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Developing a code of ethics.

Recent corporate scandals and the subsequent passage of the Sarbanes-Oxley Act have led to a renewed focus on business ethics. Additionally, revised U.S. Sentencing Guidelines provide strong incentives for all companies, not just electric cooperatives, to develop and maintain an "effective compliance and ethics program." * These and other factors have led boards, managers and attorneys to ask how to develop a code of ethics.

WHAT IS A CODE OF ETHICS?

There is no single definition of "code of ethics"; nor is there consistency in the language used to describe such a document. For example, a search of the Internet reveals the following phrases used by different companies:

** Business Ethics Policy (New York Times)

** Business Conduct Guidelines (IBM)

** Code of Business Conduct and Ethics (Ford Motor Company)

** Statement of Ethics (Wal-Mart)

** Credo (Johnson and Johnson)

To facilitate discussion, this article will use the phrase "Code of Ethics." We will define it as an official corporate document approved by the board that forms the underpinning of a comprehensive program for helping to ensure ethical behavior and decision making at all levels in the organization. Here are some suggested ways to think about a Code of Ethics, both what it is and what it is not.

A Code of Ethics is:

** A statement of the values adopted by the company, its employees and its directors. It sets the official "tone at the top" regarding expected behavior.

** A living document that can be disseminated to consumers, the media, and others, such as by being placed on the co-op's web site.

** Part of a broader, on-going program to provide guidance for ethical decision-making and to prevent misconduct. This broader program must be actively managed and should include periodic training for employees and directors, monitoring of compliance, and regular reports to the board.

** A valuable communication tool that the cooperative can use to articulate its commitment to ethical and legal compliance.

A Code of Ethics is NOT:

** The same as a Mission Statement. A Mission Statement is usually brief (under one page in length) and expresses why the company exists, in contrast, a Code of Ethics is a longer document (approximately 3-10 pages) intended to serve as a guide for day-to-day decision making. Rather than stating why the company exists, it guides employees and directors on how to act in certain situations.

** A detailed statement of how personnel issues will be handled. Co-ops usually have an Employee Handbook or similar document that addresses such issues as discrimination, sexual harassment, and employee discipline. The Code of Ethics references the Employee Handbook.

** A board policy. Boards have policies that address specific issues such as conflict of interest or standards of conduct for directors. Those policies are important and should be maintained. The Code of Ethics is a broader "umbrella" statement that applies to the entire company. The Code may make reference to specific board policies that provide additional details.

** Complete or exhaustive. It provides guidance to employees and directors for carrying out their responsibilities. But no document can address every possible situation. The Code should specify that employees and directors must use good judgment and be prepared to raise questions when in doubt.

WHAT BELONGS IN A CODE OF ETHICS?

There are many approaches and formats. There is no "one size fits all." Deciding what goes into the code will first take an examination of what key purposes you want your code to serve--whether you want it to focus on specific types of individual conduct or more general standards--and how the code will operate with existing policies for staff and board members. You'll also need to determine who will be involved in drafting the code. One approach to consider is to form an "ethics task force" or committee that includes key staff representatives. Not only does such a process help to ensure a thorough document, it also helps to make the code meaningful for employees.

Although there is no "one size" for codes of ethics, we can report on the consensus opinion of approximately 200 cooperative directors, managers and attorneys who attended recent workshops on Ethics and Governance. They emphasized the following guidelines to keep in mind when developing a code:

** It should be positive.

** It should be brief.

** It should make reference to relevant board policies and other documents.

** It should be "aspirational" in tone rather than compliance oriented.

** It should help reinforce the fact that as cooperatives, we are different.

Given these factors, the following sections might be included in a Code of Ethics for electric cooperatives *:

** Cover page and statement of values

** Introduction and explanation of the purpose of the Code of Ethics

** General corporate and personal standards of conduct

** Conflicts of interest

** Confidentiality of information

** Member communications

** Financial practices and record keeping

** Legal and regulatory compliance

** Reporting of violations

** Employee and director education

** Monitoring and enforcement

These sections might address the following:

Cover page and statement of values: Identifies the cooperative and the fact that this is its official Code of Ethics. Some co-ops may choose to identify specific values that express the ideals that should govern the behavior of employees and directors. Such values might include:

** Integrity and Accountability

** Safety

** Member Focus and Customer Service

** Respect

** Corporate Citizenship

** Fairness

** Honesty

** Innovation

** Environmental Stewardship

Introduction: Explains that the cooperative is committed to the highest standards of legal and ethical conduct, and that its employees and directors are expected to uphold those standards. It informs readers why the Code is important and the key purposes it serves. The Introduction also explains that the Code of Ethics is not exhaustive and that it provides guidance to employees and directors in how they are expected to carry out their duties. Because the Code cannot address every possible situation, employees and directors are expected to use good judgment and to raise questions (either up the chain of command or with the board) when in doubt.

General corporate and personal standards of conduct: Expresses the fact that employees and directors are expected to uphold the values of the corporation and conduct themselves in a professional and ethical manner at all times. Further, employees and directors are expected to deal honestly and fairly with consumers, suppliers and others. Specific prohibitions may include bribes, kickbacks or other forms of improper payment.

Conflicts of interest: Clarifies that directors and employees with decision making authority are expected to not seek any personal benefit through any arrangement with vendors or suppliers, and that they should consult the policy on conflicts of interest.

Confidentiality of information: Clarifies that directors and employees may not discuss or disclose confidential information with or in the presence of unauthorized persons, including family members and friends, and that they may use confidential information only for the company's legitimate business purposes and not for personal gain.

Member communications: Affirms that cooperative members are entitled to receive information, and communications will be honest and transparent. Many cooperatives already have policies regarding communications and access to information, that they should reference here.

Financial practices and record keeping: Clarifies that the cooperative complies with generally accepted accounting principles; maintains a system of internal accounting controls that will provide reasonable assurances that transactions and asset dispositions are properly recorded in order to prepare accurate financial reports and prevents and detects fraud; and has a system in place to ensure that necessary company records and documents are properly retained and secured.

Legal and regulatory compliance: Affirms that the company will comply with all local, state and federal laws, rules and regulations applicable to the activities of the company; that employees and directors are expected to maintain a safe and healthy work environment free from harassment or discrimination; and that the company will conduct its activities in accordance with fair business practices.

Reporting of violations: Explains that it is the responsibility of every employee and director to ensure that violations of laws, rules, regulations or the Code itself are reported and addressed. Explains that reports of suspected violations may be made in person or in writing, confidentially or anonymously, to the responsible designated person (e.g., to the Human Resources Manager, the CEO, the "ethics officer" or the Chair of the Board Audit Committee). Stipulates that all such reports will be investigated and appropriate corrective action taken. Calls attention to the fact that any employee (or director) who makes a report in good faith and on reasonable belief may do so without fear of harassment, retaliation or retribution, in accordance with the cooperative's whistleblower policy (if it has one).

Employee and director education: Notes that all employees and directors will receive a copy of the Code of Ethics and will receive training and periodic communications to ensure that they are familiar with its requirements. The cooperative may include a statement that each year every director and employee should reread the Code or, alternatively, include a form to be signed at some regular interval, (every year, every two years, etc.) indicating that each employee and director has reread the Code and refreshed his/her understanding of its components.

Information and resources: Directs employees and directors to whom they should go when they have a question or need further guidance. May include list of both external and internal resources.

Monitoring and enforcement: Affirms that directors, officers and employees that violate any laws, rules, regulations or the Code may face appropriate, case specific disciplinary action, which may include demotion, discharge or sanction. Any proposed disciplinary action must recognize bylaw requirements regarding the status of directors. Additionally, notes that on a periodic and planned basis, the board or the audit committee will receive an analysis of the effectiveness of the Code of Ethics and review and recommend appropriate enhancements.

Other possible provisions of the Code of Ethics may include:

Definitions: Explains key terms and concepts in some detail

Scenarios: Provides examples of ethical dilemmas that might be encountered and explains a model of ethical decision-making and desired outcome

Given these suggested guidelines, what might an actual Code of Ethics look like? A sample is included in Appendix B of this article. We invite readers to review this document and if appropriate, customize it for the needs of their cooperative. We also welcome feedback and suggestions about how to improve this sample Code of Ethics. Appendix C identifies web sites with additional information.

APPENDIX A

U.S. Sentencing Guidelines

The Need for an Effective Compliance and Ethics Program

The U.S. Sentencing Commission has amended its sentencing guidelines, including tightened requirements for corporate ethics and compliance programs. The new guidelines became effective November 1, 2004 *.

While completely voluntary, the U.S. Sentencing Guidelines provide a strong incentive for every business in the United States, including cooperatives, to have an "effective compliance and ethics program," defined as a program designed to prevent and detect criminal conduct. Having a program that meets the standards outlined in the Guidelines can result in a lighter sentence for an organization convicted of a federal crime. But the reach of the Guidelines goes well beyond federal criminal cases. Numerous studies have documented the profound effect the Guidelines have had on corporate America. Moreover, the Guidelines' definition of an effective program is widely cited by various government agencies and judges in civil cases.

According to the Guidelines, to have an effective program, an organization shall:

** Exercise due diligence to prevent and detect criminal conduct.

** Otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.

In describing the due diligence and organizational culture components, the Guidelines specify seven minimum requirements:

1) The organization shall establish standards and procedures to prevent and detect criminal conduct.

2) The organization's governing authority (i.e., the board of directors) shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to its implementation and effectiveness. Additionally, "high-level" personnel shall be assigned overall responsibility for the program.

3) The organization shall use reasonable efforts to ensure that personnel responsible for implementation or evaluation of the program shall not have engaged in illegal activities or other conduct inconsistent with an effective program.

4) The organization shall use training programs and other reasonable steps to communicate its standards and procedures.

5) The organization shall take reasonable steps to ensure that the compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct; periodic evaluation of the effectiveness of the program; and publicizing the fact that employees may report or seek guidance regarding possible criminal conduct without fear of retaliation.

6) The program shall be promoted and enforced consistently throughout the organization, including through the application of appropriate disciplinary measures for engaging in criminal conduct and/or for failing to take reasonable steps to prevent or detect criminal conduct.

7) After criminal conduct has been detected, the organization shall assess the risk of criminal conduct and take appropriate steps to design or modify the program to reduce the risk of criminal conduct.

To meet these requirements the organization should prepare to act in the following three ways:

1) Identify areas of risk where criminal violations may occur and then routinely reassess those risk areas.

2) Take reasonable steps to prevent and detect such risk, including communicating about and training employees at all levels on the relevant legal standards and their ethical responsibilities.

3) Ensure that the program is consistently enforced, adequately funded, run by carefully chosen person/people who have the necessary authority, and is regularly evaluated for necessary modifications or improvements.

* In January 2005, the U.S. Supreme Court ruled that sentencing guidelines violated the Sixth Amendment to the U.S. Constitution and may only be used as voluntary rules to guide judges in determining criminal penalties. The ruling, which did not involve a corporate criminal case, will not, according to most corporate lawyers and advisers diminish either the need for organizations to establish ethics and compliance programs, or the importance of the guidelines as a benchmark for what constitutes an effective program.

APPENDIX B

Sample Code of Ethics

"X" Electric Cooperative Code of Ethics

Our Values

** Integrity and Accountability: The cooperative strives to deliver on its promises, and when mistakes happen, the board takes responsibility and tries to fix those mistakes.

** Safety: Public and employee safety are paramount.

** Member Focus and Customer Service: The cooperative exists only to meet the needs of its member consumers and recognizes that member trust is essential and must be earned every day. Members will be treated respectfully and fairly at all times.

** Corporate Citizenship: The cooperative seeks to assist local communities and improve the quality of life.

** Fairness: The cooperative will always seek to use fair and open procedures and communication when working with members, vendors and others.

INTRODUCTION

Since its incorporation in 19XX, the employees and directors of "X" Electric Cooperative have had a consistent history of fair, honest, and ethical conduct for all activities conducted on behalf of the cooperative or in the community. This Code of Ethics is intended to be a constant reminder of that tradition, and a statement of how we will continue to conduct ourselves on a daily basis *. It identifies our values and the procedures that will be followed to ensure that these values are upheld. All employees and directors are expected to know and understand the standards and expectations that are expressed.

The Code of Conduct is not exhaustive. It provides guidance to employees and directors in how they are expected to carry out their duties. Because the Code cannot address every possible situation, employees and directors are expected to use good judgment and to raise questions when in doubt. Employees should seek guidance from their supervisor or manager if they feel that any situation is not fully and clearly covered by the Code. Directors are expected to consult with the Chairman of the Board or the Audit Committee of the Board if in doubt about the standards that apply in any situation.

The Board and management of "X" Electric Cooperative believe that ethical standards are achieved not just through the publication and dissemination of this document, but through open and on-going discussion about ethical issues related to the business and activities of the cooperative. Further, this open-door climate is only achieved when employees and directors understand that they can openly raise questions and concerns without fear of retaliation.

STANDARDS OF CONDUCT

Employees and directors are expected to uphold the values of the corporation and are required to report any situation where the individual reasonably suspects any activity that may be in violation of the law, board policies on standards of conduct, or this Code. Standards of conduct include:

** Employees and directors are expected to deal honestly and fairly with consumers, suppliers and others having dealings with the cooperative.

** Employees and directors are prohibited from offering bribes, kickbacks or other forms of improper payment, direct or indirect, to any representative of government, labor union, customer or supplier in order to obtain a contract or other commercial benefit or government action.

** Directors and employees are prohibited from accepting or receiving bribes, kickbacks or improper payment from anyone. They are prohibited from receiving gifts or favors of more than nominal value to or from consumers or suppliers. If in doubt, the party is expected to ask if the proposed gift or favor is of more than "nominal value."

** Directors or employees are expected to limit their reimbursable expenses to those that are necessary, prudent and business-related.

** Employees and directors are prohibited from taking unfair advantage of consumers, suppliers or other third parties through manipulation, concealment, abuse of privileged information or any other unfair-dealing practice.

CONFLICTS OF INTEREST

A conflict of interest exists when any director or employee is called upon to make or is involved in any decision where the employee or director (or any friend or relative of the employee or director) has any interest that would be affected by that decision.

* Employees and directors must not seek any personal benefit through any arrangement with vendors, suppliers or other parties that have a business relationship with the cooperative.

** In any situation where it may reasonably be perceived that there is a conflict of interest, the employee or director is required to report that potential conflict of interest to the supervisor (or board chair).

** Employees or directors may not have a financial interest, such as significant stock ownership, in any entity with which the cooperative does business that might create or give the appearance of a conflict of interest.

** In addition to these general standards on conflicts of interests, directors and employees shall follow the policy on dealing with potential conflicts of interest.

CONFIDENTIALITY OF INFORMATION

Directors and employees are frequently entrusted with confidential information. This may include technical or financial information about current or future projects, business plans, personnel information, consumer lists, and other information that, if disclosed, might be of use to competitors or potentially harmful to suppliers, consumers or employees. This information is the property of "X" Electric Cooperative.

Directors and employees shall:

** Not discuss confidential information with or in the presence of unauthorized persons, including family members and friends.

** Use confidential information only for the company's legitimate business purposes and not for personal gain.

** Not disclose confidential information to third parties unless such disclosure is necessary for business purposes or is otherwise required and appropriate safeguards are put in place.

** Not use company information or other property or resources for any personal gain or for the gain of anyone else.

MEMBER COMMUNICATIONS

Members own the cooperative. In communicating with members, "X" Electric Cooperative is committed that it shall:

** Provide all information to which consumers have a legitimate right.

** Provide information that is accurate and understandable.

** Not make false or misleading statements.

FINANCIAL REPORTING AND RECORDKEEPING

"X" Electric Cooperative shall:

** Follow generally accepted accounting principles.

** Maintain a system of internal accounting controls that will provide reasonable assurances that all transactions are properly recorded and that material information is available to management when required.

** Maintain books and records that accurately and fairly reflect the company's financial health.

** Maintain a system that ensures company records and documents are properly retained and secured.

** Conduct an annual financial audit to provide an independent, objective review of financial reports and to identify any risks associated with the system of internal controls.

** Prepare information in a clear and orderly manner and use, to the extent possible, "plain English" in financial reports.

LEGAL AND REGULATORY COMPLIANCE

"X" Electric Cooperative will comply with all local, state and federal laws, rules and regulations applicable to the activities of the company. It will maintain a safe and healthy work environment free from harassment or discrimination.

REPORTING OF VIOLATIONS

Every employee and director is responsible for ensuring that violations of laws, rules, regulations or this Code are reported and addressed promptly. Reports of suspected violations may be made in person or in writing, confidentially or anonymously, to the responsible designated person (e.g., to the Human Resources Manager, the CEO, the "ethics officer" or the Chair of the Board Audit Committee.) All such reports will be promptly investigated and appropriate corrective action will be taken. Any employee or director who makes a report in good faith and on reasonable belief may do so without fear of harassment, retaliation or retribution, in accordance with the cooperative's whistleblower policy.

EMPLOYEE AND DIRECTOR EDUCATION

All employees and directors will receive a copy of the Code of Ethics and will receive training and periodic communications to ensure familiarity with its contents and requirements. On a periodic basis, all employees and directors shall be presented with updates on potential ethical challenges and industry trends that may relate to ethical behavior. Every employee or director is required to sign an annual form indicating that he/she has received a copy of the Code of Ethics, read or reread its contents, and understands his/her obligations under the Code.

MONITORING AND ENFORCEMENT

Every employee and director is responsible for monitoring compliance with the Code by reporting suspected violations in a timely manner (as discussed above) and cooperating with investigations of suspected violations. Directors, officers and employees that violate any laws, rules, regulations or the Code may face appropriate, case specific disciplinary action, which may include demotion, discharge or sanction (by the board). Additionally, on a periodic and planned basis, the board or audit committee of the board will receive and discuss studies and analyses of the effectiveness of the Code of Ethics and review and recommend appropriate enhancements as necessary.

* Language in this opening paragraph was suggested by a policy statement developed by United Power, Inc. in Brighton, Colorado.

APPENDIX C

Additional Resources

CUBES OF ETHICS

Ethics Resource Center--Provides many helpful articles and books (including Creating a Workable Company Code of Ethics: A Practical Guide to Identifying and Developing Organizational Standards, which details a thorough process for creating a code of ethics and provides a template and guidance for drafting code provisions), reports on research into ethics practices and trends, and an "ethics toolkit."

www.ethics.org

Center for Business Ethics, Bentley College--Publisher of Ethics Matters magazine and other helpful articles, books, survey reports, etc.

http://ecampus.bentley.edu/dept/cbe/

Ethics Officer Association--Resource for news articles about ethics issues, explains the concept and role of an "ethics officer," presents FAQs on ethics-related topics, and lists other resources, many of which are accessible only to members.

www.eoa.org

RISK ASSESSMENT & MANAGEMENT

Institute of Risk Management--In its "Risk Management Standard", the international IRM details processes for risk assessment, analysis, evaluation, reporting, etc. The IRM web site also includes articles and presentations explaining various components of risk management.

www.theirm.org

Committee of Sponsoring Organizations of the Treadway Commission (COSO)--Recently released the Enterprise Risk Management--Integrated Framework. The framework defines essential enterprise risk management (ERM) components, discusses key principles and concepts, and provides clear direction and guidance for enterprise risk management for organizations of all sizes. COSO is made up of five organizations: the American Institute for Certified Public Accountants, Financial Executives International, the American Accounting Association, Institute of Internal Auditors, and Institute of Management Accountants.

www.coso.org

* See Appendix A for a summary of the U.S. Sentencing Guidelines.

* Many of the ideas in this article, including this potential list of components for a Code of Ethics, were expressed in an audio-conference conducted for the Electric Cooperative Bar Association by attorney Robert Hensley and Professor David Barton. We acknowledge the influence of this on our thinking.

Greg Boudreaux is NRECA's Executive Director of Education Programs. Prior to joining NRECA, Greg was an assistant dean of the graduate school at the University of Maryland and a resident graduate professor for the University of Maryland in Tokyo, Japan. Greg holds a master's degree from LSU and a doctorate from Duke University.

Tracey Steiner is Corporate Counsel at NRECA assisting cooperatives with general corporate law issues, state enabling acts, business strategy, intellectual property law, federal regulations, telecommunications and Internet legal issues. Tracey holds a J.D. from The George Washington University and a B.S. in Journalism from the University of Maryland.
COPYRIGHT 2005 National Rural Electric Cooperative Association
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2005 Gale, Cengage Learning. All rights reserved.

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Author:Boudreaux, Greg; Steiner, Tracey
Publication:Management Quarterly
Geographic Code:1USA
Date:Mar 22, 2005
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