Compliance and Contemplation
In December 2013 I returned to my computer, having been “off-line” for a little over fourteen months, and I couldn’t help but noticing the dramatic growth in the fields of legal, regulatory, audit and investigatory practices, all offering well-experienced and professional expertise with respect to anti-bribery compliance. It was obviously clear that each practice presented essential elements as part of an anti-bribery compliance program with impressive proficiency and credentials. All I saw missing was a “drill down” into how bribery actually operates at front lines of international business, outside the discussions and press-releases related to enforcement actions.
I found that the quality and frequency of opinion was notable, but again, I saw a gap from the “field” level. As Matteson Ellis sates, “corruption is a crime of opportunity,” (Wrage, 2014, How to Pay a Bribe) and it is a crime where at some level, those who give the bribes and those who receive them have calculated that the benefits gained in the transaction outweigh the consequences and probability of getting caught. While the transactions might be complicated, through front-companies, third parties and other financial vehicles, the behaviors are not; this is a crime of decision-making gone bad. Furthermore, looking at the enforcement history, we see people, myself included, who are well educated, compensated and respected (at the time), and who engaged in corruption. They risked everything, including liberty, sometimes for petty amounts. Why?
Accordingly, I reached out to some of the leading authors in the field whose writing I respect a great deal, including a few who even wrote about my own case, and posed to them the question, “do you want to engage about a first hand experience?” The silence was initially deafening. However, there were those like Mike Koehler, whose own perspective with respect to the FCPA, while different than my own, welcomed me to a Q and A (link here). Thank you, Mike. Nonetheless, as Justin Paperny said in an interview about his own experience, “I was released to a world that doesn’t totally embrace a convicted felon.” Agreed and deserved. I had to accept and embrace the fact that because of my own behaviors and prior conduct, that my perspectives might be discounted or even discarded by others.
But I never shy way from that conduct, even in my post of a few weeks ago where I talked about being deservedly debarred. Once I got over the “silence,” I decided to speak openly of my experiences and the consequences of my behavior, with no conditions, except to be mindful and respectful of the privacy of others, where appropriate. I thought that as someone who spent a career in the field of international business, knowing that others are facing the same temptations, rationalizations and emotions, that I would try to elevate the front-line perspective. I would engage with others where they found this viewpoint as adding value to the existing field of compliance. Where practitioners said “no thanks,” to exchanging views, in writing or in person, I expressed appreciation for their time and continued to follow their work. But here comes the thank you, combined with gratitude and humility.
What I did find was a large group of professionals, including C-Suite, legal, academic, enforcement, and compliance personnel who said, “we never get to hear this.” Why? Because when people who did what I did are “caught” by their companies and enforcement authorities, we don’t stop by the compliance office on our way out the door and say “hey, do you want a de-brief?” It is a straight line for a Defense Attorney. This group of early supporters, including the likes of Jim McGrath, may he rest in peace, gave me the courage and strength to continue to write and speak about my experience. The feedback that I continue to receive is that the behavioral, or front-line, perspective is too often ignored, perhaps deliberately, in the compliance debate. I am not listing this group by name as surely I will leave someone out, and will then feel that I was not being mindful of everyone. So as group, including my readers of today, I thank you for being a part of my community. I also want to express my gratitude to those whose who have invited me to guest write and speak as to address their communities. Once more, a collective thanks.
As Alison Taylor has stated in her recent white paper (link here), Risk an Organizational Perspective, compliance has to be more than a bolt-on set of rules and procedures for it to take hold in an organization, and that “processes will not solve the problem.” I totally agree with her that the current risk-mitigation model, while essential, is proving inadequate “in the face of regulatory complexity, volatility and an enforcement environment of constant change.” If you think that the current compliance paradigm is ‘doing just fine,’ just look at the FCPA ‘December to Remember’ on the DOJ web site. Even with all of the current enforcement publicity, well-educated and highly compensated professionals, are still weighing the pros-and-cons of corruption, and bribing. Look at the OECD Bribery Report; this is not behavior that always emanates from the bottom of the org chart.
Thus, as I contemplate this year of compliance, I express my sincere and humble gratitude to those who said, “speak up.” The Ivory Towers of Board Rooms and C-Suites are a long way from the front lines of international business, where the confrontations with corruption take place. I am happy to accept the role of the “little guy” at the field level, who will continue with your encouragement, to elevate the front-line perspective. While talking about my past is not always comfortable, I will never hesitate to pull back the curtain on the emotions, temptations and rationalizations that occur at the field level. If you want hear more, I will continue to blog once a week, and you can always e-mail me at firstname.lastname@example.org. But be prepared, you might not like what you hear. As I continue to share, while hearing what happens at the front lines of international business might be upsetting, that is a good thing, as you can always fix what you know.
Have A Happy New Year, Richard