Policies and Procedures Manual - Section 5 - Legal Requirements

LEGAL REQUIREMENTS

Antitrust Policy
Conflict of Interest Policy and Disclosure Statement
Duality of Interest Disclosure Statement
Conflict of Interest for Selection Committees
Contracts


Antitrust Policy

Original Adoption:  N/A
Revision:   February 2002

CONSTITUTION AND BYLAWS REFERENCE:  Article VIII – Nomination and Election of Officers and Directors; Article XII – Structure

Covered individuals are required to review, sign and return the following antitrust compliance statement.

OBLIGATIONS OF ASSOCIATION OFFICERS, DIRECTORS, COMMITTEE CHAIRS, AND COMMITTEE MEMBERS UNDER THE ANTITRUST LAWS

This is written to provide a broad, summary description of the obligations you have under the antitrust laws as an officer, director,  committee chair, or committee member of the National Court Reporters Association.  It is furnished to you pursuant to the requirements of the Bylaws.  Its purpose is not to provide legal advice, but simply to indicate the kinds of activities and discussions that may create questions under the antitrust laws and accordingly must be avoided.

These guidelines must be observed at all times, in formal Association meetings and events as well as in informal discussions and conferences arising out of, or relating to, Association activities.  They apply, for example, when you attend a state association meeting as a representative of the Association.  In case of any question about the meaning or application of any of these guidelines as they affect your Association activities, you should consult with the Executive Director of the Association who, in turn, will obtain appropriate legal advice.  By signing below, you will indicate that you have read this memorandum and agree to abide by it.

  1. You should assume, as the enforcement authorities do, that the antitrust laws are as fully applicable to court reporters, CART providers and captioners as to doctors, lawyers, accountants, real estate brokers, and other professionals.  The antitrust laws also apply to all your activities in this Association -- the fact that a violation of the antitrust laws occurs in the course of otherwise wholly legitimate Association activities is no defense.
  2. Heavy penalties can be imposed on you, your company, if any, and this Association if you violate the antitrust laws in the course of your Association activities.  For you personally, the penalty could be as much as three years' imprisonment, a $100,000 fine, or both.  It is particularly important, therefore, to remain well within the bounds of lawful activity at all times.
  3. It is a clear violation of the antitrust laws for members of the same profession or industry to reach any kind of an agreement or understanding concerning the price they will charge for their product or service, other terms or conditions of sale, or the customers they will or will not serve.  Because the enforcement authorities, and perhaps the courts, may infer that an unlawful agreement was reached merely from the fact that prices or other matters were discussed at a meeting of the Association, it is prudent to avoid any discussion of the following subjects , except where the Executive Director has obtained advance clearance from Association legal counsel for the proposed discussion:
    1. rates, fees, or charges (such as page rates, rates for expedited service or additional copies, attendance fees, hourly rates, etc.) of any reporter or reporting company, captioner or captioning company, or CART provider or CART company;
    2. past, present or future level of such rates and charges, in general or in particular areas (either geographical areas or types of reporting work, such as medical depositions, or types of CART or captioning work, such as realtime in an educational setting or captioning for a television station);
    3. costs of operation, including costs in general, particular components of costs (such as labor, equipment, etc.), costs for particular services, and changes or trends in any of these costs;
    4. methods or formulas for setting rates or charges for any reporting, CART or captioning product or service, especially proposals for fee schedules or relative value guides, or the like;
    5. transcript production or performance standards that set a maximum obligation on reporters, CART providers or captioners rather than a minimum (e.g., a page of transcript shall have no more than 27 lines);
    6. bids, bid solicitations by, or bids submitted to, any customer inviting bids, or any reporter or reporting company's, CART provider or CART company’s, or captioner or captioning company’s intentions with respect to bids;
    7. the identity or location of customers of any reporter or reporting company, CART provider or CART company, or captioner or captioning company, or whether any reporter or reporting company, CART provider or CART company, or captioner or captioning company serves, will serve, or will decline to serve, any customers or group of customers, or area;
    8. whether one or more reporters or reporting companies, one or more CART providers or CART companies, or one or more captioners or captioning companies, should boycott or refuse to provide services to any customer or group of customers, should do business only on certain terms and conditions, or should urge their customers or others to do so.  (It is entirely proper, however, for the Association, its officers or individual members to promote vigorously the benefits of shorthand and realtime reporting, CART or captioning to potential users of reporting, CART and captioning services (both government and private), to describe to such users the disadvantages and drawbacks of other reporting systems, and to make organized efforts to obtain governmental action favorable to the interests of the reporting, CART and captioning professions.)

Under certain narrow circumstances, such as where rates or charges or any of the other topics listed above are regulated by statute or rule of court, the risks of discussing these topics may not be as great.  Because of the magnitude of the risks involved, however, the guidance of Association legal counsel must be sought in advance before engaging in any such discussions.

The Conflict of Interest Policy and Disclosure Statement

Original Adoption:  August 1978
Revision:  November 2003

Covered individuals are required to review the following conflict of interest policy and compliance statement, and the duality of interest disclosure statement.

The Disclosure Statement and the Conflict of Interest Statement itself will be published at least annually in the January issue of the JCR.

All NCRA Board and committee members are required to sign a Conflict of Interest/Duality of Interest and Disclosure Statement.

Conflict of Interest Policy

The legal duty to act in the organization’s best interests
NCRA directors, officers, committee members, staff, and other volunteers face both a legal and an ethical obligation to base their actions and decisions solely on what is in the best interests of NCRA, in accordance with applicable state and federal laws and regulations.  Actions should not be influenced by personal considerations. Even the appearance of a conflict of interest must be avoided.

Duality of interests are common, and do not necessarily create a conflict

Individuals often have fully legitimate responsibilities to more than one board or organization. Such duality of interests do not necessarily create actual or even perceived conflicts.  It is generally only when some specific issue arises in which both organizations have a direct interest that an actual conflict exists.  

Curing the conflict

If such a situation develops, a range of actions can be taken to remove the conflict.  Often, simple disclosure of the potential conflict, allowing the Board to act in a fully informed and aware manner, is sufficient.  Often, the board or committee member may be asked to recuse themselves, or not participate in any discussions or actions on the issue for which the conflict exists.  Rarely but occasionally, if the conflict is serious enough in nature, the board or committee member must be prepared to resign or otherwise remove themselves from the position of decision-making authority with the conflicting interest, if the NCRA Board should determine it is necessary for them to do so.  

The Board/Committee, not the individual, determines if a conflict exists, and if so, what action is necessary

It is not for the individual member of a board or committee to decide whether a conflict exists.  That determination lies with the board/committee itself.  For the board or committee to make such an assessment and exercise its corporate responsibility to avoid conflicts of interest, all of its members must disclose any dualities of interest.  This is done annually through the individual’s completion of the attached disclosure form.  

If, in the course of the conduct of its business, the board or committee enters into discussions that raise a concern for an individual that a duality of interest (whether previously disclosed or not) creates a potential conflict, the individual should immediately disclose (or remind) the board/committee leadership of the matter so it can be immediately addressed and resolved.

Actions to cure a potential conflict are not a judgment on the individual    

It is important to stress that the existence of a conflict of interest and the actions taken to resolve that conflict are not punitive in nature nor are they in any way a negative reflection on the affected board or committee member’s ethics, commitment to NCRA, or personal prudence.  It is unrealistic to expect a volunteer leader to have no interests or commitments outside of his or her service on an NCRA board or committee. In fact, limiting service to individuals with absolutely no outside interests or experiences would not only be impractical, it would be detrimental to the quality and expertise of the board or committee.  

Exercising care in disclosing all dualities of interest and abiding by the board or committee’s decision on whether a conflict exists and how it should be cured (e.g; fully cooperating in a board or committee’s decision that an individual should recuse themselves) is a sign of the highest ethical sensibilities.  

Actions, such as recusal, also are not a reflection on the individual’s ability to act in an objective or impartial manner.  The integrity of volunteer leaders is not in question.  

However, as US District Court Judge Edward Weinfeld expressed in a November 1982 opinion regarding a judge’s duty to recuse him- or herself, "Despite the Court's subjective view that all matters can be resolved impartially, a judge has an independent duty to disqualify himself 'in any proceeding in which impartiality might reasonably be questioned.'  The issue is not the Court's own introspective capacity to sit in fair and honest judgment ... but whether a reasonable member of the public ... might fairly question the Court's impartiality.  This is an objective standard and 'where the question is close, the judge whose impartiality might reasonably be questioned must recuse himself.'"

Conflicts of interest defined (Revised by Board Action: November 10, 2003)

A conflict of interest occurs whenever an individual has a direct or indirect interest, financial or otherwise, in the outcome of any transaction or matter involving NCRA.  A conflict of interest also occurs whenever an individual has a relationship with other parties to the transaction or matter such that the relationship might reasonably be expected to affect the judgment of the individual in the particular transaction or matter in a manner adverse to NCRA.

Conflicts of interest are not limited to formal financial partnerships or arrangements.  Any management position or leadership role with decision-making authority (whether voluntary or for compensation) with any board, business network, consulting contract, or other business arrangement in the court reporting profession or related professional specialties (e.g.; CART, captioning) could potentially give rise to a conflict.

Depending upon the immediacy and seriousness of the conflict, a number of resolutions are possible.  If the conflict is minimal, highly qualified, or only potential, it may be cured through nothing more than disclosure of the interest and a pledge to remain objective and neutral to it.  Other conflicts are more serious and may require the board or committee member to remove him- or herself from any involvement in the association’s discussions or decision making on the matter.  (This is called recusal.)  In rare cases, conflicts are so immediate and serious that resignation from the board, committee, or other association assignment is the only prudent means of avoiding the conflict.

It is the prerogative of the board, not the individual, to determine how severe a conflict is and the appropriate steps that must be taken to remedy it.  Accordingly, disclosure of all relationships outside of the individual’s official association role that could potentially create a conflict is critical to the organization’s effective enforcement of appropriate conflict-of-interest policies.

If an individual has a conflict of interest or potential conflict of interest in connection with any NCRA transaction or matter, he or she should immediately notify the President, Executive Director, or other appropriate NCRA representative, and disclose all the material facts concerning the actual or potential conflict of interest and his or her relationship to the transaction or matter at issue.

If the conflict of interest arises in connection with the activities of any deliberative body (e.g., the Board of Directors), the conflict should be disclosed to the other members of the body and the individual ordinarily should not participate in the consideration of the transaction or matter at issue.  If the conflict of interest arises in connection with a workshop, seminar, or other such program, the individual may be authorized to participate, provided that he or she agrees to disclose to the other participants and attendees the facts giving rise to the conflict and clearly identifies his or her remarks as personal opinion.  If the conflict arises in connection with an NCRA publication, the article, book, or other material may be published with an appropriate disclosure to the reader.

Duality of Interest Disclosure Statement

Original Adoption:  November 1992
Revision:  November 2003

I have read the NCRA Conflict-of-Interest Statement, and I support its intent.

I hereby certify that, to the best of my knowledge, I do not have any financial or other interest*/ that raises an actual or potential conflict of interest with my activities on behalf of NCRA.  If any actual or potential conflict of interest exists, the conflict, as well as the financial or other interest upon which it is based, is described in the written statement I have attached to this form.

If an actual or potential conflict of interest subsequently develops, I will promptly submit an amended Disclosure Statement to the Executive Director, who will forward it to the NCRA General Counsel or other appropriate NCRA representative.  

I understand that it is the prerogative of the committee, board or task force upon which I serve to decide how serious and immediate any conflict is and to determine what steps are necessary to cure the conflict.  (These cures include disclosure, recusal, and in extreme cases, resignation.)  I agree to abide by the decision of the governing board in any such matter that may arise.

As directed and where appropriate, I will make disclosure of the conflict of interest to NCRA readers, NCRA course participants, or to fellow members of NCRA deliberative bodies.
___________________
*/    By way of example, a financial or other interest that could give rise to a conflict of interest might include an equity or other ownership interest, a paid consulting agreement, or other business arrangement with a vendor associated with the court reporting, CART, or captioning industry.  Among other things, this would cover the receipt of consulting or appearance fees, travel expenses, sales commissions, and royalty payments for the sale or licensing of hardware or software technology, etc.  Normally, participation in user groups and beta testing (where the equipment is returned) would not be included or require disclosure.  However, conflicts of interest are not limited to formal financial partnerships or arrangements.  Any management position or leadership role with decision-making authority (whether voluntary or for compensation) with any board, business network, consulting contract, or other business relationship in the court reporting profession or related professional specialties (e.g.; CART, captioning) could potentially give rise to a conflict and should be disclosed.

Conflict of Interest for Selection Committees

Original Adoption:  August 2007
Revision:  November 2009

Introduction

The following policy has been approved by the NCRA Board of Directors to guide the handling of conflicts of interest for award and nominating committees in the selection of awardees/nominees.  This policy applies to all NCRA-selection committees.  The Association has similar policies governing other deliberating bodies that provide opportunities, benefits or awards to others, including procedures that guide the speed contest committee, scholarship selection committees and grant committees.  The purpose of these policies is to avert to the extent possible biasing circumstances, or the appearance of biasing circumstances, in the selection of NCRA awardees/nominees.

Selection committee members understand that the issue is not whether they have the ability to act in an objective or impartial manner.  The integrity of volunteer leadership is amply evident and their ability to act in a fair and honest manner is not in question.  The issue is whether a prior personal or professional relationship might reasonably raise a question in the mind of a member of the general public who does not have access to the full information on the nomination or selection process.   In order to avoid a question denigrating the prestige of the honor being bestowed with the award upon the selected member, NCRA chooses to err on the side of caution in application of these standards.

Ethical Standards

Award/Nominee Eligibility:  Members of award/nomination selection committees are not eligible to be candidates for that award or board service during their term of service on the award/nominating selection committee.

Required Circumstances:  Biasing or potential biasing relationships for or against an award nominee require committee members to withdraw from service on award/nomination selection committees.  They include, but are not limited to,:

  1. family member, spouse, or partner;
  2. anyone with whom one has a current business or financial relationship;
  3. participating in the selection decision when a person made or advocated the candidate’s current nomination.

Elective Circumstances:  Members of award/nominating committees may for other reasons determine that they have conflicts or potential conflicts that require elimination from service and then act on that determination if they believe that service could affect the fairness of the selection process.  However, the individual is obligated to inform the committee so the committee can make the determination.

  1. Conflict of interest standards and implementation procedures for award/nominating committee service shall be widely publicized and readily accessible to NCRA members.
  2. NCRA Officers and others appointing members of award/nominating selection committees shall make potential committee members aware of these ethical standards and the implementation procedures.
  3. Alternates shall be appointed by or readily accessible to those appointing members of selection committees so that substitute appointments can be readily made if any committee member or members need to step down from service.
  4. Upon receipt of all nomination forms, committee members need to make known whether they can continue service on the award/nominating committee or whether they are in a circumstance that mandates withdrawal from service.
  5. If vacancies occur on award selection committees due to withdrawal of members from service, those vacancies shall be filled promptly by the NCRA President.
  6. Any award selection chair or committee member with questions or ambiguous circumstances or who finds the full implementation disruptive shall seek the advice of the Executive Director and CEO who will, where necessary, consult with the President on this policy and its implementation.  

Contracts

Original Adoption:  March 1996
Revision:   March 2018

CONSTITUTION AND BYLAWS REFERENCE:    Article XIV–Fiscal and Legal Procedures

For contracts with a cumulative annual value of $30,000 or more, NCRA’s executive director shall provide the President and Secretary-Treasurer with the opportunity to review and discuss the contracts prior to signing and final execution of such contracts. For contracts with a cumulative annual value of $50,000 or more, outside of NCRA events, NCRA’s executive director shall obtain approval from the president and secretary-treasurer prior to signing and final execution of such contracts.  A list of any new or renewing contracts with a proposed increase of 20% or more will be provided to members of NCRA's Finance Committee for review each November.

All contracts above $30,000 shall require due diligence in seeking RFPs in order to be competitively bid.

Before an employee is hired or a binding contract is entered into, the Executive Director shall disclose to the Board of Directors any prior business or personal relationship with said person or entity.