Archive for the ‘accountability’ Category

Yes, there is such a thing as business ethics

Marketing guru (blogger, author, etc.) Seth Godin posted a provocative blog entry called, “No such thing as business ethics”, in which he worries that the focus on “business ethics and corporate social responsibility” is distracting us from questions of personal responsibility:

It comes down to this: only people can have ethics. Ethics, as in, doing the right thing for the community even though it might not benefit you or your company financially….

Now I could quibble with Godin’s definition of ethics, which is actually a particular controversial view about what ethics requires, rather than a definition. But instead I’m going to take issue with Godin’s claim that all that matters in business is personal ethics, rather than organizational ethics. Godin writes:

I worry that we absolve ourselves of responsibility when we talk about business ethics and corporate social responsibility. Corporations are collections of people, and we ought to insist that those people (that would be us) do the right thing. Business is too powerful for us to leave our humanity at the door of the office. It’s not business, it’s personal.

Godin’s claim that “it’s not business, it’s personal” is problematic in two ways. First, it wrongly implies that business ethics somehow misses out on the whole personal integrity thing. That’s entirely false. Both the academic literature on business ethics and the “ethics and values” programs set up by individual companies put a lot of emphasis on individuals adopting the right values and making good decisions. Secondly, contrary to what Godin implies, individual ethics clearly is not enough. For one thing, people embedded in organizations have obligations that are role-specific. Just as lawyers and doctors have special duties that go along with their roles — they have to follow not just their own consciences, but also highly specific professional codes — so do people in the world of business. And for another thing, organizations can be set up badly such that all kinds of “good” individual decisions can still lead to problematic outcomes. The ethics of the organization, per se, matters a lot.

Interestingly, Godin tells us that he learned about all this from his dad. Unfortunately, while the homely lessons we learned at our parents’ knees tend to give us a good start in life, complex institutional settings tend to bring more complex duties, and hence require more complex principles.

Rupert Murdoch and Corporate Governance

Given a scandal of the size of that unfolding at News of the World, it’s not surprising that people are beginning to look at root causes. One important causal factor is the way in which News of the World‘s parent company, News Corporation, is governed.

I wanted to hear from someone who really knows about this stuff, not just from an academic point of view but from the point of view of someone who has seen up-close just how corporate boards function, and how they malfunction. So I decided to fire a few questions at Prof. Richard Leblanc, an expert on governance and someone who has been engaged by corporations to perform board evaluations.

Here are my questions, and Richard’s answers:

CM: Rupert Murdoch is both CEO and Chairman of the Board at News Corp. From a practical point of view, why does that create problems in how a board operates?

RL: From a practical point of view, he’s running the meetings and controlling the agenda and the information flow. And as an independent director, you’re sitting there and you owe your position to him because he’s the significant shareholder. So you really aren’t independent, in the sense of making the final calls. You’re more of an advisor, or a friend, is what directors tell me who sit on control block boards.

CM: The Board at News Corp doesn’t seem to have a lot of independence. You’ve interviewed dozens of directors about what makes a board work well. How does lack of independence play out in terms of actual board dynamics? Does it really mean everyone just saying “yes sir” to the CEO?

RL: Independence is a state of mind. There are formal rules but that doesn’t capture the co-optation by the CEO, and personal and social ties. Second, independence should reflect reasonable perception standards, and in this case, independence from the significant shareholder. So when you have a non-independent board, or several directors who are beholden, things don’t get discussed, information doesn’t reach you, you don’t have executive sessions as you need to, and there’s less tone-checking.

CM: Without reference to News Corp in particular, what connection do you see between a well-functioning board and the likelihood of wrongdoing at a firm?

RL: I’ve assessed some of the best run corporate boards in the world. I’ve also assessed boards that have had massive failures, including death, property destruction and monetary loss. The best boards are independent, competent, transparent, constructively challenge management, and set the ethical tone and culture for the entire organization. Usually where there is some ethical failure, or corporate wrongdoing, there is some defect at the board level I find. Undue influence, bullying, poor design, lack of industry knowledge, and directors who are not engaged, or don’t have the power or incentives to be engaged, are some of the red flags.

The Complexity of Executive Compensation

Many jurisdictions have moved recently to give shareholders a “say on pay,” which typically means that companies are required to hold advisory (i.e., non-binding) shareholder votes on compensation. In other words, establishing executive pay remains the responsibility of the Board of Directors, but shareholders are given an opportunity to voice their approval or disapproval.

The Wall Street Journal recently reported that when given their say, shareholders at a resounding 98.5% of American companies have said “yes.” So it seems that, thus far, shareholders are hesitant to challenge Boards in their compensation decision-making.

This is not surprising, given the complexity of the decision that Boards face in setting executive pay. Setting executive pay is a task typically delegated to a Board’s “Compensation Committee.” Now consider the task faced by a Compensation Committee in establishing the total pay-and-incentive package offered to their CEO.

The question facing a Compensation Committee is this: what combination of cash, bonuses, equity, and perks should we put on the table in order to inspire our CEO to perform optimally? In practice, this is a pretty complex question, one not admitting of cookie-cutter solutions. A Comp Committee needs to consider, just for starters:

  • pressures from shareholder (and other stakeholders),
  • pressures from proxy advisory firms and various think-tanks,
  • human psychology, including their particular CEO’s character and motivational levers,
  • the managerial experience and expertise of Committee members,
  • corporate objectives (profit, market share, sales, social responsibility, etc.),
  • their company’s ‘risk appetite’ (roughly speaking, are they trying to incentivize their CEO to be bold, or conservative?),
  • expert opinion about optimal compensation structures (which is deeply divided, to say the least).

The problem here is as much one of epistemology as it is one of ethics. Compensation Committees need to take an enormous amount of information and opinion and distill it into a decision that will work and that will be defensible in the face of enormous scrutiny.

Of course, there is no shortage of compensation consultants, ready and willing to help Compensation Committees with this task. But recent (not-yet-published) research at the Clarkson Centre suggests that many corporate directors are skeptical about the value of compensation consultants.

Given this complexity, it’s not surprising that shareholders — even sophisticated institutional shareholders — are so far pretty hesitant to do much second-guessing. Whether or not that’s a good thing is a separate issue.

The Ethics of Closing Up Shop

At what point are a company’s misdeeds sufficiently grave that the right thing to do is simply to shut the doors, permanently?

As was widely reported yesterday, the printing presses at News of the World (part of Rupert Murdoch’s News Corp.) will be grinding to a stop after this Sunday’s edition. The paper’s shameful history of phone-hacking and other scuzzy “journalistic” practices has finally caught up with it.

Under what conditions is such a move the right one? When is a company obligated to commit the corporate equivalent of the ancient Japanese tradition of seppuku (a.k.a. harakiri), or even just to sacrifice a corporate “limb”?

Some people might say, “when doing so best serves the interests of your shareholders.” Others might say, “when doing so best serves the interests of the full range of stakeholders.” Still others might say that it has nothing to do with anybody’s interests, but rather with what’s in the the interest of justice. “Let justice be done,” as the ancient legal saying goes, “though the heavens fall.” So it may be thought that the organization, as a whole, needs to pay a penalty for its wrongdoing.

But there are of course counter-arguments that could apply, even where the corporate wrong is significant. For one, in shutting down an entire corporation for the wrongdoing of a few, you are effectively punishing a large number of innocent employees. And in some cases, that might be justified. Sometimes there is collateral damage along the road to justice. But surely that damage is not irrelevant.

In other cases, shutting a company down may amount to a cynical attempt to insulate sister companies or a parent company from fallout. Or to protect a favoured employee. In such cases, shutting the company is likely blameworthy, rather than worthy of praise. In such cases, surely the honourable thing to do is not to perform seppuku, but rather to stand to face the music. Accept the scrutiny, pay the price, and then rebuild under new management.

But all such considerations presume that the initial crime is sufficiently grave to make such an extreme solution plausible in the first place. In the News of the World case, the offence is serious and multi-faceted. Individual rights were violated; law enforcement officials were bribed; and the journalistic profession was arguably sullied. And all of that was perpetrated in pursuit of an utterly trivial objective, namely the production of yet more trashy tabloid “news.” Compare: there were few serious calls for BP to be dismantled after the Deepwater Horizon spill, despite that spill’s very serious human and environmental impact. But then, unlike News of the World, BP actually produces a socially valuable product.

Splitting CEO & Chair

Research in Motion (a.k.a. “RIM”, maker of the Blackberry) has been under pressure to split the role of CEO and Chair. RIM has been facing serious scrutiny of late, and questions have arisen in particular about whether the company needs new leadership. Splitting the role of CEO and Chair would be an awfully good start.

See this Globe & Mail story, by Janet McFarland: Shareholder calls for splitting CEO, chair roles at RIM.

A small investor in Research In Motion Ltd. …is anticipating big support for a shareholder resolution calling on the BlackBerry maker to split the jobs of CEO and chairman.

Mutual fund company Northwest & Ethical Investments LP has argued RIM co-CEOs Jim Balsillie and Mike Lazaridis should not also be co-chairs of the company’s board, arguing a “high performance” board needs independent oversight of management.

The story quotes Bob Walker, vice-president of Ethical Funds at Northwest & Ethical, as saying that keeping the two roles “has become standard practice, not just best practice.” More to the point, perhaps, is that it has become widely-recognized not just as standard, but as best. The board’s job is to oversee the CEO, and it’s hard to do that effectively if the CEO runs the board. (This was precisely the point of Friday’s blog entry on conflict of interest among mayors and chairs.)

You may well hear people point out that there’s no evidence that splitting the roles of CEO and Chair is beneficial, in the sense of increasing long-term shareholder value (or in terms of any other outcomes, for that matter). Fair enough. But to say that there’s no evidence is not to say that there’s no reason. Shareholders have a right to good governance, and that right doesn’t depend on concerete outcomes, any more than a client’s right to zealous legal representation does.

There’s another reason to favour splitting the chair & CEO. Even if such a split isn’t directly correlated with increasing shareholder value, it may well be correlated with other things that matter. My colleague Matt Fullbrook, of the Clarkson Centre for Board Effectiveness, puts it this way:

Since the early 2000s, splitting the Chair/CEO roles has become the norm in Canada, and with good reason: more than any other individual governance best practice, Chair/CEO split with an independent chair is highly correlated with adoption of other good governance practices and disclosure. That there is still push-back on splitting the roles is baffling.

Conflict of Interest for Mayors (and Other Committee Chairs)

This is a blog entry ostensibly about municipal politics, but with real lessons for the world of business.

I was on CBC radio yesterday (along with corporate governance expert Prof. Richard Lelblanc) to talk about conflict of interest case involving Halifax’s city council (technical the Council for Halifax Regional Municipality).

To make a long story short: the Mayor was involved in some financial irregularities that may (I honestly don’t know) just be a matter of either poor judgment or poor understanding of proper procedures. Whatever. The interesting part came when some members of Council wanted to reprimand the Mayor for his role in those decisions. The Mayor insisted on chairing the discussion, and indeed even voted on the matter when it came up for a vote. (Here’s an article about the fiasco, by Michael Lightstone for the Chronicle Herald: Halifax council won’t suspend mayor.)

Needless to say, in participating in the vote over his own fate, the Mayor was in a rather significant conflict of interest. He had an official duty to exercise, one that required the exercise of judgment. And he clearly also had a very significant personal interest in the matter, one that any reasonable outsider would be justified in suspecting of influencing the Mayor’s judgment.

Now it always bears repeating: conflict of interest is not an accusation. It is a situation one finds oneself in. There’s nothing unethical about being in a conflict of interest. (If a lawyer finds out that one of her clients wants to sue another of her clients, she is in a conflict of interest, through absolutely no fault of her own.) What matters is how you deal with the conflict.

The best thing for the Mayor to do would have been to:

  • recognize the conflict,
  • put it on the table, and
  • recuse himself (i.e., hand over the gavel, decline to vote, and preferably leave the room so that the rest of Council could have a full and frank discussion).

What’s really at stake in conflict of interest has very little to do with the integrity of individuals. Rather, it has to do with the integrity of a decision-making process, and of an institution. So the worry is not that the Mayor would necessarily have been biased in how he chaired Council that evening. Maybe he bent over backwards to be fair in his chairing duties. Who knows? And that’s the point. We don’t know, but for important institutions we need a high level of certainty that key decision-makers are exercising their judgment in the interests of those they serve, rather than themselves.

And there, of course, is the lesson for the world of business, and in particular for corporate governance. A Mayor, effectively, is the CEO of a City. In addition, he or she also is “chair of the board of directors,” where the board here is City Council. In the world of municipal politics, it is relatively rare for Council (normally chaired by the Mayor) to sit in judgment of the Mayor as chief executive. But in the corporate world, such judgment is a big part of the job of a board of directors. And that is precisely why it is widely considered “best practice” for the CEO not to also serve as Chair. One of the Board’s key roles is to advise and oversee the CEO. Doing so requires that the Board be able to deliberate in a way that is reasonably independent from the CEO’s own influence. Any organization that has the CEO act as chair of the very body that must regularly deliberate over his or her own performance is not just “finding” itself faced by a conflict of interest, but is actively constructing one.

The Earth is Flat (and Regulation is Easy)

I’m currently attending a workshop on Regulatory Design, hosted by Duke University’s Kenan Institute for Ethics.

As a philosopher, I’m often at pains to remind people of the distinction between ethics and law. But there’s also no denying that there are important interrelationships between ethics, on one hand, hand law (and the regulations pursuant to various laws) on the other. When done well, regulations are shaped by good ethical reasoning, aimed at promoting the public good while at the same time respecting individual and collective rights. And it’s very likely that ethical standards are, in turn, influenced by existing legal/regulatory standards.

Regulation of course attracts a lot of attention — arguably a lot more than ethics does — both from industry and from critics, as well as from all points on the political spectrum. It’s a frustrating topic for just about everyone. Just about everyone can name regulations or regulatory agencies that they think are dumb or ineffectual or too powerful or not powerful enough.

The problem — and the reason that makes knee-jerk criticism of particular regulations or regulators perilous — is that regulation is in fact incredibly difficult. Here are just a handful of complicating factors that have arisen during our workshop discussions, so far this morning:

  • People generally don’t like to be regulated. That means that people (and the organizations they populate) tend to push back when you try to regulate them.
  • Regulated industries have the capacity to push back, not just by means of political contributions and advertising campaigns, but also by means of court challenges that can be costly and time-consuming for regulators. This means that the regulatory process must very often be a process of negotiation.
  • Good regulations should be based on evidence, but that poses problems when what you’re trying to regulate is a danger that is very large in scope or severity but that is either unprecedented or that cannot be measured in advance.
  • Regulatory agencies face challenges in attracting and retaining smart people. This is true for two reasons. First, it’s hard for public-sector organizations to compete with the private sector in terms of salaries. Secondly, in order to take seriously the idea of a career at a regulatory agency, young people need to have the sense that they are going to be able to make a difference, which is not always the case.
  • Perceptions of new regulatory efforts, even when those efforts originate with experts within regulatory agencies, can be coloured by perceptions of the government of the day. Those who are critical of the government of the day are likely to be skeptical of regulatory efforts that come about during that government’s reign, regardless of whether it is actually driven by the government’s policy platform or not.
  • Effective regulation requires detailed understanding of the thing being regulated. Very often that means that regulators must rely upon those being regulated as a key source of information. The conflict of interest there is clear.
  • There are genuine and sincerely-held ideological differences about the desirability of regulation, both regulation in general and particular kinds of regulation. Crudely, effective regulation means finding the right balance between the beliefs of the tree hugger and the beliefs of the free-market ideologue.
  • There is a fundamental strategic challenge involved in designing regulatory frameworks. In the abstract, one option is for the legislature to pass highly specific legislation that puts in place detailed regulations governing the minutiae of, for example, the operation of some industry. This can result in concrete results very quickly, but it can limit the ability of regulatory agencies to adapt to changing circumstances and to new technologies. The other option is to pass very broad legislation that merely sets rough objectives and empowers regulators to figure out how to achieve those objectives. This approach has the advantage of flexibility, but also puts a lot of power into the hands of unelected bureaucrats.
  • Nothing is free. All regulation involves trade-offs. Tighter environmental regulations can cost jobs. Gathering the data needed for effective consumer protection regulations can have implications for consumer privacy. Win-wins are few, and certainly not automatic.
  • Regulation is part of a political process. Regulators are part of the executive branch of government, and the executive branch relies upon the cooperation of the legislature (both to pass the relevant legislation and to provide regulators with funding). And even if we are optimistic about the dedication of our legislators to the public good, we have to remember that the key goal of politicians is to get and keep power. That inevitably has an impact on the way they facilitate, or frustrate, efforts at passing and enforcing regulations.

So, think about your favourite regulatory issue. Now re-read the list above. If you can think through each of those problems and solve them, well, after that getting the right regulation should be easy.

(Thanks to Duke’s Edward Balleisen for the invitation to attend this workshop.)

Should Boards Monitor CEO Morality?

A Board of Directors is responsible for overseeing the management and direction of a company, and that task includes monitoring the full range of risks to which a company might be subject. But what if the company’s CEO is one of those risks? What should a board do when a CEO’s off-the-job behaviour raises concerns? The IMF’s Dominique Strauss-Kahn is a case in point. Long before his recent arrest, Strauss-Kahn’s behaviour towards women raised eyebrows. Should it also have spurred the IMF’s Board to act?

See this story, by Janet McFarland, in the Globe and Mail: When and how to confront a wayward leader

Most corporate directors find it hard enough to confront a respected CEO about work-related poor performance, but it is even harder to tip-toe into the minefield of rumours about problems in an executive’s personal life.

(I’ve blogged before about whether ‘private’ vice is a business issue. I’ve also written about whether a CEO’s divorce is a purely personal matter or not.)

McFarland quotes me in her story, but let me give a slightly fuller version of my comments here.

To start, it’s worth making a distinction. There are personal vices that are strictly personal (including most of what goes on between consenting adults behind closed doors.) And there are personal vices that are very likely to impinge upon the workplace or on performance at work. A tendency to engage in sexual harassment is an obvious example, as is heavy drug use.) But, when you’re a CEO of a name-brand organization, that distinction tends to break down. High profile means that personal vices can turn public very quickly, and affect the organization.

Also, bad behaviour on the part of those in the public eye can easily lead to blackmail, which can result in misuse of position and other kinds of bad decision-making. This is another example of why great power brings great responsibility.

On the other hand, there are lines boards should be hesitant to cross, on principled grounds. A CEO’s sexual orientation, for example, should be off-limits. This is obviously less of an issue in 2011 than it would have been in 1951, but even today a gay CEO might be seen as a risk factor (especially for an organization with a conservative customer base) but boards should take a principled stand against taking an interest in their CEO’s sexuality. The board has fiduciary duties to protect the company, but even fiduciary duties have their limits.

The last point I want to make here is that, when faced with a CEO’s bad behaviour, a Board faces more than a yes-or-no question. The ethical question here is not just a matter of whether to confront the CEO, but how to do it. A Board in such a situation needs to formulate a plan — a method of proceeding, including answers to questions like:

  • Will the Chair of the Board approach the CEO solo, or should an ad hoc committee do it?
  • Should they raise the issue explicitly, or obliquely?
  • Should they give the CEO an ultimatum, or ask his or her suggestions for how things might improve?
  • Given various anticipated responses by the CEO, how will the Board/Chair plan to react in turn?

Laptop Thefts: Starbucks Scandal?

Just whose fault is it if your laptop gets stolen at Starbucks? Do coffee shops (and other similar businesses) have a responsibility to help curb such crimes? If so, how far does that responsibility go?

To kick the topic off, here’s a story by Michael Wilson, for the NY Times: As the Careless Order a Latte, Thieves Grab Something to Go

Starbucks shops are ubiquitous in New York, a respite for tourists and professionals young and old, and while the city’s criminal trends come and go and ebb and flow, there remains a steady march of handbags from those shops in someone else’s hands….

Apparently, Starbucks’ customers are pretty common targets. Starbucks, Wilson notes, pop up “again and again on police blotters.” That makes the iconic coffee chain sound like a pretty dangerous hangout. But Wilson rightly acknowledges that the rate of thefts at Starbucks (of which there are 298 in New York alone) needs to be put into context, and compared to the rate of thefts at other establishments:

Not to pick on the chain, based in Seattle. No one has tallied the number of Starbucks thefts, and purses and bags walk out of any number of restaurants and bars day and night. Grand larcenies — the theft of anything over $1,000, which is almost every purse with a credit card inside — remain the Police Department’s most vexing crime, as preventable as it is commonplace.

The focus on how common such crimes are in all kinds of public and semi-public spaces is right on target. To me, this is all reminiscent of the part in the movie, “Wal-mart: The High Cost of Low Price,” in which the film-makers — incredibly — blame Walmart for thefts, rapes, and murders that happen in the retailer’s parking lots. It’s a crazy accusation, of course: Walmart has nearly 9000 locations. If you looked at the stats for any 9000 parking lots, I’m willing to bet you’d find a fair bit of crime.

But back to coffee shops, and the rate of laptop and purse theft on their premises. What are companies like Starbucks to do in light of this? Clearly it’s not their fault that people are leaving their laptops unattended — I guess except to the extent that they’ve carefully engineered a warm and welcoming environment, one pretty much designed to encourage people to let their guard down. What might the company do, in principle, to reduce the amount of theft on their premises? Vigilant security guards would be one possibility, though that would surely do something to detract from the Starbucks ambiance. Security cameras are another, less intrusive, option. (But then there might be privacy concerns related to constant surveillance: do you really want the Starbucks-Cam watching over your shoulder while you read The Onion?) They could also install laptop locks on the tables in their shops (since most laptops have a universal lock slot). A different tack would be to eliminate free Wi-Fi, which would give people less reason to bring their laptops to Starbucks in the first place. Of course, lots of us like the free Wi-Fi, but if it’s encouraging us to engage in risky behaviours, I can at least see an argument for hitting the ‘off’ switch.

Warning signs are another option: signs could remind unwary customers of the dangers, and recommend that they carry their laptops with them at all times when on the premises. Apparently, one police commander thought that was a good idea:

[The officer] asked one branch to put up a sign warning customers; the manager demurred, saying such a sign required corporate approval.

But what is Starbucks (or any other coffee shop) obligated to do to reduce crime? Or at least, what would it be ethically-very-good of them to do? I don’t see a clear answer, though it’s easy enough to argue that they ought, at least, to grab some of the ‘low-hanging fruit.’ If there are simple and cheap things they can do to make customers safer, those things could arguably be considered obligatory, and besides, such moves might even attract customers, giving them a genuine sense of security, rather than a false one. But laptop theft at Starbucks will never, never be zero, and it’s unreasonable to think that the company has an obligation to drive the on-site crime rate anywhere near that.

Lying for Profit

Lying, generally, is wrong. Is it also wrong to facilitate a lie, or to profit from doing so? What if your entire business model involves helping people tell lies? No, I’m not talking about the big accounting firms, who only sometimes help clients lie, and typically do so through creative interpretations of accounting standards. I’m talking about something much less creative, namely bald-faced lies. And yes, there are businesses that are set up to help you do just that — everything from helping you fake your resumé to helping you establish an alibi (if, e.g., you played hooky from work, or need to spend some quality time with your mistress).

Here’s the story, by Marissa Conrad for Time Out Chicago: Businesses that lie — and are proud of it.

Now, this is not the sort of story that I would normally bother with. After all, you don’t need a Ph.D. in philosophy or an advanced knowledge of the history of moral theory to sort through the ‘subtleties’ here. Yes, there are grey zones in ethics. And sure, lying is sometimes justifiable. But the exceptions prove the rule: deception is generally wrong. And deception of the kind that these companies facilitate is no exception.

But what’s interesting about these services, and what makes this story worth even mentioning, is the self-serving rationalizations that the proprietors of these services indulge in, in order to justify their existence. “Is lying on your CV justified?” they ask rhetorically. What if you really need the job? What if you’re a really decent guy who has caught some tough breaks in the past, and your CV needs a little boosting as a result? Who is to say? Well, the owner of one of these businesses is clear about his approach to the question:

“We believe that everyone deserves a second chance,” says [Reference Store] operations manager David Everett. “Is Robin Hood a criminal? It depends on who you ask.”

Now, presumably such companies render assistance to trivially few customers with Robin Hood’s claim to serve the greater good. And besides, Robin Hood-type characters achieve true hero status only in retrospect. We can’t conclude that Robin Hood’s actions were justified just because he himself thought they were. Likewise, the fact that lying is sometimes justified doesn’t mean we can afford generally to be agnostic about the ethics of particular acts of deception, let alone decide to facilitate such acts. The problem here really lies in the fact that these companies are unilaterally appropriating for themselves the right to make that determination, taking shelter in extraordinarily shallow self-serving rationalization, and abdicating their clear responsibilities to engage in at least a modicum of ethical reasoning.