This article originally appeared on Richard Bistrong’s FCPA blog and is republished here with permission.

A few weeks ago I posted “EY Global Fraud Survey: ‘Depressing,’ yes, surprising, no” and shortly thereafter, Philipp Kloeber, Consultant at Ernst & Young, Melbourne, Australia was kind enough to refer me to the EY paper “Overcoming compliance fatigue: Reinforcing the commitment to ethical growth.” My reaction to this work is that it is reflective, well-thought-out and extremely thorough in its methodology (2,700 executives across 59 countries); however, my conclusion remains, “depressing yes, surprising, no.” However, there are significant issues that the EY Survey elevates, which some might think of as having nothing to do with foreign corruption, but from my perspective are very much interrelated, not to mention perilous for all involved.

The paper addresses “compliance fatigue” as representative of the “easy gains and quick wins for the compliance function,” but that “further progress from here is likely to be difficult.” As stated in the Executive Summary, “the survey results provide a warning to Boards of Directors that compliance efforts may be losing momentum,” due to the trend that companies having an anti-bribery/anti-corruption (ABAC) policy have “increased by only 1 percent over the past two years.” In addition, “a persistent minority has yet to take even the basic steps toward an effective compliance program.” In more statistical terms, “one in five businesses still do not have an ABAC policy,” and “less than 50 percent of respondents have attended ABAC training.” Among C-Suite respondents, only 38 percent attended ABAC training and only 30 percent participated in an ABAC risk-assessment.

Wait… more depressing, yet unsurprising, findings:

  • “ABAC training is less likely to occur in jurisdictions where there is a higher perceived risk of bribery.”
  • “Sales and marketing executives are the least likely of all our respondents to be included in risk assessments, despite being exposed to and aware of significant risks.”

I appreciate the elevation of those dynamics, as I’ve written about the need for compliance personnel to listen to those at the front lines of international business in order to better understand the risks and challenges they face. As I have shared, the more disturbing those conversations may be, the better they are, as you “can fix what you know.” Driving down rules and procedures to front-line business personnel without their participation and buy-in will be viewed as nothing more than a set of rules and procedures. Without a true ethical commitment to anti-corruption whereby field personnel are brought into the ABAC process at the inception, those at the front line will see policy as coming from “those who don’t know what we face.”

Fraud is Fraud

Now, let’s leave the world of ABAC for a moment to look at what I consider to be a significant and related trend with respect to the survey’s findings. According to EY, “executives at senior levels are as likely to justify certain questionable or unethical acts as their more junior colleagues.” Of particular note, “CEOs are more likely to justify it than other colleagues.” As the report well states, “the risk posed by these individuals acting unethically have the potential to cause the most serious damage to their organizations.” Details?

  • “CFOs are more likely than other executives to justify changes to assumptions relating to valuations and reserves in order to meet financial targets.”
  • “General counsel respondents are more likely than other executives to justify backdating contracts in order to meet financial targets.”
  • “Sales and marketing executives are more likely than other executives to justify introducing more flexible return policies in order to meet financial targets.” (In sales speak, we used to call this “stuffing the channel.”)

So, what does any of this have to do with foreign bribery and anti-corruption? How about EVERYTHING (emphasis added, in case you missed it)? Let me put forth a few scenarios referencing the above. I ask, what messages are those at the front line of  international business receiving when C-Suite executives:

  1. Encourage, authorize or in fact direct the shipment of product (to record a sale), knowing that a significant percentage of the product will be returned in a subsequent financial period?  This often happens at the end of one fiscal quarter, and the product is returned in another fiscal quarter.
  2. Refuse to write down obsolete inventory of which front-line personnel know very well the details, as they are well aware of  what constitutes salable product?
  3. Delay writing down bad debt, again, with the front-line personnel usually in the know?
  4. Authorize the shipment of product to third parties, such as freight forwarders, warehouses, etc, just to record a sale, when the financial terms and documentation needed to contractually finalize the sale are not yet complete?

I asked Scott Killingsworth, Partner at Bryan Cave and author of “‘C’ Is for Crucible: Behavioral Ethics, Culture, and the Board’s Role in C-Suite Compliance,” about this dynamic.  Scott commented, “This reminds me of the Economist’s 2013 global survey of financial services executives, half of whom were in the C-Suite. Almost everyone (91 percent) said that at their company, “ethical conduct is just as important as financial success.” But at the very same time, a majority said that “it is difficult to make career progression at my firm without being flexible on ethical standards.”

Furthermore, “the cognitive dissonance between these statements is staggering, but we have this amazing ability to compartmentalize ethics or compliance from business when we are aiming at a business goal. All it takes is a plausible business reason and many of us are ready to condone and justify misconduct. In the case of the Economist study, we find such a reason in the response to another question, where 53 percent agreed that “being too rigid over ethical standards will make my firm less competitive.”

In other words, as Scott maintains, the Economist survey demonstrates that “ethical conduct is just as important as financial success, as long as it doesn’t get in the way of the firm’s financial success – if it does, being ethical can hurt your career.” In addition, “Senior executives are carefully watched by their subordinates, and in a workplace with a weak ethical culture, this message about priorities echoes down the ranks quite clearly.”

I totally agree, and when it comes to a “weak ethical culture,” these trends, which some might characterize as accounting fraud, are absolutely interrelated to bribery and corruption. When front-line personnel know that the C-Suite engages in such conduct to make the numbers, (often, field personnel are involved by having to call customers to arrange  shipments, agree to the returns,  etc.) and in publicly listed corporations, where this dynamic repeats every quarter, what is the message? When such individuals and teams, especially those in high-risk (corrupt) areas confront requests for small bribes and corrupt transactions, how do you think this impacts what I have called “rationalizing bribery?”

I asked Forbes contributor Walter Pavlo, who has written extensively on white collar crime issues, for his perspective. Walt stated, “Many businesses manage their financial results each month, quarter and year. The purpose of doing this is that executive management believes it presents their company in the best light, just like Photoshopping makes people appear in their best light.” Furthermore,  “the problem is, neither of these reflect reality. So when a salesperson sees the company taking shortcuts on financials, something like a bribe no longer looks like a bribe, but a solution.” As he concludes, “the way companies handle bad news or challenges is fairly reflective of how its people will handle them.”

As if the front-line challenges were not great enough, this elevates yet another component of the perfect storm of rationalizing bribery, which I did not consider prior to reading the EY Survey. The newest addition is “hey, it’s not like the home office is any power of example.” This is not an attempt to justify illegal conduct, but these are serious issues that impact the thought process of those at the front lines of international business, and they’re not often considered or even acknowledged by compliance professionals. Furthermore, as the Survey states, not only are executives exposed to risks, but also they have “an apparent willingness to take them.” Over one-third (on average) of C-Suite personnel felt the following would be justified “to help a business survive.”

  • Offering entertainment to win/retain business
  • Personal gifts to win/retain business
  • Cash payments to win/retain business

And we wonder why the wave of anti-bribery enforcement does not seem to be waning. In addition, the averages for C-Suite respondents on the above were HIGHER (emphasis added) as compared to the entire respondent group. Again, is this an attempt to lay responsibility for individual illegal conduct at the front door of the C-suite? Absolutely not, and I speak through the experience of accepting responsibility, pleading guilty to bribery and consequential incarceration. However, as the survey states, “if senior management is not significantly engaged, significant risks may not be effectively managed or addressed.” Furthermore, “it is difficult to convince your business that fraud, bribery and corruption compliance are serious issues if senior executives are not seen to be doing what they are telling their teams to do” (emphasis added).

In other words, corporate edicts of “don’t bribe” on one hand, accompanied by “who can you call to ship a bunch of product, even if it gets returned next quarter” on the other, deliver the same message: rules are made to be broken. The survey concludes with, “fraud, bribery and corruption are unlikely to disappear.” Agreed. And my compliments and appreciation to EY for raising awareness of how C-Suite behaviors can have such a tremendous impact (positive or negative) on front lines of international business through the “power of example.”

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Richard Bistrong

Richard Bistrong, CEO of Front-Line Anti-Bribery LLC

Former FCPA Violator and FBI/UK Cooperator; Anti-Bribery Consultant; Writer & Speaker

Richard Bistrong spent much of his career as an international sales executive in the defense sector and currently consults, writes and speaks on foreign bribery and compliance issues from that front-line perspective. Richard’s experience included his role as the Vice President of International Sales for a large, publicly traded manufacturer of police and military equipment, which required his residing and working in the UK. For well over 10 years, Richard traveled overseas in his sales responsibility for approximately 250 days per year.

In 2007, Richard was targeted by the U.S. Department of Justice in part due to an investigation of a UN supply contract and was terminated by his employer. In that same year, as part of a cooperation agreement with the DOJ and subsequent Immunity from Prosecution in the United Kingdom, Richard assisted the United States, Great Britain and other governments in their understanding of how FCPA, bribery and other export violations occurred and operated in international sales. Richard’s cooperation, which spanned three years of covert cooperation and two years of trial preparation and testimony, was one of the longest in a white-collar criminal investigation. In 2012, Richard was sentenced as part of his own plea agreement, and served fourteen-and-a-half months at a federal prison camp. Richard was released in December of 2013.

Richard now consults, writes and speaks about current front-line anti-bribery compliance and ethics issues. Richard shares his experience on anti-corruption and ethical challenges from the field of international business, reflecting on his own perspective and practice as a former sales executive and law enforcement cooperator. Richard currently consults with organizations through his company, Front-Line Anti-Bribery LLC, and welcomes the opportunity to exchange and share perspectives on real-world anti-bribery and compliance challenges.  Richard has shared his experience, via keynotes and panels, with the OECD, World Bank and International Anti-Corruption Academy, as well as major multinationals and leading academic institutions.

Richard can be reached via his website www.richardbistrong.com  or email richardtbistrong@gmail.com and he frequently tweets on #FCPA & #compliance via @richardbistrong.  Abstracts on his consulting practice can be found on his website. Richard is also a Contributing Editor to the FCPA Blog at www.fcpablog.com.

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