Last week, I came across this story about a member of the DC Council that the Feds have charged with bribery. According to an unnamed source, Councilmember Brown has decided to plead guilty to the charges, not because he admits that he’s done anything wrong, but because it’ll be faster to move on with his life to plead guilty and serve his time.
It reminded me that in the thousands of conversations I’ve had with compliance & ethics professionals, I’ve heard surprising things, things that employees have said or done, or reasons why some C&E departments can’t get the funding or attention they need. One of the least understandable things I’ve heard is when someone in senior management tells C&E that the reason for his or her complacency is that “we hire good people who wouldn’t do unethical things.”
I find this statement very confusing. (And yes, I do realize that sometimes people make excuses that don’t make sense instead of telling the truth.) Does that mean these folks believe that other companies are knowingly and intentionally hiring people who would do unethical things? Have companies started asking people about their ethics during the hiring process to prevent the unethical from being hired? Are unethical job candidates honest about their questionable ethics in interviews? Are there questions whose answers can surreptitiously reveal a propensity for unethical behavior?
Several years ago, one of my previous employers, the General Counsel Roundtable, divided wrongdoing employees into two categories: the wrongdoers who engage in misconduct intentionally, fully aware of what the rules and behavioral expectations are, and the wrongdoers who engage in misconduct unintentionally, not understanding or knowing what the rules and expectations are. For the latter category of wrongdoers, effective communications and training can go a long way. (In the coming weeks I’ll write about what I think that looks like.) For the former category of wrongdoers, all the communications and training in the world won’t help. Once you’ve hired them, the only way to stop them is to catch them in the act and visibly punish them.
The gradations for the intentional wrongdoers can be cut even finer. Compare Garth Peterson from Morgan Stanley and Lance Armstrong. Both Peterson and Armstrong knew that what they were doing constituted misconduct. Peterson apparently admitted that he engaged in misconduct and did so while actively deceiving Morgan Stanley. I draw the conclusion that Peterson understood that what he was doing was wrong. Based on his interview with Oprah Winfrey, Armstrong still maintains that he was justified in doping and violating the rules of cycling. He doesn’t recognize that he’s a wrongdoer.
All of this rambling to say that the people who say that they hire good people and so they don’t have to worry about C&E flabbergast me. Unless you consistently write clear rules and publicize them in a way that employees understand and train them to recognize red flags when they arise in the contexts of their individual roles, even the best-intentioned employees can run afoul of complicated legal matters. And until someone figures out the series of questions that can identify potentially unethical employees in advance (which seems to be what the government is trying to do by collecting all of the data we generate), every company should be vigilant about their C&E programs. You can bury your head in the sand, but turning a blind eye to the oncoming isn’t going to keep you from being devoured.