Excelsior Institute of Business and Finance, Inc.

Ethics Complaint Process

Introduction

EXCELSIOR is committed to ensuring the highest standards of ethics, integrity and service in, and to advance the image and reputation of, the organizational consulting sector. EXCELSIOR recognizes that consultants, because of the sensitive nature of their work and their exposure to privileged and commercially sensitive information, are held to the highest standards of ethical behavior and hereby sets forth the basic fair and ethical principles and practices which members of EXCELSIOR undertake to meet as a minimum standard in the conduct of their business.

The cornerstone of the EXCELSIOR commitment to ethical business practices is this Code of Ethics. Every member pledges to abide by the Code’s standards and procedures as one of the conditions of admission and continuing membership in EXCELSIOR.

The EXCELSIOR Code of Ethics speaks to both the client and the provider of consultancy services. It ensures that members will make no promises or statements to deliberately mislead their clients, will conduct themselves with integrity and will deliver services and deliverables with integrity and to a professional standard in order to maintain the reputation of EXCELSIOR and of the consulting industry in general.

The EXCELSIOR Code of Ethics is not merely an aspirational document: it contains specific mechanisms for enforcement.

The Code of Ethics is enforced by an Ethics Committee consisting of EXCELSIOR members nominated and voted for by EXCELSIOR members or, if an Ethics Committee has not been empanelled, the EXCELSIOR Board of Directors will assume the functions of the Ethics Committee. The Ethics Committee will investigate and arbitrate any complaints received by EXCELSIOR about its practices or its members to try to bring about a resolution satisfactory to everyone involved and is empowered to recommend remedies. All EXCELSIOR members have agreed to honor the Ethics Committee’s decisions and failure to comply with a recommendation may result in expulsion from EXCELSIOR. The Ethics Committee may also authorize the payment of up to $2,000 (as per Section xxxx) to complainants: such a payment shall in no way indicate any liability on the part of EXCELSIOR or of its members, nor shall it limit the complainant’s right to seek compensation by other means unless this is a specific condition of the payment.

The Ethics Committee also provides advice to EXCELSIOR members on ethical dilemmas.

This Code of Ethics is intended to be a “living document” in that it is to be constantly revised and amended to best reflect the needs of both the consumers and providers of consulting services in the furtherance of EXCELSIOR’s mission, and therefore the Ethics Committee welcomes suggested amendments from interested parties.

Interpretation

This Code of Ethics is based on the principals of ethics, integrity and fairness and as such is impossible to fully codify: any list of exclusions will necessarily have omissions, and any list will also have exceptions in certain circumstances. But to be useful as an ethical guide, and to be enforceable, any Code of Ethics must attempt to strike a balance between principal and codification. With this in mind, the Ethics Committee responsible for the interpretation, guidance and enforcement of this Code of Ethics will be guided by the spirit rather than the strict letter of the Code, taking into account the circumstances of each case and attempting, above all, to reach a fair decision. Recognizing that some ethical decisions may not be clear, the Ethics Committee will provide a written response to any member’s questions provided that the question is submitted in writing and prior to any action being taken by the member.

General Considerations & Procedures:

Communication During The Complaint Process: All formal communication originating from the Ethics Committee, Ethics Appeals Panel, Certification Board or Executive Director with an alleged violator of Ethics shall be transmitted and tracked via US Mail or express courier as appropriate. Transmission by email of this same material to the alleged violator of Ethics is also permissible for information purposes only. Communication from the alleged violator of Ethics may be made either through email, postal service or courier with the understanding that prompt receipt of any such communications is essential. All communications are to be addressed to EXCELSIOR’s Ethics Committee or Ethics Panel as appropriate, at EXCELSIOR’s official mailing address in Cincinnati, Ohio, USA.

English Language Governs: All communications between the parties are to be in written or spoken English. In the event the complainant or alleged ethics violator does not speak and/or write English, then it is incumbent upon that party to bear the cost of and make provisions for any necessary translation services. At the discretion of the Chair of the Ethics Committee or Appeals Panel, translation services may be provided for the benefit of EXCELSIOR.

Informal Resolution: It is the expressed intent of the Ethics Complaint Procedure that all ethics allegations are expeditiously, and to the maximum extent practicable, resolved prior to becoming a formal Ethics Complaint. To that end, it is incumbent upon the Complainant and the Ethics Committee to seek early informal resolution through discussions as appropriate with relevant parties. In most cases, potential Complainants are encouraged to seek resolution directly with the person they believe may have violated EXCELSIOR’s Cannons of Ethics prior to the filing of a formal Complaint. If such informal resolution cannot be reached expeditiously then the Complainant may, upon following all applicable EXCELSIOR ethics policies and procedures, file a formal ethics complaint with EXCELSIOR.

Ethics Complaint Tracking: Upon first formal notice of an ethics complaint, EXCELSIOR’s Ethics Committee will track the progress of the Complaint through final resolution. In the event that allegations involve EXCELSIOR’s Ethics Committee or staff sensitive information, then responsibility for tracking of the complaint will fall to the Ethics Committee Chair.

Ethics Committee & Ethics Appeals Panel Members: The Chair of the Ethics Committee and the Chair of the Ethics Appeal Panel are designated by the Chapter President and approved by the Chapter Board of Directors for staggered three year terms. EXCELSIOR’s Ethics Committee and Ethics Appeals Panel members are constituted on an as-needed basis from a standing roster (the “Pool”). The Pool is comprised of Members who have relevant background and experience to handle ethics complaints. The Chairs of the Ethics Committee and Appeals Panel are non-voting members of any constituted Ethics Hearing Committee or Appeal Panel.

Member Service For A Specific Ethics Complaint: An Ethics Hearing Committee or Appeal Panel member may serve on either as long as they do not have a conflict of interest relevant to the Complaint. An Ethics Hearing Committee member may not (a) concurrently serve on an Appeal Panel on a different matter, (b) serve on a Formal Investigation Team in the same matter, or (c) subsequently serve on an Appeal Panel involving the same or related issues or parties involved in a predecessor Hearing Committee hearing or action. The size and composition of each Hearing Committee or Appeals Panel will be an odd number, not including the respective Chairs, as determined by the Chair to adequately address the instant complaint.

Definitions

Immediate family shall mean wife, husband, children, grandchildren, parents, grandparents, brother, sister, daughter-in-law, son-in-law, guardian, ward, stepfather, stepmother, stepchildren, or persons bearing the same relationship to the spouse of the employee.

Covered person refers to staff, volunteers, trainees, independent contractors and other persons whose conduct, in the performance of work for EXCELSIOR, is under the direct control of EXCELSIOR, whether or not they are paid by EXCELSIOR.

Confidential Information” means any confidential, proprietary, or trade secret information, whether or not marked or otherwise designated as confidential, whether in document, electronic, or some other form, and includes, without limitation, information that is not publicly known regarding finances, business and marketing plans, proposals, projections, forecasts, existing and prospective customers, vendor identities, employees and compensation, drawings, manuals, inventions, patent applications, process and fabrication information, research plans and results, computer programs, data bases, software flow charts, specifications, technical data, scientific and technical information, test results, market studies, and know-how related to any of the above.

Process

Before You File an Ethics Complaint

Many difficulties between professionals result from misunderstanding, miscommunication, or lack of adequate communication. If you have a problem with a professional, you may want to speak with them or with an officer in the organization. Open, constructive discussion often resolves questions or differences, eliminating the need for further action.

If, after discussing matters with the professional or an officer in the organization, you are still not satisfied, you may want to contact the Ethics Committee. Many boards and associations have informal dispute resolving processes available to consumers (e.g., ombudsmen, mediation, etc.).

The Ethics and Executive Committees are responsible for enforcing the Code of Ethics. The Code of Ethics imposes duties above, and in addition to, those imposed by law or regulation which apply only to staff and members who choose to become part of EXCELSIOR.

If, after taking these steps, you still feel you have a grievance, you may want to consider filing an ethics complaint. You will want to keep in mind that

a) Members cannot complain against non-Members except for staff. All complaints must assert or imply a violation of one or more of the items listed in the Code of Ethics and/or Code of Business Practice.

b) If the professional you are dealing with is not an EXCELSIOR volunteer or staff member, your only recourse may be the courts.

c) EXCELSIOR determines whether the Code of Ethics has been violated, not whether the law or regulations have been broken. Those decisions can only be made by the courts.

d) EXCELSIOR can only discipline members for violating the Code of Ethics by having them reprimanded, or their membership can be suspended or terminated for serious or repeated violations. EXCELSIOR cannot order them to pay money to parties filing ethics complaints; cannot award “punitive damages” for violations of the Code of Ethics; and cannot suspend or revoke a professional’s license (if he has one).

e) The primary emphasis of discipline for ethical lapses is educational by creating a heightened awareness of, and appreciation for, the duties the Code imposes.

Advisory opinions

Any person may request an advisory opinion relating to matters affecting the ethical conduct of an Excelsior member or employee. The request shall be in writing and filed with the Ethics Committee. Requests for advisory opinions need not be notarized.

The Ethics Committee may administratively dismiss a request for an advisory opinion for any of the following reasons:

a) The request is not in writing or not notarized.

b) One or more requests or complaints regarding the same matter are pending.

c) The board previously addressed the subject matter.

The person requesting the advisory opinion, and the person subject to the request, shall have the opportunity to speak to the Ethics Committee at the meeting scheduled to address the advisory opinion.

At any time, the Ethics Committee may issue an advisory opinion decision on the request based on any of the following reasons:

a) The Ethics Committee lacks jurisdiction over the person subject to the advisory opinion.

b) The Ethics Committee lacks jurisdiction over the subject matter.

c) The person asserting the claim lacks the legal capacity to file the request for an advisory opinion.

d) The request for an advisory opinion is barred because of release, prior judgment, or other disposition of the claim before the request for an advisory opinion was filed.

e) The request for advisory opinion on its face fails to delineate any unethical conduct.

If no genuine issue as to any material fact exists, then the Ethics Committee may issue an advisory opinion without a hearing.

The Ethics Committee may make an informal investigation of any practice that could affect the ethical conduct of a member or employee. The investigation and its results shall not be disclosed except to the Ethics Committee.

If the board determines that there is reasonable cause to conclude that the practice could affect the ethical conduct of a member or employee and that substantial factual matters are in dispute, then the Ethics Committee shall schedule a meeting on the practice. The Ethics Committee shall send notices of the meeting to parties of interest. If the Ethics Committee determines that there are no reasonable grounds to conclude that the practice could affect ethical conduct, then it shall terminate the investigation and the Ethics Committee shall provide prompt written notice of the termination to all persons of whom inquiry was made. The Ethics Committee may issue a report of its actions.

Hearings

The board may hold a hearing to further review the merits of a complaint, a request for an advisory opinion, or upon conclusion of an investigation.

Not fewer than 30 calendar days before the date of the hearing, the Ethics Committee shall notify any interested party and shall post the notice on the board’s website. The notice shall state the time, place, date, case name, and questions to be heard at the hearing as determined by the Ethics Committee.

Hearings may be held before the entire Ethics Committee, before one or more designated voting members of the Ethics Committee, or before a hearing officer designated to conduct the hearing. If the hearing is conducted before the Ethics Committee or designated members, then the chairperson of the Ethics Committee shall preside over the hearings, or in the chairperson’s absence, members of the Ethics Committee shall appoint an Ethics Committee member as presiding officer. A member of the Ethics Committee, a hearing officer, agent or employee of the board shall not have direct or indirect ex-parte communication with any person in connection with any issue involved in a scheduled hearing except with the members of the Ethics Committee or its agents or employees.

The presiding board member or hearing officer shall do the following as appropriate:

a) Administer oaths as deemed appropriate by the board.

b) Request the attendance of any witnesses whose testimony, in the judgment of the board, will aid in the conduct of its investigations.

c) Request the production of books, papers, and other documentary evidence to aid the board in its investigation.

d) Fix the time and form for the submission of evidence or argument.

e) Adjourn a hearing for good cause to such time, date, and place as the presiding Ethics Committee member or hearing officer determines to be appropriate. The rules of evidence applicable in the courts of the state need not be applied strictly in any hearing.

f) The standard of review shall be the preponderance of the evidence. The complainant shall have the burden of introducing the requisite evidence to prove the alleged unethical conduct. The person requesting an advisory opinion or an investigation shall have the burden of presenting facts or issues to the Ethics Committee for its consideration. The person whose conduct is being questioned has all of the following rights:

Be present,

Be represented by counsel,

Testify,

Produce and examine witnesses,

Cross-examine adverse witnesses,

Introduce other evidence as may be material and relevant to the issues.

At the conclusion of the hearing, the presiding Ethics Committee member or hearing officer may request additional evidence or written argument concerning the subject matter to be submitted within such time and in the form as the presiding board member or hearing officer directs. The additional evidence or argument shall be disclosed to all interested parties.

The presiding Ethics Committee member or hearing officer shall issue a proposal for decision. The Ethics Committee shall act upon the proposal.

All proceedings shall be recorded but need not be transcribed unless requested by the Ethics Committee or a participating party. The Ethics Committee shall determine the amount and source of payment for the transcript. The Ethics Committee shall prepare an official record of its hearing, to include the notice of hearing, and all documents considered by the board. The Ethics Committee may also include a transcript of evidence presented at the hearing.

Ethics Committee Determinations

Publications

The Ethics Committee shall publish its decisions and opinions, including dissents, and make them available for public inspection at its office, on its website, and in other appropriate outlets.

The Ethics Committee may designate the record, or portion of the record, supporting or concerning any complaint, advisory opinion or investigation as a suppressed record, where public disclosure would constitute a clearly unwarranted invasion of an individual’s privacy or where disclosure is prohibited by law.

Access

The Ethics Committee shall deny public access to the original document and any legal analysis necessary to support the decision of the board in a case where the record has been expunged.

Representation by legal counsel

Interested parties attending a meeting or witnesses requested to testify at a hearing at the request of the board, the complainant, or the person charged with unethical conduct have the right to be represented by legal counsel.

Filing an Ethics Complaint

Ethics complaints must be filed within one hundred eighty (180) days from the time a complainant knew (or reasonably should have known) that potentially unethical conduct took place.

The Code of Ethics consists of numerous Articles about various issues. The duties imposed by many of the Articles are explained and illustrated through accompanying Standards of Practice or case interpretations.

Your complaint should include a narrative description of the circumstances that lead you to believe the Code of Ethics may have been violated.

Your complaint must cite one or more of the Articles of the Code of Ethics which may have been violated. The Ethics Committee decides whether the Articles expressly cited in complaints were violated-not whether Standards of Practice or case interpretations were violated.

The Ethics Committee may provide technical assistance in preparing a complaint in proper form and with proper content.

Filing a complaint

Anybody having a complaint against an employee or volunteer that is a member of EXCELSIOR for any business practice they believe to be unethical or in violation of EXCELSIOR Code of Ethics, should follow these steps:

Contact the member immediately and explain your concerns and attempt to resolve the situation with the member;

If the member cannot, or will not, satisfactorily correct the problem, call or write the Ethics Committee of EXCELSIOR explaining the situation and outlining the steps you would like to see taken;

If the member or the Ethics Committee does not resolve the problem, you may file a formal complaint with the EXCELSIOR Ethics Committee.

Complaints can be lodged online, by completing the Complaint Form found on the EXCELSIOR web site or by requesting a Complaint Form from EXCELSIOR. You may fax or mail your complaints to the EXCELSIOR Ethics Committee. Your information will be forwarded to the EXCELSIOR Ethics Committee which will investigate the situation and contact you directly. Or, complaints may be made in writing by mailing or faxing the Complaint Form to the address below. Your complaint should include the following basic information:

The date and details of the incident;

The parties involved;

The names of any other persons who have knowledge of the facts involved;

If possible, identify the Code violation you believe has occurred;

Efforts you have made to resolve the matter;

List the cost and nature of the services that are the subject of the complaint and include copies of relevant contracts, invoices or other supporting documents;

Any responses the other parties have made to resolve the matter;

The current status of the complaint;

How you would like to see the complaint resolved or remedied;

Include evidentiary facts supporting the allegations in the complaint;

Include a statement that the complainant or designee has read the complaint and knows its contents, and believes the alleged violations to be true;

Contain the signature of the complainant before a notary unless the act or omission that allegedly violates the Code of Ethics or the Standards of Practice can be substantiated by non-confidential, publicly available evidence (in which case the complaint can remain anonymous).

Send your written complaint to:

Ethics Committee
Excelsior Institute of Business and Finance, Inc.
8425 Beechmont Ave.
Cincinnati, Ohio 45255

(In such cases of a conflict of interest with someone who sits on the Ethics Committee, the Complaint will be filed with the President.)

The Ethics Committee will do everything possible in accordance with the procedures of the Code of Ethics to resolve the problem to the satisfaction of all parties. Copies of the Code of Ethics are available on the web site or upon request to EXCELSIOR. The Ethics Committee is empowered to determine appropriate remedies and EXCELSIOR members have agreed to be bound by their decisions.

Receipt of Complaint

Upon receipt of a complaint or where the Ethics Committee has reason to believe that a member has violated the Code of Ethics, the Ethics Committee shall forward a copy of the complaint, if any, to the accused member together with a letter notifying the member that a preliminary investigation of a specified possible violation is being conducted and requesting the member’s cooperation in supplying necessary information, documentation and explanatory comment. Before any official action, the Ethics Committee may optionally make informal contacts with the affected parties, in order to help clarify or resolve the situation. These optional informal contacts may be made by methods such as telephone, email or even in-person visits if location allows.

If a written complaint is not the basis of the Ethics Committee’s investigation, then the Ethics Committee shall provide written notice as to the basis of their reason to believe that a violation has occurred. Further, the Ethics Committee shall honor any requests for confidential treatment of the identity of the complaining party made by that party.

What to expect after filing a Complaint

Complaints are lodged directly with EXCELSIOR’s Ethics Committee. This is to protect your privacy and possibly your anonymity in that only the Ethics Committee has access to confidential information and has the duty to ensure that it remains confidential. When a complaint is received, the Ethics Committee reviews and analyzes the complaint.

If you file your complaint electronically, you will receive an email confirming receipt of your complaint. If filed by fax or mail, you will receive a letter confirming receipt of your complaint.

After the Ethics Committee reviews your complaint, they will contact the EXCELSIOR member in question to obtain such information as is necessary to determine if a breach has occurred. After investigating the allegations the Ethics Committee will send you a letter outlining their assessment of your complaint and a recommended remedy.

Within 30 days of receiving the Ethics Committee’s letter, you should be contacted by the EXCELSIOR member who, as an Excelsior member, must abide by the Ethics Committee’s decision. If you do not hear from the member within 30 days, please contact EXCELSIOR and we will make sure that your complaint is addressed.

EXCELSIOR does its best to ensure that your complaints are handled appropriately, discretely and expeditiously. If you have any further questions, please do not hesitate to contact EXCELSIOR at 513-474-6600.

Cooperation with the Ethics Committee

In the event a member refuses to cooperate with the Ethics Committee and refuses to supply necessary information, documentation and explanatory comment, the Ethics Committee shall serve upon the member, by registered mail, a notice affording the member an opportunity to appear before the Ethics Committee on a certain date to show cause why their membership in EXCELSIOR should not be terminated. In the event the member refuses to cooperate with the Ethics Committee or to request a review by the EXCELSIOR Board, the EXCELSIOR Board of Directors, or a designated part thereof, may vote to terminate the membership of the member.

Enforcement of Excelsior’s Code of Ethics

What Happens Next (Complaint-Handling Process)

The Ethics Committee Chair shall mail a copy of the complaint as received to the Member(s) whom it is voiced against (“Complainee”), along with a letter stating that the Member has 30 days in which to resolve the complaint. The complaining party (“Complainant”) is simultaneously notified via a second letter that the complaint has been forwarded to the Member for response, and that the Ethics Committee will contact the Complainant again after 30 days to see if the dispute has been resolved. (All official communications should be made by postal letter and at least one other written method such as email or fax.)

After the 30 days has passed, the Chair of the Ethics Committee shall contact the Complainant via letter, asking if the complaint has been resolved to their satisfaction, or if satisfactory progress towards a resolution is being made. The letter includes a request for the Complainant to respond to the Chair within 30 days.

At the conclusion of the second 30 day period, or at such time as the Complainant responds (whichever comes first) the following should take place:

a) If the Complainant reports that the issue has been resolved, all correspondence and paperwork relating thereto shall go into the Ethics Committee Historical Reference Files, but NOT into the Complainee’s File. As far as any inquiries regarding the Complainee(s) involved, the complaint never existed.

b) If the complaint is not resolved but is in the process of being resolved, the Ethics Committee will contact the Complainant each 30 days to verify satisfactory progress.

c) If the complaint is neither resolved nor satisfactory progress toward resolution being made, a letter shall be sent to the Complainee(s) requesting that they issue a letter or statement to the Ethics Committee within 30 days stating “their side of the story.” After this 30 day period, or upon receipt of the Complainee’s statement, the original Complaint and Complainee’s response(s) are placed into the Complainee’s File, until such time as the dispute is settled, or the Ethics Committee uses its discretion to remove the information and place it into the Ethics Committee Historical Reference Files.

A Complainee may, at any time, request the Complainant to issue a written statement to the Ethics Committee verifying resolution of the complaint. Upon receipt of such statement, the Ethics Committee will remove the complaint and response from the Complainee’s File.

Disputes between Members will be handled in the same way as complaints except that such information will not be made part of the “Complaint Files” which are made available to non-Members.

Any party involved in a complaint who is not satisfied with the committee ruling, may appeal to the Ethics Committee for re-consideration of the complaint only upon submission of significant and revealing new evidence or material.

The Ethics Committee may, at any time, consider special circumstances or use its discretion to allow something to be withheld from, or placed into, a Members’ File. The committee will attempt to resolve outstanding issues directly with the Member(s) involved.

Any complaints regarding Ethics Committee conduct should be directed to, and handled by, the Board of Directors.

NOTE: The Ethics Committee may request, due to special circumstances, a faster response than the 30 day periods outlined above. The faster response period shall state the requested deadline. The deadline shall not be shorter than 10 days (e.g., between 10 and 30 days).

Procedure

The Ethics Committee shall determine whether a violation of the Code has occurred in accordance with the regulations promulgated hereunder. The Ethics Committee shall answer as promptly as possible all queries posed by members relating to the Code of Ethics and its application and, when appropriate, may suggest for consideration by the Board of Directors, new regulations, definitions, or other implementations to make the Code of Ethics more effective.

If, in the judgment of the Ethics Committee, a complaint is beyond the Ethics Committee’s scope of expertise or resources, the Ethics Committee may decline to exercise jurisdiction in the matter and may, in their discretion, recommend to the complainant another forum in which the complaint can be addressed.

The Ethics Committee shall undertake to maintain and improve all relations with other organizations, both private and public, with a view toward improving the industry’s relations with the public and receiving information from such organizations relating to the industry’s activities.

Investigation and Disposition Procedure

The Ethics Committee shall conduct a preliminary investigation, making such investigative contacts as are necessary to reach an informed decision as to the alleged Code violation. If the Ethics Committee determines, after the informal investigation, that there is no need for further action or that the Code violation allegation lacks merit, further investigation and administrative action on the matter shall terminate and the complaining party shall be so notified.

The Ethics Committee may, at their discretion, remedy an alleged Code violation through informal, oral and written communication with the accused member.

If the Ethics Committee determines that the allegation has sufficient merit, in that the apparent violations are of such a nature, scope or frequency so as to require remedial action and that the best interests of the complainants, and EXCELSIOR require remedial action, they shall notify the member of their decision, the reasoning and facts which produced it, and the nature of the remedy they believe should be effected. The Ethics Committee’s notice shall offer the member an opportunity to voluntarily consent to accept the suggested remedies without the necessity of a hearing. If the member desires to dispose of the matter in this informal manner it will, within 20 days, advise the Ethics Committee, in writing, of its willingness to consent. The letter to the Ethics Committee may state that the member’s willingness to consent does not constitute an admission or belief that the Code has been violated.

Before the Hearing

Your complaint will be reviewed by the Ethics Committee. Their job is to review complaints to determine if the allegations made, if taken as true, might support a violation of the Code cited in the complaint.

If the Ethics Committee dismisses your complaint, it does not mean they do not believe you. Rather, it means that they do not feel that your allegations would support an Ethics Committee conclusion that the Article(s) cited in your complaint had been violated. You may want to review your complaint to see if you cited an Article appropriate to your allegations.

If the Ethics Committee schedules your complaint for hearing, that does not mean they have decided the Code of Ethics has been violated. Rather, it means they feel that if what you allege in your complaint is found to have occurred, that the Ethics Committee may have reason to find that a violation of the Code of Ethics occurred.

If your complaint is dismissed as not requiring a hearing, you can appeal that dismissal to the Executive Board of EXCELSIOR.

Preparing for the Hearing

Familiarize yourself with the hearing procedures. In particular you will want to know about challenging potential panel members, your right to counsel, calling witnesses, and the burdens and standards of proof that apply.

Complainants have the ultimate responsibility (“burden”) of proving that the Code of Ethics has been violated. The standard of proof that must be met is “clear, strong and convincing,” defined as “… that measure or degree of proof which will produce a firm belief or conviction as to the allegations sought to be established.” Consistent with American jurisprudence, respondents are considered innocent unless proven to have violated the Code of Ethics.

Be sure that your witnesses and counsel will be available on the day of the hearing. Continuances are a privilege-not a right. Be sure you have all the documents and other evidence you need to present your case.

Organize your presentation in advance. Know what you are going to say and be prepared to demonstrate what happened and how you believe the Code of Ethics was violated.

At the Hearing

Appreciate that panel members are unpaid volunteers giving their time as an act of public service. Their objective is to be fair, unbiased, and impartial; to determine, based on the evidence and testimony presented to them, what actually occurred; and then to determine whether the facts as they find them support a finding that the Article(s) charged have been violated.

The Ethics Committee cannot conclude that an Article of the Code has been violated unless that Article(s) is specifically cited in the complaint.

Keep your presentation concise, factual, and to the point. Your task is to demonstrate what happened (or what should have happened but did not), and how the facts support a violation of the Article(s) charged in the complaint.

The Ethics Committee bases their decisions on the evidence and testimony presented during the hearing. If you have information relevant to the issue(s) under consideration, be sure to bring it up during your presentation.

Recognize that different people can witness the same event and have differing recollections about what they saw. The fact that a respondent or their witness recalls things differently does not mean they are not telling the truth as they recall events. It is up to The Ethics Committee, in the findings of fact that will be part of their decision, to determine what actually happened.

The Ethics Committee will pay careful attention to what you say and how you say it. An implausible account does not become more believable through repetition or through volume.

You are involved in an adversarial process that is, to some degree, unavoidably confrontational. Many violations of the Code of Ethics result from misunderstanding or lack of awareness of ethical duties by otherwise well-meaning, responsible professionals. An ethics complaint has potential to be viewed as an attack on a respondent’s integrity and professionalism. For the enforcement process to function properly, it is imperative for all parties, witnesses, and panel members to maintain appropriate decorum.

After the Hearing

When you receive the Ethics Committee’s decision, review it carefully.

Findings of fact are the conclusions of impartial panel members based on their reasoned assessment of all of the evidence and testimony presented during the hearing.

If you believe the hearing process was seriously flawed to the extent you were denied a full and fair hearing, there are appellate procedures that can be invoked. Refer to the procedures used by the Ethics Committee for detailed information on the bases and time limits for appealing decisions or requesting a re-hearing. Re-hearings are generally granted only when newly discovered evidence comes to light which could not reasonably have been discovered and produced at the original hearing and which might have had a bearing on the Hearing Panel’s decision.

Appeals brought by ethics respondents must be based on a perceived misapplication or misinterpretation of one or more Articles of the Code of Ethics, a procedural deficiency or failure of due process, or the nature or gravity of the discipline proposed by the hearing panel.

Appeals brought by ethics complainants are limited to procedural deficiencies or failure of due process that may have prevented a full and fair hearing.

Conclusion

Many ethics complaints result from misunderstanding or a failure in communication. Before filing an ethics complaint, make reasonable efforts to communicate with your colleague or an officer in the organization. If these efforts are not fruitful, the Ethics Committee can give you the procedures and forms necessary to file an ethics complaint.

Powers of the Ethics Committee

Remedies

If, pursuant to the hearing provided for in Section XXX, the Ethics Committee determines that the accused member has committed a Code of Ethics violation or violations, the Ethics Committee is empowered to impose the following remedies, either individually or concurrently, upon the accused member:

a) Request complete restitution to the complainant of money paid to the EXCELSIOR member or worker which was the subject of the Code complaint;

b) Request the payment of a voluntary contribution to the Complainant. The contribution may range up to $1,000 per violation of the Code. The Ethics Committee may, at its discretion, authorize a payment of up to $1,000 from EXCELSIOR funds. Such a payment shall in no way indicate any liability on the part of EXCELSIOR or of its members, nor shall it limit the complainant’s right to seek compensation by other means (unless this is a specific condition of the payment);

c) Request the accused member or worker to submit to the Ethics Committee a written commitment to abide by the EXCELSIOR Code of Ethics in future transactions and to exercise due diligence to ensure there will be no recurrence of the practice leading to the current Code complaint;

d) Reprimand the member or worker who violated the Code;

e) Suspend the member or worker who violated the Code;

f) Terminate the member or worker who violated the Code;

Case Closed

If the Ethics Committee determines that there has been compliance with all imposed remedies in a particular case, they shall close the matter.

Refusal to Comply

If a member refuses to voluntarily comply with any remedy imposed by the Ethics Committee, and has not requested a review by the Review Committee, the EXCELSIOR Board of Directors, or designated part thereof, may conclude that the member should be suspended or terminated from membership in the Institute. In that event the Ethics Committee shall notify the member of such a decision by registered mail and shall remind the member of their right to have the Ethics Committee’s original decision reviewed by the Appeals Review Panel in accordance with Section xxx (Appeals Review Procedure) of this Code.

Restrictions

Confidentiality

At no time during an investigation or the hearing of charges against a member shall a member of the Ethics Committee or of the Review Committee confer with anyone at any time concerning any alleged violation of the Code, except as provided herein and as may be necessary to conduct the investigation and hold a hearing. Any information ascertained during an investigation or hearing shall be treated as confidential.

Access to Records

Upon request by the Ethics Committee to any member, all documents directly relating to an alleged violation shall be delivered to the Ethics Committee. Any such information obtained by the Ethics Committee shall be held in confidence in accord with the terms of these regulations and the Code. Whenever the Ethics Committee, either by their own determination or pursuant to a decision by the Review Committee, terminates an action which was begun under the Code, a record of the member accused shall be wiped clean. All documents, memoranda or other written material shall be retained by the Ethics Committee to defend any possible future legal challenge to the Ethics Committee’s or Review Committee’s handling of a matter. At no time shall a member of the Ethics Committee or of the Review Committee either unilaterally or through EXCELSIOR, issue a press release or make any public statement concerning allegations or findings of a violation of the Code unless specifically authorized to do so by the EXCELSIOR’s Board of Directors.

Resignation

Resignation from EXCELSIOR by an accused member or worker prior to completion of any proceedings instituted under this Code shall not be grounds for termination of said proceedings, and a determination as to the Code violation shall be rendered by the Ethics Committee at their discretion, irrespective of the accused member’s continued membership in EXCELSIOR or participation in the complaint resolution proceedings.

Amendments

Proposed amendments will be submitted to the Ethics Committee for consideration. Should the Ethics Committee consider the amendment to be meritorious it will be distributed to EXCELSIOR members to invite comment. The Ethics Committee will then prepare a report including their recommendation and a summary of member comments and submit the recommendation to the EXCELSIOR Board of Directors for consideration. The Code may be amended by vote of two thirds of the Board of Directors.

Upon receipt of a complaint alleging violations of the Code of Ethics (“Code”), the Ethics Committee will review for jurisdiction, filing deadlines, merit and precedent. For a case to proceed, complainants must waive confidentiality and permit the use of their name and the provision of a copy of the allegations to the respondent member. All staff and members are held to the Code. If the complaint is judged to have merit under the Code, staff shall draft charges and present the case to the chair of the Ethics Committee for consultation and approval or modification. The Ethics Committee, usually acting through the chair, has the sole authority to make charges against members or workers. Once the member or worker is charged, the full investigative process is engaged and the complainant is notified. The member is required to address the allegations and present a defense within 30 days. If the member resigns in anticipation of, or during, the course of an ethics investigation, the Ethics Committee will complete its investigation. Any publication of action taken by the association will include the fact that the member attempted to resign during the investigation.

At any point in the process, the chair or full Ethics Committee may close the case for lack of merit or hold it in abeyance if the allegations appear to be more appropriately handled by another professional, civil or regulatory body.

When case materials are complete, the staff prepares and presents them to the Ethics Committee for deliberation. Only the full Committee can make a finding that a violation has occurred. “Preponderance of the evidence” is the standard of proof.

RESPONSE TO COMPLAINT

Notice to Charged Members

Once signed formal complaints have been received, charged members will be sent a copy of the formal complaint by U.S. mail, certified, with return-receipt requested, a copy of these Policies and Procedures, a copy of the Codes, notification of their right to request a hearing, (including the time limit within which to request the hearing, and that the failure to request a hearing within the time limit constitutes a waiver of the hearing), EXCELSIOR’s policy of disclosing adverse actions to its members and/or informing national EXCELSIOR of a member’s suspension or expulsion, and copies of all evidence and documents submitted in support of the complaint.

Charged members will be asked to respond to the complaint against them. They will be asked to address each section of the EXCELSIOR Codes they have been accused of having violated. They will be informed that if they wish to respond they must do so in writing within thirty (30) working days.

Charged members will be informed that they must submit all evidence and documents they wish to be considered by the Ethics Committee in reviewing the complaint within thirty (30) calendar days.

After charged members have received notification that a complaint has been brought against them, they will be given thirty (30) calendar days to notify the Ethics Committee in writing, by certified mail, if they wish to request a formal face-to-face or telephone conference hearing before the Ethics Committee. Charged members may waive their right to a formal hearing before the Ethics Committee and shall sign a waiver of the right to a hearing.

If the Ethics Committee determines that there is insufficient information to make a fair determination of whether the behavior alleged in the complaint would be cause for action by the Committee, the EXCELSIOR staff liaison to the Committee may request further information from the charged member or others. The charged member or others from whom information is requested shall be given thirty (30) calendar days from receipt of the request to respond.

All requests for additional information from others will be accompanied by a verification affidavit form, which the information provider will be asked to complete. The Ethics Committee may, in its discretion, delay or postpone its review of the case with good cause including if the Ethics Committee wishes to obtain additional information.

The charged member may request that the Ethics Committee delay or postpone its review of the case for good cause.

Within ten (10) days from the date of its decision, the Ethics Committee Chair shall notify both Complainant and Alleged Violator of Ethics Committee’s Final Determination and, as appropriate, the actions to be taken, if any, along with basis for such actions, including a citation to any and all EXCELSIOR’s Code of Ethics that were violated by the Alleged Violator. Notice to the Alleged Violator of a Final Determination shall also include a summary of the Appeals provisions of these Rules and Procedures, the date by which such appeal must be filed otherwise the matter is closed, relevant confidentiality requirements, any public notice of sanction, and record-keeping rules.

Responding to a Complaint

APPEAL PROCESS

When an appeal is lodged by a member against the findings of the Ethics Committee, the EXCELSIOR Board of Directors, or a Review Committee nominated by the Board of Directors, shall review the appeal.

Appeals Review Procedure

If a member objects to the imposition of a remedial action by the Ethics Committee, they shall have a right to request a review of the Ethics Committee’s decision by the EXCELSIOR Board of Directors or their nominated Review Committee. A member must make such a request in writing submitted to the Ethics Committee within 14 days of being notified of the remedial action by the Ethics Committee. Within 10 days of receiving such a request, the Ethics Committee shall notify the Chairman of the Board of Directors of EXCELSIOR.

Appeal Rights for Individuals Found in Violation of Code of Ethics

If the board determines that a violation occurred, it will specify which Rules of Ethics were violated and propose one of the following sanctions: Reprimand; Censure; Withholding, Suspension, or Revocation of Membership. You will be notified of the board’s decision shortly after the meeting, and you will then have 30 days to submit a request for a Further Consideration Hearing (i.e., first-level appeal).

If you request Further Consideration, the hearing will be conducted at the next scheduled Ethics Committee meeting. You may submit a brief and any additional evidence and documentation for the board’s consideration, and you also have the opportunity to participate in the hearing by telephone or in person. Participating in the hearing, either by phone or in person allows the board to ask specific questions of you that may help them with their decision. If you wish to retain legal counsel at your sole expense, the attorney may submit the brief on your behalf and participate with you at the hearing. The board will then conduct deliberations on the matter and either affirm its Initial Determination or amend its finding regarding the code provisions violated and/or the proposed sanction. The Further Consideration Determination will be mailed to you shortly after the meeting.

If you do not request Further Consideration within 30 days of the date of the Initial Determination, the initial decision will be issued as a Final Decision. (See Disclosure of Ethics Committee Actions below.)

What happens if the Ethics Committee, upon Further Consideration, determines that there was insufficient evidence that a code violation occurred?

If the information presented at the Further Consideration Hearing results in the board’s amending its Initial Determination and finds that there was insufficient evidence to support a finding that a code violation occurred, you and the Complainant will be notified of the board’s determination as a Final Decision, and the matter will be considered closed.

What happens if the Ethics Committee, upon Further Consideration, affirms its original determination or amends it, but still finds that a code violation occurred?

If the information presented at the Further Consideration Hearing results in the board’s affirming its Initial Determination and proposed sanction, or amends its initial finding regarding the code provisions violated and/or the proposed sanction, you will be notified of the board’s decision shortly after the meeting.

If you believe that in adjudicating the matter, the board did not follow its procedures and/or that its decision was arbitrary and capricious and without any evidentiary basis, you may appeal the Ethics Committee.

Further Consideration Decision to Excelsior’s Board of Directors (i.e., final appeal).

The request for this appeal must be received by the Ethics Committee within 30 days after the date of the Further Consideration Decision. The Board of Directors Appeals Panel will not receive or consider any evidentiary matters that were not included in the official record of the Further Consideration Decision. If the Board of Directors Appeal Panel determines that the Ethics Committee did follow its procedures and that the decision was not arbitrary and capricious, the Further Consideration Decision will become final. If the Board of Directors Appeal determines that the Ethics Committee did not follow its procedures and/or its decision was arbitrary and capricious, the matter will be sent back to the Ethics Committee for reconsideration.

If you do not request an appeal to the Board of Directors within 30 days of the date of the Further Consideration Decision, the Further Consideration Decision becomes final, and a copy of the Final Decision will be provided to you.

Appeal for Reinstatement after Suspension or Termination

If the suspension or termination is not appealed, or if it is confirmed by the Review Committee, a suspended member, after at least ninety days, and a terminated member, after at least one year, may request the opportunity to have its suspension or termination reviewed by the Review Committee which may in its discretion reinstate membership.

The Ethics Committee shall inform the Appellant of the names of the Review Committee members, including the name of the chairman of the panel. Within 14 days of that notification, the Ethics Committee shall send a copy of the Complaint and all relevant documents, including an explanation of the basis of the decision to impose remedial action, to the Review Committee with copies sent to the Appellant. Upon receipt of such information, the Appellant shall have 14 days to file with the Review Committee its reasons for arguing that remedial action should not be imposed along with any additional documents that are relevant. Copies of that information should also be sent to the Ethics Committee.

Once the Review Committee has received all the relevant information from both the Ethics Committee and the Appellant, they will complete their review within 30 days or as soon thereafter as practicable. The panel shall decide whether the Ethics Committee’s decision to impose remedial action was reasonable under all of the facts and circumstances involved and shall either confirm the Ethics Committee’s decision, overrule it, or impose a lesser sanction. The Review Committee shall be free to contact the Ethics Committee and the Appellant and any other persons who may be relevant witnesses to the Complaint, formally or informally as deemed appropriate. A decision by the Review Committee shall be final and shall be promptly communicated both to the Ethics Committee and the Appellant. The costs involved in the appeal such as costs of photocopying, telephone, fax, and mailing, shall be borne by the Appellant.

APPEALS PROVISIONS

Appeal of the Ethics Hearing Committee decision. The Alleged Violator shall have sixty (60) days from the date of Notification of the Ethics Committee Determination is transmitted to deliver a written appeal of the Ethics Committee findings. Failure to timely appeal the Ethics Committee determination shall be deemed to be final and conclusive acceptance of the Ethic Committee’s Final Determination and closure of the matter. Thereafter, the Ethics Committee’s conclusions and sanctions shall be immediately imposed.

Appointment of an Appeals Panel. The Chair of the Ethics Committee will identify three members from the Pool. These members will serve as the only voting members of the Ethics Appeals Panel for the subject matter. The members may not, (a) concurrently serve on an Appeal Panel on a different matter;, (b) have served on the Ethics Hearing Committee or Investigation Team in the same matter, or (c) serve on an Appeal Panel involving related issues or parties involved. Individuals who will be serving on the Ethics Hearing Committee reviewing the Complaint will not be eligible to serve on the Appeals Panel.

Objections to the Composition of the Appeals Panel. If the alleged Violator has any objections to the membership of the Ethics Appeal Panel, such objection must be made at the time of the Appeal. Alleged Violator must identify with specificity all objections to the Ethics Appeal Panel member.

Process for Appealing Ethics Committee’s Decision. The Alleged Violator’s appeal of the Ethics Committee’s Final Determination must be in writing and shall be sent to the Ethics Committee Chair. The Alleged Violator shall state the specific grounds under which the appeal should be considered or granted. The Alleged Violator appeal may not present, include, or rely on “new” facts that were not previously presented in the proceedings. Appeals are limited to:
1. Defects in the existing Ethics Committee record and process;
2. The fact that the Ethics Committee decision was not supported by or was contradicted by the evidence presented;
3. That the disciplinary action is not appropriate to the gravity of the situation.
4. Status during Disciplinary Procedures and Appeal. During the period that disciplinary considerations and/or an appeal of a disciplinary action is pending, the status of the Alleged Violator will be continued based on the individual’s standing with EXCELSIOR’S membership program, subject to the normal and regular cycle of renewal requirements.
5. Materials provided to the Panel to consider an Appeal. In the event the Alleged Violator timely and properly appeals the Ethics Committee’s Final Determination, the Ethics Committee Chair shall provide the Ethics Committee’s Chair with all information and materials collected during the Ethics Committee’s investigation and deliberations at the time of the Notice of Appeal. The Ethics Appeals Panel Chair shall also be provided a copy of the Alleged Violator’s written appeal of the Ethics Committee’s decision and a copy of these Rules and Procedures. The Ethics Committee shall consider only those materials presented during the procedure in from of the Ethics Committee. No new material will be permitted to be introduced.
6. Consideration by the Ethics Committee. Any Ethics Committee member deemed by the Ethics Committee chair to have a conflict of interest in regard to hearing the Appeal shall be recused from all aspects of consideration of the Appeal. At the discretion of the Chair of the Ethics Committee, consideration of the Appeal may be scheduled to be determined on the agenda of its meeting, or, if deemed necessary by the Ethics Appeals Panel Chair, at a special session, including by teleconference. The Alleged Violator may petition for the opportunity to present an oral statement to the Appeals Panel via conference call or in person.

The Appeals Panel shall in no circumstance conduct a trial-type hearing, and the rules of evidence shall not apply. A vote shall be taken as to the disposition of the Appeal, determined by a majority of votes cast. In the event that a majority support is not ascertained, the Panel may consider and hold subsequent votes as to the disposition of the Appeal, including on other disciplinary actions as allowed by the section of these Rules and Procedures entitled “Types of Disciplinary Actions”

A. Options available to the Panel to resolve an Appeal.

For an appeal based Defects in the existing Ethics Hearing Committee record and process or other procedural error, the Panel may:

Affirm that the Ethics Hearing Committee followed proper procedures and affirm the Ethics Hearing Committee’s Final Determination; or

Determine that the procedures used by the Ethics Committee were in serious and substantial violation of these Rules and Procedures and either make an appropriate determination as to the disposition of the complaint, or refer the decision back to the Ethics Committee to reconsider the matter utilizing proper procedures.

For an appeal based on the assertion that the Ethics Hearing Committee’s decision was not supported by or was contradicted by the evidence presented, the Panel may:

Affirm the Ethics Hearing Committee’s Final Determination;

Determine that the findings of facts by the Ethics Committee were clearly erroneous, and make an appropriate determination as to the disposition of the complaint;

For an appeal based on the assertion that the Ethics Hearing Committee’s decision was not appropriate to the gravity of the situation, the Panel may:

Affirm the Ethics Hearing Committee’s Final Determination;

Determine that the findings of facts by the Ethics Committee were clearly erroneous, and make an appropriate determination as to the disposition of the complaint.

B. Notification of Appeals determination. The Alleged Violator shall be notified in writing of the outcome of the Panel’s determination in regard to the Appeal within seven (7) days of the decision.

C. Further Appeals. The decision of the Ethics Appeal Panel on the Appeal shall be final and effective immediately. Further formal or informal appeals to AACE’s Board of Directors, Board, Committee, Members as a whole or any other entity outside AACE is not permitted.
If the Final Decision is a finding that a violation occurred and the sanction is Reprimand, Suspension, or Revocation of Membership it will be disclosed only to you, your legal counsel (if applicable), the Complainant, and when appropriate, to staff and Chapter counsel, each of whom shall be advised that the decision is strictly confidential.