☛ Risk Manager or Law Firm? 6-3-13
DUE PROCESS – DOES YOUR NONPROFIT NEED A RISK MANAGER OR A LAW FIRM?
By Rick Dennis
June 3, 2013
During my tenure of service as a drug enforcement agent and a law enforcement officer, I had to abide by certain rules of law in order to effectuate a criminal investigation, an arrest for violation of a crime, interrogation, search warrant applications, title 3 – wire taps, etc., commonly referred to as DUE-PROCESS.
Due-process, simplified, means all protocols of law governing our society must be adhered to in order to protect the rights of citizens in accordance with established law and constitutional guarantees of the United States of America.
A more precise definition of DUE PROCESS is as follows:
Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law.
Notwithstanding, there is a very close similarity with the rule of due process of the law in law enforcement with that of a nonprofit governing its membership or enforcing disciplinary action for a rule violation by a member in good standing.
A nonprofit is governed by a set of rules and regulations to govern the nonprofit and the members equally: those rules and regulations are called BY-LAWS. Each By-Law stipulates the exact manner and means afforded to individual members, especially members subject to disciplinary action by the Executive Committee or Board Members of the nonprofit in order to protect individual rights and to ensure impartial treatment of the member. This can also be referred to as DUE PROCESS.
Any act of deviation of established rules or practices stipulated in the By-Laws by any Executive Committee or Board Member concerning a member, subjects the nonprofit to a threat of reprisal by the member in question as well as unnecessary legal costs to the nonprofit, which can include legal fees and liability damage payouts from a lawsuit by civil action and, in specific cases, quite possibly culpable liability.
A more precise definition of Risk Analysis is as follows:
Risk analysis is the process of defining and analyzing the dangers to individuals, businesses and government agencies posed by potential natural and human-caused adverse events. In IT, a risk-analysis report can be used to align technology-related objectives with a company’s business objectives. A risk analysis report can be either quantitative or qualitative.
In quantitative risk analysis, an attempt is made to numerically determine the probabilities of various adverse events and the likely extent of the losses if a particular event takes place.
Qualitative risk analysis, which is used more often, does not involve numerical probabilities or predictions of loss. Instead, the qualitative method involves defining the various threats, determining the extent of vulnerabilities and devising countermeasures should a threat or attack occur.
Quite often, in the private sector, my company and I are retained to analyze a litany of processes to identify any perceived threat to the health and wealth of the corporation and design programs and procedures to eliminate these threats by procedural or process changes for adoption by the Executive Committee or Board of Directors of the corporation, not only to ensure future compliance by its employees and members but also for the future fiscal health of the corporation.
A Risk Assessment and Analysis does not limit its capabilities to a specific ideology but is used as a broad-based tool to identify, eradicate and enact future procedural changes for the benefit of the corporation, e.g.,:
I’ve written countless drug and alcohol interdiction programs for the private sector. These are used regularly to remove a specific threat from the work force of U.S. corporations, i.e., drug and alcohol use and abuse among the general work force. Equally, I’ve conducted risk analysis and assessment of a specific aspect of a corporation, e.g., physical assets and financial data, as well as writing suggested corporate policy changes to ensure the financial health of the corporation.
One of the most cognizant aspects of conducting risk analysis assignments is for the analyst to be continually vigilant of the Americans For Disabilities Act – ADA. This act, enacted by Congress, protects U.S. citizens suffering from mental or physical disabilities to insure individual rights are not violated.
Individuals suffering from any mental or physical disability are protected by this act in specific areas of our society such as in the work place and organizations. Any violation of an individual’s rights protected by the ADA can certainly invoke a federal investigation, as well as a civil suit for damages by the violated.
Therefore, does your corporation need a risk manager or a law firm? My answer to this question is simple. Every corporation should have on staff a risk manager or consultant, whether by third-party contract or on staff, to advise the corporation on specific matters of interest as a stop-gap-measure, before a matter is out of hand or control, to thwart damage to a corporation before it happens.
In my opinion, a risk manager is invaluable to a corporation and is often viewed as the “first line of defense” to prevent adverse effects to the corporation. A risk manager or consultant is surely less expensive than a law firm and quite often saves the corporation a significant amount of money in the long term.
Bear in mind that the Board of Directors can make any changes they deem necessary for the health and wealth of the corporation or nonprofit organization.
Equally, it’s my opinion that the law firm is the last resort when all else has failed in resolving an issue. The prudent point to consider is the ideology that situations should be avoided or prevented before a specific issue becomes a major issue. Remember – prudence and common-sense judgments are more often than not, “THE BETTER PART OF VALOR.”
Until Next Time, Keep ‘Em Between The Bridles!
Richard E. “Rick” Dennis
Wind River Company, LLC
Office/Mobile: (985) 630-3500
Web Site: http://www.windrivercompanyllc.com