Bribery and corruption are bad. Sectors dealing closely with the government have a propensity for bribery of public officials. Companies in these sectors particularly should implement sound Anti-Bribery Due Diligence (ABDD) policies and procedures.
Michael’s Critique of Pragmatical Reason IV: Ethical Fading – the hidden erosive force on Integrity Culture – Part I
The focus on effective Ethics and Compliance Programs based on values and principles has been steadily increasing in the past years. “To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders”, wrote BlackRock CEO Larry Fink in a letter to CEOs of public companies in January 2018. Culture has been identified as a crucial cornerstone of effective Ethics & Compliance programs. PwC chairman Bob Moritz has called committing to a common purpose, a shared set of values and behaviors, and driving them through organizations is “perhaps the most important job CEOs … can do to contribute meaningfully to social progress, as well as business results.”
If you are a parent, you may be familiar with the fact that there’s a big difference between telling your kid who is climbing dangerously on a high tree: “This is very dangerous! Careful, or you will fall down and break a leg”, and saying: “Wow, you are very high up, but if you are careful and watch where you are putting your hands and feet, I trust that you are going to do great. I am here watching you and can guide you if you need me. But I trust you to do just great your own.” (See: Steve Biddulph’s book “The Secret of Happy Children”)
Integrated Assurance – Assured Integrity?
I’ve studied now Philosophy
And Jurisprudence, Medicine,–
And even, alas! Theology,–
From end to end, with labor keen;
And here, poor fool! with all my lore
I stand, no wiser than before.
– Johann Wolfgang von Goethe, Faust I, Monologue
What should the function or department be called that is responsible for Compliance Management? And what should the job title of the head of that function be?
The International Standards Organization’s ISO 37001: Antibribery Management Systems – Requirements with Guidance for Use has prompted an outpouring of commentary since publication last October.
On January 25 2017 Transparency International published the 2016 Corruption Perceptions Index, which reflects non-governmental organisations’ and business world representatives’ perception of public sector corruption and ranks countries on a scale from 0 (highly corrupt) to 100 (very clean). The results are based on 13 research initiatives conducted by 12 international organisations in 176 countries.(1)
I realize that the title of this blog is a little provocative. The role of the Chief Compliance Officer is not to increase profit. The CCO’s role is to ensure that company business is conducted with complete respect for relevant laws.
A strange thing occurred this month in the American political universe when a business organization wrote a letter to several key Congressmen advocating on behalf of a bill that would increase government oversight over companies…
Yes, you read that right: companies are voicing their support for more government regulation.
The proposed law in question is the Incorporation Transparency and Law Enforcement Assistance Act, which would require persons who form corporations or limited liability companies in the United States to disclose the beneficial owners of those corporations. The letter came from The Clearing House Association, a group backed by some of the world’s largest banks including HSBC, Citigroup and Bank of America.
It’s well known that private banking institutions have traditionally favored discretion and confidentiality on behalf of their clients, so why are banks suddenly advocating on behalf of transparency?
Take a look at the history of corporate transnational regulation and a clearer answer begins to emerge as to why the private sector is now embracing increased transparency. Over the past forty years, U.S. companies have been subject to an ever-increasing litany of regulations aimed at tackling international economic and security concerns.
Laws passed by Congress like the Bank Secrecy Act, the Foreign Corrupt Practices Act, the Money Laundering Control Act, and the Patriot Act have all included various requirements aimed at preventing corporate involvement in such weighty international issues as terrorist financing, money laundering and public corruption. These laws have been bolstered by numerous protections for corporate whistleblowers and have resulted in trillions of dollars in fines and penalties against companies by the Department of Justice, the Securities and Exchange Commission and other enforcement agencies.
Today, many of these rules have been duplicated overseas and normalized through international conventions, like the United Nations Convention Against Corruption and the International Convention for the Suppression of the Financing for Terrorism.
All of this regulation has also led to an enormous increase in the cost of compliance for companies. Businesses must put in place preventative controls aimed at complying with their regulatory obligations, such as know-your-customer questionnaires, third party due diligence measures, and internal employee training. It’s no wonder, then, that larger businesses are embracing proposed corporate transparency rules that would shift the burden of compliance onto their customers and third parties to disclose their ownership structure.
Decades of international corporate regulatory enforcement have also shown that moral condemnation and criminalization are alone insufficient to stop economic crimes that cross international borders. No matter how much governments penalize illegal corporate activity, they will only be addressing part of the problem so long as sovereign governments continue to shelter criminal and terrorist organizations and maintain impunity for their corrupt public servants.
That’s why international non-profit organizations like Global Financial Integrity and TRACE International, for which I work, have long advocated for corporate transparency laws that would actually begin to address this international game of whack-a-mole. Corrupt politicians and criminal organizations make use of financial institutions to transfer their money across borders, leaning on the sophistication of shell companies and globalized banking to hide their assets in offshore accounts.
According to one 2012 academic study…
– See more at: http://www.fcpablog.com/blog/2016/8/23/severin-wirz-why-businesses-are-seizing-the-corporate-transp.html
Severin Wirz is based out of Nairobi and is a consultant for TRACE International, the globally renowned anti-bribery standard setting organization. TRACE recently launched TRACEpublic, the first global register of beneficial ownership information, which allows companies to share and search for beneficial ownership information at no cost.
The views and comments expressed in the article are “author or authors” opinions and do not necessarily reflect the point of view of the Ethics and Reputation Society.
Rats, extortionists, heroes, crusaders – all of these titles have been applied to the figure known as the whistleblower.
Doing away with these charged words, a whistleblower is a person who takes action to halt wrongdoing within an organization, often a company. Usually the public hears about these stories when a whistleblower tips off a reporter or sparks a government investigation. But what motivates whistleblowers to risk so much, namely their reputation, their job, and often their family’s security in order to obstruct the guilty parties?
A prevalent reason for whistleblowing is the whistleblower possesses an intrinsic sense of justice or integrity. When seeking justice the whistleblower is seeking to hold the wrongdoer accountable for the action. A whistleblower can also be driven by a sense of integrity, meaning that he or she takes action because it is the right thing to do. These attributes are often seen in the most common whistleblower, the corporate insider, who reports on the wrongs of their own senior management. Celebrated in movies such as The Insider, these individuals often brave the most frightening of situations when their careers and reputations are put at stake. The most prevalent motivation of an insider is that they wanted to seek justice to hold the wrongdoer accountable or because they simply wanted to halt the unethical behavior.
Another compelling motive can be that the individual is seeking self-preservation. A case that recently received a great deal of press coverage highlighted this motivator. As reported in The Star-Ledger, the whistleblower was a disabled Vietnam veteran named Richard West, who has muscular dystrophy. West, who needs 16 hours of home care daily, found out one day that he was being denied dental work because his Medicaid benefits were used up.
After carefully checking his Medicaid statements he found that the government was being billed for services that he never received. According to West, the overbilling was so egregious that he was being denied essential treatments and thought he was going to die. Understandably so, his reason for whistleblowing was at least partially for survival.
One of the most obvious motivator is that of financial gain. When people, especially cynics, see the damage awards received by Richard West and others, they often make the assumption that the whistleblower was motivated by money all along. Probably in some cases it is the primary motivator, however in the majority of circumstances the evidence suggests otherwise.
Often, no matter what the initial motivation was, a whistleblower can become deeply immersed with their case to the point of obsession. This shows that the motivations of the whistleblower can change over time as they go farther past the point of no return. West said that he had to be unrelenting in pursuing justice, as many of the supposed government watchdogs who he attempted to notify initially ignored him.
A good example of the risk whistleblowers face occurred in North Carolina this year. According to Winston-Salem Journal, a hospital administrator who reported his employer N.C. Baptist Hospital for allegedly overbilling the state employee health plan was fired and sued by the hospital for reporting it. A state audit later concluded that the state did not have a cause of action against the hospital because of lack of timeliness, but that the hospital had behaved unethically. In the end, the whistleblower was left unemployed and, to add insult to injury, became a defendant in a lawsuit.
A final story that shows the breakdown between management and employee occurred within the realm of finance. Patrick Egan, an employee of Latham & Watkins, was fired after he internally reported alleged wrongdoing by the company CEO. After he was terminated Egan brought a case in federal court against the firm for illegal retaliation under the whistleblower provisions of the Dodd-Frank Act. According to the New York Law Journal, Egan’s retaliation case was struck down by the District Court in New York because the alleged fraud was never reported to the SEC. While this may have been a short term victory for Latham, in the long term it will only lead to less trust between employees and management in the financial sector. Now employees are at risk for being fired without legal recourse if they report an alleged fraud internally, meaning that they have a strong incentive to immediately go to the authorities.
There are many motivations that lie at the heart of whistleblowing, and often they mix together and grow stronger as time goes on. From the stories about the whistleblowers who take these risks, it is obvious that they are often people who undergo a great deal of adversity and mistreatment to do the right thing. Going forward, management and companies should understand the value that such people bring to an organization and instead of ostracizing them, take their concerns seriously and appreciate their courage to step forward.
If the whistleblower is instead dismissed, then not only does the whistleblower suffer, but all too often, the rest of the organization does as well.
by Marlowe Doman
Marlowe Doman is an attorney practicing in New York City.
She may be reached at email@example.com.