FCPA Compliance and Ethics Blog

January 30, 2015

COSO and Internal Controls, Part II

Internal ControlsThis post continues my exploration of internal controls and how companies can demonstrate compliance with the internal controls requirement under the Foreign Corrupt Practices Act (FCPA) by adherence to the COSO 2013 Framework. Today I will begin a discussion of the updated COSO Framework. Brian Christensen, in an article in Corporate Compliance Insights, entitled “The Updated COSO Framework: Time for a Fresh Look at Internal Control”, said that the updated Framework retained the core definition of internal controls; those being control environment, risk assessment, control activities, information and communication, and monitoring activities. Further, these five operational concepts are still visually represented in the well-known three-dimensional “COSO Cube”. In addition, the criteria used to assess the effectiveness of an internal control system remain largely unchanged. The effectiveness of internal control is assessed relative to the five components of internal controls and the underlying principles supporting the components. However, it is the emphasis on the principles, which is new to the 2013 Framework.

Christensen believes that “COSO has chosen to formalize more explicitly the principles embedded in the 1992 version of the framework that facilitate development of effective internal control and assessment of its effectiveness. While the 1992 version implicitly reflected the core principles of internal control, the 2013 version explicitly states them in the form of 17 principles, each of which is mapped to one of the five components. The 17 principles represent fundamental concepts associated with the five components of internal control. There isn’t any new ground broken by these principles as they reflect widely known tenets of sound internal control that have been around for a long time.” The principles remain broadly stated as they are intended to apply to for-profit companies, not-for-profit entities, government bodies and other organizations. Moreover, “supporting each principle are points of focus, representing characteristics associated with the principles and providing guidance for their application. Together, the components and principles constitute the criteria and the points of focus provide the guidance that will assist management in assess­ing whether the components of internal control are present, functioning and operating together within the organization.”


The first of the five objectives is ‘control environment’. Larry Rittenberg, in his book COSO Internal Control-Integrated Framework, said the control environment “sets the tome for the implantation and operation of all other components of internal control. It starts with the ethical commitment of senior management, oversight by those in governance, and a commitment to competent employees.” The five principles of the control environment object are as follows:

  1. The organization demonstrates a commitment to integrity and ethical values.
  2. The board of directors demonstrates independence from management and exercises oversight of the development and performance of internal control.
  3. Management establishes with board oversight, structures, reporting lines and appropriate authorizes and responsibility in pursuit of the objectives.
  4. The organization demonstrates a commitment to attract, develop and retain competent individuals in alignment with the objectives.
  5. The organization holds individuals accountable for their internal control responsibilities in the pursuit of the objective.

Commitment to integrity and ethical values

What are the characteristics of this principle? First, and foremost, is that an entity must have the appropriate tone at the top for a commitment to ethics and doing business in compliance. It also means that an organization establishes standards of conduct through the creation of a Code of Conduct or other baseline document. The next step is to demonstrate adherence to this standard of conduct by individual employees and throughout the organization. Finally, if there are any deviations, they would be addressed by the company in a timely manner. From the auditing perspective, I think that this principle requires an auditor to be able to assess if a company has the met its requirements to ethics and compliance and whether that commitment can be effectively measured and assessed.

 Board independence and oversight


This principle requires that a company’s Board of Directors establish oversight of a compliance function, separate and apart from the company’s senior management so that it operates independently in the compliance arena. Next there should be compliance expertise at the Board level which allows it actively manage its function. Finally, and perhaps most importantly, a Board must actively provide oversight on all compliance control activities, risk assessments, compliance control activities, information, compliance communications and compliance monitoring activities. Here, internal auditors must interact with a Board’s Compliance Committee (or other relevant committee such as the Audit Committee) to determine independence. There must also be documented evidence that the Board’s Compliance Committee provides sufficient oversight of the company’s compliance function.


Structures, reporting lines, authority and responsibility


This may not seem as obvious but it is critical that a compliance reporting line go up through and to the Board. Under this principle, you will need to consider all of the structures of your organization and then move to define the appropriate roles of compliance responsibility. Finally this principle requires establishment of the appropriate authority within the compliance function. Here your auditors must be able to assess whether compliance responsibilities are appropriately assigned to establish accountability.


Attracting, developing and retaining competent individuals


This principle gets into the nuts and bolts of doing compliance. It requires that a company establish compliance policies and procedures. Next there must be an evaluation of the effectiveness of those compliance policies and procedures and that any demonstrated shortcomings be addressed. This principle next turns the human component of a compliance program. A company must attract, develop and retain competent employees in the compliance function. Lastly, a company should have a demonstrable compliance succession plan in place. An auditor must be able to demonstrate, through its compliance policies and equally importantly its actions, that it has a commitment to attracting, developing and retaining competent persons in the compliance function and more generally employees who accept the company’s general principle of doing business ethically and in compliance.


Individuals held accountable


This is the ‘stick’ principle. A company must show that it enforces compliance accountability through its compliance structures, authorizes and responsibilities. A company must establish appropriate compliance performance metrics, incentives to do business ethically and in compliance and finally clearly reward such persons through the promotion process in an organization. Such reward is through an evaluation of appropriate compliance measures and incentives. Interestingly a company must consider pressures that it sends through off-messaging. Finally, each employee must be evaluated in his or her compliance performance; coupled with both rewards and discipline for employee actions around compliance. This principle requires evidence that can demonstrate to an auditor there are processes in place to hold employees accountable to their compliance objectives. Conversely, if an employee does not fulfill the compliance objectives there must be identifiable consequences. Lastly, if this accountability is not effective, the internal controls should be able to identify and manage the compliance risks that are not effectively mitigated.


I will take a short break from my explorations of COSO and Internal Controls next week, but do not worry the subject will return the week of February 9. Next week I will have a series of guest posts from Joe Oringel, Principle at Visual RiskIQ on data analytics.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015

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