For the Rubbish Bin | The Finlay Centre for Corporate & Public Governance

The Dumbest Idea Yet to Emerge from the Conrad Black Trial

It’s probably a theory that hasn’t occurred even to Conrad Black’s skillful defense team: corporate governance experts —and I guess that includes me— are the ones who should be on trial in Chicago. That’s the view of Roger Martin, who expressed his novel hypothesis in the on-line edition of Toronto Life. Because Mr. Martin is dean of Toronto’s Rotman School of Management, all parties are enjoined to take him seriously —I suppose.

Here is some of what he wrote:

Who should be on trial in Chicago for perpetrating fraud? That’s the question last week’s shenanigans at the Black trial raised for me. There is a better answer than Conrad Black: it’s the governance theorists.

The real fraud artists are the governance theorists who have spent decades trying to convince gullible shareholders that, in combination, boards, lawyers, accountants and security regulators can and will protect them from badly behaved executives. This is, plain and simply, a myth. Boards, lawyers, accountants and security regulators work just fine in the presence of well-behaved executives—when shareholders don’t actually need protection.

I plead guilty to advocating improvements in corporate governance. Worse still, I even founded North America’s first fully independent think tank on the subject 15 years ago. But it’s going to be a crowded prisoner’s dock. Included would be figures like the late U.S. supreme court justice William O. Douglas; every member of the Congress that passed the first securities laws in the 1930s; F.D.R, of course, whose administration established the SEC; Peter Drucker, probably the greatest and most respected management theorist ever; a whole slew of multi-billion dollar pension funds; and even George W. Bush, who signed into law the most sweeping corporate governance reforms in more than half a century and has given several speeches on the subject of ethics and transparency in the boardroom. By gosh, I believe Rotman even runs a school for directors and teaches courses on corporate governance. So you’d have to include a few of your professors, Mr. Martin, and even your deputy dean. Better get a bigger courtroom than the one Judge Amy St. Eves is presiding over. Talk about an interesting roster of co-defendants to be sitting with.

Mr. Martin, on the other hand, in raising to criminal status the role of corporate governance reformers, would probably be more comfortable in the company of Mr. Black, who has talked scathingly in the past about corporate governance “zealots” and “fanatics”, and Barry Diller, who recently called corporate governance advocates “birdbrains.”

My view that corporate governance should reflect something more than medieval values and feudal notions is on the record and has on more than a few occasions been voiced before legislative committees, regulators and the press in Canada, the United States and elsewhere. I don’t recall ever suggesting that the Black boardroom is the model I have in mind. It was— how shall I put it —the exact opposite. I may have mentioned this before on these pages.

Hollinger Inc. had more insider board members than outside directors. Mr. Black was chairman of the board and CEO of both Hollinger Inc. and Hollinger International. He chaired that company’s executive committee, which met three times more often than its audit committee. I have never understood how any self-respecting group of directors who claim to be independent could have permitted Mr. Black to have the kind of hammerlock on power that would be the envy of the diminutive emperor his lordship is said to admire. Nor can I imagine how such a group would have allowed so many side deals and fees to be paid to a company (Ravelston) that Mr. Black and his cronies controlled. And since Mr. Martin is talking about fraudsters, it always seemed curious to me that heavy hitters like Richard Perle, Henry Kissinger, James Thompson and Marie-Josee Kravis would sit on the same board as a convicted felon. In 2001, shopping center king and former Sotheby’s chairman Alfred Taubman was found guilty on criminal charges of price fixing. He was sentenced to one year in federal prison yet still appeared as a serving director in Hollinger International’s 2002 proxy filings. If there ever was a board structure that was open to abuse by management, and shouted of disengaged and underempowered directors, it was Hollinger.

The theory of corporate governance involves more than protecting against evil-doers in the boardroom. It has to do with disclosure, transparency, fair treatment of investors and other stakeholders, confidence in securities markets and a whole bunch of other ideals without which modern capitalism cannot function. And yes, Mr. Martin, investors and society need those values even in the presence of honest CEOs, as there is much that is done by management to advance its narrow self-interests that is not unlawful but is nevertheless detrimental to shareholders and unacceptable to society. Consider, for instance, the current stock options backdating scandal that is sweeping through North America’s boardrooms, including Canada’s own Research In Motion. The SEC is now conducting a formal investigation into RIM’s actions. Then there is that exemplar in how not to handle a crisis called Menu Foods which, in addition to producing pet food that injured and killed hundreds of dogs and cats, is now fighting for its own corporate survival. By the tone of comments in the blogosphere and elsewhere regarding the company, its directors and management, I would say the chances of success are remote.

I’ve seen a lot of companies come and go in 30 some years of first-hand experience in and around business. I have never observed any that suffered as a result of too much corporate governance theory. I have, however, witnessed plenty of failures that were attributed to a breakdown in sound governance, which seems to be the case with Hollinger in the best case scenario.

To blame corporate governance “theorists” because crimes still take place in the boardroom despite the push for reform (and here, again, we remind ourselves and others that Mr. Black and his colleagues are still innocent of the charges because they have not been convicted of anything) is like blaming traffic experts for failing to prevent accidents caused by drivers who run red lights.

Having said all this, Mr. Martin is such a bright fellow he may have convinced the authorities to round up all the usual corporate governance suspects. Personally, I am a bit worried because I fear Eddie Greenspan, skilled though he is, has not yet perfected the art of being in two trials at the same time, as he is busy emceeing the one in Chicago. And, recent non-compete payments necessary to defray the costs of my defense have been slow to arrive on my desk (why shouldn’t corporate governance fraudsters get the big bucks, too?)

On, the other hand, perhaps like Conrad Black, Mr. Martin has miscalculated the unpredictable nature of the U.S. legal system and will wake up one day to discover that Patrick Fitzgerald has brought an indictment against him for publishing such a stupid idea.

I’d be careful about those emails, Roger, and any unauthorized use of the Rotman School’s executive jet.

For the Rubbish Bin: Tom Perkins’s View of the Changing Boardroom

Former Hewlett-Packard director Thomas Perkins laments the rise of what he calls “compliance” boards filled with checklist directors who do not understand the business of the company they oversee and whose primary focus is ensuring that they live up to the letter of the law. He favors the “guidance” board, which he sees disappearing. Mr Perkins seems to believe that only the latter have any interest in understanding the businesses of the companies they direct or are capable of adding real value.

This is just one more rather poorly disguised attack on Sarbanes-Oxley legislation, which enshrined generally accepted minimum requirements that any board must follow if directors are truly assuming the responsibility of directing. No doubt about it, many directors don’t like the idea of rules in the boardroom and prefer the cushy, clubby old days when directors didn’t have to answer for their actions. The drive for change and higher standards of compliance and accountability that seem to bother people like Mr. Perkins came about after many decades of scandals where boards were given to regularly claiming they had no idea about the problems facing the company, usually because they were so disengaged from its affairs that the staff in the mail room were better informed than the directors in the boardroom. SOX sought to change that culture. I supported its enactment in submissions to Congressional committees at the time and remain committed to its groundbreaking role in raising governance standards and upholding public confidence in capitalism. Wise directors know they have a job on their hands to restore the image of a much disparaged institution and are working hard to bring the boardroom into the 21^st century. They do not view, and none should be tolerated who see, compliance and creativity as mutually exclusive.

Directors do not hold office simply to advise the CEO and provide moral support; they are there to supervise top management. Of course, an exchange of views and experiences between directors and management is always important in the boardroom and good directors support CEOs in a number of ways. But the real issue is not what Mr. Perkins calls “plug to plug” directors. It is that in too many cases in the past, directors were little more than ornaments that only came to light when the CEO plugged them in –and much of the rest of the time they were left completely in the dark. Those were neither “guidance” nor “compliance” directors; they were disengaged directors. There are too many still in business today. Changing that culture is what lies behind the move to reform the boardroom.

How or if Mr. Perkins fits into this new world is something he can decide for himself. Personally, I thought the HP merger with Compaq was a disaster and I put that position on the record during the time of Walter Hewlett’s campaign opposing it. I find little evidence to suggest that HP’s shareholders were well served by that corporate marriage.

I agree that we don’t want directors who see their job as one purely of lawyering and bean counting. Directors of vision are always essential and should be encouraged, and, in my view, they are no more rare today than they were in the decades that preceded SOX. But the suggestion that keeping companies honest and accountable has reached such a burdensome level that it impairs the ability of directors, or relieves them of the duty, to understand their business and contribute significant value at various levels is…well, rubbish.

Sorry to be so blunt, Mr. Perkins, because I was rather looking forward to a spin on your new $100 million yacht, which I’ve been hearing so much about. I think I could have offered some sound guidance.