Category: Code of Conduct

If You Say It, You Have To Do It

If your marketing materials say that you have “never, not once, taken even so much as a nickel” from potential referrals, you have to put that policy in place and enforce it. Jeffery Slocum & Associates told is clients this. Then some of its employees accepted golf tickets. The Securities and Exchange Commission is pretty sure that tickets to the Masters Golf Tournament are worth more than a nickel.

This was a self-inflicted mistake.

Jeffery Slocum & Associates provided investment counseling services to institutional clients including recommending investment managers. It wanted to avoid taking gifts from those possible investment managers to avoid an appearance of favoring one over the based on anything but performance.

As part of its advertising, Jeffery Slocum & Associates proclaimed that it had “never, not once, taken even so much as a nickel from an investment manager.” The problem was that the statement wasn’t true.

Slocum’s gift policy only prohibited gifts in excess of $100. In practice, employees could get waivers of that $100 limit.

Slocum’s CCO discovered that four employees had accepted tickets to the Masters from an investment manager. The proposed response was to repay the value of the tickets to the investment manager. The head of the firm stepped in and waived off that requirement.

So even though Slocum had adopted a written policy regarding the acceptance of gifts, this policy, as written and as implemented, conflicted with representations contained in Slocum’s marketing materials.

Sources:

Mixed Messages from H-P

On Friday, Hewlett-Packard fired its CEO because he violated the company’s code of conduct. Mark Hurd had submitted inaccurate expense reports.

That sounds like a good message from the Board. Anyone can be fired for violating the code.

However, Mr. Hurd was given a severance package that may be worth more than $35 million, including a cash payment of $12.2 million. He violated the code, but was not fired “for cause” so he gets to keep his severance package.

That sounds like a bad message from the board. If it is company policy to fire someone for violating policy, then you should fire him and deny him severance.

However, as a top executive, Hurd had an employment agreement that better defined “cause for termination.” Cause involves “material neglect” of an individual’s duties or conduct “that is not in the best interest of, or is injurious to, H-P.” Mr. Hurd’s $20,000 of inaccurate expenses probably did not meet that standard.

Mr. Hurd stepped into the role of CEO after the poorly handled corporate espionage investigations by the prior CEO Carly Fiorina. He talked about improving the ethics of H-P.

Hewlett-Packard’s Standards of Business Conduct starts off with the headline test: “Before I make a decision, I consider how it would look in a news story.”

Mr. Hurd should have taken his own test.

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Supreme Court Rules on the Privacy of Text Messages

Sort of.

The Supreme Court issued its ruling in Ontario v. Quon regarding a police chief reviewing the content of a police officer’s text messages with consent or a warrant. Many commenters hoped that the Court would issue a broad statement on an employee’s privacy rights in this age of cloud computing and web 2.0.

The Court chose to rule on very narrow grounds and not address the electronic privacy issue:

“A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.”

The Justices were hesitant to jump into the battle about electronic privacy:

“The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.

…

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.”

Instead, the Justices looked narrowly as the special situation of the government as an employer.  Since its the government, the Fourth Amendment’s protection against warrantless searches comes into play. (This is not applicable for a private employer.)  The standard  is that

“when conducted for a “non-investigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of thesearch and not excessively intrusive in light of’” the circumstances giving rise to the search.”

Even if a government employee could assume some level of privacy in their messages, it would not have been reasonable for them to conclude that his messages were in all circumstances immune from scrutiny by the government employer.

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New Codes of Conduct for Real Estate Companies

It’s always useful to look at what your competition is doing. The same is true in drafting your code of conduct (or code of ethics or whatever name you chose). It is useful to look at you what your competitors’ codes of conduct look like.

Since Sarbanes-Oxley requires a public company to have a code of conduct, its fairly easy to dig around the investor relations portion of their website or SEC filings to get your hands on examples.

Since my company is a real estate company, I put together a database of Codes of Conduct for Real Estate Companies.

My original goal was to find codes for other real estate private equity companies. I struck out.

So I expanded to public REITs and real estate investment advisers. All of the companies in the database are public.

So far I have not found a private real estate company that has published its Code of Conduct. This is what I expected and not a criticism. In fairness, I haven’t publicly published my Code of Conduct.

With compliance, it’s better to think of competitors as peers instead of the competition. You might get some market gain with a competitor lost to a compliance or ethical failure. You’re more likely to get more government oversight and regulation, less of investor confidence and many more headaches.

Database of Codes of Conduct for Real Estate Companies

Image of Columbia Center is by simonsonjh from Wikimedia Commons

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New Rules of the Game under the New York Public Pension Fund Reform Code of Conduct

Cleary Gottlieb put together a useful Alert Memo on The New Rules of the Game under the New York Public Pension Fund Reform Code of Conduct (.pdf) They outline the key provisions of the Reform Code and suggest action steps for investment firms that do business (or seek to do business) with New York Public Pension Funds and may become subject to its requirements or similar requirements.

The principles reflected in the Reform Code are likely to extend beyond the agreement with Carlyle, whether other industry participants voluntarily agree to abide by them or they are incorporated into new federal and/or state legislation or regulations. The Attorney General’s office has indicated that it expects the Reform Code to establish a generally applicable framework for relationships between Public Pension Funds and investment firms going forward; at a minimum, it appears likely that firms seeking to do business with New York Public Pension Funds will be asked to be bound by the Reform Code. Attorney General Cuomo has described the Reform Code as representing the “new rules of the game” and praised Carlyle for “leading the industry toward critical change of the public pension investment system.”

New York Public Pension Fund Reform Code of Conduct

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In a widely publicized story, The Carlyle Group has agreed to adopt New York Attorney General Andrew Cuomo’s Public Pension Fund Reform Code of Conduct. It is the first money manager to adopt Cuomo’s new “code of reform” for the municipal-pension market. (Carlyle executives will not be subject to any criminal liability under the settlement with the NYAG.)

It is not clear how the ban on placement agents will interact with the SEC limitations on general solicitation under Rule 502. Many private investment funds use a broker/dealer as an intermediary with potential investors (including public pension funds) to comply with the SEC rule. It seems like the ban on placement agents could hurt the ability of smaller funds and newer funds to obtain investments from public pension funds. If a private investment fund seeking investors has no existing relationship with the public pension fund, then contacting the public pension fund directly could be considered part of a general solicitation in violation of SEC rules. The placement agent, if a licensed broker/dealer, can help establish the relationship to avoid a general solicitation.

References:

Image is from Wikimedia commons under Creative Commons License: NYStateMap2.PNG.

Dishonest Deed, Clear Conscience

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In the world of compliance, you may sometimes wonder if that code of ethics really works. Lisa L. Shu, Francesca Gino, and Max H. Bazerman presented their research that a code of ethics really can reduce bad behavior: Dishonest Deed, Clear Conscience: Self-Preservation through Moral Disengagement and Motivated Forgetting.

Their studies provided evidence that morality and memory function as sliding scales and are not fixed dimensions of a person. They found that once people behave dishonestly, they disengage, setting off a downward spiral of future bad behavior and increasingly lenient moral codes. They also found that this slippery downward slope can be counteracted with ethical codes, that increase awareness of ethical standards.

If a situation permits dishonesty, then you should expect dishonesty. At the same time, merely reminding employees about established ethical codes, could counteract the effect of a permissible situation.

See:

Business Codes of The Global 200

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In drafting and updating my code of conduct and ethics it is always useful to see what other companies are doing. I look for both approach, content and style. For instance, I collected the Whistleblower Hotlines for Home Builders. It is great to see a comparison of a group of compliance codes. KPMG put together a study of the codes of conduct for the Fortune Global 200 companies: Business codes of the Global 200 — their prevalence, content and embedding (.pdf).

A good and properly implemented business code is not just a nice thing to have; it is based on an all-encompassing business need. A business code contributes to an organization’s strategic positioning, to strengthening its identity and reputation, to an improved corporate culture and work climate, and to improved financial performance. A business code and the compliance program to implement it are the cornerstone of an organization.

This whitepaper illustrates some of the results from a study that KPMG conducted with RSM Erasmus University. In 1990 only 14% of the Global 200 had a code of conduct but in 2007 86% of them have a code, including 100% of North American firms.

A few interesting things jumped out at me.

The codes are mostly directed at employees, with less than half discussing corporate responsibility to shareholders. I found this strange since the purpose of the code should be to protect the shareholder’s investment and provide a long-term result for shareholders. It is the focus on the short-term that leads to trouble.

Although 73% of the codes refer to the acceptance of gifts, only 59% refer to the offering of gifts. You would expect a code to address both.  Since both offer the same danger of being viewed as bribery.

See:

A Benchmarking Survey on Third-Party Codes of Conduct

Society of Corporate Compliance & Ethics

Rebecca Walker of Kaplan & Walker LLP is the author of a report on A Benchmarking Survey on Third-Party Codes of Conduct (register to download) sponsored by The Society of Corporate Compliance and Ethics. The SCCE received survey results from more than 400 compliance professionals on how they deal with third-party compliance policies. As Rebecca point out in the report: “Organizations are also subject to risks of misconduct by virtue of the actions of agents and other third parties who act on their behalf or partner with the organization in some way.”

Among the relevant findings in the survey:

  1. Only 47% of companies disseminate their internal employee code of conduct to to third parties.
  2. Only 26% of companies require that third parties certify to their codes of conduct.
  3. Of those 26%, 92% did not have a threshold as when they required certifications.
  4. Only 17% of organizations have a code of conduct that is applicable to third parties.

Rebecca points out the U.S. Sentencing Guidelines provide incentives to have your compliance programs reach out to third parties:

Sentencing Guideline §8B2.1(4):

(A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subdivision (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities.

(B) The individuals referred to in subdivision (A) are the members of the governing authority, high-level personnel, substantial authority personnel, the organization’s employees, and, as appropriate, the organization’s agents.

One of the problems with pushing out your compliance program to third parties is that they may have the may have their own which differs with your program. The bigger problem is you setting the compliance standards but not enforcing them. Rebecca offers some ways to extend compliance and ethics requirements to third-parties. These are some highlights:

  • Conduct due diligence regarding business partners’ compliance and ethics programs.
  • Incorporate language into contracts with third parties requiring compliance.
  • Train third parties on the ethics and compliance program or on particular company policies or procedures.

Thanks to Corporate Compliance Insights for pointing out this survey: Third Party Controls Lacking In Ethics and Compliance Expectations Says SCCE Survey.

Boston University’s Code of Conduct

bu-logoFor a change of pace, I thought I would look at the codes of conduct for educational institutions for their take on the issues. Boston University has an easy to find page with the President’s Statement of Commitment to Ethical Conduct with a link to the BU’s Code of Ethical Conduct.

Boston University is committed to the highest standards of honesty and integrity in all its activities. This includes, among other concerns, the following:

  • Avoiding conflicts of interest and commitment;
  • Dealing with others honestly and in good faith;
  • Preserving confidentiality;
  • Compliance with applicable laws, rules, and regulations; and
  • Timely and accurate public disclosures.

I also tried finding the Code for Brandeis University (my other alma mater) but failed. Perhaps the International Center for Ethics, Justice and Public Life clogs up the search results. Or maybe the Code is not published externally.