The Compliance Profession and the Demand for “Results”
Compliance professionals are riding high. They are the darlings of the corporate governance world, commanding higher salaries, C-Suite positions with access to senior leadership and the board, and an empowered position within major, multinational companies. But there are storm clouds on the horizon. In fact, these storm clouds are inevitable – it is just a matter of when and where they will arrive.
What do I mean?
Our country’s history is replete with cycles of scandal and financial collapse. It is inevitable that we will face a challenging economy at some point, that blame will be passed around for government failures to prosecute and regulate the industry in which offending conduct contributed to an economic controversy. This should sound familiar to everyone.
In fact, we experienced two significant periods like this in the first decade ion the 21st century – the accounting scandals result in WorldCom, Enron and other financial crimes leading to the enactment of Sarbanes-Oxley; and the financial collapse in 2008 resulting in the enactment of Dodd-Frank reforms.
When the next financial scandal or economic collapse occurs, I have no idea how or where it will happen. One significant change, however, will be present – sitting in the C-Suite and at senior management meetings will be the company’ Chief Compliance Officer.
Assuming that the company has been implicated in a new set of financial scandals, the CEO (and the board), along with other senior leaders will look at the CCO and ask, “What the heck happened? I thought we had a robust, effective ethics and compliance program.”
The CCO will start to stammer like Jackie Gleason in The Honeymooners – “Ahumdah, Humdah, Humdah.”
My point here is straightforward – CCOs have to define “success” for a compliance program, and make sure that everyone at the board, the CEO and senior management understands the definition. An effective compliance program does not mean, by definition, the absence of any violation of law or corporate code of conduct.
To be sure, a company with an effective ethics and compliance program is unlikely to suffer a systemic breakdown in corporate operations resulting in a massive corporate scandal. For example, if Volkswagen had an effective ethics and compliance program, it is hard to envision how the emissions testing scandal that involved so many layers of corporate actors, including senior executives, could have occurred.
A company with an “effective” ethics and compliance program can still suffer significant legal and reputational harms, although the likelihood and extent of such harms are far below that of companies with deficient ethics and compliance programs.
Nonetheless, CCOs have to counter the expectation or perception of perfection when it comes to compliance. A realistic understanding of ethics and compliance is essential for a CCO to operate in an environment in which compliance can maximize benefits to a company. If held to a standard of perfection, a CCO is doomed to fail. Indeed, a CCO who does not address and prevent a standard of perfection has to take on some of the blame him or herself, because the CCO bears the responsibility for educating the board, the CEO and senior management on proper supervision of a compliance program.
Many CCOs have fulfilled their obligations in this area to prevent “the look” or “the question” from occurring in the aftermath of a corporate scandal. CCOs need to continue the effort as a preventative measure.