New daily updated edition of Governance, Risk & Liability, a daily paper containing new articles and discussions about governance, risk and liability, Click Here For Paper.
No Time For Improvement (Make Time), article by Mark Graban, Click Here For Article.
Norman Marks, Barriers To Effective Risk Management, Click Here For Blog Discussion.
Enjoy, and pass along,
Dave Tate, Esq. (San Francisco)
Please see attached below (enjoy, use, and pass to others) – Dave Tate, Esq. (San Francisco)
1. Board Annual Self-Evaluation Form, Board Of Directors Annual Self Evaluation David Tate Esq 03142013
2. Audit Committee Annual Self-Evaluation Form, Audit Committee Annual Self Evaluation Form David Tate Esq 031413
3. Risk & Uncertainty Management Form – Processes & Oversight, Risk & Uncertainty Management Form – Processes & Oversight Dave Tate Esq 03282013
4. Dispute Resolution & Mediation Preparation Form, Dispute Resolution & Mediation Preparation Form, David Tate, Esq. 03222013
5. 2-Page Board & Director Guidelines, 2-Page Board & Director Guidelines Dave Tate Esq 03292013
NOTE: I HAVE UPDATED THIS MATERIAL – PLEASE SEE MY BLOG POST FOR MARCH 28 OR THE “ABOUT” BUTTON FOR THE UPDATES.
Board & Director Oversight of Risk & Uncertainty Management Form
Dave Tate, Esq. (San Francisco)
http://lawriskgov.com; tateatty@yahoo.com
(See also separate board and committee evaluation materials for additional detailed discussion.)
This form is a work in progress – I seldom publish materials that are works in progress, but in this circumstance I don’t see why not as the current state of risk and uncertainty management, and board and director over sight of risk and uncertainty management are all in various degrees of continual development and they will continue as such.
I have intentionally not provided a checklist of general or specific risks and uncertainties, or a checklist of risks and uncertainties that might be applicable in a particular situation or for a particular entity or for a particular industry, or a checklist or discussion about risks and uncertainties that are or might be appropriate for board oversight within the context of a particular organization. More specific or targeted risk and uncertainty discussions can be provided and sometimes found in other materials. But doing so in this material could cause more limited application of this form, which is contrary to the intent.
Management is responsible for risk management. The board and directors serve an oversight function. As a general proposition all risk cannot be absolutely or even reasonably identified, assessed, controlled or managed, or eliminated, and to varying extent risk and uncertainty management requires the exercise of judgment relating to the future, which is occurring and potentially or actually changing or shifting at various or altering speeds or velocity.
I have not discussed in this form board, board committee or director oversight or risk oversight responsibilities as those topics and discussions are for other materials, some of which can be found in other separate papers and forms relating to annual self evaluation.
Technical and detailed materials, discussions and opinions about risk management already are voluminous – at times it seems that they are increasing from unlimited sources and directions. As eyes gloss over it is easy to lose sight of the forest for the trees. Instead, the intent of this form, as a current work in progress, is to provide one useful version of a concise and uncomplicated but accurate easy to use and get started format to assist in the oversight of risk and uncertainty management processes.
For some people the format provided in this form will be too uncomplicated and detail lacking, and some of my risk professional friends might well consider the form too simplistic; but any user of this form can add and continue to add as much detail as desired. I don’t expect the majority of directors to be interested in reading and understanding twenty, or thirty, or more pages of technical terminology, materials and alternative theories and approaches. This form encourages a keep going or get started approach.
I do note that as this is a developing area management might in part use different or additional risk management terminology or processes, some of which might or might not be appropriate or universally understood. With respect to oversight, the director should ask appropriate questions of management so that he or she sufficiently understands the terminology and processes in use.
The discussions in this form are applicable for all entities – public companies, private companies and organizations, nonprofits and governmental entities – although depending on the entity type or situation, sometimes the terminology or context might be or need to be different, and of course some members of management and directors are extremely knowledgeable about these topics whereas others are somewhere in the middle or just beginning. All of that is okay.
This form does not provide legal or other professional advice, and does not discuss legal or other professional standards, requirements or responsibilities – you should consult with a professional about your specific situation.
1. Risk and Uncertainty Management Defined
Several established and broadly recognized organizations have each developed and provided their definitions of risk and uncertainty management. But there is no universally accepted definition. You will note that throughout this form in addition to “risk” I have included “uncertainty.” I prefer “uncertainty” but the more often heard reference is to “risk” management. “Risk” suggests the occurrence of a negative or loss deviation from expected results; however, as deviations can also be positive or beneficial, I believe that “uncertainty” management is the more accurate description. In part ISO 31000 Risk Management uses the “uncertainty” terminology (ISO stands for International Organization for Standardization). Accordingly, for this form I have used both “risk” and “uncertainty” recognizing that “risk” is more universally used whereas “uncertainty” is also used and is more accurate.
Risk and uncertainty management: activities and processes used to help and attempt to identify, evaluate or assess, manage and control, and monitor risks and uncertainties that may or may not occur in the future. Risk, according to ISO 31000, is the effect of uncertainty on objectives. Uncertainty or lack of uncertainty exists when knowledge or understanding of an event, consequence or likelihood is inadequate, incomplete or not absolute. In other words, as to the future we don’t have a crystal ball, and there is a chance that things will not go according to plan or as anticipated or assumed. The chance of deviation from plan or anticipation or assumption can be negative or a loss, or positive or a benefit.
2. Risk and Uncertainty Management Processes
No universally accepted process……..
Insert/discuss generally understood or agreed upon processes………..
Terminology that I generally don’t like or that I have problems with depending on how they are used or defined, and why: risk appetite, risk tolerance, some definitions or uses of assessment, and similar………
Consider inserting a table of processes or steps to consider…………
Insert text boxes for generally understood or agreed upon processes……..
* * * * * * *
NOTE: I HAVE UPDATED THESE FORMS – PLEASE SEE MY BLOG POST FOR MARCH 28 OR THE “ABOUT” BUTTON FOR THE UPDATES.
Click below, read, and pass to others:
2-Page Board & Director Guidelines Dave Tate Esq 03232013
Board Of Directors Annual Self Evaluation David Tate Esq 03142013
Audit Committee Annual Self Evaluation Form David Tate Esq 031413
Dispute Resolution & Mediation Preparation Form, David Tate, Esq. 03222013
Dave Tate, Esq. (San Francisco)
If you follow McKinsey, you probably know that they produce regular materials that are worthwhile reading. Here is a link to a new discussion about big data – the materials are extensive, with multiple links, Click Here For Discussion.
Below is a link to the recent testimony of Attorney General Eric Holder in response to a question or questions by Senator Cruz about the use of drones against U.S. citizens located in the United States. I had heard it suggested that Mr. Holder in essence refused to answer the questions. You decide for yourself – basically, I thought that the Attorney General’s responses were fine when considered as a whole.
It might have been better, within the context of the setting including that it was public in nature, if Mr. Holder had just responded outright, “no, I don’t believe it would be appropriate or within the Constitution to use drones in the hypothetical situation that you have described.”
Instead, the manner of Mr. Holder’s answer was more similar in nature to the manner in which a lawyer speaks, which might not have been the best approach, or perhaps he was not prepared for the question or was not able to evaluate the question and formulate his answer within the time that he thought that he had to answer.
The questioning was about a hypothetical situation, and it is arguable from a lawyer’s viewpoint that the hypothetical situation is incomplete and lacks foundation, and could be vague and ambiguous. On the other hand, Senator Cruz specifically drafted his question or questions, and it could be expected that he would ask follow-up questions until he felt that he had obtained a sufficiently specific yes or no answer. The following is a link to Mr. Holder’s testimony:
The following is a link to a new NACD post re SEC Leadership and Audit Committee priorities for 2013, Click Here For NACD Post.
Particularly noted, the following priorities:
– The quality of information presented to the board from management. I agree, and the board and its committees must also understand the issues and request pertinent information that they need.
– Cybersecurity and emerging technologies. I agree, this has become a board oversight area – audit committee, or risk committee, or the entire board.
– Oversight of big data. I agree, but again, not necessarily only an audit committee oversight area.
Board and Audit Committee annual self-evaluation forms – click, use, and pass along to other people who would be interested:
1. New Board of Directors Annual Self-Evaluation Form, Board Of Directors Annual Self Evaluation Form David Tate Esq 03142013
2. Slightly revised and updated Audit Committee Annual Self-Evaluation Form, Audit Committee Annual Self Evaluation Form David Tate Esq 031413
Dave Tate Esq. (San Francisco)
In all three LawRiskGov categories, proposed federal payment of $200 million annually for research to get cars off oil, Click Here For Story, yes, might be a grand idea, but only with worthwhile and profitable new results that actually work in the near future. I would love to see ordinary cars that get 60 to 100 mpg. Some of the questions that Congress and the President might want to ask or answer: legally, who owns the technology that would be developed (the taxpayers?); why $200 million; who decides where the money is invested and in which projects; how do we judge success and the value of success; what new ideas and technologies are going to be developed, how much will actually have to be spent on the development to finished product, and what and when will the likely technology be put into commercial use for personal cars; what and when is the likelihood of success or achievement; how is putting an additional $200 million per year into this sufficiently better than what is being worked on now; what is the anticipated return on investment; etc. You get the picture – the same type of ordinary prudent things that you would ask and want to know if you were CEO, the board, investors, VC, etc.
Please click, use, and pass along to anyone who might be interested:
1. New Board of Directors Annual Self-Evaluation Form, Board Of Directors Annual Self Evaluation Form David Tate Esq 03142013
2. Slightly revised and updated Audit Committee Annual Self-Evaluation Form, Audit Committee Annual Self Evaluation Form David Tate Esq 031413
Dave Tate Esq. (San Francisco)
Please click, use, and pass along to anyone who might be interested:
1. New Board of Directors Annual Self-Evaluation Form, Board Of Directors Annual Self Evaluation Form David Tate Esq 03142013
2. Slightly revised and updated Audit Committee Annual Self-Evaluation Form, Audit Committee Annual Self Evaluation Form David Tate Esq 031413
Dave Tate Esq. (San Francisco)
New California Case – In re Conservatorship of Gregory D. (California Court of Appeal, Second Appellate District, March 5, 2013, Case No. B237896).
From my other blog because this case is important – conservatorships take away personal liberties – I’m not saying that there shouldn’t be conservatorships – just that conservatorship decisions need to be carefully considered and due process is important. My estate, trust and elder blog is http://californiaestatetrust.wordpress.com
Note: I will be further evaluating and reporting on the Court’s decision in this case as even if the decision is legally correct, the result seems wrong in the context of a conservatorship, a conservatee’s rights, the lack of certain factual findings, and the underlying action being one in equity.
Briefly, the Court held that the mother of an adult conservatee (the conservatee is the mother’s son) lacked standing to appeal the decision of the trial court (the probate court) relating to the son’s visitation terms, who would be providing care to the son, and the sharing of the son’s medical information with certain third parties. Although the mother had standing to be involved in those proceedings at the probate court level, the mother lacked appellate standing because the mother’s claims on appeal related to her son’s rights or the deprivation of her son’s rights, not to any claim of injury to her own rights.
The Court held that the right to appeal is purely statutory. Code of Civil Procedure section 902 defines “Who May Appeal” from a judgment. Any party “aggrieved” may appeal from an adverse judgment. The test is twofold — one must be both a party of record to the action and aggrieved to have standing to appeal. One is considered “aggrieved” whose rights or interests are injuriously affected by the judgment. Conversely, a party who is not aggrieved by an order or judgment has no standing to attack it on appeal. Injurious effect on another party is insufficient to give rise to appellate standing. A party cannot assert error that injuriously affected only nonappealing coparties.
“Linda’s opening brief raises the following assignments of error with respect to the November 18, 2011 order: (1) the visitation order, requiring Gregory to spend weekends with his parents, violates Gregory’s rights to liberty and privacy; (2) the order terminating My Life Foundation as the contracted provider of Gregory’s supported living services violated Gregory’s rights under the Lanterman Act (Welf. & Inst. Code, § 4500 et seq.) and was in excess of the court’s jurisdiction because there was no exhaustion of administrative remedies before My Life Foundation was replaced as Gregory’s provider; and (3) the order directing disclosure of Gregory’s records to his parents violates Gregory’s constitutional and statutory rights of privacy.”
The Court held that “Linda has not identified any of her own rights or interests which are injuriously affected by the November 18, 2011 order. Her assignments of error pertain solely to alleged deprivations of Gregory’s rights. However, Linda lacks standing to assert error that injuriously affects only Gregory, a nonappealing party. (Estrada, supra, 125 Cal.App.4th at p. 985.)”
The Court further held that “Linda’s status as Gregory’s concerned mother does not confer standing to appeal on his behalf. With respect to Linda’s role vis-à-vis Gregory, the July 2, 2009 order pursuant to settlement agreement contains the following recital: “’14. LINDA and JOSEPH agree that they shall not hold any title, occupation, or position in this matter, other than parent of GREGORY.'” (Italics added.) Gregory, an adult, is under the limited conservatorship of the Hitchmans. In addition, Gregory has his own counsel. He is represented by Attorney Gaulke, a court appointed attorney who is PVP counsel for the limited conservatee. Gregory declined to appeal from the November 18, 2011 order. Linda, who is not personally aggrieved by said order, lacks standing to assert error on Gregory’s behalf.”
More to follow . . . .
Dave Tate, Esq. (San Francisco)
Law, Risk Management (ERM) & Governance - Tate LawRiskGov - For People & Business 