By: Michael Volkov
This article was republished with permission from Michael Volkov’s blog, Corruption, Crime & Compliance.
There is something a little surreal about a CCO, while negotiating to join a company, raising the issue of his or her own termination. Not to be maudlin, but it is an important issue to consider.
The dangerous scenario is not so far-fetched. A CEO or someone from the C-Suite pushes to terminate a CCO because a CCO is likely to uncover some potentially improper conduct committed by the senior official. FCPA enforcement actions, as well as other criminal investigations, are replete with senior executives engaging in cover-ups.
Aside from this scenario, however, there are other, more subtle motivations that can lead to forces in a company wanting to oust a CCO. Whenever a senior executive, like a CCO, seeks to implement change, there is always going to be resistance. Such resistance may or may not be motivated by self-preservation or cover-up, but it could be political, as well. I know this sounds rather obvious, but the corporate landscape is riddled with fallout from internal power struggles, and there is no reason to think that CCOs are not at risk for such efforts.
Change is good, and change is hard (that is what makes it good – how do you like that for circular reasoning?). CCOs are often instigators of change and are frequent political targets in companies. CCOs need a strong alliance with the CEO and the board, as well.
To protect against these political forces, CCOs should demand that their termination from a company only be instituted by the audit committee. Such a restriction sounds like a good idea; CCOs cannot be terminated by the CEO or a gang of senior executives, unless and until the head of the audit committee terminates the CCO.
I am old enough not to be naïve, and I am not suggesting that such a restriction is foolproof, but it is the best we can do under the circumstances. I have more confidence in an audit committee than I do in a company’s senior executives, who may have more of a motivation to jettison a troublesome CCO who is blocking a business initiative or investigating senior executives.
Those who oppose such a restriction usually argue that the protection is more symbolic than anything, because the CEO will go to the audit committee and demand the termination of the CCO to accomplish the same obstructionist strategy. My response is that the audit committee is at least one more layer of protection against a corporate cover-up or political battle meant to prevent the CCO from carrying out his or her job.
It is easy to imagine in the corporate governance world how a CCO can be transformed into a negative force. Can you imagine for example, a CCO who learns of the VW emissions scandal and seeks support from senior management to address the problem? Or what if an active CCO was active in GM and learned about the cover-up of the ignition switch issue and sought to address it with senior managers?
From my perspective, it is naïve to suggest that CCOs are not at risk in these situations. To avoid a troubling firing of a CCO, requiring the audit committee to terminate the CCO can be an important protection against corporate misconduct at the higher level.
A CCO with the backing of the audit committee can be a powerful force in the corporate landscape. I do not mean to suggest that the CCO is above everyone including the CEO, but at least there has to be a real and valid reason for terminating a CCO rather than allowing senior executives the ability to manufacture a pretext to terminate the CCO.
As CCOs rise in the corporate landscape, they have to be aware of the stakes. If CCOs want to be elevated and empowered in the C-Suite, they also have to be realistic about the world in which they operate. Internal struggles, especially around compliance and potential legal violations, can lead to unfortunate and dangerous motivations. CCOs have to consider these possibilities when they join a company and seek termination protection provisions.
Michael 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.
