FCPA practitioners, commentators and yes, even the FCPA Paparazzi, all spend a lot of time discussing, analyzing and posing theoretical questions related to the legal issue of who is a “foreign official” under the FCPA. The issue deserves lots of attention and analysis.
After all, the issue can determine whether a company is liable or not for giving money or anything of value to a specific foreign official. The issue will define liability and the penalty to be paid for such conduct.
For the compliance officer who is responsible for designing and implementing a compliance program, the issue may not be as important as it is to the attorneys and corporate officials who have to guide a company away from a potential FCPA violation.
What do I mean by this distinction? A company cannot tell its employees, bribery is okay so long as it is not to a “foreign official.” I know this drips with sarcasm, but the point is relatively simple – bribery is bribery, no matter who is the recipient, and the company should not tolerate any bribery.
Given the fact that the UK Bribery Act, which contains a prohibition on commercial bribery, is not a significant risk on the enforcement landscape, companies have refocused their compliance programs on the FCPA risks. In doing so, CCOs have to maintain the prohibition on all bribery – whether in the public or commercial sectors.
Simplicity can sometimes be very effective. CCOs know that complex compliance messages have no chance of being adopted and integrated into the fabric of a company’s culture. Turning compliance into an inquiry as to who is or is not a foreign official is certain to doom a CCO’s program.
A company’s message should always be – there will be no tolerance for bribery, no ifs ands or buts. An employee who bribed a commercial party should be disciplined the same as an employee who bribed a foreign official. A no tolerance message means no tolerance.
A No Tolerance of Bribery policy fits well into a company’s code of conduct that needs to be clear, concise and accessible. It is impossible to draft and enforce a code of conduct that turns on whether or not a specific person is a “foreign official.”
A compliance program cannot – and should not – get bogged down in details. We live in the age of rapid fire messaging and attention – the same rings true for compliance messaging. It is a public relations campaign and simple messages are far more effective than complex messages with asterisks, footnotes and explanations.
Compliance officers appreciate brevity and long for simplicity – bribery is bribery – is a message that they can embrace, communicate and enforce.