Board Committee Roles and Responsibilities

Chapter V

Chapter Objectives: • Provide an overview of the functions of board committees.

• Understand the roles and responsibilities of board committees.

• Be aware of the objectives of establishing board committees.

• Become familiar with the duties, responsibilities, and composition of the audit,

compensation, nominating, governance, and special committees.

• Understand the process and emerging practices for the election of corporate

directors.

Key Terms Audit committeeCompensation committeeEnterprise risk managementGovernance committeeNominating committeeSpecial committeeStrategic boardSuccession planningTone at the topWhistleblower

Relevance of Board Committees The establishment of board committees can bring more focus to the board’s oversight function by giving proper authority and responsibilities and by demanding accountability for these committees. Listing standards of national stock exchanges require that listed companies form at least three board committees that must include audit, compensation, andnominating committees. Public companies often, in addition to these three mandatory committees, have governance and other committees such as finance, IT, and disclosure.

Average number of directors 9-15

Audit Committee Lawmakers (SOX), regulators (SEC rules), and listing standards of national stock exchanges (NYSE, Nasdaq, AMEX) generally require public committees to have an audit committee, which must be composed of independent directors with no personal, financial, or family ties to management.

Standards Relating to Listed Company Audit Committees outline these requirements, which relate to:

1) Audit committee members to be independent2) Audit committee members to select and oversee the issuer’s

independent account 3) Procedural process for handling complaints regarding the

issuers accounting practice 4) The authority of the audit committee to engage advisors5) Funding for the independent auditor and any outside advisors

engaged by the audit committee.

Definition of the Audit Committee

- A committee (or equivalent body) established by and amongst the board of directors of an issuer for the purpose of overseeing the accounting and financial reporting processes of the issuer and audits of the financial statements of the issuer; and if no such committee exists with respect to an issuer, the entire board of directors of the issuer. (Section 205(a) of SOX)

- A committee composed of independent, nonexecutive directors charged with oversight functions of ensuring responsible corporate governance, a reliable financial reporting process,an effective internal control structure, a credible audit function, an informed whistleblower complaint process, and an appropriate code of business ethics with the purpose of creating long-term shareholder value while protecting the interests of other stakeholders. (In the context of the agency theory)

Audit Committee Relationships with Others

Audit Committee Board of Directors Works with other committees, assists board by bringing specialization and expertise in the areas of financial reporting, internal controls, risk management, and audit activities.

Audit Committee Management Asks appropriate questions pertaining to the company’s corporate governance structure, internal controls, financial reporting, audit activities, risk assessment, codes of ethics, and whistleblower programs. Management should provide sufficient information.

Audit Committee External Auditors Directly responsible for hiring, compensating, and firing external auditors, as well as overseeing their work. External auditors are held ultimately accountable to the audit committee and should submit their reports of the audit on ICFR and the audit of financial reporting to management via the audit committee.

Audit Committee Internal Auditor Should be responsible for hiring, overseeing, compensating, and firing the head of the internal audit department (CAE), and internal auditors should report their audit findings directly to the audit committee, being ultimately accountable to that committee.

Historical Perspective on Audit Committee

1938 McKesson & Robbins fraud

1939 NYSE recommends the establishment of audit committees

1940 SEC recommends that companies form audit committees—Accounting Series Release (ASR) No. 19

1967 AICPA Executive Committee Statement on Audit Committees of Board of Directors recommends theestablishment of audit committees

1970 Penn Central bankruptcy

1972 ASR Nos. 123 and 126

1973 NYSE White Paper opines that audit committees are a necessity

1974 ASR No. 165

1976 Committees chaired by Senator Lee Metcalf and Congressman John Moss complete their investigations into the accounting profession AICPA forms Commission on Auditors’ Responsibilities (Cohen Commission)

1977 Metcalf Committee Staff Report, The Accounting Establishment, is issued.

1978 Foreign Corrupt Practices Act (FCPA)

1985 AICPA Cohen Commission issues Commission on Auditors’ Responsibilities: Report, Conclusions, andRecommendations. AICPA forms a special committee to consider the adoption of an audit committee requirement. NYSE requires companies with common stock issues registered on NYSE to have an audit committee

1987 Congressman John D. Dingell convenes the first of a series of hearings into the effectiveness of independent auditors

1988 National Commission on Fraudulent Financial Reporting (NCFRR/the Treadway Commission)

1989 SEC’s five commissioners, by a narrow vote, decide not to require all public companies to have audit committees,but encourage their formation. Statement on Auditing Standards (SAS) No. 61, Communication with the Audit Committees.

Historical Perspective on Audit Committee

1989 The National Association of Securities Dealers (NASD) approves a requirement that National Market Systemcompanies (a subset of the over-the-counter market) must have audit committees. Statement on Internal Auditing Standards No. 7 (SAIS No. 7) Communication with the Board of Directors

1991 Federal Deposit Insurance Corporation Improvement Act

1992 Committee of Sponsoring Organizations of the Treadway Commission (COSO) issues Internal Control-Integrated Framework

1993 Public Oversight Board of the AICPA’s SEC Practices Section releases In the Public Interest

1994 Kirk Panel (Public Oversight Board of the AICPA’s SEC Practices Section) releases Strengthening the Professionalism of the Independent Auditor

1995 Public Oversight Board of the AICPA’s SEC Practices Section releases Allies in Protecting Shareholder Interests

1998 SEC Chairman Arthur Levitt delivers speech at the NYU Center for Business and Law in which he calls for theNYSE and Nasdaq to form a “blue ribbon committee” to study the role of the audit committee

1999 Report and Recommendations of the Blue Ribbon Committee on Improving the Effectiveness of Corporate Audit Committees. SAS No. 90, Audit Committee Communications. SEC Release No. 34-42266: Audit Committee Disclosure. NYSE and Nasdaq adopt new listing requirements, mandating the existence, composition, director qualifications,and duties of an audit committee

2000 POB’s Panel on Audit Effectiveness releases Report and Recommendations

2001 Arthur Levitt, SEC Chairman, issues letter to audit committee chairmen

2002 Sarbanes-Oxley Act

2003 SEC Release Nos. 33-8177 and 34-47235: Disclosure Required by Sections 406 and 407 of the Sarbanes-OxleyAct of 2002. SEC Release Nos. 33-8220 and 34-47654: Standards Relating to Listed Company Audit Committees. SEC approved amendments to NYSE and the Nasdaq corporate governance listing standards.

2004 NYSE submitted to the SEC for approval amendments to its corporate governance listing standards

Audit Committee Principles- Audit Committee Formation- Audit committee independence- Audit committee members’ qualifications - Audit committee authority- Audit committee funding- Audit committee oversight function- Audit committee accountability- Audit committee charter- Audit committee agenda- Audit committee orientation, training, and continued education.

Audit Committee Composition

Audit committee composition is discussed in terms of size, independence, qualifications, attributes, and resources:

Audit Committee Size - The size of the committee usually ranges from three to six members, whereas the SEC rule and listing standards for public companies require at least three independent members and should be composed for at least three months.

Audit Committee Independence - The audit committee should be composed of independent, nonexecutive, outside directors. The emerging corporate governance guidelines on audit committee independence should assist public companies in avoiding potential conflicts of interest due to committeemembers’ excessive contractual or consulting ties to the company or its management.

Member Qualifications - At least one member of the audit committee should be designated as a financial expert. The company’s board of directors should apply the SEC’s definition and consider audit committee members’ experience and knowledge in determining which members qualify asfinancial experts and, if none qualify, recruit at least one member who meets the required qualifications.

Audit Committee Authority/Resources - SOX, recognizing the increased responsibilities assigned to audit committees, authorizes them to engage independent counsel and other outside advisors as they determined necessary and requires the company to provide appropriate funding for such advisors.

Audit Committee Composition

Audit Committee Responsibilities

Audit committee oversight responsibilities can be grouped into the following categories:

-Corporate governance- Internal controls- Financial reporting- Audit activities- Code of ethics conduct- Whistleblower program- Enterprise risk management- Financial statement fraud

Audit Committee Meetings

A combination of formal audit committee meetings with the presence of senior executives and executive meetings with just internal and/or external auditors should improve theeffectiveness of audit committee oversight functions.

The audit committee should meet at least four times a year to review the company’s quarterly financial reports and as needed to address other important issues.

The quality and quantity of meetings can have a significant impact on the effectiveness of fulfilling its oversight responsibilities.

Audit Committee Agenda The audit committee should have a well-defined, written agenda for all of its meetings.The agenda should cover: (1) the minutes of the previous meeting; (2) a review of current financial statements, (3) a review of the current management, independent auditor

reports on ICFR including identified material weaknesses in internal control, and the management responses to reported material weaknesses;

(4) a review of the established whistleblower programs and the appropriate responses to those complaints;

(5) a review of the company’s enterprise risk management to ensure objectives are defined, risks are assessed, and procedures are designed to minimize risks;

(6) a review of internal auditors, external auditors, audit plans, scope, and findings.

Audit Committee Reporting Audit committee reports to shareholders include, among other things, a description of audit committee responsibilities, its activities and accomplishments, and its self-assessment of how well it has discharged its assigned responsibilities.

Question: What are the main paragraphs in audit committee reporting?

Legal Liability of Audit Committees

SEC rules provide the following safe harbors in addressing the concerns about the increased liability of an audit committee member designated as a financial expert:

1. An audit committee financial expert is not deemed to be an “expert” for the purpose of liability under Section 11 of the Securities Act of 1933.2. The designation of a member as a financial expert does not impose liability, obligation, or duties above and beyond those of other members of the audit committee or the board of directors, nor does the designation affect the liability, obligations, or duties of other members of the committee or board

Compensation Committee The compensation committee is usually formed to determine the compensation and benefits of directors and executives.Structure: The committee should be composed of all independent directors who rotate periodically. Responsibilities: committees have a set of responsibilities which they need to follow stricktly. Proxy Statement Disclosure: The committee is directly responsible for ensuring that all aspects of executive compensation are fully and fairly disclosed in in the annual proxy statement. Committee responsibilities: 1. Evaluation of directors.2. Design and implementation of director compensation

plans.3. Evaluation of senior executives.4. Design and implementation of executive compensation

plans.

Performance metrics typically used by the compensation committee include: a. Earnings per share (EPS)b. Cash flowc. Total shareholder return (TSR)d. Return metricse. Economic profit or economic value added (EVA)f. Revenueg. Operational metricsh. Qualitative factors

SEC rules require proper disclosure of executive compensation without imposing or even assessing the nature and extent of the company’s executive compensation thats why all everything the compensation committee does should be properly disclosed.

Compensation Committee (Cont)

Corporate Governance Committee• The corporate governance committee should be composed of both executive and nonexecutive directors and be responsible for developing and monitoring the company’s governance principles, including the roles and responsibilities of directors and officers. • The corporate governance committee should be in charge of establishing the agenda for the company’s board of directors to determine what the board should discuss with management and to what extent.• The corporate governance committee should provide sufficient information to the board to enable it to effectively review the company’s performance. • The information should consist of both financial and nonfinancial measures of its performance, its comparison with the industry’s best practices, and the company’s budget.

Nominating Committee The nominating committee is usually responsible for evaluating and nominating a new director to the board, and it also facilitates the election of the new director by shareholders.The nominating committee is responsible for (1) reviewing the performance of current directors;(2) assessing the need for new directors; (3) identifying and evaluating the skills, background, diversity, and knowledge of candidates; (4) having an objective nominating process for qualified candidates; (5) assisting in the election of qualified new directors.

Other Board Standing Committees

Public companies may form other standing or special committees to deal with issues requiring particular expertise.

Examples: 1. Finance committee to oversee financial activities2. Outside directors committee to maintain board independence3. Executive committee to approve managements decision, plans ,

and actions on a behalf of entire board.

Conclusion -Listing standards require listed companies to form at least three board committees, including the audit, compensation, and nominating/governance committees. - Board committees are usually formed as a means of improving the effectiveness of the board in areas where more focused, specialized, and technically oriented committees are deemed necessary. -Audit committees act as guardians of investor interests by assuming oversight responsibilities in the areas of corporate governance, financial reporting, audit activities, and compliance with applicable regulations.-The audit committee is one of the major standing committees of the company’s board of directors and, as such, works with other board committees, company management, and external and internal auditors to effectively fulfill the board’s fiduciary duties to all stakeholders.-External and internal auditors are ultimately held accountable to the audit committee and should submit their reports to the audit committee.-The determinants of an effective audit committee include diligence, independence, communication, responsibility, accountability, resources, working relationships, evaluation, functions, and legal liability.

•The composition of the audit committee, including size, independence, qualifications, and resources, can have a significant impact on its effectiveness.• At least one of the members of the audit committee should be designated as a financial expert.• Audit committee responsibilities may be grouped into the following categories: corporate governance, internal controls, financial reporting, audit activities, code of ethics conduct, whistleblower programs, enterprise risk management, and financial statement fraud.• Audit committee reports to shareholders include, among other things, a description of audit committee responsibilities, its activities and accomplishments, and its self-assessment of how well it has discharged its assigned responsibilities.• Responsibilities of the compensation committee can be generalized into three categories: (1) evaluating the performance of directors and senior executives, (2) designing and implementing compensation plans for directors and executives, and (3) disclosing the activities of the compensation committee.

Conclusion

• Listing standards of national stock exchanges and best practices require a formal annual evaluation process for the board of directors, each major committee of the board, and each member of the board committees.• The compensation report should fully disclose the company’s compensation policies.• The corporate governance committee should be composed of both executive and nonexecutive directors.• The corporate governance committee should be in charge of establishing the agenda for the company’s board of directors to determine what the board should discuss with managementand to what extent.• The corporate governance committee should provide sufficient information to the board to enable it to effectively review the company’s performance. The information should consist of both financial and nonfinancial measures of its performance, its comparison with the industry’s best practices, and the company’s budget.• The nominating committee is responsible for the proper composition of the board, including director independence, skills, diversity, and commitment.

Conclusion