impossible

Are Compliance Officers Being Asked to Do the Impossible?

This article is reprinted with permission from Michael Volkov’s blog, Corruption, Crime & Compliance 

Compliance officers are a confident bunch.  Yes, they can worry like all the rest of us, but in the end, they have faith that they can accomplish their mission.

Forward thinking companies are recognizing the importance of empowering compliance officers and relying on their skills to build proactive compliance tools.  Companies are increasingly relying on compliance officers to “fix” the company’s problems – sometimes this mission can be broadly defined and unfairly placed on the compliance officer’s list of responsibilities.

Sometimes problems can be far broader than “just compliance.”  In trying to define the mission and establishing realistic expectations, a compliance officer should always look to the company’s governance structure and operations.  Good corporate governance practices usually will lead to proper compliance boundaries and responsibilities.

In many industry sectors, compliance officers are now expected to carry out multiple responsibilities, including operational, legal, investigator, policeman/woman, economist, financier and even philosophers.  Compliance officers have to be careful to avoid being charged with more than they can handle, and they have to preserve a realistic role and set of expectations for themselves in the company.  .

A compliance officer can take his or her cues from the board of directors.  If the board is forward thinking and has a compliance committee, the compliance officer will have support for a clear definition of functions; if the compliance program is mired in the workings of an overwhelmed audit committee which is focused on financial issues, the compliance officer is unlikely to get much help from the audit committee.  A direct reporting line between the compliance officer and the board has to be included in this mix.

The compliance officer should conduct a continuous self-assessment: will he or she have independence, adequate resources and authority?  If the compliance officer has doubts in any of these areas, he or she needs to speak up and remedy the situation as quickly as possible.  To the extent needed, compliance officers must ensure they have access to adequate outside counsel and professionals, if appropriate.

Two key functions have to be in place: the compliance officer has to have (1) access to, and an understanding of, the company’s workings and strategy, and (2) a significant role in the review and development of business strategy (including the requirement that the compliance officer attend senior management and board meetings, hopefully as a co-equal senior manager).

The role and responsibilities of a compliance officer have to be carefully explained in advance to the company management.  It is important to know what the compliance officer should be doing and what he or she should not be doing.

One critical responsibility which needs to be made clear is that the compliance officer has to establish programs to monitor all relevant corporate activities so that any potential violations are identified as early as possible.  Stress tests, or transaction testing, should be an important piece of this function.  Auditing of departments that certify to compliance should be a regular part of such monitoring operations.

Unfortunately, a compliance officer devotes more time to being a policeman/woman than a strategic business planner.  Hopefully, as more resources are devoted to compliance functions, chief compliance officers can assume a larger role in the strategic business planning process.

Lawyers will continue to play a significant role in the life of the company.  Compliance officers have to work hand-in-hand with lawyers.  Compliance officers should not hand out legal advice but should implement or obtain legal advice to ensure business operations comply with the law.

In the end, compliance officers should not be the only corporate actors dedicated to ensuring compliance.  In fact, each corporate function plays an indispensible role in the compliance function.  The challenge is for the compliance officer to recognize his or her responsibilities and boundaries and feed into the compliance functions of other senior management functions such as human resources, operations, legal and financial.

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Michael-Volkov-leclairryan

About the Author

Michael Volkov is a shareholder at the national law firm of LeClairRyan. His practice focuses on white collar defense, corporate compliance, internal investigations and regulatory enforcement matters, and he is a former federal prosecutor with almost 30 years of experience in a variety of government positions and private practice. He can be reached at michael.volkov@leclairryan.com.

About the Author

Michael Volkov

Michael-Volkov-leclairryanMichael Volkov is the CEO of The Volkov Law Group LLC, where he provides compliance, internal investigation and white collar defense services.  He can be reached at mvolkov@volkovlaw.com.  His practice focuses on white collar defense, corporate compliance, internal investigations, and regulatory enforcement matters. He is a former federal prosecutor with almost 30 years of experience in a variety of government positions and private practice. Michael maintains a well-known blog: Corruption Crime & Compliance which is frequently cited by anti-corruption professionals and professionals in the compliance industry.Michael has extensive experience representing clients on matters involving the Foreign Corrupt Practices Act, the UK Bribery Act, money laundering, Office of Foreign Asset Control (OFAC), export controls, sanctions and International Traffic in Arms, False Claims Act, Congressional investigations, online gambling and regulatory enforcement issues. Michael has assisted clients with design and implementation of compliance programs to reduce risk and respond to global and US enforcement programs. Michael has built a strong reputation for his practical and comprehensive compliance strategies.Michael served for more than 17 years as a federal prosecutor in the U.S. Attorney’s Office in the District of Columbia; for 5 years as the Chief Crime and Terrorism Counsel for the Senate Judiciary Committee, and Chief Crime, Terrorism and Homeland Security Counsel for the Senate and House Judiciary Committees; and as a Trial Attorney in the Antitrust Division of the U.S. Department of Justice. Michael also has extensive trial experience and has been lead attorney in more than 75 jury trials, including some lasting more than six months. His clients have included corporations, officers, directors and professionals in, internal investigations and criminal and civil trials. He has handled a number of high-profile criminal cases involving a wide‐range of issues, including the FCPA and compliance matters, environmental crimes, and antitrust cartel investigations in countries all around the world. Representative Engagements

  • Successfully represented three officers of a multinational company in two separate criminal antitrust investigations involving a criminal antitrust investigation in the District of Columbia and the Southern District of New York.
  • Defended pharmaceutical company before the Food and Drug Administration and Senate Finance Committee relating to application for approval of generic drug.
  • Conducted internal investigation which exonerated company against allegations of false statements in submissions to the FDA and against improper conduct alleged by Senate Finance Committee.
  • Represented company before the US State Department on alleged violations of ITAR which lead to voluntary disclosure and imposition of no civil or criminal penalties.
  • Advised several multinational companies on compliance with anti‐corruption laws, and design and implementation of anti‐corruption and anti‐money laundering compliance programs.
  • Advised hospitals, pharmaceutical companies and medical device companies on compliance issues relating to Stark law and Anti‐Kickback law and regulations.
  • Conducted due diligence investigations for large multinational companies for anti‐corruption compliance of: potential third party agents, joint venture partners and acquisition targets in Europe, Africa, Asia and Latin America.
  • Represented individual in white collar fraud case in Alexandria, Virginia and secured dismissal of criminal charges and expungement of criminal record.
  • Represented company before Congress and Executive Branch in effort to modify Justice Department regulations concerning use of federal funds.
  • Advised and assisted World Bank in review of global corruption policies, enforcement programs and corruption investigations and prosecutions.