organizations over five years Had the best practices been in place, a new auditor would have also recognized the inappropriate dealings, but might have refused to stay silent All three boards may have had a high degree of financial literacy, but if any or all of the boards had audit committees, these committees failed to perform as they were intended The role of the audit committee is to oversee the annual audit, which includes a frank and open discussion with the auditor without staff present An effective audit committee would have insisted that the auditors be candid and that immediate action be taken to stop the fraudulent activity In the case of the Red Cross, the audit committee and the auditors should have insisted that funds raised for specific disasters be spent exclusively on those disasters Enhanced Detail and Accuracy in the Preparation of IRS Form 990 The IRS Form 990s for all three nonprofits the Red Cross, the UWNCA, and the James Beard Foundation are clearly very complex It would be very easy to obscure any misappropriation If the boards in each of the nonprofits had been required to review and approve the 990s, it might have been possible for them to identify problems on the amount that was spent on programs, or in the nonprofit s internal controls There is a recommendation
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