Every Board of Directors need a true compliance expert sitting on their Board. Almost every Board has a former Chief Financial Officer (CFO), former head of Internal Audit or persons with a similar background and often times these are also the Audit Committee members of the Board. Such a background brings a level of sophistication, training and subject matter expertise that can help all companies with their financial reporting and other finance based issues. So why is there not such compliance subject matter expertise at the Board level?
An arm of the US government has recognized the need for such expertise at the Board level. In 2015 the Office of Inspector General (OIG) has called for greater compliance expertise at the Board level. The OIG said that a Board can raise its level of substantive expertise with respect to regulatory and compliance matters by adding to the Board, a compliance member. The presence of a such a compliance professional with subject matter expertise on the Board sends a strong message about the organization’s commitment to compliance, provides a valuable resource to other Board members, and helps the Board better fulfill its oversight obligations.
Mike Volkov looked at it from both a practical and business perspective and has stated, “I have witnessed firsthand that companies that have a board member with compliance expertise usually have a more aggressive and effective compliance program. In this situation, a Chief Compliance Officer has to answer to the board for the company’s compliance program, while receiving the resources and support to accomplish compliance tasks.”
Roy Snell sees it through the prism of the compliance profession and has said, “If you ask most companies if they have compliance expertise on their Board… most would say yes. When asked who the compliance expert is they typically point to a lawyer, auditor, risk manager, or an ethicists. None of these professions are automatically compliance experts. All lawyers have different specialties.” He goes on to state that what regulators want to see is specific compliance expertise at the Board level. He noted, “the government is looking for is not generic compliance expertise. They are looking for compliance program management expertise.
Hui Chen, the DOJ Compliance Counsel, has continually talked about the need for companies to operationalize their compliance programs. She intones businesses must work to literally burn compliance into the fabric and DNA of their organization. Having a Board member with specific compliance expertise, heading a Board level Compliance Committee can provide a level of oversight and commitment to achieving this goal. It will not be long before the DOJ and SEC begin to require this step in any FCPA enforcement action resolution. This means that when your company is evaluated by Chen, under the factors set out in Prong Three of the FCPA Pilot Program, to retrospectively determine if your company had a best practices compliance program in place at the time of any violation, you need to have not only the structure of the Board level Compliance Committee but also the specific subject matter expertise on the Board and on that committee.
Key Takeaways
For more information, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available by clicking here.