Credit Union Regulatory Guidance Including: NCUA, CFPB, FDIC, OCC, FFIEC

Samantha: Hello, this is Samantha Shares.

This episode covers America’s Credit
Union’s Letter to the National Credit

Union Administration’s Board on Permitting
Childcare Expenses as Reimbursable

The following is an audio version of
that letter and the press release.

This podcast is educational
and is not legal advice.

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And now the letter.

RE: Permitting Childcare Expenses as
Reimbursable Under 12 CFR 701 point 33

Dear Chairman Harper, Vice Chairman
Hauptman, and Board Member Oatska:

On behalf of America’s Credit Unions,
I am writing to request the National

Credit Union Administration (the agency)
explicitly permit reimbursement of

childcare related costs incurred by a
federal credit union (F C U) board member.

While the term “childcare” is used
throughout this letter, our ask

is that child and other non-child
dependent care expenses be reimbursable

America’s Credit Unions is the
voice of consumers’ best option for

financial services: credit unions.

We advocate for policies that allow
the industry to effectively meet

the needs of their nearly on hundred
forty million members nationwide.

Credit unions stand out from banks in a
variety of ways, including our emphasis

on diversity, equity, and inclusion.

This is, in part, evident in the
prevalence of and increasing percentage

of women, not only in senior level
positions, but also at the board level.

Based on data from the THE AGENCY
and analyzed by America’s Credit

Unions, the percentage of women board
members has increased by roughly five

percentage points among all asset
ranges since at least twenty twelve.

This is a testament to the work
of our industry to achieve greater

gender equity in leadership.

Further, we are proud to have a
regulator in the THE AGENCY that

similarly emphasizes the importance of
equality in the credit union industry.

We applaud the focus of the THE
AGENCY Board, as well as staff,

including those in the agency’s Office
of Minority and Women Inclusion.

We appreciate the Board’s recent
willingness to pursue actionable items to

address ongoing challenges among credit
unions, such as those related to the

agency’s records preservation program.

Our request below is another
great opportunity for the Board to

take action to achieve a sensical
change to the agency’s regulations.

We ask the THE AGENCY to update its
existing regulation pertaining to

reimbursement of F C U officials.

Specifically, we ask the Board to
amend section 701 point 33 to allow

F C U board members to be reimbursed
for the cost of childcare when it

is necessary in order to attend an
official board meeting of the F C U.

Family structures and childcare
responsibilities are significantly

different now than when this
provision was last amended.

To attract new talent, people with
young children should be afforded

the opportunity to more easily
participate on a credit union board

with appropriate reimbursement
for their childcare expenses.

The Federal Credit Union Act (F C U
Act) provides sufficient latitude for

the Board to pursue such an amendment.

While section 1761(c) of the Act generally
limits compensation to a single board

member, it explicitly states that “the
reimbursement of reasonable expenses

incurred in the execution of the duties
of the position shall not be considered

compensation.”3 This provision of the
Act is implemented by section 701 point

33(b) of the agency’s regulations,
which, consistent with the Act, states

that compensation specifically excludes:

Payment (by reimbursement to an
official . . . ) for reasonable and

proper costs incurred by an official in
carrying out the responsibilities of the

position to which that person has been
elected or appointed, if the payment

is determined by the board of directors
to be necessary or appropriate in order

to carry out the official business of
the credit union, and is in accordance

with written policies and procedures,
including documentation requirements,

established by the board of directors.

Such payments may include the
payment of travel costs for officials

and one guest per official[.]4

In particular, we ask the Board
to update the existing limitation

in section 701 point 33(b)(2)(i).

This could be achieved by simply inserting
“childcare” into the last sentence

of section 701 point 33(b)(2)(i) as
follows: “Such payments may include the

payment of childcare or travel costs for
officials and one guest per official[.]”

The AGENCY last updated the
provision regarding the definition of

“compensation” over twenty-two years ago.

In that update, the agency used its
expansive statutory authority to add the

travel expenses of a guest as reimbursable
under section 701 point 33(b).

Previously, reimbursement was limited
to the travel expenses of the board

member’s “immediate family member.” In so
doing, the Board stated its belief that

amending this provision would “allow F C
Us greater flexibility to accommodate the

needs of officials whose duties include
business-related travel.” While we are

fortunate to now live in a world where
virtual meetings are ubiquitous, there

continue to be instances where in-person
meetings are necessary, including in the

context of certain F C U board meetings.

Such meetings cause attendees to incur
not only direct travel-related expenses,

such as fuel, but also indirect expenses,
such as costs associated with securing

childcare for a board member’s family.

Section 701 point 33(b)(2)(i)
offers just a single example of what

might be considered a reasonable
and proper reimbursable cost.

The example is clearly not intended as an
exhaustive list of permissible expenses,

given the regulation’s use of “may.”
We believe the cost associated with

childcare is more similar to travel than
other expenses the agency has indicated

are not reimbursable under this section.

Assuming a virtual meeting is not an
option, the only way for a board member

to attend a meeting is to physically
travel to the meeting location.

The only option for a board member
to attend a board meeting is to

ensure his or her child or dependent
has proper care, which in many

situations, absent the presence of
another family member or trusted

caregiver, requires
utilizing a paid caregiver.

This concern and expense is
amplified for any single parent or

head of household with a dependent.

Again, the category of childcare
expense is more like travel expense

than it is other categories for which
the agency has opined are impermissible

under 701 point 33(b)(2)(i).

For example, the agency’s Office of
General Counsel (O G C) stated in a

1992 legal opinion letter that lost
wages incurred while attending an F C

U board meeting are not reimbursable.

As noted above, in many instances
childcare is necessary to allow a

board member to attend a meeting.

The cost of childcare is much
different from that of lost wages.

Childcare is an additional mandatory
expense that would not be required

but for the travel necessary to
attend an F C U board meeting.

Lost wages, while also technically an
expense, are not a tangible expense

in many instances, including where
board members have available paid

time off through their employer.

While reimbursement of lost wages
would certainly be helpful, it is

not absolutely necessary—and a board
member’s loss of wages to attend a

meeting is clearly not akin to a board
member’s failure to secure childcare.

Additionally, the 1992 legal opinion
letter explains that it is the agency's

understanding that “many credit unions
accommodate volunteer officials by

scheduling meetings at times that
are the least disruptive to work or

childcare schedules.” This is somewhat
accurate—many credit unions schedule

board meetings in the evenings, after
the workday, or on weekends; however,

this does not resolve childcare concerns.

In fact, that is precisely when
childcare would be needed for most

volunteers as this falls outside
of the standard hours for daycares

or other paid caregiver services.

Thus, this expense is inextricably tied
to the travel required to attend a board

meeting and should be reimbursable.

To our knowledge, the AGENCY last
addressed the specific issue of childcare

as a reimbursable expense in a legal
opinion letter more than 25 years ago.

In that opinion, the OGC affirmed the
1992 opinion, stating that reimbursement

of childcare expenses incurred by
a board member when attending a

board meeting is impermissible.

In the event the Board disagrees with
the importance of this issue, including

the need to update section 701 point
33(b)(2)(i) regarding compensation,

we urge the agency to revisit
the 1999 legal opinion to include

childcare as a reimbursable expense.

Things are much different now, including
with regard to family structure, than

they were in 1999 when there was a
greater percentage of men on F C U

boards, and women were generally more
likely to be responsible for childcare.

We agree with the AGENCY—as it stressed
in the pending succession planning

proposal11—that succession planning
is an important component of a credit

union’s overall strategic plan, helping
ensure the appropriate personnel

are available to execute the credit
union’s strategic plan and mission.

This of course includes a credit
union’s board of directors.

We must remember these are volunteers.

Any and all sensical, permissible
updates to the agency’s

regulations should be considered.

In order to attract and retain
the next generation of board

members, it is critical that

the AGENCY embrace modernization
of its rules and regulations,

particularly when such changes

are clearly within the Board’s
authority under the F C U Act.

America’s Credit Unions appreciates
your consideration of our request.

For the reasons addressed above,
it is critical that the AGENCY

modernize its rules to permit
childcare as a reimbursable expense.

This concludes the America’s Credit
Union’s Letter to the National Credit

Union Administration’s Board on Permitting
Childcare Expenses as Reimbursable

If your Credit union could use assistance
with your exam, reach out to Mark Treichel

on LinkedIn, or at mark Treichel dot com.

This is Samantha Shares and
we Thank you for listening.