The toll at the top

As recently reported by NPR: For decades, the main reason chief executives were ousted from their jobs was the firm’s financial performance. In 2018, that all changed. Misconduct and ethical lapses occurring in the #MeToo era are now the biggest driver behind a chief executive falling from the top. That’s according to a new study from the consulting division of PwC, one the nation’s largest auditing firms. It is the first time since the group began tracking executive turnover 19 years ago that scandals over bad behavior rather than poor financial performance was the leading cause of leadership dismissals among the world’s 2,500 largest public companies… Thirty-nine percent of the 89 CEOs who departed in 2018 left for reasons related to unethical behavior stemming from allegations of sexual misconduct or ethical lapses connected to things like fraud, bribery and insider trading, the study found…”Employees are starting to say, ‘how can you enforce a policy on us without holding CEOs accountable?’ ” said Bill George, a senior fellow at Harvard Business School and former chief executive of Medtronic, who has served on the boards of Goldman Sachs and Exxon Mobil. “The CEO’s behavior has to be beyond reproach. Boards are aware of this and are really feeling pressure around that now.”

But what exactly should boards do to respond to this pressure? As noted in an earlier post in the COI Blog:

In recent months, the unprecedented sexual misconduct allegations against (among others) high ranking officials in prominent businesses has brought unprecedented attention to the need to prevent and detect such wrongdoing using high-level solutions. For instance, writing recently in the Harvard Law School corporate governance blog, Subodh Mishra, Executive Director at Institutional Shareholder Services, Inc., identifies the following five components of an effective sexual misconduct risk management policy:

– Sexual misconduct risk is specifically enumerated and oversight assigned to a board committee.

– The board has expertise in workplace and employee issues.

– Material penalties are in place for perpetrators and abettors.

– Executive compensation structures—at a minimum—contain incentives for creating a safe and equitable workplace.

– The company models the behavior it seeks to promote.

These seem like generally sound observations, but the point of my post is not to add to the conversation on this particular area of risk but rather to suggest that ideas of this sort can and should be applied to compliance risks more broadly.

Certainly, assigning a board-level committee compliance  responsibility with an emphasis on risks (such as corruption or antitrust ones) at the top, would be a sound measure generally for companies to take.  And the board having expertise regarding compliance issues is compelling for the same reason that having such expertise in workplace/employment issues is – though for both areas expertise can (in my view) sometimes be provided by access to an outsider adviser rather than appointment to a seat on the board.

Moreover, I certainly think that the emphasis on penalties for those engaged in misconduct is important to preventing wrongdoing of various kinds at the top, particularly the suggestion that “These policies may also be extended to any individuals that willfully concealed violations or engaged in retaliation against whistleblowers.” And, on the other side of the coin, reflecting compliance success generally in executive compensation structure makes sense just as it does for promoting diversity (part of Mishra’s recommendations), although doing so with the former may be more methodologically challenging than it is with the latter. Still, it can be done.

Finally, the point about modeling behavior is every bit as important to promoting compliance generally as it is to preventing harassment and discrimination in particular. For a board committee overseeing compliance at the top, this aspect of effective risk management has implications for a wide range of conduct – both substantive (e.g., how conflicts of interest are dealt with by senior managers) and procedural (such as ensuring that managers take the required training).

Cross references:

CEOs’ ethical standards and the limits of compliance

Catching up on CEOs’ COIs.

CEOs’ ethics: what’s new

 

 

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