NCUA Board of Directors Policies – Which Ones Truly Require Action? April 30, 2014 E. Andrew Keeney, Esq. Kaufman & Canoles, P.C. 1
E. Andrew Keeney, Esq. Kaufman & Canoles, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 (757) 624-3153 eakeeney@kaufcan.com Erin Deal, Esq. Kaufman & Canoles, P.C. (757) 259-3801 edeal@kaufcan.com 2
Schedule • Greetings & Overview • The Good News • Policy Generally Defined • Policy as Defined by NCUA • Master List of Policies • Required Policies 3
Policy Generally Defined • A product of wisdom in the management of affairs. • A definite course or method of action selected from alternatives and certain conditions to guide and determine present and future decisions. • A high level overall plan embracing the general goals and acceptable procedures. Synonym: strategy; principle; rule 4
Policy Defined (continued) • From Wikipedia A policy is typically described as a principle or rule to guide decisions and achieve rational outcomes. The term is not normally used to denote what is actually done, this is normally referred to as either procedure or protocol . Policies are generally adopted by the Board whereas procedures or protocols would be developed and adopted by senior executive officers. Policies can assist in both subjective and objective decision making. 5
From Wikipedia (continued) • A Policy can be considered as a “Statement of Intent” or a “Commitment.” For that reason at least, the decision-makers can be held accountable for their “Policy.” 6
Board Duties and Responsibilities • Policies and Planning: “Plans and policies are the board’s major tools for influencing the direction of the credit union. Board and management work to explicitly define the credit union’s vision. Then they develop broad plans for turning that vision into reality. The board has final say in adopting plans and policies, although it’s the responsibility of management to recommend policies and policy changes.” - Source: Credit Union Board of Directors Handbook 7
Major Topics to Cover in Policies • Services and Programs • Legal – Loans – Compliance with laws and regulations – Collection and delinquency control – Staff awareness of laws – Shares, certificates, and share drafts – Board oversight of credit union operations – Member education • Human Resources • Finance – Personnel – Asset/liability and other funds management – Organizational structure – Investments – Board/CEO relations – Reserves – Education of volunteers and staff – Pricing – Code of ethics – Internal Controls – Conflicts of interest • • Other Safety and Soundness – – Technology and information services Security – – Marketing Internal controls – – Disaster recovery Sponsor relations – – Insurance coverage Community involvement Source: Credit Union Board of Directors Handbook – Audits 8
Policy as Defined by NCUA • It is important to remember that even if there is no regulatory requirement for Board approval, the Credit Union Board still has the ultimate responsibility for the operations of the Credit Union. • The NCUA Examiner’s Guide states “The Board must approve all major policies. Further, it should review, and if necessary, update those policies at least annually.” 9
Another Perspective 1. We have been through a lot of documents/regulations and found that ‘Board Approval’ is not required for a great number of the items. What is required is that the ‘credit union’ establish a policy that 2. addresses each of these issues. 3. Policies can be established by Management to meet the requirements of the regulations and do not necessarily have to flow from/through the Board. 4. We have identified policies established by Management as ‘Operating Standards.’ In doing so we do not have to seek Board approval to change these as situations arise and it relieves the Board from having to address these issues on a recurring basis. 5. Each of the Operating Standards has a review period where Management must update them to assure they meet regulatory requirements. 10
Laws Bank Bribery Act Policy Fair Housing Purchasing & Payment Authorization Policy Bankruptcy Policy FDCPA Records Preservation Bylaw Flood Disaster Regulation E CAN-SPAM Policy FLSA RESPA Charge Off FMLA Security Policy Children’s Online Policy Foreclosure Software Policy Consumer Leasing Act HMDA Taxpayer Identification Matching Credit Practices HOEPA (Home Ownership & TIL Equity Protection Act) Dodd-Frank ECOA Office of Foreign Assets Control Truth in Savings Policy Employment Policy OSHA Whistleblower Policy Expedited Funds Act Patriot Act Wire Transfer Policy Fair Credit Reporting Act Privacy Act Workers Compensation 11
List of “Required” Policies for Credit Unions Required Policy Regulation/Reference 1 Bank Secrecy Act Compliance CU must establish and maintain 12 CFR § 748.2(b); § 751.214 for Policy written compliance program for state-chartered credit unions • Customer Identification the BSA. CIP Policy prevents Program (CIP) Policy that is money laundering and terrorist required by § 326 of the financing scheme Patriot Act • Anti-Money Laundering Program Children’s Online Privacy 2 Adopt a policy for implementing 16 CFR pt. 312.4 Protection Act (COPPA) COPPA that includes providing a Compliance Policy privacy notice on website and a notice to parents Compliance Policy/Program Each CU should have a See Compliance Manual at 8. 3 compliance officer that is responsible for general compliance. Additionally, officers in different divisions should be responsible for compliance in their divisions 12
Required Policy Regulation/Reference Consumer Leasing Act Policy Adopt policy for implementing Reg. M Reg. M 4 5 Contingency Funding Plan Sets out strategies for addressing 12 CFR § 741.12; NCUA liquidity shortfalls in emergency Supervisory Letter No. 14-03 situations 6 Credit by Banks and Persons Adopt comprehensive procedures for Reg. U Other than Brokers or Dealers implementing Reg. U (if applicable) for the Purpose of Purchasing or Carrying Margin Stock Credit Practices Policy Adopt policy re: credit practices 12 CFR pt. 706 7 Denial of Services Adopt a policy to limit or restrict NCUA Office of General Counsel 8 member services Derivatives Policy A federal credit union with derivatives 12 CFR pt. 703, Subpart B, 12 9 authority must operate according to a CFR § 703.106 comprehensive written policy that addresses the requirements of 12 CFR part 703, Subpart B and any additional limitations imposed by the board of directors 13
Required Policy Regulation/Reference Disaster Recovery and Develop contingency plan in NCUA Letter 01-CU-21; NCUA 10 Business Resumption preparation of disaster or other Letter 08-CU-07 FFIEC Updated Contingency Plan event to ensure uninterrupted Business Continuity Planning service to members Examination Handbook; NCUA Letter 08-CU-01; Risk Alert 06- Risk-01; 12 CFR pt. 748; 12 CFR pt. 749 11 Dividend Nondiscriminatory To establish dividend periods, Appendix C to 12 CFR Part 707 Policy dividend credit determination dates, distribution dates, any associated penalties, and the method of dividend computation 12 E-Sign Act Policy Adopt policy and procedures NCUA Compliance Manual; E-Sign regarding use of electronic records Act §101(C)(1) 13 Electronic Fund Transfer Act Adopt policy implementing Reg. E Reg. E Policy (EFT) 14 Equal Credit Opportunity Act Ensure compliance with ECOA and Reg. B; 12 CFR pt. 1002 Policy adopt non-discrimination policy for credit transactions 14
Required Policy Regulation/Reference Expedited Funds Availability Adopt policies to comply with Reg. CC 15 Act Policy Regulation CC and all related regulatory requirements. This includes adopting: Funds Availability Policy Notices of Changes in Availability Policy 16 Fair Credit Reporting Act Ensure procedures are in place for FCRA Policy implementing and complying with FCRA 17 Fair Debt Collection Practices Ensure procedures are in place for FDCPA Act Policy implementing and complying with FDCPA 18 Fair Housing Act Policy Board must ensure that policy for FHA; 24 CFR pt. 100 implementing FHA does not tolerate illicit discrimination in any transaction relating to residential real-estate Fiduciary Duties Policy Adopt policy that specifies the 12 CFR § 701.4 19 fiduciary duties of the Board of Directors 15
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