Future Students, Alumni & Visitors


This blog is intended to be a governance resource and source of current governance commentary, offered by a corporate governance academic engaged in research, teaching and other ongoing academic activities. There is a very public element to the governance field, and it is hoped that this blog will contribute to the public discussion of current governance issues. It is also hoped that it will address a need in the governance field by presenting a holistic online approach to the topic. There is a rapid rate of change in the field of governance (public, private, government and not-for-profit entities) and developments in internet technology move swiftly. This governance blog offers resources for a broad variety of stakeholders including: [...more]




Harvard and MIT Innovate: Rest of HigherEd Should Take Note

Something happened this week in higher education that you may have missed. Harvard University and Massachusetts Institute of Technology (MIT) teamed up to announce a $60M investment in “massive online courses,” known as edX. This initiative was said by the Atlantic to be “The single biggest change in education since the printing press.” In this nonprofit venture’s pilot course on “Circuits & Electronics” developed to test the market, there were 120,000 students. 120,000! Signing up for electronics! There were more students registering for this single online course than MIT’s entire entire alumni base, it was said in a press conference attended by both university presidents and the press. See the impressive video here.

Technology has come a long way in the last five years. Platforms are not clunky, but enjoyable, robust and user-friendly. Just as boardrooms are becoming paperless, through the use of portals and tablets, so should classrooms. However, more change is coming in the delivery of learning and access to global students in emerging markets. For universities, this means competition is now global, beyond the bricks and mortar of their campuses. Of course, companies compete globally already, but boardrooms too will change. Global directors will be able to participate in board meetings without leaving their home country, and without a decline in meeting quality. Shareholders will have access to boards and companies directly through their computers or even smart phones. Technology makes interactive, instantaneous communication and voting possible in ways we may not even imagine.

Do the numbers bear out a $60M investment in online learning and digital media by Harvard and MIT? Consider this as a real sample: I am scheduled to teach Corporate Governance this summer at Harvard University. The course currently has 33 students enrolled. A governance course I taught last year at Osgoode Hall Law School also had 33 students. A course I taught to undergraduate law students had only 6. However, my LinkedIn group, Boards and Advisors, now has 2,689 members and is climbing at a rate of 7-10 new members every day. We are not constrained by class size. We have group members from the Securities and Exchange Commission, the Office of the Superintendent of Financial Institutions, and Industry Canada (in the past week). I post everything I read and interact with members on a daily basis, facilitating discussions, stimulating peer dialogue and insight, and ensuring the proper tone. This group has more members than even those of the National Association of Corporate Directors in Washington and the Institute of Corporate Directors in Toronto (at 2,043 and 1,293 members respectively). Directors thirst for content, dialogue and networking, all of which occur in this group.

Consider this too: Of the total universe of corporate directors, most do not attend in-person conferences at director associations or universities. It is too costly and not a wise use of their time. At the NACD annual conference, about 800 directors attend. But there are 10s if not 100s of thousands of directors on public, private and nonprofit boards, within the US alone. Would these directors want to have access to learning that was convenient, interactive and customized to them, at a reasonable price? Hmm, I wonder.

Harvard and MIT are banking on the fact that students in India, China (with 100s of millions of people and ~ 8% growth rates) and all over the world will use home and office computers to take their courses, without having to come to Boston as residential students. They are investing in a nonprofit venture to ensure robust platforms, customized learning to suit each student, processing of big data and tests in real time (which will assist research), and internal controls over academic integrity – all with a view to come as close as possible to the classroom experience in real time, and in some respects superior. Even instantaneous language translation may be possible. Mouse or cursor analytics tracking may tell teachers and researchers how students learn and what works and doesn’t. Courses will be free and universally accessible, but eventually users may likely pay. Certificates and degree programs are also possible.

Speaking of brand and the ability of universities to deliver online education, it is also debatable whether private companies or associations are best to deliver education. They may be conflicted with service providers who pay-to-participate in programs, which affects the curriculum. Private for-profit companies may not devote resources keep platforms or curricula current, or ensure internal controls over marking and integrity. The best programs may ultimately be academic-practitioner team-teaching where the academic brings rigor and proximity to research, and practitioners bring real world experience.

This movement by Harvard and MIT is a game changer that signals potential obsolescence of traditional educational delivery that refuses to change. But it also points to governance shortcomings of universities who are behind the curve and bloated. Technology should bring costs down to the end user, not up. However, costs to students even with technology to date continue to rise, as does class size. Students graduate with crippling debt. Witness the student demonstrations in Quebec, which have received worldwide attention. Boards of universities are too large and should be populated with more hard-hitting businesspeople with a stellar track record and mindset of innovation and value creation, who not only see the future but have helped shape it, and who can tell university presidents which way to part their hair.

Governance reform in healthcare has started, but needs to extend to education. In hospitals, for example, there was a survey that revealed that most hospital boards do not pay the CEO for performance. (This is the most important responsibility a board has.) Shortly thereafter, the Premiere of Ontario in 2010 enacted legislation (see “An Act respecting the care provided by health care organizations”) to compel boards and senior management to measure quality for stakeholders, and link these quality metrics to executive pay. (See summary slides here.) These reforms are now under way and the Ontario Hospital Association is commended for its efforts in pay for performance (see March 2012 slides here and a backgrounder here), and focus on governance (see the OHA’s Governance Centre of Excellence here). This is exactly the type of reform that is sorely needed in universities. There are layers of administration without any visible linking of pay to performance. Costs are being passed on to students, who can least afford it. Quality metrics should center on innovation and the classroom for universities, similar to wait times for hospitals. Value and cost savings are being left on the table for universities.

Just yesterday I walked by another bookstore in my neighborhood that has closed. Change is afoot and the longer higher education waits to innovate, the more compromised they – and society – will be.

Save and Share
  • Print
  • PDF
  • email
  • LinkedIn
  • Twitter
  • Facebook
  • Reddit
  • del.icio.us
  • StumbleUpon
  • Add to favorites
  • RSS

Canadian Pacific is a Teachable Governance Moment

The fight for Canadian Pacific Railway (CP) by activist investor Pershing Square demonstrates several shortcomings in the public company governance model and what can be learned from private equity. CP and RIM are significantly underperforming Canadian companies. There are numerous others. The question is where is the board?

The current corporate governance model is largely focused on compliance, not on value-creation. Most regulations short shrift the board’s strategic and value creation role. Canadian guidelines address strategic planning in one sentence, at 3.4 (b). The NYSE rules do not contain the word “strategy.” Educational programs are overwhelmed by auditors, lawyers and pay consultants. Boards have become bureaucratic traffic cops and the trend is continuing after 2008. How would codes and educational programs look if they were drafted and taught by long-term active investors?

Regulators in large measure are to blame. They overemphasize structural board independence at the expense of industry knowledge and shareholder mindset. The separation of chair and CEO and having a plethora of independent directors accomplishes little unless there is a clear understanding of roles. Most chair and director position descriptions are little more than high-level one or two page compliance documents written by lawyers designed to keep directors at bay. Directors are selected for independence and profile because that’s what the regulators want. Yet scholars know research does not support independent directors and the creation of shareholder value. What is missing? What can we learn from activist investors and private equity?

Here are some facts about CP according to Pershing Square’s materials and presentation:

  • All directors own < 1% of stock and it was given to them, not bought;
  • Four COOs and three CFOs have been replaced in the last five years;
  • CP has consistently underperformed across industry peers, yet the CEO met 17 of 18 objectives set by the board;
  • The cost of management as a percentage has doubled;
  • There has been a moving of targets by the board, and these targets have been meaningfully lower than CN’s;
  • There has been a lack of rail experience on the board, shareholder representation or equity ownership; [CP did not have any railroad expertise to drive the value creation process on the board (other than the CEO) until Bill Ackman first launched his activist efforts]
  • If one director had $100M of his or her own wealth invested, the CEO would be replaced, Pershing Square said;

Deep dives such as the above by sophisticated activists such as Den Loeb and Bill Ackman need to be undertaken by boards themselves. This dive need not be overly complex. Look at Ironfire Capital’s analysis of the New York Times. How many boards have the skills to do this, I wonder? The approach Bill Ackman brings is not exclusive in its applicability to under-performers. The fundamental question is how many companies are under-performing relative to their potential, just not to the extreme extent of CP? And does this speak to a more robust corporate governance model on a wider scale?

We can learn from private equity and the nature of board engagement and shareholder value creation. According to experienced chair and activist investor, Henry Wolfe, “Numerous studies have been done of the performance and value creation results of private equity portfolio companies compared to their public company peers. At least in all that I have seen, the studies clearly demonstrate that private equity companies significantly outperform.” Wolfe goes on to say, “The implications of these comparative results for public companies is or at least should be staggering to those who serve on or advise public company boards. Adding fuel to this point Ernst & Young and other studies, including by McKinsey, found that the primary driving force for this out-performance was the PE Corporate Governance Model.” See the following link to an Egon Zehnder Private Capital Thought Leadership article regarding the work they did to learn more about a McKinsey study on Private Equity.

Michael Jensen at Harvard from his panel role in the 2007 Morgan Stanley Roundtable on Private Equity and its Import for Public Companies, said “In fact, my sense is that the due diligence process that the buyout firms go through in vetting and pricing a deal causes those principals and their managers to learn more about the business than has ever been known since it was a public company.”

This should not be the case if the public governance model worked. A key disconnect is director-shareholder accountability, which is not the case in private equity.

The nexus between public company boards and shareholders who own the company is limited at best, and this affects motivation and accountability. Boards continue to entrench themselves through staggered elections, at the expense of shareholder value. Most boards do not actually engage with shareholders directly other than at a perfunctory annual meeting. Shareholders cannot even propose directors in the proxy circular. A recent proposal by a group of Canadian investors is recommending (see the “Roxborough Initiative”) not only that shareholders select but also that shareholders – not management – compensate directors. This would address incentives and accountability. Director performance reviews should also be shared with shareholders and shareholders should have a say on board chairs. We are a long way from this type of meaningful board-shareholder accountability.

It is time to push the envelope and rethink the current model of corporate governance, in terms of how directors are selected, directors’ fundamental understanding of the business and the value creation process, the role of the non-executive chair, and director accountability to shareholders.

 

Save and Share
  • Print
  • PDF
  • email
  • LinkedIn
  • Twitter
  • Facebook
  • Reddit
  • del.icio.us
  • StumbleUpon
  • Add to favorites
  • RSS

Augusta Golf Club Needs to Get Real and Admit Women Members

CNN’s Piers Morgan, Masters winner, Bubba Watson, Donald Trump and National Association of Corporate Directors’ (NACD) CEO, Ken Daly, all weighed in this week on Augusta National Golf Club’s policy of excluding women members. See, if you are interested, the list of Augusta’s all-male membership roster, curated by USA TODAY, here.

Ken Daly, in an NACD webinar on ethics and capitalism, called Augusta’s policy of excluding women “DS,” which, he said, stands for “damn silly, in 2012, when women comprise 51% of the population.” Augusta’s policy was a trending issue in social media, including LinkedIn and the twitterverse, with governance leaders Sandra Rupp, Jayne Juvan, Frank Feather and Ray Williams weighing in. Even a petition has started to admit IBM’s first female CEO, Virginia Rometty, who watched on the sidelines with a pink jacket instead of a member’s green one. IBM is a major Masters sponsor and Augusta “has a history of inviting the company’s top executive to join its club.”

Why is the exclusion of women members by a private golf club a corporate governance issue?

It is an issue because all over the world now, in dozens of countries, there is a movement to the diversification of corporate boards and senior management teams in order to make better decisions. Director and executive recruitment and networking is done on golf courses. Excluding women has business consequences for them. This is also about corporate leadership and values of IBM and Augusta National.

Private clubs or associations are not islands. They pay taxes, often enjoying nonprofit tax advantages on behalf of taxpayers, and have corporate sponsors, advertisers, governing bodies (such as the PGA), customers, suppliers and local communities. Still, less than 1% of America’s golf clubs exclude women. This is a signaling issue in that it is okay to discriminate. By extension, stakeholders interacting with clubs that discriminate endorse and enable the practice.

This is also a membership issue for clubs themselves. I was asked by a new female board member last month to lunch to advise her on bringing governance reforms to a very prestigious club. As I sat in the dining room, it was almost empty. I remarked that female, minority and younger members were the future of the club, given changing demographics. And the club needed to “get real” about diversity, as well as its governance, and have transparent, inclusive policies. There is little if any substantive disclosure of how Augusta is governed on its website and how decisions are made. This is always a red flag for me and tells me an organization may not be person-proofed or have up-to-date policies.

Just in the last month, Julie Dickson, head of the Office of Superintendent of Financial Institutions (OSFI), the Canadian regulator for financial institutions, addressed in a speech the importance of boardroom diversity to avoid groupthink. (OSFI’s 2003 guidelines are expected to be updated by the summer.) The Conservative government announced in its budget an advisory council to promote women on boards, under the leadership of Minister Rona Ambrose. EU Justice Minister, Vivian Reding, also a woman, has indicated that she is prepared to use quotas if companies do not raise the number of women in senior management and on boards.

Golf is part of business. As Melisa Denis, Women’s Advisory Board member at KPMG, stated in the LinkedIn Group, Boards and Advisors, “I just came back from Augusta this weekend. If anyone doesn’t think this is business they are naïve. Business is done on the golf course – whether you are playing or not. To deny membership because the CEO is a female puts this country back 20 years (at least).”

Augusta National needs to “get real” about women members. Interestingly, the NACD is also offering events to discuss how corporate boards can “get real” about diversity too. Well done, NACD.

Save and Share
  • Print
  • PDF
  • email
  • LinkedIn
  • Twitter
  • Facebook
  • Reddit
  • del.icio.us
  • StumbleUpon
  • Add to favorites
  • RSS

SNC Lavalin and RBC in the News

If the CEO of SNC Lavalin allegedly over-rode his own CFO and breached the company’s code of ethics in authorizing $56 million of questionable payments to undisclosed agents that the federal Canadian police are now investigating, did the board of directors of SNC Lavlin have a role to play?

If the RBC (formerly Royal Bank of Canada) is alleged by a US regulator to have made “material false statements” in connection with non-arms length trades, reported in the Wall Street Journal to be “a scheme of massive proportion,” did the board of directors of RBC have a role to play?

The answer is “it depends” in these and similar cases. Speaking generally, as all allegations have yet to be proven, it is not credible to argue that boards do not have a role to play in compliance and reputational oversight. A board is the only body that has the legal authority and power to control management and designate all compliance and control systems. It alone acts or fails to act. A board is paid, handsomely paid at the senior most levels in Canada, to take all reasonable steps consistent with best practices, to ensure that it does know.

More regulation now, such as the UK Bribery Act, and the SEC Whistle-Blower Rule, are attempting to hold directors responsible and accountable for failing to direct proper anti-corruption and whistleblowing systems. The SEC rule enables employees to report wrongdoing directly to the regulator, thereby completely bypassing toxic work cultures where whistleblowing is neither independent nor anonymous. This legislation is putting the heat on boards and senior management, or at least it should be.

The Ontario Securities Commission last month released a scathing report about governance, risk management, internal control and auditing failures in companies operating in emerging markets.

In SNC Lavalin’s case, how could anomalous payments of this magnitude and internal controls be allegedly manually over-ridden, as is being reported, and would payments of this nature require explicit board or committee approval? SNC’s own internal report reveals a lack of disclosure of contracting parties and improper documentation and passwords. The board chair, Gwyn Morgan, said that the board wasn’t “able to really determine the use of those payments.” Back in 2010, federal minister Stockwell Day had signaled that certain aspects of SNC’s pricing were “absolutely unacceptable.”

The former CEO, Pierre Duhaime, is receiving almost $5 million dollars. A portion of this is stock options awarded before an independent review was completed, as is reported in the press. Basel includes (at page 38 of this report) a malus scheme whereby vesting occurs only if there is no breach of the code of conduct. Boards may wish to consider comprehensive – and independently drafted – malus or clawback clauses that include similar provisions.

It may be highly unlikely for fraud, bribery or ethical breaches to occur in a vacuum. Employees may have knowledge. The 2011 National Business Ethics Survey reveals that those who reported bad behavior they saw reached a record high of 65% and retaliation against employee whistleblowers rose sharply to more than one in five employees. The Conference Board’s Directors Notes, in “Lessons for Boards from Corporate Governance Failures” (see the PDF at page 3), reveals defects in whistleblowing systems that include lack of anonymity, lack of independence, lack of communication and training, lack of incentive, and lack of a proper investigation. These defects are exactly what the SEC rule is designed to address. As Chairwoman Schapiro has argued, “I find that many of the business ethics problems severe enough to be investigated by us are the result less of individual greed than of individuals succumbing to pressure from their peers.”

Whistle-blowing defects may be faults of a board. If a board is getting its information only from management, this is a red flag. Management may not even possess accurate knowledge, as we see in cybercrime. Independent assurance over anti-fraud and whistle-blowing procedures must occur for any prudent board. And “independence” does not mean the company auditor or legal counsel who assess their own or their firm’s work, nor any firm who does, has done, or seeks to do work for company management. Any assurance provider in this area could likely recommend action adverse to incumbent management or service providers.

Directors and boards themselves also need to step up. This includes international directors, moving board meetings to emerging markets, understanding corrupt business practices, structured deep engagement by directors, receiving third party assurance and disconfirming information (including culture surveys), and using alerts and social media.  See “What Better Directors Do,” by NACD Directorship.

Both SNC Lavalin and RBC received governance recognition and were among the top twenty-five companies in the Globe and Mail’s Board Games for 2011. SNC Lavalin was the 2007 award winner from the Canadian Coalition for Good Governance.

The question therefore, is, could occurrences such as these happen on other boards of directors? If you are a director on a board and cannot reasonably answer “no,” to this question, perhaps you should consider some of the above recommendations.

Save and Share
  • Print
  • PDF
  • email
  • LinkedIn
  • Twitter
  • Facebook
  • Reddit
  • del.icio.us
  • StumbleUpon
  • Add to favorites
  • RSS

IT Skills Needed Around the Board Table

In a speech I gave this week to a large room of directors in Montreal, I asked for a show of hands as to how many directors use iPads. About 80% of the hands went up. When I asked the question a year ago, the figure was only about 20%. If you are a director who does not own an iPad, request management purchase iPads for all your directors, or better yet buy your own. Request that your board have a board portal installed. Within a year, most boards will be paperless. Good boards are now paperless. If a laggard director blocks technology or refuses to up-skill, the director should be asked to step down. Technology has gotten a lot easier to use in the last year.

Information technology literacy at the board table is rapidly becoming a must-have for boards, ranking up there with international, risk management and executive experience as necessary boardroom conditions on director skills matrixes. Termed an information technology “revolution” by some directors, technology is rapidly changing how boardrooms and companies operate and compete. IT skills are necessary not only for prudent risk mitigation, but more importantly, for strategic opportunity, innovation and the way companies communicate with a new generation of investors, consumers and employees. Virtual meetings, electronic reporting and social networks are now becoming the new communications platforms. Mailed proxy statements, in-person meetings, and even email may be a relic of the past.

If your board of directors does not have a solid understanding of IT-drivers, such as cloud computing, big data, consumerization, mobile computing, cyber-crime, e-corruption and social media, which are increasingly pervasive / possible throughout all industries and B2B and B2C companies alike, it will not have the clout with senior management to operate. It will not recognize deficiencies, weak benches, red flags, product/service distribution channels, or even basic opportunities or relationships to exploit (such as fundraising for not for profits). Management –and the competition for executive and employee talent– will perceive the board as dated. Management and investors can now go online and find out whether a director is IT literate or not.

IT literacy can no longer be learned on the job or though educational primers for older directors, as the turnover and learning curves are too great. The world is changing and the notion that a 65 or 70-year-old former executive possesses IT competency is a myth. Generational shifts and emerging demographics need to be embraced by boards, including recruiting IT subject matter experts and mentoring first time directors. Women, younger directors and other directors with IT expertise must be at the board table to have the credibility and experience with management to drive change and ensure that boardroom discussion contains multiple informed perspectives.

How does your board fare on the above? Specifically,

  • Does your board have enough strategic IT experience to advise management credibly?
  • Do you have a full understanding of IT opportunities and threats facing your company and industry?
  • Does the board have a committee that oversees IT risks, internal controls and reporting?
  • Do the company and your investor relations department use social media and other emerging technologies (such as shareholder forums) for engagement with institutional and individual investors?
  • Do directors use social media to listen and learn?
  • Are you satisfied with the quality of IT management?

These are some of the questions that need to be asked at the board table. Boards likely won’t get past the second question or the wrong answer by management if they themselves are not IT literate.

 

Save and Share
  • Print
  • PDF
  • email
  • LinkedIn
  • Twitter
  • Facebook
  • Reddit
  • del.icio.us
  • StumbleUpon
  • Add to favorites
  • RSS