Increasingly boards of directors are becoming more involved in compliance and risk issues. Probably the most recent examples are Barclay’s chief executive, Jes Staley, who had his compensation docked by the board for his attempt to unmask a person who had reported a concern through the company’s internal and anonymous reporting system. Another example is United Airlines Chief Oscar Munoz, who was denied the role of chairman of the board after his publics relations disaster from the passenger physically removed from a United flight for “re-accommodation.” Finally is the Wells Fargo, board-commissioned investigation of the bank’s fraudulent accounts scandal, which criticized the board’s role in allowing the scandal to unfurl in the manner which it did.
The Man From FCPA has observed boards again and again show themselves to be unable or unwilling to fulfill their duties in the tripartite system of corporations: shareholders, senior management, and noards. Board members must learn to take a more active role to not only prevent these types of crisis—but when they do arise, ask tough questions of management and the compliance function about what is being done to remediate the situation so the problem is first ring-fenced and then fixed.
Unfortunately boards are not often involved until there is a precipitating event such as reading about your company on the front page of the New York Times, as the Wal-Mart Board did in April 2012 around allegations of bribery and corruption in company’s Mexico operations. Boards must be involved in the long-term strategy of prevention. However, boards must become even more engaged to have these discussions on an ongoing basis and not simply in a once-a-year report from the chief compliance officer. Strategic planning around compliance must become an ongoing conversation between the board and the CCO. Even better, the board should create a compliance committee headed by a person with compliance expertise.