Should provisions of the Sarbanes-Oxley Act of 2002 apply to local governments in order to improve accountability and transparency?
Elson, Raymond J. ; Dinkins, Chuck
INTRODUCTION
Overview of the Sarbanes-Oxley Act
The Sarbanes-Oxley Act of 2002 (SOX) was enacted in response to
management fraud in Corporate America. Fraud at such premier companies
as Enron, WorldCom and Tyco, resulted in misleading financial statements
which caused huge losses to investors when the fraud was unraveled.
Currently, SOX only applies to public companies; private companies,
not-for-profit organizations and governmental entities are specifically
exempt.
Some of the key provisions of SOX specifically Sections 301 (audit
committee's oversight of issuers accounting, internal controls and
auditing procedures), 302 (annual certification of the financials by the
CEO and CFO) and 404 (management's assessment of the effectiveness
of internal controls over financial reporting) have increased the role
of the board of directors and management in the oversight and reporting
process within organizations (Lander, 2004). This has resulted in an
increase in accountability and transparency within public corporations
so that the ultimate owners (i.e., shareholders) have a better
understanding of the business practices and financial transactions
within such organizations.
For example, Deloitte & Touche chief executive noted that as a
result of SOX, audit committees are more involved and have deepened
their understanding of the financial reporting process and accounting
policies within their organizations. The executive also noted that SOX
has enhanced transparency and reduced the risk of corporate fraud in
many organizations (Martin, 2003). In addition, an audit committee chair
noted that audit committees have doubled the time spent on audit related
matters and that boards are more deeply involved in controls and are
better informed of the organization's performance as a result of
SOX (Stainburn, 2006).
In terms of financial reporting, one study found that 1,118 US
companies and 90 foreign companies--one in every 12 companies with US
listed securities--filed a total of 1,342 material weaknesses
disclosures in 2006 (Zhang & Pang, 2008). Arlinghaus (2007) reported
that twenty seven of the 201 respondents in its study of SOX compliance
reported material weaknesses in internal control in the tax area in
their annual report on management's assessment of internal control.
A material weakness in internal control is a combination or combination
of deficiencies that results in a reasonable possibility that a material
misstatement in the financial statements would not be prevented or
detected on a timely basis (Louwers, Ramsey, Sinason & Strawser,
2008).
Gullapalli (2005) noted that the Heron Consulting Group identified
414 companies with error driven financial restatements in 2004. This was
a sharp increase from the 323 in 2003 (Gullapalli, 2005) 330 in 2002 and
270 in 2001 (Farrell, 2005). The 28% increase from 2003 to 2004 was
primarily attributed to the significant amounts of time and money spent
by public companies to comply with the requirements of SOX, and the
accounting mistakes caught in the process (Bryan, Lilien, Ruland &
Sinnett, 2005). The number of companies reporting earnings restatements
ballooned to approximately 1,200 in 2005 primarily due to the
implementation of SOX Section 404 (Farrell, 2005). Section 404 requires
the outside auditor and the company's top brass to annually certify
the soundness of internal financial-reporting controls (Gullapalli,
2005). However, 56% of the accounting mistakes identified was simply the
result of human errors (Plourd, 2008).
Montana (2007) noted that most corporate commentators concede
benefits of various kinds from SOX especially in the financial controls
and reporting areas. This led private companies and not-for-profit
organizations to recognize the effectiveness of various SOX provisions
and have applied certain requirements (such as an audit committee and
independent internal control assessments) as best practices (Elson,
O'Callaghan & Walker, 2007)
The Sarbanes-Oxley Act and Local Governments
Most local governments are not as proactive and instead rely on
existing structures and controls to ensure accountability and
transparency in the management of taxpayers' resources. General
purpose local governments rely on taxes levied upon their citizens as
their primary revenue source. Too often the assumption is that if
taxpayers do not face tax increases then the local government is
exercising its fiduciary responsibilities. However, this assumption is
flawed as local government faces tremendous pressures to identify and
control the financial abuse and political pressures faced by elected and
appointed officials.
Local governments may not have adequate internal controls over
financial accounting and reporting in such areas as the awarding of
contracts and access to cash and sensitive data. The lack of adequate
controls has led to scandals and corruptions in local government which
in turn has reduced taxpayers' confidence in their elected
officials. It is important to remember that citizens invest in
governments through taxes and receive dividends in the form of a well
run government (J. Fretti, personal communication, July 19, 2007).
Another frequently overlooked stakeholder is the municipal bond
holder. Many local governments issue municipal bonds as part of the
approximately $2.4 trillion municipal bond market (Greenhouse, 2008).
These bonds are purchased by individual investors who are relying on the
integrity of the financial accounting and reporting controls in the
governmental entity. Therefore, it is critical for local governments to
have adequate controls in place to ensure accountability and
transparency of financial information.
Perhaps the solution resides in SOX. We believe that certain
requirements in SOX could be adapted by local governments without any
significant cost increase to taxpayers. The benefits are tremendous: an
increase in oversight, accountability and transparency in the operations
of a local governmental entity.
Other researchers notably Czaja (2005) and George (2005) explored
extending SOX reforms to nonpublic companies. However, the researchers
addressed establishing audit committees and the impact of SOX on the
nonpublic organizations' independent accountants and not the themes
explored in this paper.
This paper discusses some of the recent scandals within local
government and current practices that are in place to ensure
accountability and transparency. Since these practices are not always
effective, we offer an alternative approach based on SOX to improve
oversight and accountability. These are establishing an audit committee,
obtaining the CEO/CFO certification of financial reports,
management's assessment of internal controls, and adopting a
comprehensive code of conduct policy.
LOCAL GOVERNMENT SCANDALS
Scandals and local government seems to coexist in harmony and seem
to thrive in some cities. For purpose of this paper, scandals refer to
the different types of corruption found in local government--bribery,
extortion, embezzlement (misappropriation of assets), nepotism and
patronage systems. Atlantic City New Jersey, with its glistening casinos, poor constituents and on going political scandals is one
example of the challenges faced by local governments. New Orleans,
Louisiana, is another major city with public disclosure of government
corruption in recent years. In fact, its city council senior member
pleaded guilty to federal charges for accepting approximately $19,000 in
bribes and kickbacks from a local businessman who was trying to keep a
city parking lot contract (Nossiter, 2007).
Yet, the abuse of funds and power in local government varies and is
seen across government of all sizes. The daily papers are filled with
stories of local governments and their officials caught up in corruption
scandals often involving the misuse of taxpayers' funds. One of the
most spectacular problems in local government occurred in December 1994
involving Orange County, California. It became the largest local
government in U.S. history to declare bankruptcy. This bankruptcy
resulted from the loss of approximately $2 billion from a highly
leveraged and risky derivatives strategy, not fully understood by county
managers (Trujillo, 1996).
While the above may be an extreme situation, there are many other
examples of corruption which resulted from poor oversight and
accountability in local government. One recent example occurred in early
2007 in the City of San Francisco, California. Its mayor was engrossed in a political scandal involving a married woman, his former
appointments secretary, and the wife of his campaign manager. Certain
termination benefits of approximately $10,000 received by the secretary
(who resigned) are being challenged by constituents to ensure their
legitimacy. The campaign manager also resigned from the mayor's
reelection team (McKinley, 2007). In a separate case also in 2007, the
elected treasurer of Alcona County, Michigan embezzled approximately
$1.2 million from the county's investment accounts. The funds were
invested and lost in a Nigerian investment scam (Schaefer & Lam,
2007).
In 2007, the city of Camden New Jersey, reported that the payroll
for its approximately 1,300 employees was kept manually and that there
was no mechanism (e.g., time clocks) in place to track employees'
starting and finishing times (Capuzzo, 2007). Clearly, this situation
could lead to payroll related fraud. Another recent example is the 33
count fraud and corruption charges filed against the former mayor of
Newark, New Jersey. The charges against this 20 year mayor included
misusing his office, billing taxpayers at least $58,000 for personal
travel and entertainment including stays at the Ritz-Carlton in Miami
and the rental of a Rolls-Royce to go shopping for a new yacht
(Kocieniewski, 2007). This mayor was recently convicted on five counts
of fraud including conspiracy to rig the sale of nine city lots to his
mistress, who quickly resold them for hundreds of thousands of dollars
in profit (Whelan & Martin, 2008).
And still other examples exist. A Hollywood, Florida county
commissioner was charged with five felony corruption counts for helping
a sewage processing company win an $18 million contract from the city
(Holland & Wyman, 2006). In 2005, A Draper, Utah city employee was
charged with diverting city funds of approximately $43,000 to her own
bank account (Utah, 2005). In 2004, the mayor of Cecil, Georgia, a town
with a population of 265, was forced to resign after receiving loans of
approximately $42,000 on behalf of the town which he converted into
personal use (Agostin, 2004).
Also in 2005, a former Salt Lake City county manager was charged
with using public funds to hire an employee to work for her daughter at
a private, nonprofit group (Utah, 2005). A former Davie, Florida town
administrator was charged in 2005 with stealing approximately $500,000
of taxpayer funds (Waller, 2006).
LOCAL GOVERNMENT STRUCTURE
The number of local governments within the United States is fairly
large with a variety of structures e.g., urban such as New York City,
New York and rural such as Bulloch County, Georgia. The 2002 United
States Census reported 87,525 local government units, which includes
3,034 counties, 19,429 municipalities, 16,504 towns and townships,
13,506 independent school districts and 35,052 special district
governments (U.S Census Bureau, 2002). For instance, New York has
approximately 57 counties while the State of Georgia, a smaller state,
has 159 counties. The state of Georgia also has approximately 485 unique
cities listed on its website.
In terms of this paper, local government refers to general purpose
local governments such as cities, counties, villages, towns and
townships and component units; the number of which will vary by state
and size. Since local governments vary by size, there will be some
flexibility and inconsistency in their organizational structure. This
lack of uniformity creates some challenges in any reform that is
proposed. However, the local government's organizational structure
will be similar to the discussion that follows. The organizational
structure of the city council for a large local government is provided
for illustrative purposes as Appendix A.
Each county is governed by a Board of Commissioners ("the
board"), elected by the citizens within that county. The numbers of
commissioners are determined by the number of districts within the
county and usually there is one commissioner per district. A
commissioner is generally elected by the constituents or selected by the
other commissioners to serve as chairperson of the board, and this
person presides over all board meetings. The board's
responsibilities include determining the annual budget of the county,
and voting on all proposed loans, grants, bond issues, land acquisition
and sales, zoning changes, traffic control issues and mayoral
appointees.
The day to day running of the county is the responsibility of the
county manager or equivalent who acts as the chief executive officer
(CEO). A finance director, the equivalent of a chief financial officer
(CFO) in a for-profit organization, supports the board by advising it
and the county manager on the financial status of the county. In some
counties, the finance director reports directly to the board. The
finance department manages the financial transactions of the county
government on behalf of the taxpayers and the board. A basic
organization chart for a county government is depicted in Figure 1.
[FIGURE 1 OMITTED]
Most cities are headed by an elected official, the mayor, who
serves for a specific term as defined by the city's charter. This
individual is equivalent to the Chairman of the Board in a for profit
organization. The mayor is supported by a body of elected officials
representing different constituents within the city, called the city
council ('board"). The actual chief executive (CEO) of a city
government is the city manager or equivalent (this role is performed by
the mayor in larger and very small cities) who runs the city on a day to
day basis. The city manager is supported by a finance director or
equivalent (e.g., treasurer) which is similar to a CFO in a for profit
organization. A basic organization chart for a city government is
provided in Figure 2.
[FIGURE 2 OMITTED]
CURRENT OVERSIGHT REGULATIONS
Local governments generally prepare an annual fiscal budget of
their estimated revenues and appropriations (estimated expenses) prior
to the start of the fiscal year. There is a public meeting (as required
by state law) in which the budget is discussed prior to its approval and
constituents are encouraged to attend the meeting and voice their
concerns. These meetings are generally poorly attended unless there are
some controversial items such as tax increases proposed in the budget.
Once the public has a chance to discuss the budget, it is approved by
the city council, adopted into law and authorizes the local government
to transact business on behalf of its constituents. More information on
the legislative process for a large local government is provided as
Appendix B.
Often elected officials are asked to approve complex and
sophisticated financial transactions as part of the budget and financial
reporting process. However, they may not have the appropriate skill sets
and must rely on management personnel (of the local government) for
advice on such transactions. This creates a potential conflict of
interest because the elected officials are obtaining advice from the
same managers they are expected to oversee.
Board members may not have the background necessary to understand
financial issues within the government and may approve budgets without
much debate or dialogue. For instance, budget discussions surrounding
the issuance of municipal bonds and its impact on current and future
generations, may not be fully understood. Instead, in some local
governments, budget meetings quickly move away from the budget to
matters that can be easily understood by board members such as zoning
issues.
Audit committees are not consistently established in local
governments to monitor financial accounting and reporting controls. As a
result, the existence and/or effectiveness of the internal control
environment may be not sufficiently addressed at board meetings. A
review of selected websites supports our position on the existence of
audit committees. For instance, the City of Atlanta's 2006 CAFR shows the existence of an audit committee but it had no direct or
indirect interface with the city council per the organization chart
(City of Atlanta, 2008). The city's internal auditor was the only
direct report to the audit committee. A separate finance committee
existed within the city council but its role was not defined. New York
City's city council also included a finance committee but the
website showed no audit committee. The finance committee which is
comprised of board members, had responsibility for the executive budget
review and oversight of various departments including the Department of
Finance and the Comptroller's Office.
Local governments are taking some steps to increase transparency
and accountability in the budget process. For instance, Rivera, (2007)
noted that the City of New York identified the council members who
sponsored the various discretionary appropriations for pet projects in
its 2008 fiscal year budget. This amounted to 1,674 unique projects
totaling more than $36 million (part of a $59 billion budget). Pet
projects are a common practice in most local governments but these are
often grouped with other items in the budget.
Also, local governments often operate with a small staff in order
to reduce overall expenses and ultimately the tax burden to the
taxpayers. As a result, incompatible functions may not be adequately
safeguarded providing an opportunity for managers and other personnel to
misappropriate assets. The previous section highlighted examples of
fraud perpetrated by government personnel perhaps because of lax
oversight.
At the end of the fiscal year, most local governments are required
by governmental accounting standards to prepare a comprehensive annual
report or CAFR to account for the actual revenue earned and expenses
incurred. Depending on the size of the local government, an independent
accountant is engaged to perform a financial statement audit. In some
states, an entity at the state level performs the financial audit. For
instance, in Georgia the state auditor performs an audit of entities
that elect not to file a CAFR and reviews the audited statements of all
local governments within the state to ensure compliance with certain
programs and SPLOST referendums.
The CAFR is generally filed with the state's auditor's
office and can be requested by the citizenry. Local government's
are also encouraged as a best practice to prepare a simplified version
of their CAFR (the popular annual report or PAFR) to be made available
to the constituents. However, the reports are generally available on the
government's website and are not mailed to tax payers.
In the current electronic age, states are publishing the CAFRs and
other financial reports of local governments on their websites so they
can be available to a wider audience. Unfortunately, taxpayers are
either not aware of the existence of these documents or navigating the
state's websites to view them is so cumbersome that they do not
take advantage of the opportunity. Also, CAFRs are very complex and may
not be understood by taxpayers who retrieve them. As a result, taxpayers
do not know how tax revenue collected by local governments are actually
spent and instead rely on elected and appointed managers to exercise
their fiduciary responsibilities.
Although a code of ethics or conduct may exist in local
governments, they are not always available to stakeholders in a public
space such as websites. This was confirmed in a random review of five
local government's websites (City of Atlanta, New York City,
Chicago, Hudson County, New Jersey, and Fulton County, Georgia).
The internal controls within a local government are not generally
subject to an independent assessment. However, local governments that
receive federal grants are subject to audit under the Single Audit Act
("the Act"). Part of the Act's requirement is for the
auditor to obtain an understanding, and assess and test the internal
controls surrounding each major program receiving federal funds (Government, 2007). However, Single Audit procedures may not be
effective in identifying control or compliance issues.
A recent study on the quality of audits conducted under the Act by
external auditors estimated that only 48.6% of the entire universe of
single audits was considered acceptable. The most common deficiencies
reported included the auditors (a) not documenting their understanding
of the entity's internal controls over compliance requirements and
(b) not documenting their internal control testing of at least some
compliance requirements. (Sampling Project, 2007).
The United States Government Accountability Office revised its
auditing standards in early 2007 with an effective date of January 1,
2008 for financial, attestation and performance audits. Among the
revisions are guidelines to auditors on how to define and report on
internal control weaknesses in government audits. However, we believe
this is still inadequate since the guidance is directed at auditors and
not management. Perhaps the solution to improve oversight and
accountability already exists--The Sarbanes Oxley Act of 2002 (SOX).
Local government accounting standards are established by an
independent body, the Government Accounting Standards Board or GASB.
GASB's standards are adopted by the states on a voluntary basis and
it has no enforcement authority if a local government violates the
standards. Enforcement comes from the state allowing variations in the
quality and level of oversight. GASB is also facing pressure on its
usefulness by the Governmental Finance Officers Association, the body
which provides GASB's funding. The Securities and Exchange
Commission (SEC) believes that GASB is the right body for providing
oversight of governmental entities and it is in the process of
discussing with the United States Congress new ways of empowering GASB
to perform its oversight function especially in the area of financial
reporting and disclosures (Walsh, 2007).
IMPLEMENTING SOX PROVISIONS IN LOCAL GOVERNMENTS
We believe local governments could implement certain SOX
requirements (specifically audit committees, certification of annual
reports, management assessment of internal control over financial
reporting and code of conduct and ethics policy). The adoption of audit
committees in the private sector has been addressed by two oversight
bodies--the American Institute of Certified Public Accountants and The
Government Finance Officers Association. However, these were offered as
a best practice rather than a mandate and few if any local governments
have established audit committees.
We believe local governments should implement the SOX provisions in
order to increase accountability and transparency and provide
stakeholders with additional assurance that resources are adequately
managed. Guidance on implementing the SOX provisions is provided in this
section.
Audit Committee
SOX require each member of the audit committee of public companies
to be independent of management. It also requires that at least one of
these members be financially literate (Lander, 2004). This is important
since the audit committee is responsible for the appointment,
compensation, and oversight of the work of the accounting firm. In
practice, the audit committee is responsible for oversight of the
financial accounting practices and controls in public companies.
City councils and boards of commissioners serve as the board of
directors ("boards") of local governments. As a result, they
are currently responsible for financial accounting oversight such as
approving annual budgets, approving the independent accountants, and
reviewing and approving CAFRs and other financial reports. However, the
board members are elected officials and may not have the appropriate
skills required to understand the complexity of financial accounting
transactions as noted in an earlier section.
The primary function of the audit committee is that it
institutionalizes the governing body's involvement with internal
control and financial reporting thereby ensuring that both topics are
periodically addressed by the governing body (Gauthier, 2007). It may
not be economically feasible for all government entities to establish an
audit committee. Therefore, we believe that local governments receiving
tax revenue of at least $1,000,000 should establish an audit committee
of at least 3 members. This is a major change for some organizations and
guidance on the role of the audit committee is provided in the following
paragraphs.
The AICPA's Audit Committee Toolkit (www.aicpa.org) is an
excellent resource for local governments interested in establishing an
audit committee. Audit committee members should be appointed by the
board and at least one member should have financial experience
('financial expert'). However, it is critical that the
financial expert's education and experience be especially relevant
to the government sector (Gauthier, 2007).
Similar to for-profit organizations, the audit committee would be
responsible for the appointment, compensation, and oversight of the work
of the independent accountant engaged by the local government for
external reporting. Audit committee meetings should be held on a regular
basis with a minimum of four per year with additional meetings as
needed. The meetings should include separate executive sessions with the
following as needed--independent accountant, the chief executive and
financial officers, the chief audit/internal auditor, the general and/or
outside counsel and any other personnel desired by the committee. The
purpose of these meetings is to discuss any accounting and
legal/regulatory issues affecting the government entity.
The audit committee should review with management policies and
procedures with respect to public officials' and management's
use of expense accounts, public funds and property (e.g., the use of
government vehicles for personal use). The audit committee should be
involved in the development of and amendment to the entity's code
of ethics policy. Also, the hiring, replacement, or dismissal of the
chief auditor should be reviewed and concurred on by the audit committee
for those local governments with an internal audit function. The audit
committee should also ensure that there is an anonymous mechanism for
employees, vendors, and taxpayers to report concerns directly to the
audit committee or other appropriate body. Anonymous 24 hour hotlines
are offered by a number of third party vendors and are ideal for this
purpose. In addition, all reports issued by the internal audit function
should be provided to the audit committee.
Local governments would need to allocate financial resources for
the effective functioning of the audit committee. In order to achieve
its mission, the audit committee should be authorized by the board to
hire professional consultants as necessary. The role of the consultants
should be defined in an engagement letter or agreement and they would be
paid from the committee's financial resources.
Certification
SOX also require the CEO and CFO of public companies to certify the
quarterly and annual reports that are filed with the Securities and
Exchange Commission. The certification includes statements that (a) the
individuals have read the report, (b) the report does not contain any
untrue statements or omit material facts, based on their knowledge, (c)
they are responsible for establishing and maintaining internal controls
and they have evaluated the controls' effectiveness (Lander, 2004).
SOX impose significant monetary penalties and other fines on the CEO and
CEO for misleading certifications.
We believe that local governments should adopt the certification
process in SOX by requiring the CEO and CFO or equivalent officers to
provide an annual certification on the CAFRs or other financial reports
issued by the reporting entity.
Therefore, the county and city managers (as CEOs) (or chief elected
official when there is no manager) along with the respective finance
director (CFO) should provide separate certification on the specific
local government's financial statements at least annually to the
board and taxpayers. At a minimum, the certification should include
statements that (a) the individuals have read the report, (b) the report
does not contain any untrue statements or omit material facts, based on
their knowledge, (c) they are responsible for establishing and
maintaining internal controls and they have evaluated the controls'
effectiveness. The CEO and CFO should rely on the internal control
assessment as part of the certification process.
The certification should be provided to the mayor and board on an
annual basis and filed in the supplemental information section of the
CAFR. To ensure the effectiveness of this process, the managers would
face monetary penalties and other fines (as defined by the board) for
providing false and/or misleading certifications.
Internal Control Assessment
One of the more controversial SOX requirements is for companies to
include in their annual reports a report on management's assessment
of its internal control over financial reporting. This report includes a
statement a) that management is responsible for establishing and
maintaining adequate controls, b) identifying the framework used by
management to conduct its assessment, c) on management assessment of its
controls, and d) a statement that the independent auditor has attested
and reported on management's internal control assessment (Lander,
2004).
Internal control may not be an area that is fully understood by
local government personnel. Internal control simply refers to a process
implemented by the board, management and other personnel. It is designed
to provide reasonable assurance regarding the achievement of objectives
in three areas: the reliability of financial reporting, the
effectiveness and efficiency of operations, and the compliance with
applicable laws and regulations. There is an excellent resource
(www.coso.org) for local government personnel interested in learning
more about risk assessment and internal control.
A department head is responsible for the internal control
environment within the business or department under his (her) control.
Therefore, an internal control assessment should be performed quarterly
by each department head or designee under the supervision of the finance
department. The assessment should identify the key control(s) in the
process and the controls should be tested to ensure their effectiveness.
The assessment should be risk based with emphasis placed on areas of
highest risk. An example of a high risk area is the local
government's procurement function, especially the procedures and
controls over the initial vender selection and approval process and the
bidding process. The finance manager should provide a quarterly report
to the mayor and board of any significant control weaknesses identified
in the internal control assessment.
Code of Ethics
SOX also requires public companies to disclose whether they have
adopted a written code of ethics for the company's principal
executive and financial officers, and principal accounting officer or
person performing similar functions (Lander, 2004). These codes of
ethics should contain standards designed to deter wrongdoing and to
promote such behaviors as honest and ethical conducts, and compliance
with laws, rules and regulations. The code of ethics should be disclosed
in a public place such as in the annual reports or on the company's
website.
Clearly this SOX provision could easily be extended to local
governments. The local government should develop a code of ethics in
conjunction with the board, using the language in SOX, covering the
board and all employees. The adoption of a code of conduct is important
since it is a fundamental step in the attempt to improve the ethical
culture and to prevent unethical and fraudulent behavior within the
organization (Rotta, 2007).
The local government should ensure that at a minimum that all key
personnel such as its county manager and finance director have read and
signed the code of ethics. The initial code and all amendments should be
approved by the board. The code of ethics should address issues such as
the local government's gift acceptance policy; loans to board
members, officers and employees; influence peddling; use of government
resources for personal purposes; the contract bidding and request for
proposal process; as well as the government's whistle blower protection policy.
The local government's code of ethics should be provided to
each new employee who must acknowledge that they have received and read
it. An ethics hotline should be established so that ethical violations
can be reported. To ensure it effectiveness (i.e., privacy and
confidentiality of information), the hotline should be monitor by an
external party such as the outside counsel (if there is an existing
relationship). As an alternative, the human resources director could
perform this role. Information on the ethics hotline should be include
in the code of ethics and the number provided to all employees, elected
officials and vendors.
Also, all elected officials and key personnel should be required to
file an annual financial disclosure statement. The statement would
identify and disclosure assets and income source that could create
actual and potential conflict of interests between the individual's
official duty and the entity. The disclosure statement should be web
based to encourage its use and a deadline given to ensure its timely
completion. The local entity should establish penalties (monetary and
criminal) for delinquent fliers.
The finance and human resources directors should be assigned joint
responsibility of ensuring that the code of ethics is current and
communicated to all applicable parties. Larger governments should
consider appointing an ethics officer or equivalent to establish and
monitor its ethics program.
CONCLUSION
The Sarbanes-Oxley Act of 2002 (SOX) was enacted in response to
management fraud in Corporate America. Private companies and
not-for-profit organizations recognized the effectiveness of various SOX
provisions and have applied certain requirements (such as an audit
committee and independent internal control assessments) as best
practices. However, local governments are generally not as proactive and
instead rely on existing structures and controls to ensure
accountability and transparency in the management of taxpayers'
resources.
Scandals and other inappropriate business practices continue to
waste tax dollars and reduce confidence in local governments of all
sizes. Clearly, there is a need for more oversight to ensure
accountability and transparency in order to protect stakeholders'
interests. This paper suggested four areas in which SOX provisions could
be implemented by local governments in a cost effective manner to
increase accountability and transparency to stakeholders. The areas are
establishing an audit committee, the CEO/CFO certification of financial
reports, management's assessment of internal controls, and the
local government adoption of a comprehensive code of ethics policy.
The potential for fraud and abuse that SOX is intended to control
is not confined to publicly traded companies. Local governments should
adopt the provisions of the Sarbanes Oxley Act discussed in the paper to
improve accountability and transparency. This will protect
citizens' investment in their government and ensure that dividends
are paid to stakeholders in the form of a well run government.
Appendix A: Local Government Structure--The New York City: City
Council
The Role of the City Council
The New York City Council is the law-making body of the City of New
York. It is comprised of 51 members from 51 different Council Districts
throughout the five boroughs. The Council monitors the operation and
performance of city agencies, makes land use decisions and has sole
responsibility for approving the city's budget. It also legislates
on a wide range of other subjects. The Council is an equal partner with
the Mayor in the governing of New York City.
Budget
The budget is the centerpiece of policymaking in government.
Through the budget, the Council establishes priorities, allocates
resources and sets the policy agenda for the year. It is the single most
important municipal document that affects the lives of New Yorkers.
While the mayor proposes the city's spending priorities for the
upcoming year, the Council has final budget approval powers. During the
budget process, the Council may change budget priorities and add special
"terms and conditions" requiring city agencies to report to
the Council on how specific monies are being spent throughout the year.
Land Use
Under the 1990 Charter revision, the Council acquired the power to
review land use issues and approve zoning changes, housing and urban
renewal plans, community development plans and the disposition of
city-owned property. This power gives the Council the most significant
voice in the growth and development of our city.
Oversight
The Council holds regular oversight hearings on city agencies to
determine how agency programs are working and whether budgeted funds are
being well spent.
Legislation
As the legislative body, the Council makes and passes the laws
governing the city. The Council has passed landmark legislation on
designated smoking areas in public places, campaign finance,
anti-apartheid, solid-waste recycling and restrictions on assault
weapons. Legislation pending in the Council is called an Introduction,
often abbreviated to "Intro" or "Int", and is
assigned a number. When an Introduction is signed by the Mayor it
becomes a Local Law and is assigned a new number.
The Committee System
Most of the Council's legislative work is done in committee.
It is there that proposed legislation is initially debated and the
members of other government branches and the public are given a chance
to comment.
Each Council Member serves on at least three of the Council's
standing committees, sub- and select committees and panels. The standing
committees must meet at least once a month unless the Charter mandates
otherwise. Committee assignments are made by the Committee on Rules,
Privileges and Elections and voted on by the entire Council.
Most Council hearings are held in the Council Chambers or the
adjoining Committee Room in City Hall. Hearings are also held in the
Hearing Room on the 16th Floor of 250 Broadway. Meetings of the entire
Council, referred to as Stated Meetings, are held twice a month at City
Hall. A weekly schedule of Council hearings is available in the
Council's Office of Communications in City Hall.
The Speaker of the Council, the Majority Leader, the Minority
Leader, and Public Advocate are ex-officio members of all committee.
The Council Speaker
The Council Speaker is elected by the Council members and is
primarily responsible for obtaining a consensus on major issues.
The representative for the position of Minority Leader is elected
from among the party with the next largest representation.
Although not a member of the Council, the Public Advocate presides
at the Council's Stated Meetings and votes in the case of a tie. In
the Advocate's absence, the Speaker presides or designates a
presiding officer, or the body may elect from among its membership a
President Pro Tempore to preside.
The Rules of the Council
The City Council is governed by a body of rules
Source: http://council.nyc.gov/html/about/about.shtml
Appendix B: The City of New York City Council: Legislative Process
Bills
* A bill (proposed legislation) is filed by a Council Member with
the Council Speaker's Office.
* The bill is then introduced into the Council during a Stated
Meeting and referred to the appropriate committee. One or more public
committee hearings maybe noticed and held on the proposed legislation.
* After public testimony and committee debate the bill may be
amended.
* The committee votes on the final version of the bill.
* If passed in committee, the bill is sent to the full Council for
more debate and a final vote.
* If passed by an affirmative vote of a majority of all Council
Members (at least 26 members) the bill is then sent to the Mayor, who
also holds a public hearing.
* The Mayor then chooses to sign or veto the bill.
* If the Mayor does sign the bill, it immediately becomes a local
law and is entered into the City's Charter or Administrative Code.
The time before a new law becomes effective will vary from law to law.
* If the Mayor disapproves/vetoes the bill, he or she must return
it to the City Clerk with his or her objections to the Council by the
next scheduled Stated Meeting.
* The Council then has 30 days to override the Mayoral veto.
* If the Council does repass the bill by a vote of two-thirds of
all Council Members (at least 34 members), it is then considered adopted
and becomes a local law.
* If the Mayor does not sign or veto the bill within 30 days after
receiving it from the Council, it is considered approved automatically.
Introductions
As the legislative body, the Council makes and passes the laws
governing the city. The Council has passed landmark legislation on
campaign finance, anti-apartheid, solid-waste recycling and restrictions
on assault weapons. Legislation pending in the Council is called an
Introduction, often abbreviated to " Intro " or " Int
", and is assigned a number.
For example:, Intro 1 of 2004 would improve the NYC Pro-Voter Law
by requiring all city agencies to provide training of employees on how
to increase voter registration outreach efforts.
Local Laws
When an Introduction is signed by the Mayor it becomes a Local Law
and is assigned a new number.
For example:, Local Law 1 of 2003 focused on creating cleaner
streets by increasing fines for litter violations.
Local Laws may also be enacted over the objection of the Mayor
through the veto override process. In this case, when the Mayor vetoes a
proposed law, the Council can enact the law with a two-thirds vote.
For example, in 2003 the Council put in place a requirement in
Local Law 24 that the Department of Education provide periodic updates
on the progress of all school capital projects.
Resolutions
Resolutions are used by the Council as a vehicle for legislative
action and to express the sentiment of the body on important public
policy issues. These issues may or may not fall under City jurisdiction.
Resolutions are used to adopt land use decisions on matters that
vary as widely as down zoning a geographic area in Staten Island to a
tax exemption for an affordable housing project in the Bronx.
Resolutions are also used to adopt the annual City budget for both
expense spending and capital spending.
Finally, resolutions are used to discuss issues that are of concern
like Reso 866 of 2003 calling on Congress to provide New York City with
a "fair share" of Homeland Security funding.
Source: http://council.nyc.gov/html/about/legislative.shtml
REFERENCES
Agostin, G. (2004, October 30). Cecil mayor asked to resign
position. The Valdosta Daily Times. Retrieved from
www.valdostadailytimes.com on April 15, 2007.
Arlinghaus, B. (2007). The effect of SOX and the increased focus on
accounting for income taxes: Survey results. Tax executive, 59(2),
149,151,153,155-161.
Bryan, S., S. Lilien, W. Ruland & W. Sinnett (2005). Undoing
the past: Implications of earnings restatements. Financial Executive,
21(2), 42-44.
Capuzzo, J.P. (2007, March 4). Tackling usual Camden practices,
like payroll kept in pencil. The New York Times, A29.
City of Atlanta 2006 Comprehensive Annual Financial Report.
Retrieved on May 13, 2008 from
www.atlantaga.gov/government/finance/munifi_042205.aspx
Czaja, R. (2005, November). Should Sarbanes-Oxley Reforms Extend to
Nonpublic Companies? The CPA Journal, 75(11). Available at www.cpaj.org
Elson, R., S. O'Callaghan, & J. Walker (2007). Corporate
governance in religious organizations: A study of current practices in
the local church. Academy of Accounting and Financial Studies Journal,
11(1), 121-130.
Farrell, G. (2005, December 30). Restatements of earnings in 2005
to break record. USA Today, (Money Section), 3b
Gauthier, S.J. (2007, April). A new vision for public sector audit
committee. Government Finance Review, 10-16 George, N. (2005, August).
The Role of Audit Committees in the Public Sector. The CPA Journal,
75(8). Available at www.cpaj.org
Government auditing standards ("The Single Audit Act")
July 2007 Revision. Issued by the Comptroller general of the United
States. Retrieved on May 13, 2008 from www.gao.gov/govaud/ybkol.htm
Greenhouse, L. (2008, May 20). State tax break is upheld for
municipal bonds. The New York Times, C3.
Gullapalli, D. (2005, January 20). Moving the market--tracking the
numbers/outside audit: To err is human, to restate financials, divine;
errors led firms to redo more reports last year; thanks to
Sarbanes-Oxley. The Wall Street Journal (Eastern Edition), C3.
Holland, J. & S. Wyman (2006, October 27). Hollywood
commissioner listed developer as major source of business income. Knight
Ridder Tribune Business News, 1.
Kocieniewski, D. (2007, July 14). 33 counts, and 2 biographies, are
at issue in ex-mayor's corruption case. The New York Times, A11.
Lander, G.P. (2004). What is Sarbanes-Oxley? New York: McGraw-Hill
Irwin
Louwers, T., R. Ramsey, D. Sinason & J. Strawser, (2008).
Auditing and Assurance Services, 3rd edition. New York: McGraw-Hill
Irwin.
Martin, I. (2003, Sept. 26). D&T CEO applauds
Sarbanes-Oxley's success one year on. International Accounting, 6
McKinley, J. (2007, February 17). Payment after mayor's affair
is questioned. The New York Times, A10.
Montana, J. (2007). The Sarbanes-Oxley Act: Five years later. The
Information Management Journal, 48-53.
Nossiter, A. (2007, August 14). New blow to New Orleans in council
leader's plea. The New York Times, A11.
Plourd, K. (2008). To err is human and common. CFO Magazine.
Retrieved from www.cfo.com on May 29, 2008.
Report on National Single Audit Sampling Project by the President
Council on Integrity and Efficiency and the Executive Council on
Integrity and Efficiency. Retrieved from www.ignet.gov on August 12,
2007.
Rivera, R (2007, June 16). Council budget is adopted, with
members' pet projects identified. The New York Times, B4 Rotta,
C.P. (2007, June). Rules of behavior. Internal Auditor, LXIV (III),
33-37.
Schaefer, J. & Lam, T. (2007, January 31). Money is gone and
town's trust nearly spent: Residents fear fallout from Nigerian
scam. Knight Ridder Tribune Business News, 1
Stainburn, S. (2006, May 15). Boards and SOX, post-Enron; How
public companies are handling year three. Crain's Chicago Business,
57.
Trujillo, L. (1996, 11/11). College districts rebound from Orange
County bankruptcy. Community College Week, 9(8), 10.
U.S Census Bureau, 2002 Census of Governments, 1(1), Government
Organizations, GC02 (1)-1. Washington DC: US Government Printing Office
Utah government scandals timeline (2005, February 6). Retrieved
from http://deseretnews.com on April 15, 2007
Waller, N. (2006, August 8). Judge sets new court date for former
Davie town administrator. Knight Ridder Tribune Business News, 1
Walsh, M.W. (2007, July 18). S.E.C. chief seeks new clout for board
overseeing states. The New York Times, C3.
Whelan, J. & J. Martin (2008, April 16). Newark ex-mayor Sharpe
James is convicted of fraud. The Star Ledger. Retrieved from
www.starledger.com on April 17, 2008
Wilson, E.R., S.C. Kattelus & J.L. Reck (2007). Accounting for
Governmental & Nonprofit Entities, 14th Edition, New York:
McGraw-Hill Irwin
Zhang, J. & K. Pang (2008). Current research questions on
internal controls over financial reporting under Sarbanes- Oxley-The CPA
Journal, 78(2), 42-45.
Raymond J. Elson, Valdosta State University
Chuck Dinkins, City of Valdosta