Fifteen years ago, the concept of independent monitoring was just getting off the ground. Jay Rosen discusses the importance of that development and AMI’s role in the change.
As we return from our Thanksgiving break and prepare to wrap up 2019, I would like to reminisce about Vin DiCianni, the president and founder of Affiliated Monitors, Inc. (AMI) on the first 15 years of AMI. This 15-year sweep is much more than simply the history of AMI; it details the rise of independent monitoring in the U.S. at multiple levels: the federal government, state agencies and local authorities as well as internationally.
AMI has been at the forefront of not only the use of independent monitors, but also the dramatic growth of the compliance and ethics profession over the past 15 years. In this year-end five-part series we will look at the history of the origin and expansion of independent monitors, as well as the government’s embrace of corporate compliance and ethics programs.
DiCianni began formulating the idea of an independent monitor when he observed a series of sanctions rendered by government agencies, in which he believed the underlying behavior did not fit the crime. As a white-collar defense lawyer in Boston in the 1990s, DiCianni saw that there were only two paths a state regulator could take if someone was found responsible for a transgression such as billing mistakes or similar regulatory violations. The licensed professional would often either be found guilty and have their state license suspended or revoked, or there would be no sanction. DiCianni viewed suspension or revocation as “a death sentence” for a licensed professional. He added:
“It just seemed wrong to me, but there were no other options that were out there. For about seven, eight years, this idea just percolated in my head about doing something to create these alternative sanctions, if you will, on the probationary side of things, so that a doctor or the practitioner could get better.”
The reality is that license revocation or suspension for relatively minor regulatory infractions does no good for any of the parties involved. It unfairly and harshly penalizes the defendant. It penalizes the public interest by removing a valuable service provider from bringing those skills to address a public need. Finally, it fosters negative implications for the regulator whose interest was not always punishment, but remediation in facilitating practitioners’ understanding of and practice within a jurisdiction’s regulatory scheme.
From this point, DiCianni was able to convince some state regulators in Massachusetts to try a new approach by having an independent monitor step in and assess whether a professional who had run afoul of a regulatory scheme could be rehabilitated via a probationary structure. He then reached out to several professionals in the Boston area to explore the idea of providing independent monitoring services as an alternative sanction.
Some of them were regulators, some were attorneys who represented clients before regulatory boards, some worked in state attorneys general’s offices and some were in business. With this idea coming to fruition, the next step for DiCianni was to create a business organization to fill this niche.
One of the first things DiCianni established with AMI was both integrity and professionalism in the company’s monitorship roles. The integrity comes from the independence the organization brings to the monitorship process. DiCianni said that one of the key reasons for a monitor’s success is true independence. Previously, a state regulatory board might appoint one of its own to become the monitor. In reality, they were simply the “eyes and ears of the board.”
Conversely, if the monitor is the best friend of the recalcitrant party, DiCianni noted, “then there’s a clear bias and lack of objectivity and neutrality to the process. AMI was able to establish processes to designate the company as a true neutral. The professionalism derives from the makeup of the AMI team, as well as in utilizing the services of subject matter experts on its monitorships. Having both of these two ingredients was key for AMI to successfully establish its integrity with regulators.”
DiCianni said that another key feature of a successful monitorship is around education.
A monitor is not there simply to represent the interests of a regulator on a punitive basis.
The monitor can also work to help educate a person or organization on how to better meet their regulatory obligations beyond simply meeting the base letter of the law. In other words, moving beyond simply a check-the-box program.
All of these concepts had to be explained literally again and again to regulators. DiCianni said, “It is talking to them, explaining to them what you do, telling them sort of the benefits of what they’re getting here and then showing them some of the examples of how monitoring works.” He spent “a lot of time sort of building some ground swell of support for the concept of the independent monitor.”
Please join me next week for Part 2 of this series as we explore the early days of AMI’s independent monitoring model.
In case you missed the earlier installments of this ongoing series, please see the links below.