Is a Board of Directors a compliance internal control? I think the clear answer is yes. In the FCPA Guidance, in the Ten Hallmarks of an Effective Compliance Program, there are two specific references to the obligations of a Board in a best practices compliance program. The first in Hallmark No. 1 states, “Within a business organization, compliance begins with the board of directors and senior executives setting the proper tone for the rest of the company.” The second is found under Hallmark No. 3, entitled “Oversight, Autonomy and Resources”, which says the Chief Compliance Officer (CCO) should have “direct access to an organization’s governing authority, such as the board of directors and committees of the board of directors (e.g., the audit committee).”

Further, under the US Sentencing Guidelines, the Board must exercise reasonable oversight on the effectiveness of a company’s compliance program. The DOJ Prosecution Standards posed the following queries: (1) Do the Directors exercise independent review of a company’s compliance program? and (2) Are Directors provided information sufficient to enable the exercise of independent judgment? The DOJ’s remarks drove home to me the absolute requirement for Board participation in any best practices or even effective anti-corruption compliance program.

I believe that a Board must not only have a corporate compliance program in place but also actively oversee that function. Further, if a company’s business plan includes a high-risk proposition, there should be additional oversight. In other words, there is an affirmative duty to ask the tough questions. But it is more than simply having a compliance program in place. The Board must exercise appropriate oversight of the compliance program and indeed the compliance function. The Board needs to ask the hard questions and be fully informed of the company’s overall compliance strategy going forward.

Lawyers often speak to and advise Boards on their legal obligations and duties. If a Board’s oversight is part of effective financial controls under Sarbanes Oxley (SOX), that also includes effective compliance controls. Failure to do either may result in something far worse than bad governance. It may directly lead to a FCPA violation and could even form the basis of an independent FCPA violation.

A company must not only have a corporate compliance program in place it must also actively oversee that function. A failure to perform these functions may lead to independent liability of a Board for its failure to perform its allotted tasks in an effective compliance program. Internal controls work together with compliance policies and procedures are an interrelated set of compliance control mechanisms. There are five general compliance internal controls for a Board or Board subcommittee role for compliance:

1. Corporate Compliance Policy and Code of Conduct - A Board should have an overall governance document which will inform the company, its employees, stakeholders and third parties of the conduct the company expects from an employee. If the company is global/multi-national, this document should be translated into the relevant languages as appropriate.
2. Risk Assessment - A Board should assess the compliance risks associated with its business.
3. Implementing Procedures - A Board should determine if the company has a written set of procedures in place that instructs employees on the details of how to comply with the company’s compliance policy.
4. Training - There are two levels of Board training. The first should be that the Board has a general understanding of what the FCPA is and it should also understand its role in an effective compliance program.
5. Monitor Compliance - A Board should independently test, assess and audit to determine if its compliance policies and procedures are a ‘living and breathing program’ and not just a paper tiger. 

There have been recent FCPA enforcement actions where the DOJ and SEC discussed the failure of internal controls as a basis for FCPA liability. With the questions about the Wal-Mart Board of Directors and their failure to act in the face of allegations of bribery and corruption in the company’s Mexico subsidiary, or contrasting failing to even be aware of the allegations; there may soon be an independent basis for an FCPA violation for a Board’s failure to perform its internal controls function in a best practices compliance program.

 

Three Key Takeaways

1. GTE compliance internal controls are low hanging fruit, pick them.
2. Compliance internal controls can be both detect and prevent controls.
3. Good compliance internal controls are good for business.

For more information on how to improve your internal controls management process, visit this month’s sponsor Workiva at workiva.com.

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