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]




Shaping a Not-for-Profit Board of Directors

Should not-for-profit governance be short-changed because of scarce resources and directors being unpaid? Are directors’ fiduciary duties less because it is a volunteer position? Are directors less at risk?

The answer is “no” to all of the above questions. Not for profit organizations are some of the most important in our economy, including hospitals, schools, universities, charities, religious organizations, community organizations and more. Many are large, complex organizations with multiple moving parts and interdependent stakeholders. They are tough to lead and govern but must be as effectively led and governed as for-profits are. They require CEOs, directors and staff who are at the top of their game and will make the commitment necessary.

Beneficiaries such as patients, students, children, congregations, artists, the disabled, military veterans and the vulnerable all depend on a well-governed organization to survive and thrive. Without proper governance, donors are less inclined to give, directors are less inclined to serve, and the mission of the organization less likely be achieved. Not-for-profits can also be the first board a director serves on, so it’s important to learn the right habits at the outset.

I gave a speech in Dallas this week to 160 not-for-profit directors on shaping effective boards, for the University of Texas at Dallas. My slides are here (PDF) and the not-for-profit booklet that I co-authored and was published by the Canadian Institute of Chartered Accountants is here (PPT).

Here are some suggestions coming out of my speech and subsequent roundtables for improving Not-for-Profit boards, and based on my work with leading NFP boards, CEOs and directors. They can all be done with limited budgets and resources, whether you are large or small.

  1. Formalize board roles. When I asked for a show of hands, most of the room did not do this. Have charters for the board, the committees, the Chair, the Executive Director, and committee chairs if you have committees. Samples of these are in my guidebook if you need them, and are also publicly available on the Internet. Tailor them and draft them yourself. This gets everybody on the same page and establishes standards and the right tone at the top.
  2. Your board mandate should address vision, mission, strategy and operational plans; program delivery and operations; risk identification and management; finances (budgets, investments, use of donations, etc.); government filings and reporting; values, ethics, reputation and integrity; key policies and procedures; and communication and accountability to members and stakeholders.
  3. Consider gradual terms of two years and three renewals; or three years and two renewals, contingent on performance, whenever possible, to promote renewal and diversity and allow fit and interest determination. Confirm a succession planning process.
  4. Mentor and recruit younger directors. Have them serve on a committee but not become board members until they gain a few years experience. Pay attention to needed skills that older directors may not possess such as social media and its impact on fundraising. Have a board talent pipeline.
  5. Have tight board and conflict of interest guidelines that addresses directors who are also volunteers; directors who are also stakeholders; and donors who sit on boards who need governance training.
  6. Recruit properly and limit the size of the board. Use a director skills matrix that is aligned with the strategy and mission of the organization. Limit the size of the board so it’s effective at decision-making.
  7. Adopt an evaluation process – annual and perhaps per meeting.
  8. Be explicit and up front about donation and solicitation expectations, but be flexible for different capacities. Notify the board about average gift amounts to encourage giving.
  9. Always say “thank you,” seven times. (Yes, thank a donor or volunteer or other stakeholder who gives a total of seven times.)
  10. Lastly, have fun and be passionate. NFP directors are some of the most passionate, generous and fun people in the governance space. They serve because they genuinely believe in the cause of the organization.

 

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

Does Canada have a White Collar Crime Problem? A Red Flag Checklist for Directors

“This city, this province, this country has a reputation of being the best location to carry out white collar crime, corporate fraud, in the industrialized world.”

These public words are not from some scholarly journal but from a hard-hitting, no-nonsense corporate director, Spencer Lanthier, (PDF profile) as he received his award at the annual Institute of Corporate Directors dinner last year – a sort life-time achievement award for a select few directors. Guests at my table were shocked to hear this, as was I, so I followed up to interview Mr. Lanthier for an illuminating interview. I also went for lunch with former colleague Al Rosen who wrote the book “Swindlers,” which I am now reading and equally eye-opening.

Flash-forward to 2012 where the Nortel trial is now underway to examine what role directors or officers might have played in that alleged fraud. See a headline from last week: “Toronto lost nearly $1M to fraud in 2011, auditor-general reveals”and the twelve cases identified by the auditor general. See this excellent report (PDF), courtesy of Tim Leech in my LinkedIn group Audit Committee.

Here are some questions: Do directors on boards play a role in detecting and deterring fraud? Can they be held responsible or even liable if they do not fulfill this role properly? Increasingly the answers are “yes,” especially given UK and US legislation since the financial crisis. I remember one of my very first board meetings I observed. It was of a bank. At the break, a director got up and shook my hand. He leaned over and whispered in my ear that the number one role of a director was to watch for fraud. I never forgot this.

Here is a list of 10 red flags and suggestions I have compiled based on my work recommending governance enhancements for companies accused of fraud or other malfeasance, including very well known Canadian companies.

1. The Audit Committee must fully understand how the company’s business model, estimates and judgmental choices by management give rise to potential manipulation of financial reporting by that management. Audit Committee members should be selected and educated on this basis. Financial literacy is a low bar and is not enough. Educate yourself on how fraud happens if you are a director or audit committee member. If necessary, hire an expert to report to you individually or in closed session with the Audit Committee without any member of management present.

2. If your organization does not have an internal audit function, install one appropriate for your organization. The head of Internal Audit must report directly and confidentially to the Audit Committee and cannot be over-ridden by any company officer. If necessary, Internal Audit should report directly to the board.

3. The Audit Committee must approve the independence, budget, work-plan and succession of the head of Internal Audit. The board should direct the CEO and CFO to commit resources for further design and test of internal controls whenever necessary.

4. As a director, you are entitled to any piece of information and access to any personnel in fulfilling your duties under any circumstance. If any manager blocks you from doing your job, this is a red flag. Go on unscripted company tours unaccompanied by management to test for tone and culture whenever you can.

5. Direct management to conduct a survey on company culture, assisted by an independent firm, with results reported directly to the board. Act on the results. You may have a toxic workplace with undue influence, internal control override and bullying and not even know it.

6. The independent whistle-blowing hotline must have a protected mechanism for people to come forward. When fraud happens, fellow employees know and are your best source of defense. If employees do not have confidence they can come forward and have a proper investigation conducted, they won’t and fraud will fester. Whistleblowers can go to regulators directly (in the US) now and participate in a monetary reward. If they don’t have confidence in the hotline, they will quit, acquiesce or go directly to the regulator.

7. Direct independent advisors (consultants, and now auditors) to conduct a risk assessment of all management compensation packages to ensure compensation is not driving potential fraud, such as bonuses awarded on profit.

8. If any company officer is not 100% transparent with you, this is a red flag. You should meet in executive session without management in the room to discuss your concern, which is likely shared by other directors. If the CEO or CFO lack integrity, the tone at the top is broken and you have a serious problem. You do not need a reason to fire your CEO.

9. Your responsibility as a director is to direct if and when necessary. Legislation gives you this power but protocols enable it. If management has undue influence and keeps you at bay, your protocols are likely deficient. Boards, committees, chairs and directors all need terms of reference now. Don’t let management draft these important documents as they have an interest in not giving you the power you are entitled to by law. Draft your own protocols or have someone independent do it if you have a concern or want best practices.

10. Above all, be vigilant and assertive if or when necessary. No amount of compensation can ever make you whole for the reputational damage inflicted and protracted litigation that could follow allegations of fraud or other misfeasance for a company of which you are or were a director. The number one regret directors have is not speaking or acting when they could have or should have. Don’t let this happen to you and follow the above steps.

 

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

The Governance of Executive Compensation: A Counterpoint for Compensation Committees

For those compensation committees and their advisors who wish to get ahead of current and emerging requirements and meet best practices in this area, here are ten suggestions, independently and constructively offered:

1.         Independent Members

Committee independence should exceed black-letter requirements, i.e., members should be reasonably seen to be independent from the outside, and assessed anonymously by fellow directors from the inside. Interlocks, prolonged tenure, personal relations, service provider associations, perks and subtle conflicts should all be addressed.

2.         Compensation Literacy and Closed Shop Pay-Setting

A skills and diversity matrix should be used for the Committee. Compensation literacy, expertise and industry knowledge should be defined and met by members. The Committee should not be homogenous. At least one member should be a woman. Non-CEOs and first time directors should also sit on the Committee.

3.         Independent Advisors & Resources

The Committee should have explicit access to unconflicted qualified advisors who work for the Committee. If an advisor’s colleague seeks to do, or has done, work for the company, that advisor should not be retained. The consulting industry has not done an adequate job of addressing conflicts and professional standards and further regulation is coming. There should be no undue funneling by management in advisor retention.

4.         Risk-Adjusted Metrics

Compensation consultants, if used, should be instructed by the Committee to incorporate explicitly risk-adjustment into proposed metrics and adjustments ex post (after the fact) prior to vesting of deferred cash and instruments. The Committee should understand how to do this, consistent with best practice. If not, it should get independent advice, per item 3.

5.         Proper Clawbacks and Malus

If these clauses cannot be drafted by the Committee itself, they should not be drafted by management or internal or external counsel (who are conflicted by being self interested or assessing their own work), but by an independent advisor (see item 3) consistent with best practice and industry standards.

6.         Pay-for-performance Linkage

Management prefer short-term, quantitative, formulaic pay plans. Regulators explicitly want compensation committees now to incorporate qualitative, longer-term metrics, pay periods and discretion. More rules are forthcoming but compensation committees need to be able to understand the business model, the key strategic drivers and get this right so pay equals performance. This has not happened in several instances. Re-cutting pay plans is emotional and adverse so compensation committees need courage and resources at least equal to that of management.

7.         Meaningful Shareholder Engagement and Binding Votes

The Committee should meet directly with key shareholders without management present on a regular basis. Binding votes on pay are forthcoming. Conflicts of interest among institutional investors and asset managers and other barriers to engagement will likely be addressed. Boards should prepare for direct shareholder engagement and voting on a broad basis using technology in the future.

8.         Pay Equity and Disparity

The use of peer groups (vs. CEO rankings) and at the 50th, 75th or 90th percentile have resulted in a perpetual compounded 17% increase in CEO pay overall. This increase results in a significant disparity not only in the C-suite (depending) but also with the average worker. When ratios emerge, committees should scrutinize and act as appropriate. This disparity is part of public and regulatory parlance now. Inaction is resulting in regulation.

9.         Succession Beyond CEO

Boards increasingly should want to see a deep talent bench for key units and functions, beyond the CEO. CEOs resist, including in their own succession but boards should persist. Succession should be part of the pay package for intransigent CEOs. Proper CEO succession mitigates excessive executive compensation payouts.

10.       Director Pay

Management has an interest in paying directors beyond what is required for a part-time job, including for non-executive chairs. Committees need to push back on exorbitant pay that can be reasonably seen to compromise their own independence. In the US, for example, the NACD had recommended a 15-16% premium for Lead Directors, specifically to guard against compromising of independence. This premium is much lower than 2X or 3X seen for non-executive chairs, and the spirit of director pay overall.

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

Facebook gets an “F” for governance and an “F” for diversity

“It’s [insert significant shareholder’s name]’s way or the highway” is a common refrain I hear from directors on control block boards.

Facebook’s governance has been described by Businessweek as resembling a “dictatorship” and by a Wall Street Journal blog as “Governance = Zuckerberg.”

Under the public offering, 27-year-old Mark Zuckerberg owns almost 60% of supervoting shares, is Chair and CEO, can name a successor CEO, and has complete control over the nomination process for directors.

The governance debate over control block companies is not new. News Corp, Research in Motion, Hollinger, Magna and others are noteworthy for running into governance problems as a result of a high degree of control in one person or group of persons.

When I observe control block boards in action, the dynamic is very different from a widely held board. Directors tell me that they really owe their position to the control person. And they act in this fashion. The shortest meeting I observed was 10 minutes long. The founder said, “Gentlemen [and there were no women in the boardroom, similar to Facebook], this is what I propose to do. Any questions? [There were none, from very high profile directors sitting at the table.] Good, then. Let’s go for lunch.”

Governance is all about checks and balances. From the controlling shareholder point of view, this is his company, his board and his directors. This is fine, but dangerous for minority shareholders and in the long term if or when things start to go wrong.

The answer is not “if investors don’t like it, then they don’t have to invest.” If or when founders go to public capital markets for money, their accountability changes. If founders don’t like this, then they don’t have to go to the capital markets is the counterpoint.

I have argued (see “Richard Leblanc’s paper”) for example that minority shareholders (the other 40% of Facebook for example) should have seats at the board table and be there to oversee related party transactions and protect all shareholders including minority ones. They should also be independent from the founder.

Nevertheless, people do things simply because they can. Legal counsel has drafted the S-1 filing giving Zuckerberg as much control as possible. This is entirely legal.

What is also legal is the diversity of Facebook’s board. California State Teachers’ Retirement System sent Zuckerberg a letter earlier this week urging him to appoint women to the Facebook board and enlarge it in line with its market capitalization. There is ample evidence that diverse groups mitigate groupthink and strengthen decision-making. Facebook COO Sheryl Sandberg has been a proponent of greater board diversity, arguing the figures for women on boards are currently stuck at 15% and have been this way for the last 10 years. See a compelling video here.

But why would Zuckerberg do this? The Securities and Exchange Commission does not even define diversity. As a result, companies can define diversity downward to include diversity of “perspective,” “experience” or other factors, when they are an all male board.

It is particularly surprising that this board is not diverse, when its customer base contains people from just about all regions of the world.

The reason it is not diverse is presumably it reflects Zuckerberg’s intent.

When it comes to governance and diversity, the business reason for addressing the shortcomings above is quite simple. A good board earns its keep when it prevents the CEO from making that one big mistake. It takes enormous confidence to put people on the board with whom you disagree but whose opinion you respect, if only to keep you from making that mistake.

Zuckerberg is a genius in the world of programming and social media, but people make mistakes, are not infallible, nor irreplaceable nor live forever. It is these things that governance addresses, or is supposed to.

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

First Among Equals: The Art of Chairing a Board

The former Prime Minister whispered in my ear before the board meeting of the bank, “Watch the way I chair this meeting, Richard.” Seeing a meeting chaired almost perfectly is a rarity so I paid attention and was not disappointed. Contrast this to another bank board meeting, where the CEO pounded the table, berating the chair in front of directors, and the chair said very little during the meeting. Both chairs are non-executive, supposedly independent, yet these meetings played out very differently.

I have observed, interviewed and assessed chairs operating in many industries, both inside and outside of Canada, including agriculture, airline, automobile, banking, credit union, crown, forestry, health care, insurance, mining, oil and gas, not-for-profit, pharmaceutical, steel and technology sectors.

Don’t assume all chairs are equal or a chair is effective given an external profile. Chair performance varies widely. Ask directors.

What separates the good from bad chairs?

How do you really know if a chair is effective, from outside the boardroom? Here are some tips.

Independence: Is the chair really independent? Watch for the CEO trying to capture the chair through perks, office support, vacations, jobs for family members, donations to charities, social relations – anything below the radar screen and hard to detect. In the words of one director during an assessment, “The Chair is owned by the CEO.” He was right. Chairs are very candid with me on how influence happens.

Chair Criteria: Integrity, agendas, coaching and development, commitment, information flow, financial literacy, fit with the CEO (including chemistry but also being tough-minded, rigorous and disciplined), holding people accountable, chairing of meetings, consensus-building, and building of healthy dynamics are all attributes and skills of successful chairs.

Chair Performance: I have observed and have data confirming chairs or lead directors that are ineffective and beholden to management or a significant shareholder despite what external disclosures are. Be skeptical.

Chair Selection: The chair should be selected from and by independent directors. Each director should offer confidential views and a formal vote should be taken. A committee should have chair succession planning in its mandate. All directors who participate in chair recommendation to the board should be uninterested in the role. The CEO should have no influence whatsoever, although he or she should be appropriately consulted given the importance of Chair-CEO fit.

Chair Tenure: Have a three-year appointment, with the option of one further term only if there is clear consensus no one else is better.

Chair Compensation: Watch for the quantum of total compensation, as it gives rise to reasonable perception of independence. A board chair is a part-time position and should be paid as such. I remember when a CEO said to me in the board meeting that he needed to get paid a lot so he wouldn’t “get nervous” and the lead director – also paid a lot – chuckled and agreed.

Chair Evaluation: Chairs should be assessed by each director and reporting management annually. Debriefing should occur between the board chair and the governance/nominating committee chair. Each director should be able to make use of this person/position if he or she has any performance-related concerns with the Chair.

Focusing the Board on Value: Last, but not least, the most important role of the Chair is to ensure the maximization of company performance and shareholder value. Research in Motion and other companies take note. When there is a value deficit, independent Chairs must have the courage to act. The Chair must have value creation skills, experience, leadership and a proper mindset that is focused like a laser on this end and the board’s responsibility to maximize performance and value. Absent the right individual in the role, other qualifications are moot. Substance over form should prevail.

The above points apply equally to Lead Directors in the American context, but because Lead Directors don’t chair full board meetings, it is critical that the attributes and selection of the person – particularly independence, influence and impact – be carefully thought through.

Next to the selection of CEO, the selection of board chair is probably the most important decision a board makes. If a board is ineffective, it is likely the chair is also ineffective and should be replaced. The chair has the single greatest impact on board effectiveness.

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