There is no substitute for a culture of integrity in organizations. Compliance alone with the law is not enough. History shows that those who make a practice of skating close to the edge always wind up going over the line. A higher bar of ethics performance is necessary. That bar needs to be set and monitored in the boardroom.  ~J. Richard Finlay writing in The Globe and Mail.

Sound governance is not some abstract ideal or utopian pipe dream. Nor does it occur by accident or through sudden outbreaks of altruism. It happens when leaders lead with integrity, when directors actually direct and when stakeholders demand the highest level of ethics and accountability.  ~ J. Richard Finlay in testimony before the Standing Committee on Banking, Commerce and the Economy, Senate of Canada.

The Finlay Centre for Corporate & Public Governance is the longest continuously cited voice on modern governance standards. Our work over the course of four decades helped to build the new paradigm of ethics and accountability by which many corporations and public institutions are judged today.

The Finlay Centre was founded by J. Richard Finlay, one of the world’s most prescient voices for sound boardroom practices, sanity in CEO pay and the ethical responsibilities of trusted leaders. He coined the term stakeholder capitalism in the 1980s.

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liventThe descent to criminal status of Livent’s founder, like that of his friend and former board member Conrad Black, was stunning but not entirely surprising, given the contempt both men showed for modern corporate governance practices.  Between the boards of these now defunct stock market icons, Livent and Hollinger, there stands a roster of seven directors who became convicted felons.

They shared a taste for the finer things and reveled in the image of being larger-than-life figures.  They were also good friends.  One served on the other’s board.  Both were members of the esteemed Order of Canada and held numerous honorary degrees and other accolades.  And when they fell into legal difficulties, they were represented by one of Canada’s most respected criminal lawyers, Edward Greenspan.  Now they share another label:  convicted felon.  Soon Garth Drabinsky will follow his friend Conrad Black, now serving a 78-month sentence in a Florida federal prison, to a new address with a very tall fence and rather drab clothing.  Earlier this week, Mr. Drabinsky and his long- time colleague, Myron Gottlieb, were convicted in a Toronto court on all charges of fraud and forgery in connection with their management of Livent, a once- thriving theatrical production company.

Like Mr. Black, Mr. Drabinsky travelled in a rarified circle of the rich and famous, occasionally bumping into more common mortals.  There was a rather eerie period a few years ago when Mr. Drabinksy and I frequently found ourselves standing just behind or in front of each other at some pleasant dining establishments in New York and Toronto.   At one point, a maître d’ at the Four Seasons asked if we were together.  The New York coincidences ended when Mr. Drabinsky was charged with securities fraud by the Manhattan U.S. Attorney and became a fugitive from justice when he failed to surrender himself.  For a while, we shared the same tailor.  Mr. Drabinksy had an understandable preference for Italian Brioni custom-made suits.  His appearances were always considered something of a theatrical production themselves by my tailor, who would boast frequently that the impresario had just picked up four or five new suits.  Helping me pick out an on-sale, off-the-rack Brioni must have seemed like a real off-Broadway production to this impressionable fellow.

More than once I have found myself standing in front of the pastry counter at what some think to be a chichi grocery store when Mr. Drabinsky has popped up to inquire about the freshness of a chocolate layer cake.

A couple of summers ago, we wound up on the same road in the middle of nowhere in Ontario’s cottage country.   But there was Garth, in his black Porsche Cayenne Turbo, dawdling and weaving on the road in front of me, looking like something of the Phantom of the Highway.  I think he may have been looking for property on which to build his new $5 million cottage, which I thought at the time was quite a display of chutzpah, given that a number of friends had just put together a legal defense fund for him after Canadian authorities charged with fraud and forgery.

I gave a short blast of my horn as I moved around him, fearing that he might wander into the passing lane.  He managed a pleasant smile and a wave, not realizing once again that it was the fellow who was the first to raise red flags in a major publication about Livent’s corporate governance.  

Therein lies another interesting trait Mr. Drabinksy and his corporate empire shared with Conrad Black and Hollinger:  a board of directors where management dominates and controls.  Mr. Black was CEO, chairman and president, as well as chairman of the executive committee, of Hollinger.  Mr. Drabinsky held the same posts at Livent.  Perhaps he took his cue from Hollinger’s structure and confirmed it by placing Conrad Black on his board. When Mr. Drabinksy fell into legal difficulty, Mr. Black was part of a group who came to his rescue.  Order of Canada members stick together, it seems, inside and outside the law. (There is still no indication that Canadian officials seek to strip Mr. Black of that country’s highest honors or of the membership he holds in Canada’s Queen’s Privy Council). 

What boggles the mind is the stellar board of directors that Livent boasted.  The names follow below in my original op-ed piece published in the Financial Post in 1998.  One name, in addition to Mr. Black’s, stands out in Technicolor:  A. Alfred Taubman.  Mr. Taubman, who was also a director of Hollinger, served on Livent’s audit committee.  In 2002, he served one year in federal prison for criminal violation of antitrust laws. 

Thus the following fact is now revealed for the first time in the context of the criminal convictions this week in Toronto.  At Livent, five individuals who held the post of director have at one point or other been convicted of criminal conduct.  At Hollinger, five directors in the company were also found guilty of white-collar crimes.  Two -Black and Taubman- sat on the boards of both Hollinger and Livent.  Between the boards of these now defunct stock market icons, Livent and Hollinger, there now stands a roster of seven directors who became convicted felons.  Odd, too, is the shared training both Mr. Drabinsky and Mr. Black had as lawyers.  Both earned a well-established reputation for their inclination toward litigation.  It is in the most serious kind of litigation, the fight for one’s freedom, that both lost their reputations.

When I used to make observations about the risks posed by so many insiders on the boards of Livent and Hollinger, many in the business press and market analysts would often skoff at my concerns and point to the stellar performance of the companies and the trophy names on their boards.   Now it seems that this structure was a convenient cover for the perpetration of accounting frauds in two orgnizations where the CEO had little trouble mesmerizing even big name directors, who ultimately showed little knowledge of, or sympathy for, modern corporate governance practices.  One wonders if the board thought it was viewing a theatrical event rather than governing a publicly-traded corporation. At Livent, directors gave Mr. Drabinsky and Mr. Gottlieb bonuses even when the company was losing money, and allowed Mr. Gottlieb to sit on the board’s audit committee.   Even the recurring statement in Livent’s proxy circular that the board was viewed by management as something of an advisory group did not seem to bother these directors.  One phrase especially caught my attention a decade ago when the company claimed that the board preferred to rely on the “specialized expertise” of Drabinsky and Gottlieb.  We learned the meaning of  “specialized expertise” this week.

How loud the thud when oversized egos come crashing to the earth, which they otherwise rarely touched before.   No matter how often the sound is heard -Conrad Black, Bernard Madoff, R. Allen Stanford and, recently, Peter Pocklington, one-time owner of the Edmonton Oilers who gave Wayne Gretzky his first NHL season, come to mind- it is impossible not to wonder what might have been if they had been imbued with a lesser ego and a larger sense of integrity and perspective that might have kept their feet more firmly planted on the ground.   

One of my articles on Livent did manage to make its way into the Financial Post some years ago.  I have reprised it below.  Incidentally, this was my final contribution to the Post, which had been running my Op-Eds since the 1970s and on a number of occasions called on me to help write editorials in the newspaper.   Shortly after the article was published, Mr. Black bought the paper.  I was told later by editors that he did not appreciate the article about Livent.  My by-line did not appear in the Post again.  Mr. Black’s successors -who continue to cheerlead for him and run the occasional columns produced from his prison cell, and have expressed the view that his crime was of a minor nature- prefer to keep it that way.  The Financial Post ran a retrospective of the key articles it had published about the Livent saga going back to 1998.   It did not  include the article below, which ran in August of 1998.

Saturday, August 15, 1998

Guest Column

Livent shakeout raises issues about how boards work


The Financial Post

The guns of August are booming again. Four summers ago, the blue-chip board of Confederation Life Insurance Co. came under fire for its failure to prevent that company’s collapse. This time, the target is Livent Inc., where assertions of financial irregularities have led to the suspension of company founders Garth Drabinsky and Myron Gottlieb. On their face, the accusations seem implausible. If true, they would mean there had been a systematic juggling of the books under the noses of some of the most prominent figures in Canadian business. Once again, troubling questions would be raised about whether boards really work, or whether they are just relics of the past.

It will likely be some time before all the facts come to light, but the recorded corporate governance practices of Livent give important insights into the nature of board supervision in the company.

For the period in which the irregularities allegedly occurred, Livent had a board that varied between 13 and 14 directors. Toronto Stock Exchange guidelines, as well as best governance practices elsewhere, recognize that there should be no more than two insiders on the board — usually the chief executive and chief operating officer. In Livent’s case, three senior company officers were also directors in addition to Drabinsky and Gottlieb. Five insiders on a board of 14 is a rarity in Canadian business these days, and not an admirable one at that.

Interesting, too, is the fact that Drabinsky held the dual positions of chief executive and board chairman up to June.  It is widely believed that having a non-executive director as board chairman provides for better accountability and board oversight of management.

The most notable feature of Livent’s board, however, is the fact that it is composed of such high-profile names. Conrad Black has been a director since 1993. Joseph Rotman has been on the board since 1995. Jim Pattison joined the board in 1997. Indeed, in some ways it would be difficult to find a more distinguished board. Black, Rotman, Pattison and Drabinsky are all members of the Order of Canada.

Could such respected and experienced business leaders have been duped? Did the audit committee of the board, which included Rothschild Canada chief executive Garfield Emerson, Sotheby’s chairman and shopping centre king Alfred Taubman and polling guru Martin Goldfarb, fail in one of the director’s most solemn duties: to, as Harvard board scholar Myles L. Mace observed, “ask the right questions”? Or were they given the wrong answers? Livent also claims outside directors on the board’s audit committee have a procedure for meeting independently with the auditors, if they so choose. It will be interesting to learn in the weeks and months ahead if they ever did.

The company has declined to follow TSE recommendations and form a nominating committee composed of outside directors for the selection of new board members. Instead, company documents as recent as May state it prefers to rely upon the “specialized expertise” of Drabinsky and Gottlieb, who, along with unnamed outside directors, look for board members who will “supplement” management. That concept alone, where directors are viewed as some kind of appendage of management, ought to have set off alarm bells among professional investors.

The same philosophy might explain why the board felt no need to follow TSE guidelines in forming a corporate governance committee to examine ways of ensuring board effectiveness. Perhaps now they might wish they had.

Much is resting on the outcome of what happened here, not the least of which is Canada’s already tarnished reputation in global investment circles over the Bre-X Minerals Ltd. and YBM Magnex International Inc. scandals.

If financial irregularities did occur, it may be hard for the investing public and policy makers to resist concluding high-profile boards are little more than ornaments on management’s Christmas tree, and sweeping change is needed.