Pete Hamill died Wednesday. According to his New York Times (NYT) obituary, he was the “streetwise son of Brooklyn who turned a gift for storytelling, a fascination with characters and a romance with tabloid newspapers into a storied career as a New York journalist, novelist and essayist for more than a half century, died in the borough of his birth. He was 85.” He wrote columns for newspapers and magazines, novels and very autobiographical works. It was one of those, A Drinking Life, that is one of my favorites books and one of the few which had a lasting impact on me. His prose was Hemingway-esque; sparse with just the right amount of beautiful language. So, here’s to you Pete, one of the last of a kind that may not come our way again.
I recently had the chance to visit with Asha Palmer, Chief Ethics and Compliance Officer (CEC) and Executive Vice President (EVP) for Convercent. We visited on the 2020 Update to the Evaluation of Corporate Compliance Programs (2020 Update). Palmer had some interesting observations on the direction the Department of Justice (DOJ) is mandating for corporate compliance programs. We considered how compliance must ensure consistent outcomes.
The 2020 Update required a compliance function to take on a more wide-ranging role around institutional justice and institutional fairness when it mandated that compliance confirm consistency in the way a compliance program is administered. Obviously, this is true in the realm of discipline and incentives but also means fairness in the way investigations are handled and in creating a speak up culture. In Palmer’s mind it comes down to one word, consistency.
Palmer said, “This means compliance professionals have to be consistent in how they treat people, whether it’s in Brazil or in the US because people are watching and they want to know that there is a process that’s fair.” This means a process that is open and transparent. It is not outcome driven; it is process driven. Consistent punishment, consistent corrective actions and disciplinary actions when cases arise.
We then turned to how a Chief Compliance Officer (CCO) can enlist key allies such as Human Resources (HR), the General Counsel (GC), Chief Financial Officer (CFO), Internal Audit and other executives who are co-equal with CCOs as heads of corporate disciplines. Palmer said that cross functional collaboration is critical because “we all look at things a little bit differently. There should be coordination and collaboration among departments.” Yet there should be consistency from this level of senior management.
Palmer sees a speak up culture as critical to corporate culture, because again, “we ask people, if you see it, say it, what are you as a CCO going to do about it? How are you going to protect me? And how are you going to make sure this doesn’t happen again? That’s why people speak up.” They want something different to happen. They want change.” This means it is up to the compliance function to demonstrate not simply that they will listen but that they will affect change.
All of this ties back into consistency as the compliance professional must demonstrate that they focused on that change. It also mandates that the corporate compliance function will be focused on protecting them. Moreover, organizational justice cannot be hierarchal. This means the C-Suite has to be obligated to the same standards as a person on the shop floor. This means that a CCO really does have to be ready and empowered to even investigate the Chief Executive Officer (CEO) if that were necessary.
Both Palmer and I agree that culture is a key element of an ethics and compliance program. Yet who in your organization owns culture? The 2020 Update demonstrates the DOJ expects a corporate compliance function to a have a huge part in the ownership stake. From there the question becomes how to determine how employees feel about the organization. One of the most ubiquitous ways is what Palmer termed “the path of doing surveys”. In this exercise, you put out a culture survey to see how employees feel about the organization. If you discover employees feel that management would countenance circumvention of compliance controls in order to meet the bottom line, Palmer noted, “the kind of thing that ethics and compliance professionals really need to tackle is what do you do with that data that comes in.”
Palmer believes the answer is “ethical leadership”. This, of course, begs the question of “where does ethical leadership training happen within your organization? If people think managers would break rules in order to meet a bottom line, how do we counteract that and make sure that managers know what is required of them?” She believes the only way to do so is to address the elephant in the room head on and say “you do not break rules to meet a bottom line. If you feel you need to, you have an obligation to speak up about it and to put the onus on that leadership to really make sure they are owning the culture and to make sure that it’s ethical.”
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