FCPA Compliance and Ethics Blog

February 11, 2015

COSO and Internal Controls – Part V

Internal ControlsThis post concludes my exploration of internal controls and how companies can demonstrate compliance with the internal controls requirement under the Foreign Corrupt Practices Act (FCPA) by adhering to the Committee of Sponsoring Organizations of the Treadway Commission (COSO) 2013 Framework. Today I want to look at the fifth component, Monitoring Activities. In its Executive Summary of the 2013 Framework, COSO said, “Ongoing evaluations, separate evaluations, or some combination of the two are used to ascertain whether each of the five components of internal control, including controls to effect the principles within each component, is present and functioning. Ongoing evaluations, built into business processes at different levels of the entity, provide timely information. Separate evaluations, conducted periodically, will vary in scope and fre­quency depending on assessment of risks, effectiveness of ongoing evaluations, and other management considerations. Findings are evaluated against criteria established by regulators, recognized standard-setting bodies or management and the board of directors, and deficiencies are communicated to management and the board of direc­tors as appropriate.”

However, as with the other components of the COSO Cube, Monitoring Activities are part of an inter-related whole and cannot be taken in singularly. Larry Rittenberg, in his book COSO Internal Control-Integrated Framework, said this objective “applies to all five components of internal control, and the nature of monitoring should fit the organization, its dependence on IT, and the effectiveness of monitoring providing relevant feedback on the other components, including the effectiveness of control activities.” I heartily agree with the author when he says that he believes monitoring will take on increased importance. For the Chief Compliance Officer (CCO) or compliance practitioner, Monitoring Activities has been growing in importance over the past few years and will continue to do so in the future. In their Five Principles of an Effective Compliance Program, developed by Paul McNulty and Stephen Martin at the law firm of Baker and McKenzie, they listed oversight as Principle 5, including ongoing monitoring and this is reinforced in the 2013 COSO Framework.

In an article in Corporate Compliance Insights, entitled “Implementing COSO’s 2013 Framework: 10 Questions that Need to be Answered”, Ron Kral explained that it is important to “ensure that adequate controls are ‘present’ in support of all relevant principles and the components before launching into efforts to prove that the controls are “functioning.” Remember that all relevant principles must be present and functioning in order for a company to safely conclude that their ICFR is effective. Aligning the design of controls to the 17 principles in order to see any gaps early in the implementation process will help ensure adequate time to remediate and test for operating effectiveness.” The same is equally, if not more so, true for your company’s compliance function.

The Monitoring Activities objective consists of two principles. They are:

(1) Principle 16 – “The organization selects, develops and performs ongoing and/or separate evaluations to ascertain whether the components of internal control are present and functioning.”

(2) Principle 17 – “The organization evaluates and communicates internal control deficiencies timely to those parties responsible for taking corrective action, including senior management and the board of directors, as appropriate.”

Principle 16 – Ongoing evaluation

Rittenberg stresses that this Principle requires that “Monitoring should include ongoing or ‘continuous monitoring’ whenever such monitoring is reliable, timely and cost-effective.” This clearly incorporates McNulty and Martin’s dictate that Principle No. 5 consists of not only auditing but ongoing monitoring as well. The reason is simple; they are complementary tools to test the effectiveness of your compliance regime. The same is true of internal controls. But this Principle clearly expects your organization to engage in both types of oversight, monitoring and auditing.

For the CCO or compliance practitioner, there are several different areas and concepts you will need to consider going forward. A current risk assessment or other evaluation of business changes should be considered based upon some type of baseline understanding of your underlying compliance risk. Whatever you select it will need to be integrated with your ongoing business processes, adjusted as appropriate through ongoing risk assessments and objectively evaluated. 

Principle 17 – Communication of internal control deficiencies

This final Principle speaks to deficiencies and their correction. Rittenberg notes it requires a determination of what might constitute a deficiency in your internal control, who in your company is responsible for “taking corrective action and whether there is evidence that the corrective action was taken”. If that does not sound like McNulty Maxim No. 3 What did you do when you found out about it? I do not know what does.

Therefore, under this Principle the CCO will need to take timely and determined action to correct any deficiencies which might appear in your compliance regime. It will require you to assess results, communicate the deficiencies up the chain to the board or Audit Committee, correct and then monitor the corrective action going forward. Adapting Kral, I would urge that every key internal compliance control in support of the 17 Principles should “conclude upon by management in terms of their adequacy of design and operating efficiency.”

Monitoring Activities should bring together your entire compliance program and give you a sense of whether it is running properly. Both ongoing monitoring and auditing are tools the CCO and compliance practitioner should use in support of this objective. Near the end of his section on this objective, Rittenberg states, “Monitoring is a key component of the internal control framework because effective monitoring (a) recognizes the dynamics of change within an organization, and (b) provides the basis for corrective action on a timely basis.” I would add that it allows you to evaluate the effectiveness of that corrective action as well.

This concludes my exploration of COSO and internal compliance controls. While I have cited directly to the language of the COSO 2013 Framework, I hope that you now have a sense of how these concepts directly relate to your company’s compliance program. With the Securities and Exchange Commission’s (SEC) invigorated interest in internal controls, I believe that through adherence to these five objectives and 17 Principles will allow you to not only withstand such government scrutiny but also have a better run organization.COSO Cube. jpg

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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