Edited by Jeff Kaplan
Not every interest matters for COI purposes. In this section of the blog we will identify situations and principles illuminating this aspect of the COI field, with sub-categories devloted to various of the most common types of interests considered for COI purposes.
Imagine a company where all the senior managers took compliance and ethics as seriously as they do traditional aspects of business (R&D, production, sales & marketing). In this company, not only would senior managers do whatever was reasonably necessary to prevent and detect violations in their own business unit or function, they would use their knowledge of and clout within the entity as a whole for making sure their peers were equally committed to promoting law abiding and ethical conduct. While thought experiments are more art than science, I find it hard to imagine any other single C&E-related factor being as powerful a force for good in organizations as this would likely be.
Leona Helmsley is reported to have said that “only the little people pay taxes” and sometimes it feels like C&E programs are only for the little people – given how often it is the “big people” who engage in the types of unlawful and unethical practices that cause the greatest harm in businesses. Indeed, the “C Suite” seems to be the “final frontier” when it comes to effective ethics and compliance programs. In an article in yesterday’s NY Times, Gretchen Morgenson identifies two recent (and somewhat similar) proposals that offer a path to addressing this area of great weakness in many companies.
One is a proposal to Citigroup shareholders that would “require that top executives at the company contribute a substantial portion of their compensation each year to a pool of money that would be available to pay penalties if legal violations were uncovered at the bank. To ensure that the money would be available for a long enough period — investigations into wrongdoing take years to develop — the proposal would require that the executives keep their pay in the pool for 10 years.”
The other is an article by Greg Zipes in the Michigan State Journal of Business and Securities Law which “calls for the creation of a contract to be signed by a company’s top executives that could be enforced after a significant corporate governance failure. Executives would agree to pay back 25 percent of their gross compensation for the three years before the beginning of improprieties. The agreement would be in effect whether or not the executives knew about the misdeeds inside their companies.” Its requirements would be triggered if, among other things “a company pleaded guilty to a crime [or]…if an executive signed a financial document filed with the S.E.C. that subsequently proved false and required an earnings restatement of at least $5 million.”
Both of these proposals make sense to me. While a company should, of course, use traditional forms of compliance (e.g., training, auditing, monitoring) to address C-Suite risks, the best mitigant of all may be other “big people” – if they are properly motivated to prevent and detect wrongdoing by their peers.
For further reading:
- “Redrawing corporate fault lines using behavioral ethics”
- “Behavioral ethics and C-Suite behavior” (discussion of paper by Scott Killingsworth)
- “Behavioral Ethics and Management Accountability for Compliance and Ethics Failures”
- “Where is the accountability?” (a dialogue with Steve Priest in ECOA Connects).
While in the more than three years of its existence the COI Blog has been devoted primarily to examining conflicts of interest it has also run a number (close to fifty) of posts on what behavioral ethics might mean for corporate compliance and ethics programs. Below is an updated version of a topical index to these latter posts. Note, however, that to keep this list to a reasonable length I’ve put each post under only one topic, but many in fact relate to multiple topics (particularly the risk assessment ones).
- Business ethics research for your whole company (with Jon Haidt)
- Overview of the need for behavioral ethics and compliance
BEHAVIORAL ETHICS AND COMPLIANCE PROGRAM COMPONENTS
- “Inner controls”
- Is the Road to Risk Paved with Good Intentions?
- Slippery slopes
- Senior managers
- Long-term relationships
- How does your compliance and ethics program deal with “conformity bias”?
- Money and morals: Can behavioral ethics help “Mister Green” behave himself?
- Risk assessment and “morality science”
Communications and training
- Publishing annual C&E reports
- Behavioral ethics and just-in-time communications
- Values, culture and effective compliance communications
- Behavioral ethics teaching and training
- Moral intuitionism and ethics training
- Behavioral Ethics and Management Accountability for Compliance and Ethics Failures
- Redrawing corporate fault lines using behavioral ethics
- The “inner voice” telling us that someone may be watching
- Include me out: whistle-blowing and a “larger loyalty”
- Hiring, promotions and other personnel measures for ethical organizations
Board oversight of compliance
- Behavioral ethics and C-Suite behavior
- Behavioral ethics and compliance: what the board of directors should ask
- Is Wall Street a bad ethical neighborhood?
- Too close to the line: a convergence of culture, law and behavioral ethics
Values-based approach to C&E
- Values, structural compliance, behavioral ethics …and Dilbert
Appropriate responses to violations
- Exemplary ethical recoveries
BEHAVIORAL ETHICS AND SUBSTANTIVE AREAS OF COMPLIANCE RISK
Conflicts of interest/corruption
- Does disclosure really mitigate conflicts of interest?
- Disclosure and COIs (Part Two)
- Other people’s COI standards
- Gifts, entertainment and “soft-core” corruption
- The science of disclosure gets more interesting – and useful for C&E programs
- Gamblers, strippers, loss aversion and conflicts of interest
- COIs and “magical thinking”
- Insider trading, behavioral ethics and effective “inner controls”
- Insider trading, private corruption and behavioral ethics
- Using behavioral ethics to reduce legal ethics risks
OTHER POSTS ABOUT BEHAVIORAL ETHICS AND COMPLIANCE
- New proof that good ethics is good business
- An ethical duty of open-mindedness?
- How many ways can behavioral ethics improve compliance?
- Meet “Homo Duplex” – a new ethics super-hero?
- Behavioral ethics and reality-based law
The most prominent COI story in the past few days comes to us from Mexico where, as described in The Economist, that country’s president Enrique Peña Nieto “announced that he, his wife and his finance minister will become the first subjects of a conflict-of-interest investigation” that was “triggered by revelations that [they] bought houses on credit from affiliates of a building firm that has benefited from government contracts.” But for me the most intriguing story of the week (and indeed the year, at least so far) comes from the ethical wonderland that I call my home – New Jersey.
As reported initially by the Bergen Record: “Federal prosecutors have [launched a probe] into a flight route initiated by United [Airlines] while [David] Samson was chairman of the [Port Authority, which] operates [Newark Liberty Airport]. The route provided non-stop service between Newark and Columbia Metropolitan Airport in South Carolina — about 50 miles from a home where Samson often spent weekends with his wife. United halted the non-stop route on April 1 of last year, just three days after Samson resigned under a cloud. Samson referred to the twice-a-week route — with a flight leaving Newark on Thursday evenings and another returning on Monday mornings — as ‘the chairman’s flight,’ one source said. Federal aviation records show that during the 19 months United offered the non-stop service, the 50-seat planes that flew the route were, on average, only about half full. United… was in regular negotiations with the Port Authority and the Christie administration during Samson’s tenure over issues that included expansion of the airline’s service to Atlantic City and the extension of the PATH train to Newark…” A story from NJ.Com added that the flight’s booking rate of 50% was significantly lower than “the rate of 85 percent or higher common among carriers” and also that the Chair of the NJ assembly’s transportation committee said the benefit to United of running this unprofitable route “could be PATH. It could be how much they pay for landing planes. It could be for how flights are dispatched at the airport. It could be a multitude of things. And it could be none of them.”
Assuming for the sake of discussion that it is indeed at least one of those or other financial benefits, the case should be interesting to COI aficionados for several reasons.
First, the main law enforcement challenges to investigating the matter will likely be (as it is many COI/corruption cases) proving wrongful intent. Presumably, Samson knew enough not to document what was seemingly happening here (although his comments about the “chairman’s flight” may suggest otherwise), but what about United? Given how cost conscious airlines have been in recent years, one imagines that someone at the company would have needed to document why they were running half full planes. Moreover, for various reasons this seems like the sort of arrangement that would have been known at a reasonably high level in the company (although finding documentation of that may be a taller order).
Second, it will also be interesting to see what role, if any, United’s compliance program played in these events. In light of how many people at the airline could well have had some suspicion about these flights, it would be pretty damning if none of them called the C&E helpline. On the other hand, if the issue was raised internally and buried, that would be even worse.
Third, it may be noteworthy that while the Company’s code of conduct does have a section called “When the government is the customer,” the bribery discussion there is limited to international transactions. Perhaps like a lot of US companies, United’s compliance team failed to grasp the risks of homegrown corruption generally (and the Jersey variety in particular). Other companies may wish to revisit their own codes to see if they could be subject to the same criticism.
Two final notes. First, the facts of this case are just beginning to emerge and the speculations in my post should not be read to suggest that Samson or United are necessarily guilty of corruption. Seriously. Second, for an earlier story about a possible COI involving Samson (and his connections to the ethically challenged Christie administration) see this post and the article linked to therein.
The recent indictment of NY State Assembly Speaker Sheldon Silver on corruption charges has – at least for the moment – focused some attention on the age-old practice of “referral fees,” under which a lawyer or other professional receives compensation for referring an individual or entity to some other service provider. In the Silver case, the (now ex-) Speaker received such fees from two different law firms. As described in this piece in the NY Times , one of these firms - “a large personal injury law firm where he has worked for more than a decade” – paid him more than three million dollars based on client referrals from a doctor whose research center had been given $500,000 in state grants orchestrated by Silver. Another part of the prosecution’s case involves his receipt of referral fees from a real estate law firm to which he had steered clients and his performing official action to benefit those clients.
In both of these alleged schemes the principal victims were the taxpayers of NY, whose interests were subordinated to Silver’s personal interest. The element of harm to the two firms’ respective clients was less a part of the picture (although some harm could be presumed with the personal injury referral fees). But in a traditional referral fee situation the harm is principally and often entirely to the client.
Of course, it is not only lawyers who pay/receive referral fees – and who face ethical questions involving these practices. For instance, architects must, as a matter of professional standards, disclose referral fees. As noted in this Advisory Opinion from the American Institute of Architects: “It makes no difference under the disclosure rules whether the architect is certain that the contractor he recommends is the best one for the job or that he would make the same recommendation even if no referral fee were paid. Though the architect may be confident there is no actual conflict of interest, any referral fee is an interest substantial enough to create an appearance of partiality and is a factor about which the client is entitled to know.”
Legal and ethical issues regarding referral fees are disturbingly common in the medical profession. For a discussion of the conflicts of interest inherent in such arrangements see this post from Chris MacDonald’s excellent Business Ethics Blog: “If the person you’re relying on for advice is financially beholden to the person he or she is recommending, you have every reason to doubt that advice.”
Such practices are also common in the financial advisory services realm. See this discussion of relevant ethical standards, and note that – as with doctors – these cases sometimes cross legal, as well as ethical, lines.
Finally, the regulation of referral fees in the legal profession has existed for many years. However, the area is increasingly complicated by the phenomenon of referrals being made by non-attorneys to law firms, as described in this paper by John Dzienkowski of the University of Texas School of Law.
Indeed, in my own practice I have been offered referral fees by vendors selling C&E products and services. I always say No. I’d like to think that my steadfastness is the result of being virtuous, but in reality, it is just a matter of common sense. That is, for clients or prospective clients to have to worry about whether my advice was tainted would be devastating to my business. And no referral fee could ever compensate for that.
A long time ago – before Enron, World Com and Sarbanes-Oxley – business ethics issues in general and conflicts of interest compliance requirements in particular had little prominence in the work lives of the average employee. But now – through codes of conduct, policies, training, certifications, hotline calls, investigations and discipline – that has changed.
Of course, not all ethics issues are of equal interest to all employees. But COIs tend to be high on the list, because of their inherently personal nature. In the post-Enron era, employees who used to be allowed to receive hospitality from suppliers often now are barred from doing so. And to a large degree they accept that as being good for their companies and therefore ultimately good for themselves – so long as the rules apply to everyone equally. Indeed, when one of their colleagues breaks those rules the hotline can ring off the hook – often motivated not by jealousy but a sense of fairness that is truly innate to the human species. (For more on the evolutionary foundation of fairness as a moral value see this chapter from Jon Haidt’s The Righteous Mind.)
Over the past week, the story of NJ governor and presidential aspirant Chris Christie and family being flown to a Cowboys game in Dallas by the team’s owner Jerry Jones and being entertained in Jones’ sky box has been oft told in the press and echoed by football fans throughout the country too. The COI issue is that a company in which Jones was a significant investor received a lucrative contract with the Port Authority, an entity over which, as governor of New Jersey, Christie has powerful influence (and also an entity which has been plagued by patronage). Here is an article from In These Times with more details about the story.
Christie’s defense is that he and Jones were personal friends. While it is true that the relevant NJ ethics code does permit gifts from personal friends, this cannot mean what the governor claims as that would essentially permit any government employee to receive a gift from any vendor by declaring his or her friendship with that vendor. Not only would such a loophole gut the ethics law, it would encourage vendors and government employees to become real friends - thereby making the COI worse and further discouraging ethical vendors from competing for the government’s business. (For the details of the purported Christie-Jones friendship see this story - in which the governor says the friendship started only a few months after Jones’ company got the Port Authority contract, which underscores that this is not the kind of relationship for which the gift exception was designed.)
As a former federal prosecutor who brought many corruption cases, the governor almost certainly knows that this interpretation of the ethics law is untenable.* But as a politician with his eyes on the White House he seems to have made the choice that his “jury” – potential voters – won’t care.
Years ago, another brash politician – the first Mayor Daley of Chicago – was caught in a conflict of interest involving a family member getting government business, and responded: “If I can’t help my sons, then [my critics] can kiss my ass. I make no apologies to anyone.” Given the broad tolerance for COIs at the time, it is not surprising that this didn’t seem to hurt him (at least from what I recall about the incident).
But in the post-Enron era that way of thinking may no longer make sense. As noted above, many American workers are reminded constantly about the importance of an ethical approach to COIs – and know that if they tried to do something like what was done here they would probably be fired. And the obvious unfairness of a double standard like this could end up hurting Governor Christie in ways that the late Mayor Daley could not have imagined – but which the governor should have foreseen.
* The Justice Department’s example of when the personal relationship exemption to gift rules applies: Jenny is employed as a researcher by the Veteran’s Administration. Her cousin and close friend, Zach, works for a pharmaceutical company that does business with the VA. Jenny’s 40th birthday is approaching and Zach and his wife have invited Jenny and her husband out to dinner to celebrate the occasion. May Jenny accept? Yes.Gifts are permitted where the circumstances make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee.
Some other reading of possible interest:
A story from several years ago about a Justice Department Inspector General Report finding travel expense abuses by Christie when he was a US Attorney.
An earlier post on attendance at sporting events and COIs.
Historically, one of the ways law has advanced is by becoming more “reality based” in general and accepting of social science information and ideas in particular. This is a legacy of the great Louis Brandeis.
In the latest issue of Compliance & Ethics Professional (on the second page of the PDF) I ask whether behavioral ethics can play a role of this kind – by providing the social science basis for more C&E friendly law. Another way to ask this: Is behavioral ethics and compliance ready for a “Brandeis moment”?
I hope you find it interesting.
Perhaps the most celebrated story ever about a love affair is Anna Karenina and the story doesn’t end well – as the distraught heroine throws herself under a train. Office romances typically don’t end that way, but they are not without risks – particularly those involving senior leaders.
This is indeed an oft-told tale. Here is an earlier post on “frisky executives” discussing one such case from 2012. Others around that time involved the CEOs of Lockheed Martin and Best Buy. And the latest in this line concerns the CEO of Johnson Controls.
As described in this article of a few weeks ago in the Milwaukee Business Journal, that CEO “failed to inform the corporation’s audit committee about the potential conflict of interest in his extra-marital affair with a consultant hired by the company.” The net result: a reduction “of his annual incentive performance plan payout to $3.92 million, down nearly $1 million.”
A few thoughts on this case, perhaps of use to any CEO conducting a pre-office affair risk assessment.
First, while the economic hit is high it seems justified for a high ranking official – anything less could be seen as a slap on the wrist. Indeed, one of the cases discussed in the “frisky executives” post also involved a million dollar penalty. So, don’t expect economic leniency.
Second, consider the risk to the other party. In the case of the Johnson Controls executive, she was a consultant in a firm that lost an apparently long standing client in the scandal. No surprise there either.
Finally, while disclosure is necessary it may not be sufficient to prevent harm. That is because even if an actual COI can be avoided the appearance of a COI might be inescapable – as the natural suspicion among others in the workplace could be that with the relationship comes workplace favoritism. For more on how some apparent COIs simply can’t be mitigated by disclosure see this post.
(Thanks to COI Blog reader Don Bauer for letting me know about this story. And, happy new year to all.)
In this article from the most recent issue of Ethisphere magazine Jon Haidt of NYU and I take readers on a tour of the Ethical Systems web site. ”EthSys” offers cutting edge social science research that should be of interest not only to C&E professionals but also to board members and executives; to those working in finance, law, HR, audit and procurement; and to many others in the workplace as well.
The ideas and information on EthSys can be helpful in developing C&E training, drafting ethics sections of employee newsletters and in other types of company communications. This knowledge can enrich the ethics-related dialogue in workplaces by turning what sometimes seems like a dry and static subject into a compelling and dynamic one. It can help leaders lead ethically – and show that the same sort of social science findings and insights that increasingly are seen as key to running a profitable business are also essential to running an ethical one. It can also be useful in designing risk assessments; creating various types of policies and procedures; and crafting recognition strategies to promote ethical behavior.
And, that’s only part of what EthSys can do for your company.
So, take the tour yourself.
While all companies try to “sell” their C&E programs, often such efforts are not particularly robust. And that’s too bad, because the need for effective C&E program selling measures is considerable. This is due in part to the behavioral ethics/psychology-related phenomenon that we tend to overestimate how ethical we are, which leads us to underestimate how much we need the kind of help that C&E programs can provide. Also relevant here is the moral hazard/economics-related phenomenon that leads to a misalignment of risk vis a vis rewards in many companies when it comes to C&E, meaning that the internal “market” for C&E services in many companies is not an efficient one. On top of both of these challenges is, at least in some companies, a growing sense of “compliance fatigue.” With all these forces aligned against them, what should C&E professionals do to sell their programs in an effective manner?
A few years ago, in a paper published in Management Science – “The Labor Illusion: How Operational Transparency Increases Perceived Value” - Ryan W. Buell and Michael I. Norton, both of the Harvard Business School, reviewed the results of experiments involving the near-ubiquitous experience of consumers reacting to wait times on web sites. They found that “when websites engage in operational transparency by signaling that they are exerting effort, people can actually prefer websites with longer waits to those that return instantaneous results—even when those results are identical.” While the context is obviously not at all specific to C&E work, the general learning about individuals valuing services more positively when they understand the amount of effort involved in providing those services seems broadly applicable, and worth considering for possible lessons to those seeking to “sell” C&E programs.
Operational transparency can, of course, play a role in C&E programs in various ways – most obviously through the day–to-day work of compliance officers in training on and otherwise communicating about a company’s standards of business conduct, work which is presumably well understood in a company. Beyond this, employees generally have some understanding that a C&E officer receives and responds to reports of suspected wrongdoing. But there is, of course, much more to a C&E program than these two functions, the depth and breadth of which is often unknown to (or under-appreciated by) its “customers” – meaning the employees.
For some companies, what is needed to make a strong and positive impression on the work force is an annual C&E report. Such reports typically summarize major efforts and accomplishments of a company’s C&E department in a given year, and thereby hopefully have the kind of impact that will make employees truly value what goes into the program. To my mind, the opportunity to publish reports of this kind should be seen as “low hanging fruit” in more than a few companies – and I hope that C&E officers who don’t currently engage in this practice will revisit the issue at some point soon.
There are, however, two caveats to this suggestion. First, in publicizing the work of a C&E department, one must be careful not to do anything that might indicate that the promise of confidentiality in responding to helpline calls and undertaking other sensitive inquiries could be compromised. Second, as the authors of the paper state: “Whereas operational transparency involves firms being clearer in demonstrating the effort they exert on behalf of their customers—an ethically unproblematic strategy—inducing the illusion of labor moves closer to an ethical boundary,…” to which I would add that this should indeed be seen as over the line for any C&E professional. More broadly, while C&E officers often should make greater efforts to sell themselves and what they do, they must be mindful of restraints that are particularly relevant to (with apologies to The Godfather) “the business [they have] chosen.”
For further reading see this post on annual C&E reports in Corporate Compliance Insights.
An article earlier this week in the New York Times takes on the issue of “Doctors’ Magical Thinking about Conflicts of Interest.” The piece was prompted by a just-published study which examined “the voting behavior and financial interests of almost 1,400 F.D.A. advisory committee members who took part in decisions for the Center for Drug and Evaluation Research from 1997 to 2011” and found a powerful correlation between a committee member having a financial interest (e.g., a consulting relationship or ownership interest ) in a drug company whose product was up for review and the member’s voting in favor of the company – at least in circumstances where the member did not also have interests in the company’s competitors.
Of course, this is hardly a surprise, and the Times piece also recounts the findings of earlier studies showing strong correlations between financial connections (e.g., receiving gifts, entertainment or travel from a pharma company) and professional decision making (e.g., prescribing that company’s drug). Nonetheless, some physicians “believe that they should be responsible for regulating themselves.”
However, such self regulation can’t work, the article notes, because “our thinking about conflicts of interest isn’t always rational. A study of radiation oncologists found that only 5 percent thought that they might be affected by gifts. But a third of them thought that other radiation oncologists would be affected. Another study asked medical residents similar questions. More than 60 percent of them said that gifts could not influence their behavior; only 16 percent believed that other residents could remain uninfluenced. This ‘magical thinking’ that somehow we, ourselves, are immune to what we are sure will influence others is why conflict of interest regulations exist in the first place. We simply cannot be accurate judges of what’s affecting us.”
While the findings of these and similar studies are, of course, most relevant to conflicts involving doctors and life science companies, there is a broader learning here which, I think, is vitally important to C&E programs generally. That is, they help to show that “we are not as ethical as we think” – a condition hardly limited to the field of medicine or to conflicts of interest, as has been discussed in various prior postings on this blog.
One of the overarching implications of this body of knowledge is that we humans need structures – for business organizations this means C&E programs, but more broadly these have been called “ethical systems” – to help save us from falling victim to our seemingly innate sense of ethical over-confidence. So, to make that case, C&E professionals should – in training or otherwise communicating with employees (particularly managers) and directors - address the issue of “magical thinking” head-on.
Moreover, using the example of COIs to prove the larger point here may be an effective strategy, because employees are more likely to have experience with ethical challenges in this area than with other major risks, such as corruption, competition law or fraud – which indeed may be so scary as to be largely unimaginable to many employees. I.e., these and other “hard-core” C&E risk areas might be subject to an even greater amount of magical thinking than is done regarding COIs. So, at least in some companies, discussing COIs might offer the most accessible “gateway” to addressing the larger topic of ethical over-confidence.