Five Most Common Weaknesses in Anti-Corruption Compliance Programs

by Michael Volkov

abclists3In this Internet-age of ADHD and simplistic thinking, I thought I would contribute this week by putting together some lists of common themes in the ethics and compliance world. Unfortunately, we are all addicted to quick analysis, rapid descriptions, and targeted thinking. It is one of the downsides of our new information age.

In fairness, I have to admit there are significant upsides to our Internet generation – bringing together the globe, ease of communications and increased productivity. Sometimes, however, I admit I long for the days of no cell phones, computers and texting.

Enough philosophizing and nostalgia — Anti-corruption compliance is moving rapidly. Compliance surveys reveal that companies, by and large, are addressing corruption risks. Some are facing the issue head on, while others are putting the pieces into place but waiting for real follow through. A surprising number of companies are not committed to ethics but are obsessed with making money and convinced that ethics and compliance is still part of a cost trade-off.

From my vantage point, here are the five most common weaknesses that I see in anti-corruption compliance:

1. Ignoring the Culture: Chief Compliance Officers often get bogged down in the minutiae of anti-corruption compliance – codes of conduct, policies and procedures, due diligence and monitoring and auditing practices. Unfortunately, CCOs need to attend to the company’s culture of ethics. It is obvious that a true culture of compliance is worth more than policy, procedure or specific control. When the company’s tone and its fabric are defined by its culture and its ethos, the risk of a corruption violation goes down. Of course, there will always be bad actors who will flout the culture for self-gain, but the company will not ever succumb to a systemic breakdown in anti-corruption compliance.

2. Focusing on the Right Risks – Risk Interactions: CCOs often follow a formulaic approach to prioritize their efforts. In order to avoid conflict with the General Counsel, they will grab onto issues and risks that are not necessarily the right priority – CCOs who spend more than 20 percent of their time on gifts, meals, entertainment and travel procedures and expenses are prime examples of misguided compliance. Add to that, a limited focus on training, and the misguided CCOs are off and running in the wrong direction. Instead, CCOs need to attend to: sales and regulatory interactions with foreign officials; third-party due diligence; and monitoring and auditing of third party sales and regulatory interactions with foreign officials.abclist2

3. Risk Assessments: CCOs often ignore the need for a risk assessment, claiming they already know what risks the company faces. That is not the point. The risk assessment process is important for two reasons: (a) the company can develop a better understanding of its overall risks and the relative ranking of such risks; and (b) the risk assessment process requires the CCO to get out and meet with the board, senior managers and every important business unit leader.

4. Protecting the Fairness of Internal Investigations: Companies recognize the need to investigate internal misconduct – code violations and potential legal violations. What companies fail to recognize in the process is that it is essential to promote and preserve the integrity of the internal investigation system – who is investigated, why they are investigated and the outcome of such investigations. Companies often do not appreciate the fact that managers and employees are extremely sensitive to the company’s actions and handling of issues. Managers and employees want to see fairness, equal justice and integrity in the protection of whistleblowers, the administration of discipline and the protection of compliant managers and employees. In other words, managers and employees want to believe in their employer. An internal investigation system has to operate in accordance with these expectations. Too often, companies put an investigation protocol into place but they fail to manage, monitor and improve the investigation and abclists2discipline process.

5. Continuous Assessments: CCOs are confident professionals and they know continuous assessments and improvements are the lifeblood of an anti-corruption compliance program. Often, they feel overwhelmed by other tasks, or they fail to prioritize their day-to-day activities, and ignore the need for continuous assessments of the company’s compliance program and the need to improve the culture and the company’s policies and procedures.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

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Michael Volkov

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