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Part One

The EthicsEnvironment

1 Ethics Expectations

2 Governance, Accounting, and Auditing, Post-Enron

IntroductionGiven the increasing complexity of business and professional ethics problems,unless an individual has developed a rather extraordinary interest in businessand professional ethics, and has been able to pursue it daily, it is probable thathe or she has not developed an adequate awareness of ethical issues. Remedyingthat deficiency is the purpose of Part 1.

Chapter 1 provides a guide to the rest of the book. It begins with a summary ofthe forces responsible for the changes in the public’s expectations for corporateethical behavior, and in turn, in the public’s expectations of accountants who auditthose corporations as well as those who serve in the management of the corpora-tions. Responses to these forces and related developments are reviewed, includ-ing the new mandate, governance and stakeholder accountability frameworks,new techniques for the management of reputation and ethics risks, and new per-spectives on accountability and business ethics.

Chapter 2 examines the profound changes brought by the Enron, ArthurAndersen, and WorldCom debacles, including the Sarbanes-Oxley Act recom-mendations and related U.S. Securities and Exchange Commission pronounce-ments, all of which are ultimately changing corporate governance and theaccounting profession around the world. These two chapters are intended to pro-vide an up-to-date perspective on the changing expectations for ethical behaviorfor directors, executives, managers, and professional accountants.

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Business & Professional Ethics for Directors, Executives, & Accountants, 4e, Brooks - © 2007 Thomson South-Western

Chapter One

Ethics Expectations

Purpose of the ChapterBusiness and the professions function within a framework created by theexpectations of the public. Enron and the subsequent Arthur Andersen andWorldCom fiascoes have triggered a “sea change” of new expectations forbusiness governance and the accounting profession in the United States andCanada, and are in the process of informing expectations around the world.These new behavioral expectations are based on an acceleration of business andprofessional ethics trends that have been long in the making. Business and pro-fessional ethics have, in effect, entered a time warp.

This chapter explores the changes that the ethics trends have brought to theexpectations framework, as well as the developments that have arisen inresponse to those changes. It also begins to consider what the changes in expec-tations mean for the professional accountant. As such, this chapter provides anintroduction and overview for the book.

The Ethics Environment for Business: The Battle for Credibility, Reputation, and Competitive AdvantageDuring the last twenty-five years, there has been an increasing expectation thatbusiness exists to serve the needs of both shareholders and society. Many peoplehave a “stake” or interest in a business, its activities, and impacts. If the interestsof these stakeholders are not respected, then action that is often painful to share-holders, officers, and directors usually occurs. In fact, it is unlikely that busi-nesses or professions can achieve their long-run strategic objectives without thesupport of key stakeholders, such as shareholders, employees, customers, credi-tors, suppliers, governments, host communities, and activists.

The support for a business—and business in general—depends upon thecredibility that stakeholders place in corporate commitments, the company’sreputation, and the strength of its competitive advantage. All of these dependupon the trust that stakeholders place in a company’s activities; trust, in turn,depends upon the values underlying corporate activities.

Stakeholders increasingly expect that a company’s activities will respect theirvalues and interests. To a large extent, this respect for stakeholder values andinterests determines the ethical standing and success of a corporation.Consequently, corporate directors are now expected to govern their company

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Chapter One Ethics Expectations 3

ethically, which means that they are to see that their executives, employees, andagents act ethically. Moreover, the corporation is increasingly expected to beaccountable to stakeholders in a transparent or ethical manner. Performanceassessment now extends beyond what is achieved to encompass how ethicallythose results were achieved.

As a result, the emerging governance and accountability regime for busi-ness and the professions has become far more concerned with stakeholderinterests and ethical matters than has been the case in the past. Directors, exec-utives, and professional accountants, who serve the often conflicting interestsof shareholders directly and the public indirectly, must be aware of thepublic’s new expectations for business and other similar organizations, andmust manage their risks accordingly. More than just to serve intellectualcuriosity, this awareness must be combined with traditional values and incor-porated into a framework for ethical decision making and action. Otherwise, aswas the case with the Enron and Arthur Andersen debacles, the credibility,reputation, and competitive advantage of capital markets, the organization,management, professional, and the profession will suffer.

What has produced this change in public expectations for business gover-nance, behavior, and accountability? Several factors appear to share causalresponsibility as indicated in Table 1.1.

Environmental ConcernsNothing galvanized early public opinion about the nature of good corporatebehavior more than the realization that the public’s physical well-being, and thewell-being of some workers, was being threatened by corporate activity.Initially, concern about air pollution centered on smokestack and exhaust pipesmog, which caused respiratory irritation and disorders. These problems were,however, relatively localized, so that when the neighboring population became

TABLE 1.1 Factors Affecting Public Expectations for Business Behavior

Physical Quality of air and water, safetyMoral Desire for fairness and equity at home and abroadBad Judgments Operating mistakes, executive compensationActivist stakeholders Ethical investors, consumers, environmentalistsEconomic Weakness, pressure to survive, to falsifyCompetition Global pressuresFinancial malfeasance Numerous scandals, victims, greedGovernance failures Recognition that good governance and ethics risk

assessment matterAccountability Desire for transparencySynergy Publicity, successful changesInstitutional reinforcement New laws—environment, whistle-blowing, recalls,

U.S. Sentencing Guidelines, OECD anti-bribery regime, Sarbanes-Oxley Act (SOX) reforms, pro-fessional accounting reform

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4 Part One The Ethics Environment

sufficiently irate, local politicians were able and generally willing to draft con-trolling regulation, although effective enforcement was by no means assured.

Two other problems associated with air pollution that were slower to be rec-ognized were acid rain, which neutered lakes and defoliated trees, and the dis-sipation of the earth’s ozone layer. In the first case, the sulphur in exhaust gasescombined with rain and fell to the ground far away from the source, often inother legal jurisdictions. Consequently, the reaction by politicians in the sourcejurisdiction was predictably slow, and many arguments were raised about whowas responsible and whether the damage was real or not. Ultimately, however,the level of awareness of the problem became sufficiently widespread to supportinternational treaties and more stringent local regulations.

The dissipation of the earth’s ozone layer has been more recently recognizedas a serious threat to our physical well-being. The release into the atmosphere ofCFCs, once the most common residential and industrial refrigerant, allows CFCmolecules to use up molecules of ozone. At the same time, the cutting down ofthe rain forests in Brazil, which were a main source for replenishing ozone, hascontributed further to the depletion of the ozone layer around our planet. Thislayer was our major barrier from the sun’s ultraviolet rays, which contribute toskin cancer and damage our eyes.

The timing of the recognition of water pollution as a problem worthy ofaction has paralleled the concern about our depleted ozone layer, partly becauseof our limited ability to measure minute concentrations of toxins and our inabil-ity to understand the precise nature of the risk of water-borne metals and diox-ins. Corporations asserted that they did not have the technical solutions to theelimination of air and water pollution at reasonable cost and therefore could notdo so and remain competitive. However, once the short and long-term threats topersonal safety were understood, the public, led by special interest groups,began to pressure companies as well as governments directly to improve safetystandards for corporate emissions.

Government reaction, often prompted by disasters, has been significant at alllevels. Locally, no-smoking regulations have been enacted and local ordinancestightened. Environmental regulation has been the subject of internationaltreaties. In both the United States and Canada, environmental protection actshave been put in place that feature significant fines up to $1–2 million per dayfor the corporation convicted of environmental malfeasance. In addition, per-sonal fines and/or jail terms for officers and directors have focused the attentionof executives on programs to ensure compliance with environmental standards.Nothing has energized executives in the United States and Canada more thanthe statement of a judge in regard to the promulgation of the U.S. SentencingGuidelines on November 1, 1991. He said that the “demonstrated presence of aneffective program of environmental protection would constitute an adequate‘due diligence’ defence which could reduce the level of fine from $2 million/dayto $50,000/day.” While this reaction may be viewed as defensive, the “due dili-gence” movement should be viewed as only one phase, the codification phase,of the movement toward corporate environmental responsibility.

Moral SensitivityDuring the 1980s and 1990s, there was a significant increase in the sensitivity tothe lack of fairness and to discrepancies in equitable treatment normallyafforded to individuals and groups in society. Several groups were responsible

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for this heightened social conscience, including the feminist movement andspokespeople for the mentally and physically challenged, for native people, andfor minorities. To some degree, the public was prepared to entertain the con-cerns of these groups because unfortunate events had brought the realizationthat some special interest groups were worth listening to, as environmentalists,consumer advocates, and anti-apartheid supporters had shown. Also, for most ofthe period from 1960 onward, disposable incomes and leisure time have been suf-ficiently high to allow members of the public to focus on issues beyond earningtheir livelihood. In addition, due to the advances in satellite communicationsthat have allowed virtually “live” coverage of worldwide problems, the think-ing of the North American public has become less inner directed and parochial,and more sensitive to problems featured by wide-ranging investigativereporters.

Evidence of public pressure for more fairness and equity is readily available.The desire for equity in employment has resulted in laws, regulations, compli-ance conditions in contracts, and affirmative action programs in corporations.Pay equity programs have begun to appear to readjust the discrepancy betweenthe pay scales for men and women. Consumer protection legislation has beentightened to the point that the old philosophy of “buyer beware,” which tendedto protect the large corporation, has been transformed to “vendor beware,”which favors the individual consumer. Drug tests for employees have beenmuch more carefully handled to minimize the prospect of false findings. All ofthese are examples in which public pressure has brought about institutionalchanges through legislatures or courts for more fairness and equity and less dis-crimination, and therefore will be virtually impossible to reverse. Indeed, thetrend is unmistakable.

Moral sensitivity is also evident to international issues as well as domestic.The campaign to boycott buying from corporations that engage in child or sweat-shop labor in foreign countries provides ample testimony to this, and hasresulted in the creation of codes of ethical practice for suppliers, and compliancemechanisms to ensure they are followed. Organizations such as the SocialAccountability International and AccountAbility are developing workplace poli-cies, standards, workplace auditor training programs, and reporting frameworks.

Bad Judgments and Activist StakeholdersDirectors, executives, and managers are human, and they make mistakes.Sometimes the public, or specific groups, take offense at these instances of badjudgment and take action to make the directors and management aware that theydo not approve. For example, the decision by Shell UK to scuttle the Brent SparOil Storage Vessel in a deep part of the ocean rather than take it apart on shoreled to demonstrations in support of Greenpeace, which tried to stop the scuttling,and to the boycott of Shell gas stations in Europe. Nestle products were boy-cotted in North America and Europe to stop the free distribution of baby formulapowder to African mothers who were mixing it with contaminated water, therebykilling their babies. Nike and other companies’ products were boycotted throughthe efforts of concerned individuals and groups to stop the use of sweatshop andchild labor, particularly in foreign countries. The recall of Firestone tires wasignited by the media, beginning with a television show in Houston, Texas. NorthAmerican corporations were extravagantly overpaying their executives—includingseveral above $50 million per annum—or not reducing executive pay when

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profits declined, so CalPERS, the California Public Employees Pension Fund,called for the establishment of compensation committees consisting of a majorityof independent directors. Activist stakeholders were clearly able to make a dif-ference—one most people thought was for the best.

Two other kinds of activists also made their appearance in the late 1980s andearly 1990s: ethical consumers and ethical investors. Ethical consumers wereinterested in buying products and services that were made in ethically accept-able manners. Consequently, books such as Shopping for a Better World, TheEthical Shopper’s Guide, and Conscious Consumption were published in the UnitedStates, Canada, and in the United Kingdom. They provided ratings of compa-nies, their affiliates, and their suppliers on different performance dimensions,such as hiring and treatment of women, environmental management and per-formance, charity, progressive staff policies, labor relations, consumer relationsand candor at answering questions. Ethical consumers were then able to “votewith their checkbook.”

Ethical investors took the view that their investments should not only make areasonable return, but should do so in an ethical manner. Originally pioneered bylarge pension funds such as CalPERS, and The New York City Employees PensionFund, as well as several church investment funds, the movement has been aug-mented since the early 1990s by several ethical mutual funds. These ethicalmutual funds employ screens that are intended to knock out companies from con-sideration that are involved in so-called harmful activities—like producingtobacco products, armaments, or atomic energy, or misusing animals for testing.Alternatively, individuals or mutual funds can invest in companies that have beenscreened by an ethical consulting service. A Boston firm, KLD Research &Analytics, provides such a screening service and has created the Domini SocialIndex (DSI), made up of 400 ethically screened companies. A similar service isavailable in Canada for Canadian stocks, the MJI, from Michael Jantzi Research; inthe United Kingdom, the FSTE4 Good has been created on the London StockExchange. The performance of these indices compares well to those for non-screened stocks in each country. A current list of ethical mutual funds and anupdate on socially responsible investing (SRI) can be found at the websites ofSocialFunds.com (http://www.socialfunds.com ) in the United States and the SocialInvestment Organization (SIO) in Canada (http://www.socialinvestment.ca). Manyconsultants offer screening services to investors on a fee-for-service basis. The entirefield of ethically screened investing has continued to grow.

These developments signal that business decisions are being judged againstdifferent standards than before, by groups that have billions of dollars at theirdisposal. For additional information, contact the Investor Responsibility ResearchCentre (IRRC) and similar websites.

Economic and Competitive PressuresWhile the public’s expectations have been affected directly by the factors alreadydiscussed, there are a number of underlying or secondary factors that are also atwork. For instance, in general, the pace of economic activity slowed during thelate 1980s, early 1990s, and just before and after the millennium. This placed cor-porations and the individuals in them in the position of having to wrestle with“no growth” or shrinking volume scenarios instead of the expansion that hadbeen the norm. In the 1990s, growing pressure from global competitors and thedrive for improved, costly technology shrank profit margins. Absence of growth

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and shrinking margins led to downsizing to maintain overall profitability anddesirability to capital markets. Whether to maintain their jobs, volume-incentive-based earnings, or their company, some people have resorted to questionable eth-ical practices, including falsification of transactions and other records, and theexploitation of the environment or workers. The result has been part of the reasonfor triggering the cases of environmental or financial malfeasance.

The development of global markets has led to the manufacture and sourcingof products throughout the world. The accompanying restructuring has beenviewed as enabling greater productivity and lower costs with lower rates ofdomestic employment. Therefore, the pressure on employed individuals tomaintain their jobs may not abate as production increases. Nor, given greatercompetition, will greater volume necessarily increase profit, so the pressure oncorporations will probably not abate to levels experienced in the past. As a con-sequence, corporations will be unable to rely on a return to profitability torestore the risk of unethical behavior to former levels. It would appear that areturn to former risk levels will depend on the institution of new regimes of ethical-behavior management and governance.

Financial Scandals: The Expectations Gap and The Credibility GapThere is no doubt that the public has been surprised, stunned, dismayed, anddevastated by financial fiascos. The list of recent classic examples would include:Enron, WorldCom, Adelphia, Tyco, HealthSouth, Parmalat, Royal Ahold, BaringsBank, Livent, and Bre-X, as well as the slightly older U.S. Savings and Loan bank-ruptcies and bailout and the bankruptcies of several real estate companies.

As a result of these repeated shocks, the public has become cynical aboutthe financial integrity of corporations, so much so that the term expectations gaphas been coined to describe the difference between what the public thinks it isgetting in audited financial statements and what it is actually getting. Thepublic outrage over repeated financial fiascos has led, in both the United Statesand Canada, to tighter regulation, higher fines, and investigations into theintegrity, independence, and role of the accounting and auditing profession,and more recently of executives and directors.

On a broader basis, continuing financial malfeasance has lead to a crisis ofconfidence over corporate reporting and governance. This lack of credibility hasspread from the financial stewardship to encompass the other spheres of corpo-rate activity and has become known as the credibility gap. Audit committees andethics committees, both peopled by a majority of outside directors; the wide-spread creation of corporate codes of conduct; and the increase of corporatereporting designed to promote the integrity of the corporation all testify to theimportance being assigned to this crisis.

No longer is it presumed that “whatever company ‘X’ does is in the best inter-ests of the country.” Fiascos related to the environment or to dealings with employ-ees, customers, shareholders, or creditors have put the onus on corporations tomanage their affairs more ethically and to demonstrate that they have done so.

Devastated by the sequence of U.S. disasters in 2001 and 2002 involving Enron,Arthur Andersen, and WorldCom, public confidence evaporated in the businesscommunity, its financial reporting, and in the accounting profession. Capital mar-kets were reeling. President Bush and other business leaders strove to restorelost confidence, but their efforts were largely in vain. Finally, in record time,

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the U.S. Congress and Senate passed the Sarbanes-Oxley Act of 2002 (SOX) on July30. That act provides for the reform of both corporate governance and the account-ing profession, first in the United States, then indirectly in Canada and around theworld. Further details are provided in the next chapter.

Governance Failures and Risk AssessmentThe Enron, Arthur Andersen, and WorldCom series of disasters made clear thatcurrent existing modes governing companies and reporting on their activitieswere not sufficient to protect investors’ interests and, more broadly, the publicinterest in orderly markets and corporate activities.

Corporate directors have been expected to ensure that their corporations havebeen acting in the interests of investors within the range of activity deemed suit-able by the societies in which they operated. But in the Enron, WorldCom, andother cases, the oversight by company directors failed to contain the greed ofexecutives, managers, and other employees. These and other companies were outof control, and unacceptable practices resulted. To quote the U.S. Senate’s reporton the Role of the Board of Directors in the Collapse of Enron:

(1) Fiduciary Failure. The Enron Board of Directors failed to safeguard Enronshareholders and contributed to the collapse of the seventh largest public companyin the United States, by allowing Enron to engage in high risk accounting, inap-propriate conflict of interest transactions, extensive undisclosed off-the-booksactivities, and excessive executive compensation. The Board witnessed numerousindications of questionable practices by Enron management over several years, butchose to ignore them to the detriment of Enron shareholders, employees and busi-ness associates.

Role of the Board of Directors in the Collapse of Enron,U.S. Senate’s Permanent Subcommittee on Investigations, 2002, 3.

Clearly, the public was fed up with directors, executives, and others enrichingthemselves at the public’s expense. It was evident that directors and executiveswere not identifying, assessing, and managing ethics risks in the same manneror depth that they were for other business risks. But the Enron, ArthurAndersen, and WorldCom cases resulted in the bankruptcy of two of the world’slargest companies and the disappearance of one of the world’s most respectedprofessional accounting firms within a year. This sudden reversal of fortunes,due to the failure to govern ethics risks, changed the calculus of risk manage-ment profoundly. The probability of catastrophic failure due to unmanagedethics risks was undeniably real, and much higher than anyone expected.

Governance reform was perceived as necessary to protect the public interest.Where directors had been expected to assess and make sure that the risks facedby their corporation were properly managed, ethics risks were now seen to be akey aspect of the process. Governance reform to ensure this would happen wasoverdue.

Increased Accountability DesiredThe lack of trust in corporate processes and activities also spawned the desirefor increased accountability on the part of investors and particularly by otherstakeholders. Companies around the world have responded by publishing more

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information on their websites and free-standing reports on their corporate socialresponsibility performance, including such subjects as environmental, healthand safety, philanthropic, and other social impacts. While some information inthese reports is skewed toward management objectives, the advent of externalverification and the reaction to misinformation are gradually improving theinformation content involved. The trend is definitely toward increased nonfi-nancial reporting to match the public’s growing expectations.

Synergy Among Factors and Institutional ReinforcementLinkages among the factors affecting public expectations for ethical performancehave already been identified, but not the extent to which these linkages reinforceeach other and add to the public’s desire for action. Few days go by where thedaily newspapers, radio, and television do not feature a financial fiasco, a productsafety issue, an environmental problem, or an article on gender equity or discrim-ination. In aggregate, the result is a cumulative heightening of the public’s aware-ness of the need for controls on unethical corporate behavior. In addition, there aremany examples emerging where business executives did not make the right deci-sion and where ethical consumers or investors acted and were successful inmaking companies change their practices or improve their governance structuresto ensure that future decision processes were more wholesome. The entire ethicalconsumer and SRI movement has been strengthened by the knowledge that actingon their concerns can make companies and society better, not poorer.

In turn, the public’s awareness impacts on politicians, who react by prepar-ing new laws or the tightening of regulations. In effect, the many issues reach-ing the public’s consciousness result in institutional reinforcement andcodification in the laws of the land. The multiplicity of ethical problems receiv-ing exposure is focusing thought on the need for more ethical action, much likea snowball gathering speed as it goes downhill.

One of the most important examples of new legislation is the U.S. SentencingGuidelines of 1991. As previously noted, it spawned a significant interest by direc-tors and executives everywhere in North America in whether their companieswere providing enough guidance to their personnel about proper behavior. Theconsequences for not doing so before had been minor since directors and seniorofficers had rarely been held personally accountable for the actions of theiremployees, and their companies had been able to escape significant fines.

A second example is the new anti-bribery regime spawned by TransparencyInternational’s influence upon the Organization for Economic Cooperation andDevelopment (OECD), some thirty of whose member countries have signed aprotocol declaring that they will enact anti-bribery legislation similar to that ofthe U.S. Foreign Corrupt Practices Act, which bans bribery of foreign officials.The new anti-bribery regime is more advanced in that it seeks to facilitate extra-territorial legal action.

Another example is the Sarbanes-Oxley Act of 2002, which is driving thereform of corporate governance and professional accounting.

OutcomesBroadly speaking, public expectations have been changed to exhibit less toler-ance, heightened moral consciousness, and higher expectations of businessbehavior. In response to this heightening of expectations, a number of watchdogsand advisors have emerged to help or harry the public and business.

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Organizations such as Greenpeace, Pollution Probe, and Coalition anEnvironmentally Responsible Economics (CERES, formerly the Sierra Club) nowmaintain a watching brief on the business–environment interface. Consultants areavailable to advise corporations and so-called “ethical” investors on how to screenactivities and investments for both profitability and ethical integrity. Mutual fundsthat specialize in ethical investments have sprung up to service the needs of smallinvestors. Large investor activity has also become evident as many public-sectorand not-for-profit pension funds have taken active interest in the governance oftheir investee corporations and have presented shareholder resolutions designed tocover their concerns. In the face of all of this interest, politicians have responded byincreasing regulations and the fines and penalties (both personal and corporate)involved for malfeasance. The credibility gap has not favored business organizations.Lack of credibility has brought increasing regulation and profound changes in gov-ernance and management practices.

New Expectations for Business

New Mandate for BusinessThe changes in public expectations have triggered, in turn, an evolution in themandate for business: the laissez-faire, profit-only world of Milton Friedmanhas given way to the view that business exists to serve society, not the other wayaround. For some, this may be stating the degree of change too strongly; buteven they would concede that the relationship of business to society is one ofinterdependence where the long-run health of one determines that of the other.

In many forums, Milton Friedman made the following case:

In a free-enterprise, private property system a corporate executive . . . has [the]responsibility to make as much money as possible while conforming to the basicrules of society, both . . . in law and in ethical custom. [This is] the appropri-ate way to determine the allocation of scarce resources to alternative uses.

Friedman, 1970

While there are many arguments for and against this position (see Mulligan1986), there are three critical issues that deserve mention. They are (1) the devia-tion from a profit-only focus does not mean that profit will fall—in fact, profitmay rise; (2) profit is now recognized as an incomplete measure of corporateperformance and therefore an inaccurate measure for resource allocation; and (3)Friedman explicitly expected that performance would be within the law and eth-ical custom.

First, there is the myth that business could not afford to be ethical because toomany opportunities would be given up for profit to be maximized; or that execu-tives could not afford to divert their attention from profit or else profit would fall.In fact, research studies exist that show short-term profits increasing as well asdecreasing when social objectives are taken into account by executives.1 However,two long-term perspectives also strengthen the case that social and profit goalscan mix profitably. The first is a study by Max Clarkson (1988), which ranked the

1 See, for example, the study by Curtis Verschoor, 1998.

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social performance of sixty-plus companies on a modified Wartick and Cochran(1985) scale and found that above-average social performance is positively corre-lated with profits. The second is that the performance of some ethical mutualfunds, like the Parnassus Fund (U.S.) and the Investors Summa Fund (Canada),have surpassed that of the New York Stock Exchange as measured by theStandard & Poor’s (S&P) Index or the Toronto Stock Exchange Indices. Aweighted index of 400 ethically screened U.S. stocks—the Domini Social Index—often outperforms the S&P 500. These perspectives are neither conclusive norexhaustive, nor do they clarify causality. They should, however, give some com-fort to executives, who hear the theoretical argument that the health of societyand the business in it are interdependent, but who are wavering on the prof-itability of implementing a multiple-objective structure.

The second aspect of the Friedman argument that has eroded since it was firstproposed is the accuracy with which profit guides the allocation of resources totheir best use for society. In 1970, when Friedman began to articulate the profit-resource linkage, there was virtually no cost ascribed to the air and water used inthe manufacturing process, nor was a significant cost ascribed to the disposal ortreatment of wastes. Since the 1980s, the costs of these so-called “externalities”have skyrocketed and yet they are still not fully included in calculating the profitfor the year for the polluting company under generally accepted accounting prin-ciples. Often, pollution costs are born by and charged against the profits of othercompanies, towns, or governments, so the original-company profit–maximum-resource-use-for-society linkage is far less direct than Friedman originally envis-aged. As the cost associated with these and other externalities rises, theprofit–resource use linkage promises to become less and less useful unless theframework of traditional profit computations is modified or supplemented.Perhaps environmental accounting, or schemes by which companies buy pollu-tion credits, will yield some relief from this dilemma in the future.

Finally, Milton Friedman himself expressed the view that profit was to besought within the laws and ethical customs of society. This is not appreciated bymany who argue for profit-only in its strongest, laissez-faire, bare-knuckledform. Obviously, chaos would result if business was carried out in anabsolutely–no-holds-barred environment. A minimum framework of rules isessential for the effective, low-cost working of our markets and the protection ofall participants. Increased regulation is one response to outrageous behavior, orto the increasing ethical needs of society. What most profit-only advocates fail tosee is that the alternative to increasing regulation by government is an increas-ing self-emphasis on better ethical governance and behavior.

For these reasons, the profit-only mandate of corporations is evolving to onerecognizing the interdependence of business and society. Future success willdepend on the degree to which business can balance both profit and the inter-ests of other stakeholders. This, in turn, will be impossible to manage unlessnew governance and reporting structures emerge. If ethical and economic objec-tives cannot be integrated or balanced successfully, and the interests of share-holders continue to unreasonably dominate those of stakeholders, the tensionbetween business and society’s stakeholders will continue to grow. Fortunately,the mandate for business is changing; so the focus is shifting from a narrowshareholder-oriented view of what business is achieving to include what andhow a broader stakeholder-oriented set of achievements is achieved. Judgmentsof the future success of corporations will be made within the broader stakeholder-orientedframework, including both what is achieved and how it is achieved.

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New Governance and Accountability FrameworksBased upon this analysis, successful corporations would be best served by gov-ernance and accountability mechanisms that focus on a different and broader setof fiduciary relationships than in the past. The allegiances of directors and exec-utives must reflect stakeholder interests in terms of goals, processes, and out-comes. Governance objectives and processes must direct attention to these newperspectives, and modern accountability frameworks should include reportsthat focus on them. If not, the public’s expectations will not be met, and regula-tions may be created to ensure such attention and focus.

Reinforced Fiduciary Role for Professional AccountantsThe public’s expectations for trustworthy reports on corporate performancecannot be met unless the professional accountants who prepare or audit thosereports focus their primary loyalty on the public interest and adopt principlessuch as independence of judgment, objectivity, and integrity that protect thepublic interest. Loyalty to management and/or directors can be misguidedbecause they have frequently proven to be so self-interested that they are untrust-worthy. Directors who are supposed to govern management often rely exten-sively upon professional accountants to fulfill their fiduciary responsibilities.Consequently, the primary fiduciary responsibility of professional accountantsshould be to the public, or to the public interest. Otherwise, the expectations ofstakeholders in society will not be met, and the credibility of corporations willerode, as will the credibility and reputation of the accounting profession.

This is not a new assignment. However, as shown in the Enron, ArthurAndersen, and WorldCom cases, professional accountants have, on occasion, losttrack of whom they should ultimately be responsible to. Failure to understand thisexpectation, and the underpinning values of independence, integrity, and objectivejudgment and reporting, caused the collapse of the entire Arthur Andersen firm.

In addition, these corporate failures have brought the realization that loyaltyto the public means more than just loyalty to current investors. Future investorsrely upon financial reports, and their interests need to be protected as well asthose of other stakeholders in the corporation’s broadened fiduciary model.

Reform of the accounting profession is underway in order to reinforce theseexpectations of the public.

Responses and Developments

Emerging Governance and Stakeholder Accountability ModelsThe reaction by business to the evolution from a profit-only mandate to one rec-ognizing the interdependence of business and society became more readilyobservable as the 1980s progressed. In addition, several other important trendsdeveloped as a result of economic and competitive pressures that had and con-tinue to have an effect on the ethics of business, and therefore on the professionalaccountant. These trends included

• expanding legal liability for corporate directors,

• management assertions to shareholders on the adequacy of internal controls, and

• a stated intention to manage risk and protect reputation,

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even though significant changes were also occurring in how organizations oper-ate, including

• delayering, employee empowerment, and the use of electronic data interfaces, and

• increased reliance by management on non-financial performance indicators used on areal-time basis.

As a result of these trends and changes, corporations began to take a muchgreater interest in how ethical their activities were, and how to ensure that eth-ical problems did not arise. It became evident that the traditional command-and-control (top-down) approach was not sufficient, and that organizationsneeded to create an environment favorable to ethical behavior to foster it, not toimpose it. Boards and management were becoming more interested in ethicalissues in spite of the larger size, quicker pace, and complexity of business enti-ties and dealings that were decreasing the ability to check and inspect the deci-sions of others. Consequently, it has become increasingly important that eachemployee have a personal code of behavior that is compatible with that of theemployer. The pathway to these realizations took the following steps.

The initial corporate reaction to a more demanding ethical environment wasthe desire to know how ethical their activities have been, then to attempt tomanage their employees’ actions by developing a code of ethics/conduct. Afterimplementing the code, the desire was to monitor activities in relation to it andto report on that behavior, first internally and then externally.

The desire to know about the appropriateness of their activities led many cor-porations to undertake an inventory of significant impacts on various aspects ofsociety. Often organized by program and by stakeholder group, these listingscould be used to identify specific issues, policies, products, or programs thatwere the most problematic and therefore needed earliest remedial attention.

It quickly became clear that the “inventory and fix” approach led to a“patched-up” system for governing employee behavior: one that was incompleteand did not offer ethical guidance on all or even most issues to be faced.Employees who had committed a malfeasance, whether voluntarily or not, couldstill frequently claim that “nobody told me not to do it.” In order to reduce thisvulnerability and provide adequate guidance, corporations began to develop andimplement comprehensive codes of conduct/ethics.

Neither easy to develop nor universally accepted, codes usually had to berefined through a number of revisions. Implementation processes also had to beimproved. Even today, some executives are uncertain of their role and how toplay it most successfully to facilitate strong commitment by employees to theethical principles involved. More detailed information on the role, nature, con-tent, and monitoring of performance relative to codes is provided in Chapter 3.It is evident that codes of conduct will continue to be the touchstone for the eth-ical guidance of employees for the foreseeable future.

Although codes of conduct offer an essential framework for employee deci-sion making and control, those corporations in highly vulnerable positions dueto their products or productive processes found it in their interest to developearly warning information systems to facilitate fast remedial action in the eventof a problem. For instance, Occidental Petroleum recognized its capacity todamage the environment and created a three-tier, notification-to-head-officerequirement to provide timely information to senior management and experts incleanup procedures. Depending on the seriousness of the environmental prob-lem, a “significant matter” had to be reported by computer immediately, an“excursion” within twelve hours (the next business day in New York), or a

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“reportable incident” within the next reporting cycle (Friedman 1988). This typeof notification system is essential to facilitate crisis management activities and tomobilize response resources on a worldwide basis in an effort to reduce theimpact of the problem on the environment and the corporation.

Not content to encourage the use of ethics just through a code of conduct,leading-edge corporations sought ways to inculcate ethics into their corporateculture—the system of shared values that drive action—to foster specific con-sideration of ethical conduct in operating decisions, in strategic decision-making, and in crisis management practices. Mechanisms were developed toensure that ethical principles were understood, reinforced, and not lost sight of.These include general training and training to instill decision frameworksdesigned to produce sound ethical decisions; compliance check-off lists; theencouragement of internal whistle-blowing to ombudspersons; mind-focusingscorecards and categorizations for operations and strategies; inclusion of ethicalperformance as a factor in the determination of remuneration and in continuinginternal and external reports; the creation of specific ethical operating goals suchas for equity employment levels; and the creation of executive positions like vicepresident for environmental affairs, and of specific subcommittees of the boardof directors to oversee the ethical performance of the corporation.

Although the commitment to these mechanisms grew during the 1980s andearly 1990s, nothing galvanized the corporate community more than (1) the promulgation of the U.S. Sentencing Guidelines for environmental offenseson November 1, 1991, which led to widespread concern about “due diligence”procedures; and (2) the realization in the summer of 1992 that GE had been suedunder the False Claims Act in the United States for $70 million by a whistle-blower too fearful of retribution to report internally to the company (Singer1992, 19). The fact that the whistle-blower could receive up to 25 percent of theoutcome was considered shocking, just as the size of the fines in the U.S.Sentencing Guidelines had been a year earlier. In combination, these eventsmatured the realization that corporations ought to create an ethical operatingenvironment in order to protect their interests and those of others with a stakein the activities of the corporation.

As a result of the U.S. Sentencing Guidelines, many U.S. directors and execu-tives suddenly became very interested in the governance mechanism that was toconvey appropriate guidance to their personnel. U.S.-owned, foreign sub-sidiaries were also involved, as were foreign-owned multinational companiesoperating in the United States. Consequently, and with the additional stiffeningof penalties for environmental malfeasance in Canada, the governance struc-tures of major companies that had been primarily focused on making a profit,now began to include a serious focus on how that profit was made.

Early in 1994, Lynn Sharp Paine published a seminal article in the HarvardBusiness Review entitled “Managing for Integrity” in which she made the case forintegrating ethics and management. It is reproduced as a reading at the end ofthe chapter. At about the same time, pronouncements from the Toronto StockExchange2 (1994) and the Canadian Institute of Chartered Accountants3 (1995)

2 See paragraphs 4.3 and 4.4 on page 17 of the Report of the Toronto Stock Exchange Committee on CorporateGovernance in Canada, December 1994.

3 See page 2, paragraph 8 of Guidance for Directors—Governance Processes for Control, December 1995,published by the Canadian Institute of Chartered Accountants, Toronto, Canada. See also pages 8and 9 for a discussion of approving and monitoring the organization’s ethical values.

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specified that directors were to provide the “social conscience” of their compa-nies and that directors were responsible for developing and maintaining an eth-ical culture at their companies sufficient to support an adequate system ofinternal control. Without adequate ethical grounds for systems of internal con-trol, the financial statements of the enterprise would be of varying accuracy, andthe actions of employees might or might not correspond with what the directorsand senior executives hoped. Many examples are available that attest to the factthat without adequate ethical underpinning, companies can get into difficulty.

Later, in 1996, the Caremark National Case,4 which was decided in the ChanceryCourt of Delaware, added to directors’ responsibilities the requirement of proac-tively seeking out ethical problems. Until this case was decided, directors couldclaim “hear no evil, see no evil” to avoid prosecution for some corporate wrong-doing, so there were times that directors “didn’t want to hear about . . .” for theirown protection. Unfortunately, that left the corporation rudderless. The bottomline is that the expectations for proper corporate governance have changed, anddirectors are responding—some more quickly than others.

Additionally during the 1990s, it became understood that managementapproaches must reflect accountability to stakeholders, not just shareholders.Companies have a wide range of stakeholders—employees, customers, share-holders, suppliers, lenders, environmentalists, governments, and so on— whohave a stake in the activities or impacts of the corporation. Even though thesestakeholders may not have a legal claim on the corporation, they can influenceits fortunes in the short and long runs. Consequently, if a corporation wants toachieve its strategic objectives optimally, the interests of its stakeholders shouldbe taken into account when management make decisions. The best way to dothis is to build the recognition of stakeholder interests into the strategic planningexercise. Further insight into the principles of stakeholder management can befound at www.mgmt.utoronto.ca/%7Estake/ (The Redefining the CorporationProject website). Schematically, the emerging stakeholder accountability andgovernance frameworks are represented in Figures 1.1 and 1.2. It is now recog-nized that although corporations are legally responsible to shareholders, they are strate-gically responsible to stakeholders.

Management Based on Values, Reputation, and Risks In order to incorporate the interests of stakeholders into the policies, strategies,and operations of their corporation, directors, executives, managers, and otheremployees must understand the nature of their stakeholders’ interests and thevalues that underpin them. The reputation of the company and the degree ofsupport garnered from stakeholders will depend on this understanding andupon the ability of the company to manage the risks facing the companydirectly, as well as those impacting its stakeholders.

Numerous approaches have been developed for examining the interests ofstakeholders, such as surveys, focus groups, and mapping according to stereo-types. These will be developed more extensively in Chapter 3.

In addition, investigation is underway on the values that lie behind stake-holder interests so that a corporation’s policies, strategies, and procedures can

4 For additional information on the Caremark National Case, see the case summary in the readingssection of this chapter.

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take them into account. These values differ somewhat depending on the stake-holder group, as well as regional differences. However, progress has been madetoward a set of hypernorms—values that are respected by most groups or culturesaround the world. According to researchers, the six values known to come clos-est to universal application around the world are those noted in Table 1.2.

The relevance of these six hypernorms is very significant to the future successof corporations. Consequently, they should be built into a corporation’s code ofconduct, policies, strategies, and activities in an attempt to make sure that the

FIGURE 1.1 Map of Corporate Stakeholder Accountability

Shareholders

Activists

Governments

Creditors

Lenders

Suppliers

Customers

Employees

Others, including the Media, who canbe affected by or who can affect the

achievement of the corporation’s objectives

Corporation

FIGURE 1.2 Corporate Governance Framework

Key Board Control Functions:

• Set Guidance and Boundaries - Policies, Codes, Culture• Set Direction - Strategies, Goals, Remuneration, Incentives• Appoints CEO, who appoints other executives, and CFO• Arrange for Resources• Monitor Feedback - Operations, Policy Compliance, Financial Reports• Reports to Shareholders, Govern.• Nominates/decides on Auditor

Board of Directors& Subcommittees:

Audit, Governance,Compensation

Shareholders Stakeholders

Auditor

Elect

Legend: Info Flow Actions

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interests of many stakeholder groups are respected, and that the corporation’sreputation will generate maximum support.

Reputation has also been a subject of considerable recent study. Not surpris-ingly, the factors seen as important determinants of reputation are closelyaligned with the hypernorms previously identified. Charles Fombrun, of theReputation Institute, has specified four determinants as identified in Figure 1.3.

Both management and auditors have become increasingly risk managementoriented since the mid-1990s. Risk management techniques have been develop-ing as directors, executives, and professional accountants recognize the value inidentifying risks early and in planning to avoid or mitigate the unfortunate con-sequences inherent in the risks. Professional accountants have also shifted theiraudit approach to the examination of the risks facing a corporation, how the cor-poration has provided for these risks operationally, and how they have beenaccounted for in the records and financial reports.

An early study by Mercer Management Consulting identifies some of the riskevents that were important in companies that experienced very large stock pricedrops between 1993 and 1998. Findings are shown in Table 1.3.

Companies had not been looking systematically for such risks, but as the1990s came to a conclusion, risk identification and assessment was becoming animportant part of strategic and operational management processes, and theoversight of the risk management process was becoming an important part ofdirectors’ due diligence activities. Several studies have been published that

TABLE 1.2 Hypernorms (Basic Values) Underlying Stakeholder Interests

A hypernorm is a value that is almost universally respected by stakeholder groups.Therefore, if a company’s activities respect a hypernorm, the company is likely tobe respected by stakeholder groups and will encourage stakeholder support forcompany activities.

Hypernorms involve the demonstration of the following basic values: Honesty,Fairness, Compassion, Integrity, Predictability, Responsibility

Source: R. Berenbeim, Director, Working Group on Global Ethics Principles, The Conference Board, Inc., 1999.

FIGURE 1.3 Determinants of Reputation

Credibility Reliability

Trustworthiness Responsibility

CorporateReputation

Source: Fombrun, p. 72.

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provide insights on the subject, including those by the Institute of InternalAuditors (2001), the American Institute of Certified Public Accountants, and theCanadian Institute of Chartered Accountants (2001). Important risk manage-ment terms are reproduced in Table 1.4.

During late 2001 and into 2002, the financial world was rocked by the Enron,Arthur Andersen, and WorldCom scandals, and the resulting outrage triggeredthe creation of corporate governance reform through the enactment of theSarbanes-Oxley Act of 2002 in the United States. This act and the resulting U.S.Securities and Exchange Commission regulations have transformed corporategovernance expectations significantly, including the requirement that directorsare now expected to ensure that their corporation has, among many other gover-nance mechanisms, an effective risk management process. Many jurisdictionsaround the world responded to follow suit.

While most large corporations have put in place some form of risk manage-ment process, most do not specifically consider their ethics risks—the risks of fail-ing to meet the expectations of stakeholders—in a broad and comprehensive way.However, since these ethics risks have proven to be so important to reputationand corporate sustainability in the Martha Stewart, Firestone tire recall, Enron,Arthur Andersen, WorldCom, and other similar cases, it would be a serious mis-take not to include them in the risk management process. A representative list isprovided in Table 1.5.

In summary, particularly in view of the Enron, Arthur Andersen, WorldCom,and other cases, directors, executives, and professional accountants will find

TABLE 1.3

Risk Events Causing Drops of Over 25% Share Value, Percentage of Fortune 1000 Companies, 1993–1998

Strategic (58%) Customer demand shortfall (24%) Competitivepressure (12%) M & A Integration problems (7%) Misaligned products (6%) Others (9%)

Operational (31%) Cost overruns (11%) Accounting irregularities(7%) Management ineffectiveness (7%) Supply chain pressures (6%)

Financial (6%) Foreign, macro-economic, interest ratesHazard and other (5%) Lawsuits, natural disasters

Source: Mercer Management Consulting/Institute of Internal Auditors, 2001.

TABLE 1.4 Important Risk Management Terms

Risk is the chance of something happening that will have an impact on objectives.

Risk Management includes the culture, processes, and structures that are directedtowards the effective management of potential opportunities and adverse effects.

Risk Management Process includes the systematic application of management poli-cies, procedures, and practices to the tasks of establishing the context, identify-ing, analyzing, assessing, managing, monitoring, and communicating risk.

Source: Managing Risk in the New Economy, AICPA & CICA, 2001, p. 4.

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that meeting the expectations of stakeholders is increasingly important. Thiswill involve delving into the values that determine a corporation’s reputation,and managing those values so that potential risks are avoided and/or effectivelymitigated. To ignore these ethics risks is to risk the fates evident in earlier cor-porate debacles.

AccountabilityThe rise of stakeholder interest and accountability, and the stunning financialdebacles of Enron, Arthur Andersen, and WorldCom, has raised the desire forreports that are more relevant to the various interests of stakeholders, moretransparent, and more accurate than in the past. In general, it is recognized thatcorporate reports frequently lack integrity because they do not cover someissues, nor is there always a clear, balanced presentation of how the interests ofstakeholders will be affected. Sometimes issues will be mentioned, but in suchan obtuse or unclear manner that the lack of transparency will cloud the under-standing of the reader. Accuracy, or faithful representation, is, of course, funda-mental to an understanding of the underlying facts.

The needed improvement in integrity, transparency, and accuracy has moti-vated the discussion among accountants about the nature of the guidelines theyshould use for preparation of financial reports—rules or principles. Enron’sfinancial reports clearly lacked integrity, transparency, and accuracy, but theymay have been in accord with a very narrow, rules-based interpretation of gen-erally accepted accounting standards and legal definitions. Chapter 2 identifieshow accounting rules and legal interpretations with regard to special purposeentities allowed Enron’s board and executives to mislead the public, and allowedprofessional accountants to rationalize their participation in the process and evenprovide a clean audit certification of the misleading reports. The fact that thereports were probably technically compliant with the rules was taken as satisfactory,even though they did not show the whole story transparently or accurately, and

TABLE 1.5 Ethics Risks—A Representative List

STAKEHOLDER EXPECTATIONS NOT MET ETHICS RISK

ShareholdersStealing, misuse of funds or assets Honesty, integrity Conflict of interests with officers Predictability, responsibility Performance level Responsibility, honestyReporting transparency, accuracy Honesty, integrity

EmployeesSafety FairnessDiversity FairnessChild and/or sweatshop labor Compassion, fairness

CustomersSafety FairnessPerformance Fairness, integrity

EnvironmentalistsPollution Integrity, responsibility

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many people were misled. The misuse of rules allowed fraud-intent Enron exec-utives to take advantage of the reporting system. However, principles basedupon integrity, transparency, and accuracy are considered by many to providemore robust guidance than rules against such misuse.

The desire for relevancy has spawned many reports that are principally non-financial in nature and are tailored to the needs of specific stakeholders. Thesestakeholder reports, which are discussed more fully in Chapter 6, cover topicssuch as those identified in Table 1.6. They appear in hard copy and on corporatewebsites. Broadly applicable reporting frameworks are being developed toguide corporations by Global Reporting Initiative (GRI) for comprehensivereports, and by AccountAbility for sustainability reports.

Developments in Business Ethics

Concepts and TermsIn response to the changes previously described, several concepts and termswere developed that facilitate an understanding of the evolution taking place inthe accountability of business and in the making of ethical decisions. Two ofthese developments are particularly useful in understanding business ethics,and how business and the professions can benefit from its application. They arethe stakeholder concept and the concept of a corporate social contract.

As the ethical environment for business changed, observers and executivesrealized that many more people than just shareholders had an interest in thecorporation or its activities. As previously noted, although some of these had nostatutory claim on the corporation, they had a very real capacity to influence thecorporation favorably or unfavorably. Moreover, as time went by, the claims ofsome of these interested parties became codified through statute or regulation.It became evident that the interests of this set of people with a stake in the busi-ness or its impacts—who are affected by or can affect the achievement of theorganization’s objectives5—ought to be considered in corporate plans and deci-sions. For ease of reference, these people have come to be known as stakeholdersand their interests as stakeholders’ rights. Examples of stakeholder groups wouldinclude employees, customers, suppliers, lenders, borrowers, host communities,governments, environmentalists, and, of course, shareholders. A corporation’snormal set of stakeholders was mapped in Figure 1.1.

The relationship between a corporation and its stakeholders has slowly butsteadily broadened over the years. Initially, the corporation was established as ameans of gathering large amounts of capital from shareholders. It was account-able only to those shareholders and its goal was to generate profits. Later, when

TABLE 1.6 Stakeholder Report Topics

Health and safety Workplace responsibilitySustainability Environmental performance/impactPhilanthropy Corporate social responsibility

5 R. E. Freeman. Strategic Management: A Stakeholder Approach. Boston: Pitman, 1984.

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larger factories appeared, times were such that child labor was prevalent and nocost was ascribed to environmental practices that today would not be condoned.As previously described, corporate accountability has broadened to go beyondjust shareholders to embrace the reality of stakeholders, and the corporate man-date has evolved to respect stakeholders’ interests and thereby engender theirsupport. Profits are to be generated, but not at any cost to society and preferablyin a way that supports society. This evolving relationship between corporationsand society has come to be known, in concept, as the corporate social contract.

Approaches to Ethical Decision MakingThe evolving accountability to stakeholders within the newer versions of thecorporate social contract have made it incumbent on executives to ensure thattheir decisions reflect the ethical values established for the corporation, and donot leave out of consideration any significant stakeholder’s rights. This has ledto the development of ethical decision-making approaches that combine bothphilosophical and practical techniques, such as stakeholder impact analysis.

The ethical principles developed by philosophers provide insights into thekey dimensions of ethical reasoning. Decision makers should understand threebasic philosophical approaches: consequentialism, deontology, and virtue ethics.Consequentialism requires that an ethical decision have good consequences;deontology holds that an ethical act depends upon the duty, rights, and justiceinvolved; and virtue ethics considers an act ethical if it demonstrates the virtuesexpected of the participants. These approaches are expanded upon in Chapter 5and are incorporated into three practical ethical decision-making approaches.

All approaches begin with the identification of significant stakeholders, aninvestigation of their interests, and a ranking of those interests to ensure that themost important are given adequate attention during the remaining analysis, andmore consideration at the decision stage. Chapter 5 provides insights into thesaliency of the various stakeholder interests, which are very important to themaking of ethical decisions.

The first practical analytical approach, known as the Five Question Approach,involves challenging any proposed policy or action with five questions designedto rate the proposal on the following scales: profitability, legality, fairness,impact on the rights of each individual stakeholder, and on the environmentspecifically. The questions are asked and options for action are discardeddepending on the degree to which corporate ethical values and stakeholderinterests are offended. Often, action options can be modified to be made moreethical as a result of these challenges (Tucker 1990).

The Moral Standards Approach, developed by Professor Manuel Velasquez(1992), focuses on three dimensions of the impact of the proposed action: (1)whether it provides a net benefit to society; (2) whether it is fair to all stake-holders; and (3) whether it is right. Although there is some overlap with the firstapproach, Velasquez’s focus is less company-centered and is therefore bettersuited to the evaluation of decisions where the impact on stakeholders outsidethe corporation is likely to be very severe. Longer-term impacts are also morereadily incorporated.

The last approach to stakeholder impact analysis to be presented in Chapter5 is the Pastin Approach, created by Professor Mark Pastin (1986), who extendsthe Moral Standards Approach by taking specific account of the culture withinthe corporation and of so-called “commons problems.” Pastin suggests that anyproposed decision be evaluated in comparison to the company’s ground rules

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(he calls this “ground rule ethics”); the net benefit it produces (end-point ethics);whether it impinges on any stakeholder’s rights and requires rules to resolve theconflict (rule ethics); and, finally, whether it abuses rights apparently belongingto everyone (problems of the commons). Pastin’s approach is quite practical andis best suited to decisions with impacts primarily on stakeholders directlyattached to the corporation, such as employees or customers.

Chapter 5 also provides frameworks for the management of issues using thestakeholder impact analysis.

The use of stakeholder impact analysis in management decision making, andin the management of contentious issues, will contribute significantly to thedevelopment of defensible positions that are necessary to the development andmaintenance of stakeholder support for corporate activities.

The Ethics Environment for Professional Accountants

Role And ConductThe aftermath of the Enron, Arthur Andersen, and WorldCom debacles willbring fundamental changes in the role and conduct of those professionalaccountants who have forgotten where their primary duty is owed. Professionalaccountants owe their primary loyalty to the public interest, not just to their ownfinancial interests, company directors or management, or current shareholdersat the expense of future shareholders. The reasons for these changes are madeclear in Chapters 2, 3, and 4, but just as in the case of corporate governance,cracks that had been apparent for some time in the governance framework forprofessional accountants became so serious that the public credibility of the pro-fession was virtually destroyed. Reforms, through new regulations and super-visory structures, and revised codes of conduct that rededicate the accountingprofession to its original fiduciary roots, have become a necessary restorativethat will influence professional accounting behavior around the world.

The need for additional changes in the role and conduct of professionalaccountants predates the recent debacles. Whether they are involved in the auditor assurance service functions, in management, in consulting, or as directors,professional accountants have been looked upon historically as the arbiters oforganizational accountability and experts in the science of decision making. Sincewe are witnessing a “sea change” in corporate accountability with a broadeningbeyond just shareholders to stakeholders, it is incumbent on accountants tounderstand this evolution and how it can impact upon their function. If they donot do so, substandard advice may be given, and the legal and non-legal conse-quences for ethical shortfalls can be severe.

There is also a very real possibility that the expectations gap between what usersof audits and financial statements thought they had been getting and what theyare receiving will be exacerbated if accountants are seen to be out of step withemerging standards of ethical behavior. Studies have been undertaken, such asthose by the Treadway Commission in the United States and the MacdonaldCommission in Canada, which have called for recognition of new levels of ethi-cal behavior in revisions to professional codes of conduct. Some professionalcodes were revised in response, but Enron and the other debacles have put thespotlight on further revisions. A thorough understanding of the reasons for these

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revisions and the underlying principles involved are essential for their properapplication and the protection of professionals, the profession, and the public.

An appreciation of the sea change underway in the ethics environment for busi-ness is essential to an informed understanding of how professional accountantsought to interpret their profession’s code as employees of corporations. Althoughthe public expects all professional accountants to respect the professional values ofobjectivity, integrity, and confidentiality, which are designed to protect the funda-mental rights of the public, an employee-accountant must respond to the directionof management and the needs of current shareholders. Trade-offs are difficult. Inthe future, there will be less escape from the glare of public scrutiny, and greaterdanger in greeting problems with a wink and a nod, or by sweeping them underthe rug. Professional accountants will have to ensure their ethical values are cur-rent and that they are prepared to act upon them to best exercise their role and tomaintain the credibility of, and support for, the profession.

GovernanceGlobalization and internationalization have come to the corporate world, thecapital markets, and corporate accountability. Stakeholders are global in theirreach, and events that were kept secret in far-off jungles are now shown world-wide each evening on CNN. Corporations with dealings around the world areconscious that they are accountable for each of their operations and are lookingfor effective ways to manage, account for, and disclose activities around theworld. These approaches are discussed in Chapter 3 and include the develop-ment and maintenance of ethics programs, ethical cultures, codes of conduct,and particularly ethical leadership.

In the accounting profession, there is a desire to develop a globally harmo-nized set of generally accepted accounting principles (GAAP) to provide analyt-ical efficiencies for the providers of capital to the world’s markets andcomputational and audit efficiencies around the world. Consequently, there is aplan to gradually harmonize the set of GAAP developed by the InternationalAccounting Standards Board (IASB) in London, England, and those developedby the U.S. Financial Accounting Standards Board (FASB) into a common set thatwill apply in all countries.

Concurrently, the International Federation of Accountants (IFAC) is develop-ing an international code of conduct for accountants, and all IFAC-member coun-tries have agreed to standardize their country’s code on the same or similar basisto the new international code. The details of this international code are reviewedin Chapter 4.

The principles inherent in the new international code will become the basis forfuture behavior and education of professional accountants. Difficult areas of pro-fessional behavior, such as the identification and management of conflicts of inter-est, will receive a fresh set of guidelines. These are also discussed in Chapter 4.

Globalization has also come to audit firms. They are developing global auditstandards to serve their major clients, and supportive behavior standards toensure their judgments are independent, objective, and accurate. The new rul-ings of the U.S. Securities and Exchange Commission, motivated by theSarbanes-Oxley Act and the Enron, Arthur Andersen and WorldCom fiascos,will inform these global standards. Consequently, the SOX-SEC intention toreinforce the professional accountant’s focus on the public interest will beextended worldwide.

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Services OfferedIn this recently redefined global environment, the offering of nonaudit servicesto audit clients, which was a contentious issue for Arthur Andersen in the Enrondebacle, will be curtailed so that tighter conflict-of-interest expectations can bemet. The advent and growth of multidisciplinary firms in the late 1990s, whichincluded professionals such as lawyers and engineers to provide a broaderrange of assurance and other services, may continue to reverse itself as majoraudit firms sell off part of their consulting units. If not, professional accountantsshould be particularly alert to conflicts where the values and codes of other pro-fessionals in their employ differ from those of the accounting profession.Chapters 3 and 4 provide insights into these conflicts of interest.

Managing Ethics Risks and OpportunitiesThe impact increasing expectations for business in general, and for directors, exec-utives, and accountants in particular, has brought demands for governance reform,ethical decision making, and management that would benefit from leading-edgethinking on how to manage ethics risks and opportunities. Several importanttopics in this regard are discussed in Chapter 6.

Guidance is provided for the process of ethics risk identification, caution isadvised against overreliance on external auditors for this purpose, and insightsare offered for the management and reporting of ethics risks.

Next, effective strategies and mechanisms for influencing stakeholders arediscussed with the view of developing and maintaining their support. Linkagesare made between ethics risk management and traditional environmental scan-ning or issues management, and also to the field of business-government rela-tions. Both of these can benefit significantly from a broadened, modernstakeholder accountability perspective.

Business and professional accounting inevitably depend upon people—both asexternal, and perhaps more importantly, internal stakeholders such as employees.Understanding expectations for workplace ethics is extremely important to thesuccess of all organizations and their executives. Employee rights are changing, asare expectations for privacy, dignity, fair treatment, health and safety, and exercis-ing one’s conscience. Development of trust, which depends on ethical values andis so important to communications, cooperation, the sharing of ideas, the excel-lence of innovation, and the exercise of modern leadership, is also a critical successfactor. So important are these dimensions of workplace ethics that expert observersbelieve the way employees view their own treatment by the company determines what theemployees think about their company’s ethics program. A company cannot have aneffective ethical corporate culture without laudable workplace ethics.

Most companies deal with different cultures in their hiring and management ofpersonnel even if their operations are within one country. Most modern corpora-tions, however, deal internationally and should understand how their impacts areregarded as well as the sensitivities they arouse. Handling these ethically is agrowing expectation and will contribute significantly to the achievement of strate-gic objectives.

Part of the ethical puzzle for modern corporations to sort out is the giving andreceiving of gifts, bribes, and facilitating payments. All of these create conflicts ofinterest, but they are expected in many cultures. Insights are provided, includingcomment on using moral imagination, into how to handle these challenges ethi-cally, respect the interest of different cultures, and protect the corporation.

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Corporate social responsibility (CSR) and telling the company’s story throughCSR reporting are important parts of strategic planning and the achievement ofstrategic objectives. Developing the kind of corporate citizenship the leaders andstakeholders of the company want is necessarily an extension of the ethical valuesthat are fundamental to the organization’s ethical culture. Exciting new frame-works are emerging that directors, executives, and professional accountants wouldbe well advised to watch in order to take advantage of new opportunities as theyarise. Reports on CSR programs and assurance thereon are growing rapidly.

Finally, businesspeople with experience know that crises are inevitable, andthat crisis management approaches have been developed to ensure that corpo-rations and executives do not suffer more damage to their prospects and repu-tation than necessary. In fact, if the ethical aspects of crises are properlymanaged, reputation can be enhanced. Incorporating ethics into crisis manage-ment can clearly turn a risk into an opportunity.

The next chapter, “Governance, Accounting, and Auditing Reform Post-Enron,”examines the debacles that triggered the new era of governance and accountabil-ity for corporations and the accounting profession.

QUESTIONS

1. Why have concerns over pollution become so important for managementand directors?

2. Why are we more concerned now than our parents were about fair treat-ment of employees?

3. What could professional accountants have done to prevent the develop-ment of the credibility gap and the expectations gap?

4. Why might ethical corporate behavior lead to higher profitability?5. Why is it important for the clients of professional accountants to be ethical?6. How can corporations ensure that their employees behave ethically?7. Should executives and directors be sent to jail for the acts of their corpora-

tion’s employees?8. Why are the expectations of a corporation’s stakeholders important to the

reputation of the corporation and to its profitability?9. How can a corporation show respect for its stakeholders?

10. How can conflicts between the interests of stakeholders be resolved by acorporation’s management?

11. Why are philosophical approaches to ethical decision making relevant tomodern corporations and professional accountants?

12. What are the common elements of the three practical approaches to ethicaldecision making that are briefly outlined in this chapter?

13. Is a professional accountant a businessperson pursuing profit or a fiduciarythat is to act in the public interest?

14. Why is it important for a professional accountant to understand the ethicaltrends discussed in this chapter?

15. Why should a professional accountant be aware of the Ethics Code of theInternational Federation of Accountants?

16. Why is an ethical corporate culture important?

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The cases that follow are designed to stimulate an awareness of ethical issuescurrently facing business and accountants. Specifically, the scenarios covered areas follows:

• Martha Stewart’s Lost Reputation offers an opportunity to see how Marthalost her reputation and, with investors, a lot of money, based on allegationsof selling a personal investment after receiving a tip from the CEO, whowas a personal friend. What constitutes reputation? How do stakeholdersfit into reputation and brand image development? What constitutes insidertrading, and why is it a conflict-of-interest situation? Should insider trad-ing be encouraged or banned? These are issues raised by the case.

• The Union Carbide–Bhopal Case is intended to raise the reader’s awareness ofethical issues facing modern corporations. It presents the reader with anevent that, while improbable, happens repeatedly in different scenarios, andoffers the reader an opportunity to explore what they and others believe tobe appropriate levels of corporate responsibility and ethical behavior.

• Betaseron (A) discusses the real dilemmas that were faced by a pharmaceu-tical management team when they faced difficult choices affecting cus-tomers’ quality of life. The ethical implications of such decisions can beignored, but not without cost.

• Texaco in Ecuador outlines the environmental difficulties Texaco faced intheir oil operations in Ecuador. Even after leaving the country, Texaco wassued in U.S. courts by South Americans. Did Texaco act responsibly? Couldthis have been prevented?

• Where Were the Accountants? presents a brief series of scandals and ethicalproblems upon which management accountants, academic accountants,and auditors could have commented on in time to significantly mitigatethe outcome. Why didn’t they? Should they have?

• Resign or Serve? introduces the problem of balancing ethical trade-offs in amodern, creative economic world. How far should an auditor go to protecta fellow professional, the profession, or the public?

CASE INSIGHTS

READING INSIGHTS

The selection of readings that follows has been chosen to provide backgroundmaterial to enrich the understanding of the issues identified in this chapter. LynnSharp Paine’s classic article provides the most compelling arguments for incor-porating integrity into corporate decision making and operations, and providesinsights into how to make this happen. The article by Andrew Singer reveals thesignificance of whistle-blowing and the impact it may have on corporations. Thisimpact is one of the catalysts that will lead companies to want to develop ethicalcorporate cultures in the future. The Caremark National law case dramaticallyaltered directors’ responsibilities for overseeing corporations to require them tosearch out ethical problems rather than wait until they were informed.

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REFERENCES

Achar, R., D. Nitkin, K. Otto, P. Pellizzari, and EthicScanCanada. Shopping with a Conscience: The InformedShopper’s Guide to Retailers, Suppliers, and Service Providersin Canada. Toronto: John Wiley & Sons, 1996.

American Institute of Certified Public Accountants (AICPA)and The Canadian Institute of Chartered Accountants(CICA), Managing Risk in the New Economy, 2001, p. 4.

Canadian Institute of Chartered Accountants. Guidance forDirectors—Governance Processes for Control. Toronto,Canada, December 1995. See page 2, paragraph 8 andalso pages 8 and 9 for a discussion of approving andmonitoring the organization’s ethical values.

Clarkson, Max. B. E. “Corporate Social Performance inCanada, 1976–86.” Research in Social Performance andPolicy 10, JAI Press, (1988): 241–265.

Domini Social Index, a market capitalized-weighted commonstock index, consisting of 400 U.S. corporations that havepassed multiple, broad-based social screens. Maintainedby Kinder, Lydenberg, Domini & Co., Cambridge, MA.

Fombrun, C. J. Reputation: Realizing Value from the CorporateImage. Boston: Harvard Business School Press, 1996.

Freeman, R. E. Strategic Management: A Stakeholder Approach.Boston: Pitman, 1984.

Friedman, F. B. Practical Guide to Environmental Management.Environmental Law Institute, Washington, D.C., 1988,p. 34.

Friedman, M. “The Social Responsibility of Business to IncreaseProfits.” New York Times Magazine. September 13, 1970.

The Institute of Internal Auditors Research Foundation.Guidance for Directors—Governance Processes for Control,Canadian Institute of Chartered Accountants, Toronto,Canada., December 1995. See page 2, paragraph 8 andalso pages 8 & 9 for a discussion of approving and mon-itoring the organization’s ethical values. Enterprise RiskManagement: Trends and Emerging Practices. 2001.

Macdonald Commission, see The Report of the Commission toStudy the Public’s Expectations of Audits, CanadianInstitute of Chartered Accountants, June 1988.

Mulligan, T. “A Critique of Milton Friedman’s Essay ‘TheSocial Responsibility of Business Is to Increase Its Profits.’”Journal of Business Ethics, 1986, 265–269.

Organization for Economic Cooperation and Development(OECD). http://www.oecd.org.

Paine, L. S. “Managing for Integrity.” Harvard Business Review,March-April 1994, 106–117.

Pastin, M. The Hard Problems of Management: Gaining theEthics Edge. San Francisco: Jossey-Bass, 1986.

Pellizzari, P. Conscious Consumption: Corporate Social Responsi-bility and Canada’s Grocery Giants. Toronto: EthicScanCanada, 2002.

Placenti, F. M. “Caremark National Case.” The National LawJournal, June 23, 1997, B5, B6.

Report of the Toronto Stock Exchange Committee on CorporateGovernance in Canada. Toronto Stock Exchange,Toronto, December 1994, paragraphs 4.3 and 4.4, p. 17.

Sarbanes-Oxley Act of 2002. See www.thomsonedu.com/accounting/brooks.

Singer, A. W. “The Whistle-Blower: Patriot or Bounty Hunter.”Across The Board, November 1992, 16–22.

Helson, J., K. Green, D. Nitkin, and A. Stein. The EthicalShopper’s Guide to Canadian Supermarket Products.Toronto: Broadview Press, 1992.

The Role of the Board of Directors in Enron’s Collapse. U.S.Senate’s Permanent Subcommittee on Investigations, July8, 2002. See www.thomsonedu.com/accounting/brooks.

Treadway Commission, see the Report of the NationalCommission on Fraudulent Public Reporting, AICPA, 1987.

Tucker, G. “Ethical Analysis for Environmental ProblemSolving.” Agenda for Action Conference Proceedings, TheCanadian Centre for Ethics and Corporate Policy,1990, 53–57.

U.S. Sentencing Guidelines of 1991, November 1, 1991.

Velasquez, M. G. Business Ethics: Concepts and Cases, 3rd ed.Englewood Cliffs, NJ: Prentice Hall, 1992.

Verschoor, Curtis, C. “A Study of the Link between aCorporation’s Financial Performance and Its Commitmentto Ethics.” Journal of Business Ethics 17, no. 13, (1998):1509–16.

Wartick, S. L., and P. L. Cochran. “The Evolution of theCorporate Social Performance Model.” Academy ofManagement Review 10, no. 4, (1985): 758–769.

ETHICS CASE Martha Stewart’s Lost Reputation

In June 2002, Martha Stewart began to wrestle withallegations that she had improperly used insideinformation to sell a stock investment to an unsus-pecting investing public. That was when her per-sonal friend, Sam Waksal, was defending himself

against Securities and Exchange Commission (SEC)allegations that he had tipped off his family mem-bers so they could sell their shares of ImCloneSystems Inc. (ImClone) just before other investors

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learned that ImClone’s fortunes were about to take adive. Observers presumed that Martha was also tippedoff and, even though she proclaimed her innocence,the rumors would not go away.

On TV daily as the reigning guru of homemak-ing, Martha is the multi-millionaire proprietor, pres-ident and driving force of Martha Stewart LivingOmnimedia Inc. (MSO), of which, on March 18, 2002,she owned 30,713,475 (62.6 percent1) of the class A,and 30,619,375 (100 percent) of the class B shares.On December 27, 2001, Martha’s Class A and Class Bshares were worth approximately $17 each, so onpaper Martha’s MSO class A shares alone wereworth over $500 million. Class B shares are convert-ible into Class A shares on a one to one basis.

Martha’s personal life became public. The worlddid not know that Martha Stewart had sold 3,928shares of ImClone for $58 each on December 27,20012 until it surfaced in June 20023. The sale gener-ated only $227,824 for Martha, and she avoidedlosing $45,673 when the stock price dropped the nextday4, but it has caused her endless personal grief andhumiliation, and the loss of reputation, as well as asignificant drop to $5.26 in the MSO share price.

What Happened?Martha had made an investment in ImClone, a com-pany that was trying to get the approval of the U.S.Food and Drug Administration (FDA) to bring tomarket an anti-colon cancer drug called Erbitux.Samuel Waksal, then the CEO of ImClone and a per-sonal friend of Martha’s, was apparently warned onor close to December 25, 2001 that the FDA wasgoing to refuse5 to review Erbitux6. According to

SEC allegations, Sam relayed the information to hisfamily so they could dump their ImClone shares onan unsuspecting public before the official announce-ment. Martha claims that she didn’t get any insideinformation early from Sam, but regulators believethat she may have or from her broker or her broker’saide. The activities of several of Sam’s friends, includ-ing Martha, are under investigation by the SEC.

Sam was arrested on June 12, 2002 and chargedwith “nine criminal counts of conspiracy, securitiesfraud and perjury, and then freed on $10 millionbail”7. In a related civil complaint, the SEC allegedthat Sam “tried to sell ImClone stock and tippedfamily members before ImClone’s official FDAannouncement on Dec. 28.”8

According to the SEC, two unidentified membersof Sam’s family sold about $10 million worth ofImClone stock in a two-day interval just before theannouncement. Moreover, Sam also tried for twodays to sell nearly 80,000 ImClone shares for about$5 million, but two different brokers refused toprocess the trades.9

Martha has denied any wrongdoing. She wasquoted as saying: “In placing my trade I had noimproper information . . . My transaction was entirelylawful.”10 She admitted calling Sam after selling hershares, but claimed: “I did not reach Mr. Waksal, andhe did not return my call.”11 She maintained thatshe had an agreement with her broker to sell herremaining ImClone shares “if the stock droppedbelow $60 per share.”12

Martha’s public, however, was skeptical. She wasasked embarrassing questions when she appeared onTV for a cooking segment, and she declined to answersaying: “I am here to make my salad.” Martha’s inter-actions with her broker, Peter Bacanovic, and his assis-tant, Douglas Faneuil, are also being scrutinized.Merrill Lynch & Co. suspended Bacanovic (who wasalso Sam Waksal’s broker13) and Faneuil, with pay, inlate June. Later, since all phone calls to brokerages aretaped and emails kept, it appeared to be damning

1 Proxy Statement for 2002 Annual Meeting of Stockholders ofMartha Stewart Living Omnimedia, Inc., held May 9, 2002,SEC Edgar Filing, at http://www.sec.gov/Archives/edgar/data/1091801/000095012302003236/y58395def14a.txt

2 “Martha scrutiny heats up: Shares of decorator’s companyend tough week as Martha Stewart’s ImClone links provetroubling”, CNN/Money, June 14, 2002.

3 “Martha Stewart Resigns From NYSE Board, Reuters perthe FOXNews.com, October 5, 2002.

4 “Broker’s aide pleads guilty in Martha Stewart matter”,Washington Post, Oct. 2, 2002

5 “ImClone ex-CEO takes the 5th: Sam Waksal declines totestify; His brother Harlan says his sales were notimproper”, CNN/Money, June 13, 2001.

6 Later it became known that the application for review had“multiple deficiencies” and provided insufficient informa-tion that the drug would work on its own. Ibid.

7 Ibid.8 Ibid.9 Ibid.10 “Martha scrutiny . . .”, ibid.11 Ibid.12 Ibid.13 “Aide to Martha Stewart’s broker admits he withheld

information from investigators”, CBCNEWS, http://cbc.ca/news, Oct. 2, 2002

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when Bacanovic initially refused to provide his cellphone records to the House Energy and CommerceCommission for their investigation14. Moreover, onOctober 4, 2001, Faneuil “pleaded guilty to a chargethat he accepted gifts from his superior in return forkeeping quiet about circumstances surroundingStewart’s controversial stock sale.”15 Faneuil admittedthat he received extra vacation time, including a freeairline ticket from a Merrill Lynch employee inexchange for withholding information from SEC andFBI investigators16.

According to the Washington Post report of Faneuil’sappearance in court:

“On the morning of Dec. 27, Faneuil received a tele-phone call from a Waksal family member who askedto sell 39,472 shares for almost $2.5 million, accord-ing to court records. Waksal’s accountant also calledFaneuil in an unsuccessful attempt to sell a largebloc of shares, the records show.

Prosecutors allege that those orders ‘constituted mate-rial non-public information.’ But they alleged thatFaneuil violated his duty to Merrill Lynch by calling a‘tippee’ to relate that Waksal family members wereattempting to liquidate their holdings in ImClone.

That person then sold ‘all the Tippee’s shares ofImClone stock, approximately 3,928 shares, yieldingproceeds of approximately $228,000’ the courtpapers said.”17

One day later, on October 5th , it was announcedthat Martha resigned from her post as a director ofthe New York Stock Exchange—a post she held onlyfour months—and the price of MSO shares declinedmore than 7 percent to $6.32 in afternoon trading18.From June 12th to October 12th, the share price ofMSO had declined by approximately 61 percent19.

Martha’s future took a further interesting turn onOctober 15th, when Sam Waksal pleaded guilty to sixcounts of his indictment, including: bank fraud, secu-rities fraud, conspiracy to obstruct justice and perjury.But he did not agree to cooperate with prosecutors,

and did not incriminate Martha20. Waksal’s sentencingwas postponed until 2003 so his lawyers couldexchange information with U.S. District Judge WilliamPauley concerning Waksal’s financial records21.

After October 15th, the price of MSO shares rose,perhaps as the prospect of Martha’s going to jailappeared to become more remote, and/or peoplebegan to consider MSO to be more than just Marthaand her reputation. The gain from the low point ofthe MSO share price in October to December 9, 2002was about 40 percent22.

Martha still had a lot to think about, however.Apparently the SEC gave Martha notice inSeptember of its intent to file civil securities fraudcharges against her. Martha’s lawyers respondedand the SEC deliberated. Even if Martha were to getoff with a fine, prosecutors could still bring a crimi-nal case against her in the future. It is an interestinglegal question, how, if Martha were to plead guilty tothe civil charges, she could avoid criminal liability.23

On June 4, 2003, Stewart was indicted on chargesof obstructing justice and securities fraud. She thenquit as Chairman and CEO of her company, butstayed on the Board and served as Chief CreativeOfficer. She appeared in court on January 20, 2004and watched the proceedings throughout her trial. Inaddition to the testimony of Mr. Faneuil, Stewart’spersonal friend Mariana Pasternak testified thatStewart told her Waksal was trying to dump hisshares shortly after selling her Imclone stock24.Ultimately, the jury did not believe the counterclaimby Peter Bacanovic, Stewart’s broker, that he andMartha had a prior agreement to sell Imclone if itwent below $60. Although Judge Cedarbaum dis-missed the charge of securities fraud for insider

14 “Martha’s Broker Under Microscope”, CBSNews.com, July9, 2001.

15 “Martha Stewart resigns . . .”, ibid.16 “Broker’s aide pleads guilty . . .”, ibid.17 “Broker’s aide pleads guilty . . .”, ibid.18 Ibid.19 Assuming a value per share of $13.50 on June 12th, the

decline to a low of $5.26 in early October amounted to adecline of 61 percent.

20 ImClone Founder Pleads Guilty”, CBSNews.com, Oct. 15,2002.

21 Ultimately, on June 10, 2003, Waksal was “sentenced to 87months in prison for insider trading, bank fraud, perjuryand obstruction of justice. He also was ordered to paymore than US$4 million in fines and restitution for ille-gally tipping off his daughter in December 2001, thatshares in the compaaly he founded were about to fallsharply.” “Waksal Jailed for 7 Years”, Peter Morton,Finanical Post, June 11, 2003, FP3.

22 “Market betting Martha won’t go to jail: Shares up 40 per-cent in 6 weeks”, Financial Post, Dec. 10, 2001, IN1,3.

23 “SEC Knocking On Martha’s Door”, CBSNEWS.com, Oct.22, 2002

24 “TIMELINE: Martha Stewart”, CNNMONEY, down-loaded March 5, 2004

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trading, on March 5, 2004 the jury found Stewartguilty on one charge of conspiracy, one of obstructionof justice and two of making false statements to inves-tigators25. The announcement caused the share price ofher company to sink by $2.77 to $11.26 on the NYSE.26

Martha immediately posted the following on herwebsite:

“I am obviously distressed by the jury’s verdict, butI continue to take comfort in knowling that I havedone nothing wrong and that I have the enduringsupport of my fanily and friends. I will appeal theverdict and continue to fight to clear my name. Ibelieve in the fairness of the judicial system andremain confident that I will ultimately prevail.”27

Martha was subsequently sentenced to 5 monthsin prison and 5 months of home detention—a lowerthan maximum sentence under the U.S. SentencingGuidelines—and she did appeal. Although she couldhave remained free during the appeal, on September15, 2004 she asked for her sentence to start28 so shecould be at home in time for the spring plantingseason. Martha’s appeal cited “prosecutorial miscon-duct, extraneous influences on the jury and erroneous

evidentiary rulings and jury instructions” but onJanuary 6, 2006, her conviction was upheld.29

Impact on ReputationMartha may still disagree with the verdict. But thereis little doubt that the allegations and her convictionshad a major impact on Martha personally, and on thefortunes of MSO and the other shareholders that hadfaith in her and her company. Assuming a value pershare of $13.50 on June 12th, the decline to a low of$5.26 in early October 2003 represents a loss of marketcapitalization (i.e. reputation capital as defined byCharles Fombrun30) of approximately $250 millionor 61 percent. The value of MSO’s shares did returnto close at $35.51 on February 7, 200531, but fell off tounder $20 in early 2006. According to a New Yorkbrand-rating company, Brand-Keys, the MarthaStewart brand reached a peak of 120 (the baseline is100) in May 2002, and sank to a low of 63 in March200432.

What will the future hold? Martha has returned toTV with a version of The Apprentice as well as herusual homemaking and design shows, and her prod-ucts and magazines continue to be sold. Will Martharegain her earlier distinction? Would she do it againto avoid losing $45,673?

Questions1. What was the basis of Martha Stewart’s reputation?2. Why did MSO’s stock price decline due to

Martha Stewart’s loss of reputation?3. Who is Martha Stewart’s target market?4. What qualities were associated with the Martha

Stewart brand, before the controversy? Which ofthese were affected by the accusations of insidertrading, and how? How would you find out forsure?

5. What level of sales and profits would MSO havereached if Martha’s reputation had not beenharmed? Refer to the SEC or MSO websites forinformation on financial trends.

Continued

2000–2002 Stock Chart of Martha StewartLiving Omnimedia Inc.

Reprinted Courtesy of NAQ, Inc.

29 “Conviction stands, court tells celebrity homemarkerStewart,” Larry Neumeister, Toronto Star, Januray 7, 2006, D3.

30 Reputation: Realizing Value from the Corporate Image, CharlesJ. Fombrun, Harvard Business School Press, 1996.

31 “Martha’s comeback may be brief”, Michael Santoli,Finanical Post, February 8, 2005, IN3.

32 “Omnimedia eyes life without Martha”, Peter Morton,Finanical post, March 9, 2004, FP1, FP4.

25 “Martha Stewart found guilty on all charges; vows toappeal”, CBC.CA News, downloaded March 5, 2005.

26 Ibid.27 “Martha Stewart: I will appeal”, CNN.com, downloaded

March 5. 2004.28 “Martha to Judge: Jail Me Now”, Drew Hassselback,

Financial Post, September 16, 2004, FP1. Continued

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On April 24, 1985, Warren M. Anderson, the sixty-three-year-old chairman of Union CarbideCorporation, had to make a disappointing announce-ment to angry stockholders at their annual meeting inDanbury, Connecticut. Anderson, who had been jailedbriefly by the government of India on charges of “neg-ligence and criminal corporate liability,” had beendevoting all his attention to the company’s mush-rooming problems. His announcement concerned thecomplete breakdown of negotiations with officials inthe Indian government: they had rejected as inade-quate an estimated $200 million in compensation forthe deaths of 2,000 people and the injuries of 200,000others, which had been caused in December 1984 by apoisonous leak of methyl isocyanate gas from a UnionCarbide pesticide plant located in Bhopal, India.1 Inthe wake of more than $35 billion in suits filed againstthe company’s liability coverage, reported to totalonly about $200 million, the company’s stock tum-bled. Angry stockholders filed suit, charging that theyhad suffered losses of more than $1 billion because thecompany’s managers had failed to warn them of the

risks at the Indian plant. Analysts predicted the com-pany would be forced into bankruptcy. Ironically, theUnion Carbide plant in Bhopal had been losingmoney for several years and Anderson had consid-ered closing it.

The deadly methyl isocyanate gas that leakedfrom the Union Carbide plant is a volatile and highlytoxic chemical used to make pesticides. It is 500 timesmore poisonous than cyanide, and it reacts explo-sively with almost any substance, including water.Late on the night of December 2, 1984, the methyl iso-cyanate stored in a tank at the Bhopal factory startedboiling violently when water or some other agentaccidentally entered the tank. A cooling unit thatshould have switched on automatically had been dis-abled for at least a year. Shakil Qureshi, a manager onduty at the time, and Suman Dey, the senior operatoron duty, both distrusted the initial readings on theirgauges in the control room. “Instruments often didn’twork,” Qureshi said later. “They got corroded, andcrystals would form on them.”

By 11:30 p.m. the plant workers’ eyes were burning.But the workers remained unconcerned because, asthey later reported, minor leaks were common at theplant and were often first detected in this way. Manyof the illiterate workers were unaware of the deadlyproperties of the chemical. Not until 12:40 a.m., asworkers began choking on the fumes, did they realizesomething was drastically wrong. Five minutes later,emergency valves on the storage tank exploded andwhite toxic gas began shooting out of a pipestack anddrifting toward the shantytowns downwind from theplant. An alarm sounded as manager Dey shouted intothe factory loudspeaker that a massive leak had

Continued


6. What range would the stock price have been inat the end of 2002 based on your estimates?

7. Martha’s overall net worth was huge relative toher investment in ImClone. Assuming she did nothave inside information, was there any way shecould have avoided the appearance of having it?

8. How could Martha have handled this crisis better?9. Why is insider trading considered harmful?

Should insider trading be banned if it assists inmoving a stock price to new a equilibrium

quickly, so that non-insiders are trading atappropriate prices sooner?

10. If you wished to sell an investment in a companywhere one of your friends is an insider, or even asignificant employee, should you call yourfriend to advise him you are about to sell? Why,or why not?

L.J. Brooks, Jan. 2003/Rev. Jan. 2006

Continued

ETHICS CASE Bhopal—Union Carbide*

* This case has been adapted from Velasquesz, Manuel,Business Ethics: Concepts and Cases, 3/e, © 1992, pp. 3–5.Reprinted by permission of Prentice-Hall, Inc., EnglewoodCliffs, N.J.

1 All material concerning Union Carbide and the Bhopalplant, including all quotations and all allegations, is drawndirectly from the following sources: New York Times:December 9, 1984, p. 1E; December 16, 1984, pp. 1, 8; January28, 1985, pp. 6, 7; January 30, 1985, p. 6; April 25, 1985, p. 34;San Jose Mercury News: December 6, 1984, p. 16A; December12, 1984, pp. 1, 1H; December 13, 1984, p. 1; Time: December17, 1985, pp. 22–31.

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erupted and the workers should flee the area.Meanwhile, Qureshi ordered company fire trucks tospray the escaping gas with water to neutralize thechemical. But water pressure was too low to reach thetop of the 120-foot-high pipestack. Dey then rushed toturn on a vent scrubber that should have neutralizedthe escaping gas with caustic soda. Unfortunately, thescrubber had been shut down for maintenance fifteendays earlier. As white clouds continued to pour out ofthe pipestack, Qureshi shouted to workers to turn on anearby flare tower to burn off the gas. The flare, how-ever, would not go on because its pipes had corrodedand were still being repaired.

Panicked workers poured out of the plant, and thelethal cloud settled over the neighboring shantytownsof Jaipraksh and Chola. Hundreds died in their beds,choking helplessly in violent spasms as their burninglungs filled with fluid. Thousands were blinded by thecaustic gas, and thousands of others suffered burns andlesions in their nasal and bronchial passages. When itwas over, at least 2,000 lay dead and 200,000 wereinjured. The majority of the dead were squatters whohad illegally built huts next to the factory. Survivingresidents of the slums, most of them illiterate, declaredafterward that they had built their shacks there becausethey did not understand the danger and thought thefactory made healthy “medicine for plants.”

Union Carbide managers from the United Statesbuilt the Bhopal plant in 1969 with the blessing of theIndian government, which was anxious to increaseproduction of the pesticides it desperately needed toraise food for India’s huge population. Over the nextfifteen years, pesticides enabled India to cut itsannual grain losses from 25 percent to 15 percent, asaving of 15 million tons of grain, or enough to feed70 million people for a full year. Indian officials will-ingly accepted the technology, skills, and equipmentthat Union Carbide provided, and Indian workerswere thankful for the company jobs, without whichthey would have had to beg or starve, as India has nowelfare system. In return, India offered the companycheap labor, low taxes, and few laws requiring expen-sive environmental equipment or costly workplaceprotections. In comparison with other factories inIndia, the Union Carbide plant was considered amodel, law-abiding citizen with a good safetyrecord. Said a government official: “They neverrefused to install what we asked.”

At the time of the disaster, the pesticide plant inBhopal was operated by Union Carbide India Ltd., asubsidiary of the Union Carbide Corporation ofDanbury, Connecticut, which had a controlling interest

of 50.9 percent in the Indian company. The board ofdirectors of Union Carbide India Ltd. included one topmanager from the parent Union Carbide Corporationin the United States and four managers from anotherUnion Carbide subsidiary, based in Hong Kong.Reports from the Indian company were regularlyreviewed by the managers in Danbury, who had theauthority to exercise financial and technical controlover Union Carbide India Ltd. Although day-to-daydetails were left to the Indian managers, the Americanmanagers controlled budgets, set major policies, andissued technical directives for operating and main-taining the plant.

Before the tragedy, the Indian subsidiary had beendoing poorly. In an effort to contain annual losses of$4 million from the unpro-fitable plant, local com-pany managers had initiated several cost-cutting pro-grams. Only a year before, the number of equipmentoperators on each shift had been reduced from twelveto five; morale dropped and many of the best opera-tors quit and were replaced with workers whose edu-cation was below that required by company manuals.Although Warren Anderson and other Union CarbideCorporation (U.S.) managers insisted that res-ponsibility for the plant’s operations rested with thelocal Indian managers, they hastened to say that allcost-cutting measures had been justified.

Two years before the disaster, the American man-agers had sent three engineers from the United Statesto survey the plant and, as a result, had told the Indianmanagers to remedy ten major flaws in safety equip-ment and procedures. The Indian managers had writ-ten back that the problems were corrected. “We haveno reason to believe that what was represented to usby Union Carbide India Ltd. did not in fact occur,”said the U.S. managers. The U.S. managers had con-sidered closing the failing plant a year earlier, butIndian city and state officials had asked that the com-pany remain open to preserve the jobs of thousands ofworkers in the plant and in dependent local industries.

Questions1. What are the ethical issues raised by this case?

2. Did the legal doctrine of “limited liability” applyto protect the shareholders of Union CarbideCorporation (U.S.)?

3. Were the Indian operations, which were beingoverseen by the managers of Union CarbideCorporation (U.S.), in compliance with legal ormoral or ethical standards?

Continued

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ETHICS CASE The Betaseron® Decision (A)

On July 23, 1993, the United States Food and DrugAdministration (FDA) approved interferon beta-1b(brand name Betaseron®), making it the first treatmentfor multiple sclerosis to get FDA approval in twenty-five years. Betaseron was developed by Berlex Labora-tories, a United States unit of Schering AG, the Germanpharmaceutical company. Berlex handled the clinicaldevelopment, trials, and marketing of the drug, whileChiron, a biotechnology firm based in California,manufactured it. The groundbreaking approval ofBetaseron represented not only a great opportunity forBerlex but also a difficult dilemma. Available supplieswere insufficient to meet initial demand, and shortageswere forecasted until 1996. With insufficient suppliesand staggering development costs, how would Berlexallocate and price the drug?

The Challenge of Multiple SclerosisMultiple sclerosis (MS) is a disease of the central nerv-ous system that interferes with the brain’s ability tocontrol such functions as seeing, walking, and talking.The nerve fibers within the brain and spinal cord aresurrounded by myelin, a fatty substance that protectsthe nerve fibers in the same way that insulationprotects electrical wires. When the myelin insulationbecomes damaged, the ability of the central nervoussystem to transmit nerve impulses to and from thebrain becomes impaired. With multiple sclerosis,there are sclerosed (i.e., scarred or hardened) areas inmultiple parts of the brain and spinal cord when theimmune system mistakenly attacks the myelin sheath.

The symptoms of MS depend to some extent on thelocation and size of the sclerosis. Symptoms includenumbness, slurred speech, blurred vision, poor coor-dination, muscle weakness, bladder dysfunction,extreme fatigue, and paralysis. There is no way toknow how the disease will progress for any individ-ual because the nature of the course it takes canchange over time. Some people will have a relativelybenign course of MS, with only one or two mildattacks, nearly complete remission, and no permanentdisability. Others will have a chronic, progressivecourse resulting in severe disability. A third group dis-plays the most typical pattern, with periods of exacer-bations, when the disease is active, and periods ofremission, when the symptoms recede while generallyleaving some damage. People with MS live with an

exceptionally high degree of uncertainty because thecourse of their disease can change from one day to thenext. Dramatic downturns as well as dramatic recov-eries are not uncommon.

The Promise of BetaseronInterferon beta is a protein that occurs naturally andregulates the body’s immune system. Betaseron iscomposed of interferon beta-1b that has been geneti-cally engineered and laboratory manufactured as arecombinant product. Although other interferons(i.e., alpha and gamma) had been tested, only betainterferon had been shown, through large-scaletrials, to affect MS. Because it is an immunoregulatoryagent, it was believed to combat the immune prob-lems that make MS worse. However, the exact way inwhich it works was yet to be determined.

In clinical studies, Betaseron was shown to reducethe frequency and severity of exacerbations in ambu-latory MS patients with a relapsing-remitting form ofthe disease. It did not reverse damage already done,nor did it completely prevent exacerbations fromoccurring. However, Betaseron could dramaticallyimprove the quality of life for the person with MS;for example, people taking Betaseron were shown tohave fewer and shorter hospitalizations. Betaseronrepresented the first and only drug to have an effecton the frequency of exacerbations.

Betaseron is administered subcutaneously(under the skin) every other day by self-injection. Inorder to derive the most benefits from the therapy, itwas important that the MS patient maintain a regularschedule of the injections. Some flu-like side effects, aswell as swelling and irritation around the injection,had been noted; however, they tended to decreasewith time on treatment. In addition, one person whoreceived Betaseron committed suicide, while threeothers attempted to kill themselves. Because MS oftenleads to depression, there was no way to knowwhether the administration of Betaseron was a factor.Lastly, Betaseron was not recommended for useduring pregnancy.

The Betaseron DilemmaIn July of 1993, the FDA approval for Betaseronallowed physicians to prescribe the drug to MS patientswho were ambulatory and had a relapsing-remitting

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ETHICS CASE Texaco: The Ecuador Issue1

In 1964, at the invitation of the Ecuadorian govern-ment, Texaco Inc. began operations through a sub-sidiary, TexPet, in the Amazon region of Ecuador. Thepurpose of the project was to “develop Ecuador’s nat-ural resources and encourage the colonization of thearea.”2 TexPet was a minority owner of the project andits partner was Petroecuador, the government-ownedoil company. Over the years from 1968 to 1992, the con-sortium extracted 1.4 billion barrels of oil from theEcuadorian operations.

Ecuador benefited greatly during this period.Ecuador received approximately 98 percent of allmoneys generated by the consortium in the form ofroyalties, taxes, and revenues. Altogether, this amountrepresented more than 50 percent of Ecuador’s gross

national product during that period. TexPet’s opera-tions over the years provided jobs for 840 employeesand approximately 2,000 contract workers, therebybenefiting almost 3,000 Ecuadorian families directly,in addition to the thousands of Ecuadorian nationalswho supplied the company’s needs for goods andservices. Also, TexPet made substantial contributionsto the Quito, Guayaquil, and Loja Polytechnics andother institutions of higher education. Oil is Ecuador’slifeblood—a $1 billion per year industry that accountsfor 50 percent of the export earnings and 62 percent ofits fiscal budget.

Unfortunately, problems also arose. AlthoughPetroecuador acquired 100 percent of the ownershipof the Transecuadorian pipeline in 1986, TexPet stillaccounted for 88 percent of all oil production andoperated the pipeline in 1987 when it ruptured andwas buried by a landslide. A spill of 16.8 million gal-lons (4.4 million barrels) occurred, which Texaco

1 By Professor Timothy Rowley of the Rotman School ofManagement.

2 Sources: Texaco and other Websites: www.texaco.com; seeEcuador pages.

course of MS. An estimated one-third of the 300,000people with MS in the United States fell into that cate-gory, resulting in a potential client base of 100,000.However, the expedited FDA approval process tookonly one year instead of the customary three yearstaken to review new drug applications. As a result,Berlex was unprepared for its manufacture and distri-bution in the anticipated amount needed. ChironCorporation had been making the drug in small quan-tities for experimental use and did not have the manu-facturing facilities to handle the expected explosion indemand. Chiron estimated that it would have enoughof the drug for about 12,000 to 20,000 people by theend of 1993. By the end of 1994, Chiron expected to beable to provide the drug to 40,000 patients. Dependingon demand, it might take until about 1996 to providethe drug to all patients who requested it. Chiron’sexpanded manufacturing represented the only optionfor Berlex because the process required for anothercompany to get FDA approval to manufacture the drugwould take even longer.

In addition to availability, price was a concernbecause successes must fund the failures that precede

them. Betaseron represented the results of years ofexpensive, risky research by highly trained scientistsin modern research facilities. Furthermore, geneticallyengineered drugs were extremely expensive to manu-facture. In the case of Betaseron, a human interferongene was inserted into bacteria, resulting in a geneti-cally engineered molecule. The stringent quality con-trols on the procedure take time and are expensive. Asa result, the price of Betaseron was expected to beabout $10,000 per year for each patient.

Betaseron brought great hope to people with MSand a great quandary to Berlex. How should Berlexhandle the supply limitations, the distribution, andthe price of this drug?

Source: By Ann K. Buchholtz, University of Georgia. Thiscase was written from public sources, solely for the purposeof stimulating class discussion. All events are real. Theauthor thanks Dr. Stephen Reingold, vice president,Research and Medical Programs of the National MultipleSclerosis Society and Avery Rockwell, chapter services asso-ciate of the Greater Connecticut Chapter of the MultipleSclerosis Society, and two anonymous reviewers for theirhelpful comments.

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attributed to a major earthquake that devastatedEcuador.

Other spills apparently occurred as well. AlthoughTexaco pulled out of the consortium in 1992 entirely(having retreated to be a silent minority partner in1990), three lawsuits were filed against it in the UnitedStates—the Aquinda (November 1993), the Sequihua(August 1993), and the Jota (in 1994). The indigenouspeople who launched the lawsuits charged that,during two decades of oil drilling in the Amazon,Texaco dumped more than 3,000 gallons of crude oil aday—millions of gallons in total—into the environ-ment. The indigenous people say their rivers, streams,and lakes are now contaminated, and the fish andwild game that once made up their food supply arenow decimated. They asked in the lawsuit that Texacocompensate them and clean up their land and waters.

Maria Aquinda, for whom the suit is named, saysthat contaminated water from nearby oil wells drilledby the Texaco subsidiary caused her to suffer chronicstomach ailments and rashes and that she lost scoresof pigs and chickens. Aquinda and 76 otherAmazonian residents filed a $1.5 billion lawsuit inNew York against Texaco. The class action suit, repre-senting 30,000 people, further alleges that Texacoacted “with callous disregard for the health, wellbe-ing, and safety of the plaintiffs” and that “large-scaledisposal of inadequately treated hazardous wastesand destruction of tropical rain forest habitats,caused harm to indigenous peoples and their prop-erty.” According to the Ecuadorian environmentalgroup Ecological Action, Texaco destroyed more than1 million hectares of tropical forest, spilled 74 millionliters of oil, and used obsolete technology that led tothe dumping of 18 million liters of toxic waste.Rainforest Action Network, a San Francisco-basedorganization, says effects include poor crop produc-tion in the affected areas, invasion of tribal lands,sexual assaults committed by oil workers, and loss ofgame animals (which would be food supply for theindigenous peoples).

Audits were conducted to address the impact ofoperations on the soil, water, and air and to assesscompliance with environmental laws, regulations,and generally accepted operating practices. Two inter-nationally recognized and independent consultingfirms, AGRA Earth & Environmental Ltd. and Fugro-McClelland, conducted audits in Ecuador. Each inde-pendently concluded that TexPet acted responsiblyand that there is no lasting or significant environmen-tal impact from its former operations. Nonetheless,TexPet agreed to remedy the limited and localized

impacts attributable to its operations. On May 4, 1995,Ecuador’s Minister of Energy and Mines, the presidentof Petroecuador, and TexPet signed the Contract forImplementing of Environmental Remedial Work andRelease from Obligations, Liability, and Claims followingnegotiations with Ecuadorian government officialsrepresenting the interests of indigenous groups in theOriente. In this remediation effort, producing wellsand pits formerly utilized by TexPet were closed, pro-ducing water systems were modified, cleared landswere replanted, and contaminated soil was remedi-ated. All actions taken were inspected and certified bythe Ecuadorian government. Additionally, TexPetfunded social and health programs throughout theregion of operations, such as medical dispensaries andsewage and potable water systems. That contract set-tled all claims by Petroecuador and the Republic ofEcuador against TexPet, Texaco, and their affiliates forall matters arising out of the consortium’s operations.

In the summer of 1998, the $40 million remediationproject was completed. On September 30, 1998,Ecuador’s Minister of Energy and Mines, the presidentof Petroecuador, and the general manager of Petro-produccion signed the Final Release of Claims andDelivery of Equipment. This document finalized theGovernment of Ecuador’s approval of TexPet’s envi-ronmental remediation work and further stated thatTexPet fully complied with all obligations establishedin the remediation agreement signed in 1995.

Meanwhile, in the United States, Texaco made thefollowing arguments against the three lawsuits:

• Activities were in compliance with Ecuadorian laws,and international oil industry standards.

• Activities were undertaken by a largely Ecuadorianworkforce—which Texaco believed would always actin the interest of its community/country.

• All investments/operations were approved andmonitored by the Ecuadorian government andPetroecuador.

• All activities were conducted with the oversight andapproval of the Ecuadorian government.

• Environmentally friendly measures were used, suchas helicopters instead of roads.

• The health of Ecuadorians increased during the yearsTexaco was in Ecuador.

• Ninety-eight percent of the money generated stayedin Ecuador—50 percent of GDP during that period.

• Jobs were provided for 2,800.

• Money was provided for schools.

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ETHICS CASE Where Were the Accountants?

“Sam, I’m really in trouble. I’ve always wanted to bean accountant. But here I am just about to apply to theaccounting firms for a job after graduation from theuniversity, and I’m not sure I want to be an accountantafter all.”

“Why, Norm? In all those accounting courses wetook together, you worked super hard because youwere really interested. What’s your problem now?”

“Well, I’ve been reading the business newspapers,reports, and accounting journals lately, and things justdon’t add up. For instance, you know how we havealways been told that accountants have expertise inmeasurement and disclosure, that they are supposedto prepare reports with integrity, and that they oughtto root out fraud if they suspect it? Well, it doesn’t look

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• Independent engineering firms found no lastingdamage.

• A $40 million remediation program was started peran agreement with the Ecuadorian government.

• U.S. courts should not govern activities in a foreigncountry.

The three lawsuits were dismissed for similarreasons—the Sequihua in 1994, the Aquinda in1996, and the Jota in 1997. The Aquinda lawsuit, forexample, was launched in New York (where Texacohas its corporate headquarters) because Texaco nolonger had business in Ecuador and could not besued there. The case was dismissed by a New Yorkcourt in November 1996 on the basis that it should beheard in Ecuador. Failing that, the Ecuadorian gov-ernment should have been involved in the case aswell, or that the case should have been filed againstthe government and the state-owned Petroecuadoras well as Texaco. At that point, the Ecuadoriangovernment did get involved and filed an appeal ofthe decision. This was the first time a foreign gov-ernment had sued a U.S. oil company in the UnitedStates for environmental damage. In addition, in 1997, the plaintiffs in the Aquinda and Jota casesalso appealed the district court’s decisions.

On October 5, 1998, a U.S. court of appealsremanded both cases to the district court for furtherconsideration as to whether they should proceed inEcuador or the United States. Written submissionswere filed on February 1, 1999. Texaco has longargued that the appropriate venue for these cases isEcuador because the oil-producing operations tookplace in Ecuador under the control and supervision

of Ecuador’s government, and the Ecuadoriancourts have heard similar cases against other com-panies. It is Texaco’s position that U.S. courtsshould not govern the activities of a sovereign for-eign nation, just as foreign courts should not governthe activities of the United States. In fact, Texacoclaimed the Ambassador of Ecuador, the officialrepresentative of the government of Ecuador, notedin a letter to the district court that Ecuador wouldnot waive its sovereign immunity.

Notwithstanding Texaco’s arguments, the case wassent back to the court that threw it out, on the basisthat the government of Ecuador does have the rightto intervene. The question of whether the case canbe tried in the United States or Ecuador under thesecircumstances will now be decided. Texaco claimsthat it has done enough to repair any damage anddisputes the scientific validity of the claims—theAmazonians (or their supporters) seem to have theresources to continue fighting this suit in the U.S.courts.

Questions1. Should Ecuadorians be able to sue Texaco in U.S.

courts?2. If an oil spill was caused by an act of God, an

earthquake, should Texaco be held responsible?3. Do you find Texaco’s arguments against the lawsuits

convincing? Why and why not?

Source: Texaco Website: www.texaco.com; see Ecuadorpages; various other Websites.

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like they have been doing a good job. At least, theyhaven’t been doing what I would have expected.”

“Remember, Norm, we’re still students with a lot tolearn. Maybe you are missing something. What haveyou been reading about?”

“OK, Sam, here are a few stories for you to thinkabout:

1. In this article, “Accountants and the S & L Crisis,”which was in Management Accounting in February 1993,I found the argument that the $200 million fiasco wasdue to the regulators and to a downturn in the realestate market, not to accounting fraud . . . but I don’tbuy it entirely. According to this article, rising interestrates and fixed lending rates resulted in negative cashflow at the same time as a decline in value of the realestate market reduced the value underlying S & L loanassets. As a result, the net worth of many S & Ls fell,and regulators decided to change some accountingpractices to make it appear that the S & Ls were stillabove the minimum capital requirements mandated toprotect depositors’ funds. Just look at this list of theseven accounting practices or problems that werecited:

• write-off of losses on loans sold over the life of theloan rather than when the loss occurred,

• use of government-issued Net Worth Certificates tobe counted as S & L capital,

• use of deals involving up-front money and near-term cash flow, which would bolster current earn-ings at the expense of later,

• inadequate loan loss provisions due to poor loanmonitoring,

• write-off of goodwill created on the merger ofsound S & Ls with bankrupt S & Ls over a forty-year period,

• write-ups of owned property based on appraisalvalues, and

• lack of market-based reporting to reflect economicreality.

The problem, for me, is that many of these prac-tices are not in accord with generally acceptedaccounting principles [GAAP] and yet the account-ants went along—at least they didn’t object orimprove their practices enough to change the outcome.Why not? Where were the accountants?”

2. “I am also concerned about the expertise the account-ing profession claims to have in terms of measurementand disclosure. For example, recently there have beenmany articles on the health costs created by smoking,yet there are no accountants involved. For instance, aMay 1994 report by the Center on Addiction andSubstance Abuse at Columbia University estimatesthat “in 1994 dollars, substance abuse will costMedicare $20 billion in inpatient hospital costs alone”and that tobacco accounts for 80 percent of those hospi-talizations. Over the next twenty years, substanceabuse will cost the Medicare program $1 trillion. Nowonder the trustees of the Medicare Trust Fundreleased a report on April 21 “predicting that the Fundwould run out of money in seven years.” These areimportant issues. Why do we have to wait for econo-mists and special interest groups to make these calcula-tions? Shouldn’t accountants be able to make them andlend credibility and balance in the process? Wouldn’tsociety benefit? Where were the accountants?

3. “What about the finding of fraud? Are auditorsdoing enough to prevent and catch fraudulentbehavior? I know what our professors say: auditorscan’t be expected to catch everything; their job is notto search for fraud unless suspicions are arousedduring other activities; and their primary task is toaudit the financial statements. But aren’t the auditorsjust reacting to discovered problems, when theycould be proactive? Couldn’t they stress the impor-tance of using codes of conduct and the encourage-ment of employees to bring forward their concernsover unethical acts? Why is proactive managementappropriate in some other areas, such as ironing outpersonnel problems, but reactive behavior is appro-priate when dealing with fraud? Reactive behaviorwill just close the barn door after the horse has beenstolen. In the case of the Bank of Credit & CommerceInternational (BCCI), for example, at least $1.7 billionwas missing.”

“I guess I’m having second thoughts about becominga professional accountant. Can you help me out,Sam?”

Question1. What would you tell Norm?

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Many managers think of ethics as a question of per-sonal scruples, a confidential matter between indi-viduals and their consciences. These executives arequick to describe any wrongdoing as an isolated inci-dent, the work of a rogue employee. The thought thatthe company could bear any responsibility for an

individual’s misdeeds never enters their minds.Ethics, after all, has nothing to do with management.


Reprinted by permission of Harvard Business Review. From“Managing for Organizational Integrity” by Lynn SharpPaine (March–April 1994). Copyright © 1994 by the Presidentand Fellows of Harvard College; all rights reserved.

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ETHICS CASE To Resign or Serve?

The Prairieland Bank was a medium-sized,Midwestern financial institution. The managementhad a good reputation for backing successful deals,but the CEO (and significant shareholder) hadrecently moved to San Francisco to be “close to thebig-bank center of activity.” He commuted into thePrairieland head office for two or three days eachweek to oversee major deals.

Lately the bank’s profitability had decreased, andthe management had begun to renegotiate manyloans on which payments had fallen behind. Bydoing so, the bank was able to disclose to them ascurrent, rather than nonperforming, as the unpaidinterest was simply added to the principal to arriveat the new principal amount. Discussions were alsounder way on changing some accounting policies tomake them less conservative.

Ben Hunt, the audit partner on the Prairieland Bankaccount, was becoming concerned about the risk asso-ciated with giving an opinion on the fairness of thefinancial statements. During the early days of theaudit, it became evident that the provision for doubtfulloans was far too low, and he made an appointment todiscuss the problem with the CEO and his vice presi-dent of finance. At the interview, Ben was told that theexecutives knew the provision was too low, but theydidn’t want to increase it because that would decreasetheir reported profits. Instead, they had approached acompany that provided insurance to protect leased

equipment, such as earth movers, against damageduring the lease, and arranged for insurance againstnonpayment on the maturity of their loans. As a result,they said, any defaults on their loans would be madeup from the insurance company, so they didn’t see anypoint to increasing the provision for loan losses or dis-closing the insurance arrangement.

When he heard of this, Ben expressed concern tothe Prairieland management, but they wereadamant. Because Prairieland was such a largeaccount, he sought the counsel of James London, thesenior partner in his firm who was in charge ofassessing such accounting treatments and therelated risk to the auditing firm. James flew out toconfer with Ben, and they decided that the bestcourse of action was to visit the client and indicatetheir intent to resign, which they did.

After dinner, James was waiting at the airport forhis plane home. By coincidence, he met Jack Lane,who held responsibilities similar to his own at one ofthe competing firms. Jack was returning home aswell and was in good spirits. On the flight, Jack let itslip that he had just picked up an old client ofJames’s firm, Prairieland Bank.

Questions1. Which decision was right: to resign or to serve?2. What should James do?

READINGS

Managing for Organizational Integrity

Lynn Sharp Paine

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In fact, ethics has everything to do with manage-ment. Rarely do the character flaws of a lone actorfully explain corporate misconduct. More typically,unethical business practice involves the tacit, if notexplicit, cooperation of others and reflects the values,attitudes, beliefs, language, and behavioral patternsthat define an organization’s operating culture.Ethics, then, is as much an organizational as a per-sonal issue. Managers who fail to provide properleadership and to institute systems that facilitate eth-ical conduct share responsibility with those who con-ceive, execute, and knowingly benefit from corporatemisdeeds.

Managers must acknowledge their role in shapingorganizational ethics and seize this opportunity tocreate a climate that can strengthen the relationshipsand reputations on which their companies’ successdepends. Executives who ignore ethics run the risk ofpersonal and corporate liability in today’s increas-ingly tough legal environment. In addition, theydeprive their organizations of the benefits availableunder new federal guidelines for sentencing organi-zations convicted of wrongdoing. These sentencingguidelines recognize for the first time the organiza-tional and managerial roots of unlawful conduct andbase fines partly on the extent to which companieshave taken steps to prevent that misconduct.

Prompted by the prospect of leniency, many com-panies are rushing to implement compliance-basedethics programs. Designed by corporate counsel, thegoal of these programs is to prevent, detect, andpunish legal violations. But organizational ethicsmeans more than avoiding illegal practice; and pro-viding employees with a rule book will do little toaddress the problems underlying unlawful conduct.To foster a climate that encourages exemplary behav-ior, corporations need a comprehensive approachthat goes beyond the often punitive legal compliancestance.

An integrity-based approach to ethics man-agement combines a concern for the law with anemphasis on managerial responsibility for ethicalbehavior. Though integrity strategies may vary indesign and scope, all strive to define companies’guiding values, aspirations, and patterns of thoughtand conduct. When integrated into the day-to-dayoperations of an organization, such strategies canhelp prevent damaging ethical lapses while tappinginto powerful human impulses for moral thoughtand action. Then an ethical framework becomes nolonger a burdensome constraint within which com-panies must operate, but the governing ethos of anorganization.

How Organizations Shape Individuals’ BehaviorThe once familiar picture of ethics as individualistic,unchanging, and impervious to organizational influ-ences has not stood up to scrutiny in recent years. SearsAuto Centers’ and Beech-Nut Nutrition Corporation’sexperiences illustrate the role organizations play inshaping individuals’ behavior—and how even soundmoral fiber can fray when stretched too thin.

In 1992, Sears, Roebuck & Company was inun-dated with complaints about its automotive servicebusiness. Consumers and attorneys general in morethan 40 states had accused the company of misleadingcustomers and selling them unnecessary parts andservices, from brake jobs to front-end alignments. Itwould be a mistake, however, to see this situationexclusively in terms of any one individual’s moralfailings. Nor did management set out to defraud Searscustomers. Instead, a number of organizational fac-tors contributed to the problematic sales practices.

In the face of declining revenues, shrinking marketshare, and an increasingly competitive market forundercar services, Sears management attempted tospur the performance of its auto centers by introduc-ing new goals and incentives for employees. The com-pany increased minimum work quotas andintroduced productivity incentives for mechanics. Theautomotive service advisers were given product-spe-cific sales quotas—sell so many springs, shockabsorbers, alignments, or brake jobs per shift—andpaid a commission based on sales. According to advis-ers, failure to meet quotas could lead to a transfer or areduction in work hours. Some employees spoke of the“pressure, pressure, pressure” to bring in sales.

Under this new set of organizational pressuresand incentives, with few options for meeting theirsales goals legitimately, some employees’ judgmentunderstandably suffered. Management’s failure to clar-ify the line between unnecessary service and legiti-mate preventive maintenance, coupled withconsumer ignorance, left employees to chart theirown courses through a vast gray area, subject to awide range of interpretations. Without active man-agement support for ethical practice and mecha-nisms to detect and check questionable salesmethods and poor work, it is not surprising thatsome employees may have reacted to contextualforces by resorting to exaggeration, carelessness, oreven misrepresentation.

Shortly after the allegations against Searsbecame public, CEO Edward Brennan acknowledged

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management’s responsibility for putting in place com-pensation and goal-setting systems that “created anenvironment in which mistakes did occur.” Althoughthe company denied any intent to deceive consumers,senior executives eliminated commissions for serviceadvisers and discontinued sales quotas for specific parts.They also instituted a system of unannounced shoppingaudits and made plans to expand the internal monitor-ing of service. In settling the pending lawsuits, Searsoffered coupons to customers who had bought certainauto services between 1990 and 1992. The total cost ofthe settlement, including potential customer refunds,was an estimated $60 million.

Contextual forces can also influence the behavior oftop management, as a former CEO of Beech-NutNutrition Corporation discovered. In the early 1980s,only two years after joining the company, the CEOfound evidence suggesting that the apple juice con-centrate, supplied by the company’s vendors for usein Beech-Nut’s “100% pure” apple juice, containednothing more than sugar water and chemicals. TheCEO could have destroyed the bogus inventory andwithdrawn the juice from grocers’ shelves, but he wasunder extraordinary pressure to turn the ailing com-pany around. Eliminating the inventory would havekilled any hope of turning even the meager $700,000profit promised to Beech-Nut’s then parent, Nestlé.

A number of people in the corporation, it turnedout, had doubted the purity of the juice for severalyears before the CEO arrived. But the 25 percent priceadvantage offered by the supplier of the bogus concen-trate allowed the operations head to meet cost-controlgoals. Furthermore, the company lacked an effectivequality-control system, and a conclusive lab test forjuice purity did not yet exist. When a member of theresearch department voiced concerns about the juice tooperating management, he was accused of not being ateam player and of acting like “Chicken Little.” Hisjudgment, his supervisor wrote in an annual perform-ance review, was “colored by naiveté and impracticalideals.” No one else seemed to have considered thecompany’s obligations to its customers or to havethought about the potential harm of disclosure. No oneconsidered the fact that the sale of adultered or mis-branded juice is a legal offense, putting the companyand its top management at risk of criminal liability.

An FDA investigation taught Beech-Nut the hardway. In 1987, the company pleaded guilty to sellingadultered and misbranded juice. Two years and twocriminal trials later, the CEO pleaded guilty to tencounts of mislabeling. The total cost to the company—including fines, legal expenses, and lost sales—was anestimated $25 million.

Such errors of judgment rarely reflect an organiza-tional culture and management philosophy that sets

out to harm or deceive. More often, they reveal a cul-ture that is insensitive or indifferent to ethical con-siderations or one that lacks effective organizationalsystems. By the same token, exemplary conduct usu-ally reflects an organizational culture and philosophythat is infused with a sense of responsibility.

For example, Johnson & Johnson’s handling of theTylenol crisis is sometimes attributed to the singularpersonality of then-CEO James Burke. However, thedecision to do a nationwide recall of Tylenol capsulesin order to avoid further loss of life from producttampering was in reality not one decision but thou-sands of decisions made by individuals at all levels ofthe organization. The “Tylenol decision,” then, is bestunderstood not as an isolated incident, the achieve-ment of a lone individual, but as the reflection of anorganization’s culture. Without a shared set of valuesand guiding principles deeply ingrained throughoutthe organization, it is doubtful that Johnson &Johnson’s response would have been as rapid, cohe-sive, and ethically sound.

Many people resist acknowledging the influence oforganizational factors on individual behavior—espe-cially on misconduct—for fear of diluting people’ssense of personal moral responsibility. But this fear isbased on a false dichotomy between holding individualtransgressors accountable and holding “the system”accountable. Acknowledging the importance of organi-zational context need not imply exculpating individualwrongdoers. To understand all is not to forgive all.

The Limits of a Legal Compliance ProgramThe consequences of an ethical lapse can be seriousand far-reaching. Organizations can quickly becomeentangled in an all-consuming web of legal proceed-ings. The risk of litigation and liability has increased inthe past decade as lawmakers have legislated new civiland criminal offenses, stepped up penalties, andimproved support for law enforcement. Equally—ifnot more—important is the damage an ethical lapsecan do to an organization’s reputation and relation-ships. Both Sears and Beech-Nut, for instance, strug-gled to regain consumer trust and market share longafter legal proceedings had ended.

As more managers have become alerted to theimportance of organizational ethics, many have askedtheir lawyers to develop corporate ethics programs todetect and prevent violations of the law. The 1991 FederalSentencing Guidelines offer a compelling rationale.Sanctions such as fines and probation for organizationsconvicted of wrongdoing can vary dramatically depend-ing both on the degree of management cooperation in

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reporting and investigating corporate misdeeds and onwhether or not the company has implemented a legalcompliance program. (See the insert “Corporate FinesUnder the Federal Sentencing Guidelines.”)

Such programs tend to emphasize the preventionof unlawful conduct, primarily by increasing surveil-lance and control and by imposing penalties forwrongdoers. While plans vary, the basic framework isoutlined in the sentencing guidelines. Managers mustestablish compliance standards and procedures; des-ignate high-level personnel to oversee compliance;avoid delegating discretionary authority to thoselikely to act unlawfully; effectively communicate thecompany’s standards and procedures through trainingor publications; take reasonable steps to achieve com-pliance through audits, monitoring processes, and asystem for employees to report criminal misconductwithout fear of retribution; consistently enforce stan-dards through appropriate disciplinary measures;respond appropriately when offenses are detected;

and, finally take reasonable steps to prevent the occur-rence of similar offenses in the future.

There is no question of the necessity of a sound,well-articulated strategy for legal compliance in anorganization. After all, employees can be frustratedand frightened by the complexity of today’s legal envi-ronment. And even managers who claim to use thelaw as a guide to ethical behavior often lack more thana rudimentary understanding of complex legal issues.

Managers would be mistaken, however, to regardlegal compliance as an adequate means for addressingthe full range of ethical issues that arise every day. “Ifit’s legal, it’s ethical,” is a frequently heard slogan; butconduct that is lawful may be highly problematic froman ethical point of view. Consider the sale in somecountries of hazardous products without appropriatewarnings or the purchase of goods from suppliers whooperate inhumane sweatshops in developing countries.

What size fine is a corporation likely to pay if con-victed of a crime? It depends on a number of factors,some of which are beyond a CEO’s control, such asthe existence of a prior record of similar misconduct.But it also depends on more controllable factors. Themost important of these are reporting and acceptingresponsibility for the crime, cooperating withauthorities, and having an effective program inplace to prevent and detect unlawful behavior.

The following example, based on a case studiedby the United States Sentencing Commission,shows how the 1991 Federal Sentencing Guidelineshave affected overall fine levels and how managers’actions influence organizational fines.

Acme Corporation was chargedand convicted of mail fraud. Thecompany systematically chargedcustomers who damaged rentedautomobiles more than the actualcost of repairs. Acme also billedsome customers for the cost ofrepairs to vehicles for which theywere not responsible. Prior to thecriminal adjudication, Acme paid$13.7 million in restitution to the cus-tomers who had been overcharged.

Deciding before the enactmentof the sentencing guidelines, thejudge in the criminal case imposeda fine of $6.85 million, roughly halfof the pecuniary loss suffered byAcme’s customers. Under the sen-

tencing guidelines, however, the results could havebeen dramatically different. Acme could have beenfined from 5 percent to 200 percent the loss sufferedby customers, depending on whether or not it hadan effective program to prevent and detect viola-tions of law and on whether or not it reported thecrime, cooperated with authorities, and acceptedresponsibility for the unlawful conduct. If a high-ranking official at Acme were found to have beeninvolved, the maximum fine could have been aslarge as $54,800,000 or four times the loss to Acmecustomers. The following chart shows a possiblerange of fines for each situation:

Corporate Fines Under the Federal Sentencing Guidelines

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WHAT FINE CAN ACME EXPECT?

Maximum MinimumProgram, reporting, $ 2,740,000 $ 685,000cooperation, responsibility

Program only 10,960.000 5,480,000No program, no reporting 27,400,000 13,700,000no cooperation, no responsibility

No program, no reporting 54,800,000 27,400,000no cooperation, no responsibility,

involvement of high-level personnel

Based on Case No.: 88-266, United States Sentencing Commission, SupplementaryReport on Sentencing Guidelines for Organizations.

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Companies engaged in international business oftendiscover that conduct that infringes on recognizedstandards of human rights and decency is legally per-missible in some jurisdictions.

Legal clearance does not certify the absence of ethi-cal problems in the United States either, as a 1991 caseat Salomon Brothers illustrates. Four top-level execu-tives failed to take appropriate action when learning ofunlawful activities on the government trading desk.Company lawyers found no law obligating the execu-tives to disclose the improprieties. Nevertheless, theexecutives’ delay in disclosing and failure to revealtheir prior knowledge prompted a serious crisis of con-fidence among employees, creditors, shareholders, andcustomers.

The executives were forced to resign, having lostthe moral authority to lead. Their ethical lapse com-pounded the trading desk’s legal offenses, and thecompany ended up suffering losses—including legalcosts, increased funding costs, and lost business—estimated at nearly $1 billion.

A compliance approach to ethics also overempha-sizes the threat of detection and punishment in orderto channel behavior in lawful directions. The under-lying model for this approach is deterrence theory,which envisions people as rational maximizers ofself-interest, responsive to the personal costs andbenefits of their choices, yet indifferent to the morallegitimacy of those choices. But a recent studyreported in Why People Obey the Law, by Tom R. Tylershows that obedience to the law is strongly influ-enced by a belief in its legitimacy and its moral cor-rectness. People generally feel that they have a strongobligation to obey the law. Education about the legalstandards and a supportive environment may be allthat’s required to insure compliance.

Discipline is, of course, a necessary part of any eth-ical system. Justified penalties for the infringement oflegitimate norms are fair and appropriate. Some peopledo need the threat of sanctions. However, an overem-phasis on potential sanctions can be superfluous andeven counterproductive. Employees may rebel againstprograms that stress penalties, particularly if they aredesigned and imposed without employee involve-ment or if the standards are vague or unrealistic.Management may talk of mutual trust when unveilinga compliance plan, but employees often receive themessage as a warning from on high. Indeed, the moreskeptical among them may view compliance programsas nothing more than liability insurance for seniormanagement. This is not an unreasonable conclusion,considering that compliance programs rarely addressthe root causes of misconduct.

Even in the best cases, legal compliance is unlikelyto unleash much moral imagination or commitment.

The law does not generally seek to inspire humanexcellence or distinction. It is no guide for exemplarybehavior—or even good practice. Those managerswho define ethics as legal compliance are implicitlyendorsing a code of moral mediocrity for their organi-zations. As Richard Breeden, former chairman of theSecurities and Exchange Commission, noted, “It is notan adequate ethical standard to aspire to get throughthe day without being indicted.”

Integrity as a Governing EthicA strategy based on integrity holds organizations to amore robust standard. While compliance is rooted inavoiding legal sanctions, organizational integrity isbased on the concept of self-governance in accordancewith a set of guiding principles. From the perspectiveof integrity, the task of ethics management is to defineand give life to an organization’s guiding values, tocreate an environment that supports ethically soundbehavior, and to instill a sense of shared accountabilityamong employees. The need to obey the law is viewedas a positive aspect of organizational life, rather than anunwelcome constraint imposed by external authorities.

An integrity strategy is characterized by a concep-tion of ethics as a driving force of an enterprise. Ethicalvalues shape the search for opportunities, the design oforganizational systems, and the decision-makingprocess used by individuals and groups. They providea common frame of reference and serve as a unifyingforce across different functions, lines of business, andemployee groups. Organizational ethics help definewhat a company is and what it stands for.

Many integrity initiatives have structural featurescommon to compliance-based initiatives: a code of con-duct, training in relevant areas of law, mechanisms forreporting and investigating potential misconduct, andaudits and controls to insure that laws and companystandards are being met. In addition, if suitablydesigned, an integrity-based initiative can establish afoundation for seeking the legal benefits that are avail-able under the sentencing guidelines, should criminalwrongdoing occur. (See the insert “The Hallmarks ofan Effective Integrity Strategy,” p. 43)

But an integrity strategy is broader, deeper, andmore demanding than a legal compliance initiative.Broader in that it seeks to enable responsible conduct.Deeper in that it cuts to the ethos and operating sys-tems of the organization and its members, their guid-ing values and patterns of thought and action. Andmore demanding in that it requires an active effort todefine the responsibilities and aspirations that consti-tute an organization’s ethical compass. Above all, orga-nizational ethics is seen as the work of management.

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Corporate counsel may play a role in the design andimplementation of integrity strategies, but managersat all levels and across all functions are involved inthe process. (See the chart, “Strategies for EthicsManagement,” p. 45)

During the past decade, a number of companieshave undertaken integrity initiatives. They vary accord-ing to the ethical values focused on and the implemen-tation approaches used. Some companies focus on thecore values of integrity that reflect basic social obliga-tions, such as respect for the rights of others, honesty,fair dealing, and obedience to the law. Other companiesemphasize aspirations—values that are ethically desir-able but no necessarily morally obligatory—such asgood service to customers, a commitment to diversity,and involvement in the community.

When it comes to implementation, some compa-nies begin with behavior. Following Aristotle’s viewthat one becomes courageous by acting as a coura-geous person, such companies develop codes of con-duct specifying appropriate behavior, along with a

system of incentives, audits, and controls. Other com-panies focus less on specific actions and more ondeveloping attitudes, decision-making processes, andways of thinking that reflect their values. Theassumption is that personal commitment and appro-priate decision processes will lead to right action.

Martin Marietta, NovaCare, and Wetherill Associateshave implemented and lived with quite differentintegrity strategies. In each case, management has foundthat the initiative has made important and often unex-pected contributions to competitiveness, work environ-ment, and key relationships on which the companydepends.

Martin Marietta: Emphasizing Core ValuesMartin Marietta Corporation, the U.S. aerospace anddefense contractor, opted for an integrity-based ethicsprogram in 1985. At the time, the defense industry

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There is no one right integrity strategy. Factors suchas management personality, company history, cul-ture, lines of business, and industry regulationsmust be taken into account when shaping an appro-priate set of values and designing an implementa-tion program. Still, several features are common toefforts that have achieved some success:

� The guiding values and commitments make sense and areclearly communicated. They reflect important organiza-tional obligations and widely shared aspirations thatappeal to the organization’s members. Employees at alllevels take them seriously, feel comfortable discussingthem, and have a concrete understanding of their prac-tical importance. This does not signal the absence ofambiguity and conflict but a willingness to seek solu-tions compatible with the framework of values.

� Company leaders are personally committed, credible, andwilling to take action on the values they espouse. They arenot mere mouthpieces. They are willing to scrutinizetheir own decisions. Consistency on the part of leader-ship is key. Waffling on values will lead to employeecynicism and a rejection of the program. At the sametime, managers must assume responsibility for makingtough calls when ethical obligations conflict.

� The espoused values are integrated into the normalchannels of management decision making and arereflected in the organization’s critical activities: thedevelopment of plans, the setting of goals, the

search for opportunities, the allocation of resources,the gathering and communication of information,the measurement of performance, and the promotionand advancement of personnel.

� The company’s systems and structures support andreinforce its values. Information systems, for exam-ple, are designed to provide timely and accurateinformation. Reporting relationships are structuredto build–in checks and balances to promote objec-tive judgment. Performance appraisal is sensitive tomeans as well as ends.

� Managers throughout the company have the decision-making skills, knowledge, and competencies needed tomake ethically sound decisions on a day-to-day basis.Ethical thinking and awareness must be part ofevery manager’s mental equipment. Ethics educa-tion is usually part of the process.

Success in creating a climate for responsible andethically sound behavior requires continuing effortand a considerable investment of time and resources.A glossy code of conduct, a high-ranking ethics officer,a training program, an annual ethics audit—thesetrappings of an ethics program do not necessarily addup to a responsible, law-abiding organization whoseespoused values match its actions. A formal ethicsprogram can serve as a catalyst and a support system,but organizational integrity depends on the integra-tion of the company’s values into its driving systems.

The Hallmarks of an Effective Integrity Strategy

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was under attack for fraud and mismanagement, andMartin Marietta was under investigation for impropertravel billings. Managers knew they needed a betterform of self-governance but were skeptical that anethics program could influence behavior. “Back thenpeople asked, ‘Do you really need an ethics programto be ethical?’” recalls current President Thomas Young.“Ethics was something personal. Either you had it, oryou didn’t.”

The corporate general counsel played a pivotal rolein promoting the program, and legal compliance was acritical objective. But it was conceived of and imple-mented from the start as a companywide managementinitiative aimed at creating and maintaining a “do-it-right” climate. In its original conception, the programemphasized core values, such as honesty and fair play.Over time, it expanded to encompass quality and envi-ronmental responsibility as well.

Today the initiative consists of a code of conduct, anethics training program, and procedures for reportingand investigating ethical concerns within the company.It also includes a system for disclosing violations offederal procurement law to the government. A corpo-rate ethics office manages the program, and ethics rep-resentatives are stationed at major facilities. An ethicssteering committee, made up of Martin Marietta’s pres-ident, senior executives, and two rotating membersselected from field operations, oversees the ethicsoffice. The audit and ethics committee of the board ofdirectors oversees the steering committee.

The ethics office is responsible for responding toquestions and concerns from the company’s employees.Its network of representatives serves as a soundingboard, a source of guidance, and a channel for raising arange of issues, from allegations of wrongdoing to com-plaints about poor management, unfair supervision,and company policies and practices. Martin Marietta’sethics network, which accepts anonymous complaints,logged over 9,000 calls in 1991, when the company hadabout 60,000 employees. In 1992, it investigated 684cases. The ethics office also works closely with thehuman resources, legal, audit, communications, andsecurity functions to respond to employee concerns.

Shortly after establishing the program, the companybegan its first round of ethics training for the entireworkforce, starting with the CEO and senior execu-tives. Now in its third round, training for senior execu-tives focuses on decision making, the challenges ofbalancing multiple responsibilities, and compliancewith laws and regulations critical to the company. Theincentive compensation plan for executives makesresponsibility for promoting ethical conduct an explicitrequirement for reward eligibility and requires thatbusiness and personal goals be achieved in accordance

with the company’s policy on ethics. Ethical conductand support for the ethics program are also criteria inregular performance reviews.

Today top-level managers say the ethics programhas helped the company avoid serious problems andbecome more responsive to its more than 90,000employees. The ethics network, which tracks thenumber and types of cases and complaints, has servedas an early warning system for poor management,quality and safety defects, racial and gender discrimi-nation, environmental concerns, inaccurate and falserecords, and personnel grievances regarding salaries,promotions, and lay-offs. By providing an alternativechannel for raising such concerns, Martin Marietta isable to take corrective action more quickly and with alot less pain. In many cases, potentially embarrassingproblems have been identified and dealt with beforebecoming a management crisis, a lawsuit, or a criminalinvestigation. Among employees who brought com-plaints in 1993, 75 percent were satisfied with theresults.

Company executives are also convinced that pro-gram has helped reduce the incidence of misconduct.When allegations of misconduct do surface, the com-pany says it deals with them openly. On severaloccasions, for instance, Martin Marietta has volun-tarily disclosed and made restitution to the govern-ment for misconduct involving potential violationsof federal procurement law. In addition, when anemployee alleged that the company had retaliatedagainst him for voicing said concerns about his planton CBS news, top management commissioned aninvestigation by an outside law firm. Although fail-ing to support the allegations, the investigationfound that employees at the plant feared retaliationwhen raising health, safety, or environmental com-plaints. The company redoubled its efforts to iden-tify and discipline those employees takingretaliatory action and stressed the desirability of anopen work environment in its ethics training andcompany communications.

Although the ethics program helps MartinMarietta avoid certain types of litigation, it has occa-sionally led to other kinds of legal action. In a fewcases, employees dismissed for violating the code ofethics sued Martin Marietta, arguing that the com-pany had violated its own code by imposing unfairand excessive discipline.

Still, the company believes that its attention toethics has been worth it. The ethics program has ledto better relationships with the government, as wellas to new business opportunities. Along with pricesand technology, Martin Marietta’s record of integrity,

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quality, and reliability of estimates plays a role in theawarding of defense contracts, which account forsome 75 percent of the company’s revenues.Executives believe that the reputation they’ve earnedthrough their ethics program has helped them buildtrust with government auditors, as well. By openingup communications, the company has reduced thetime spent on redundant audits.

The program has also helped change employees’perceptions and priorities. Some managers comparetheir new ways of thinking about ethics to the waythey understand quality. They consider more care-fully how situations will be perceived by others, thepossible long-term, consequences of short-term think-ing, and the need for continuous improvement. CEONorman Augustine notes, “Ten years ago, peoplewould have said that there were no ethical issues inbusiness. Today employees think their number-one

objective is to be thought of as decent people doingquality work.”

Novacare: Building SharedAspirationsNovaCare Inc., one of the largest providers of reha-bilitation services to nursing homes and hospitals inthe United States, has oriented its ethics effort towardbuilding a common core of shared aspirations. But in1988, when the company was called InSpeech, theonly sentiment shared was mutual mistrust.

Senior executives built the company from a seriesof aggressive acquisitions over a brief period of timeto take advantage of the expanding market for thera-peutic services. However, in 1988, the viability of the

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STRATEGIES FOR ETHICS MANAGEMENT

Characteristics of Compliance Strategy Characteristics of Integrity Strategy

Ethos Conformity with externally imposed Ethos Self-governance according to standards chosen standards

Objective Prevent criminal misconduct Objective Enable responsible conduct

Leadership Lawyer-driven Leadership Management-driven, with aid of lawyers, HR, others

Methods Education, reduced discretion, Methods Education, leadership, accountability,auditing and controls, penalties organizational systems and

decision processes, auditingand controls, penalties

Behavioral Autonomous beings guided by Behavioral Social beings guided by materialassumptions material self-interest assumptions self-interest, values, ideals, peers

Implementation of Compliance Strategy Implementation of Integrity Strategy

Standards Criminal and regulatory law Standards Company values and aspirations;social obligations, including law

Staffing Lawyers Staffing Executives and managers with lawyers,others

Activities Develop compliance standards, train Activities Lead development of company valuesand communicate, handle reports and standards, train andof misconduct, conduct communicate, integrate intoinvestigations, oversee compliance company systems, provide guidanceaudits, enforce standards and consultation, assess values

performance, identify and resolveproblems, oversee complianceactivities

Education Compliance standards and system Education Decision making and values compliance standards and system

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company was in question. Turnover among its front-line employees—the clinicians and therapists who carefor patients in nursing homes and hospitals—esca-lated to 57 percent per year. The company’s inability toretain therapists caused customers to defect and thestock price to languish in an extended slump.

After months of soul-searching, InSpeech execu-tives realized that the turnover rate was a symptomof a more basic problem: the lack of a common set ofvalues and aspirations. There was, as one executiveput it, a “huge disconnect” between the values of thetherapists and clinicians and those of the managerswho ran the company. The therapists and cliniciansevaluated the company’s success in terms of itsdelivery of high-quality health care. InSpeech man-agement, led by executives with financial servicesand venture capital backgrounds, measured the com-pany’s worth exclusively in terms of financial suc-cess. Management’s single-minded emphasis onincreasing hours of reimbursable care turned clini-cians off. They took management’s performance ori-entation for indifference to patient care and left thecompany in droves.

CEO John Foster recognized the need for acommon frame of references and a common languageto unify the diverse groups. So he brought in consult-ants to conduct interviews and focus groups with thecompany’s health care professionals, managers, andcustomers. Based on the results, an employee taskforce drafted a proposed vision statement for thecompany, and another 250 employees suggested revi-sions. Then Foster and several senior managersdeveloped a succinct statement of the company’sguiding purpose and fundamental beliefs that couldbe used as a framework for making decisions and set-ting goals, policies, and practices.

Unlike a code of conduct, which articulates spe-cific behavioral standards, the statement of vision,purposes, and beliefs lays out in very simple termsthe company’s central purpose and core values. Thepurpose—meeting the rehabilitation needs ofpatients through clinical leadership—is supported byfour key beliefs: respect for the individual, service tothe customer, pursuit of excellence, and commitmentto personal integrity. Each value is discussed withexamples of how it is manifested in the day-to-dayactivities and policies of the company, such as how tomeasure the quality of care.

To support the newly defined values, the com-pany changed its name to NovaCare and introduceda number of structural and operational changes.Field managers and clinicians were given greaterdecision-making authority, clinicians were providedwith additional resources to assist in the delivery ofeffective therapy, and a new management structure

integrated the various therapies offered by the com-pany. The hiring of new corporate personnel withhealth care backgrounds reinforced the company’snew clinical focus.

The introduction of the vision, purpose, andbeliefs met with varied reactions from employees,ranging from cool skepticism to open enthusiasm.One employee remembered thinking the talk aboutvalues “much ado about nothing.” Another recalled,“It was really wonderful. It gave us a goal that every-one aspired to, no matter what their place in the com-pany.” At first, some were baffled about how thevision, purpose, and beliefs were to be used. But,over time, managers became more adept at explain-ing and using them as a guide. When a customertried to hire away a valued employee, for example,managers considered raiding the customer’s com-pany for employees. After reviewing the beliefs, themanagers abandoned the idea.

NovaCare managers acknowledge and companysurveys indicate that there is plenty of room forimprovement. While the values are used as a firm ref-erence point for decision making and evaluation insome areas of the company, they are still viewed withreservation in others. Some managers do not “walkthe talk,” employees complain. And recentlyacquired companies have yet to be fully integratedinto the program. Nevertheless, many NovaCareemployees say the values initiative played a criticalrole in the company’s 1990 turnaround.

The values reorientation also helped the companydeal with its most serious problem: turnover amonghealth care providers. In 1990, the turnover rate stoodat 32 percent, still above target but a significantimprovement over the 1988 rate of 57 percent. By 1993,turnover had dropped to 27 percent. Moreover, recruit-ing new clinicians became easier. Barely able to hire 25new clinicians each month in 1988, the company added776 in 1990 and 2,546 in 1993. Indeed, one employeewho left during the 1988 turmoil said that her decisionto return in 1990 hinged on the company’s adoption ofthe vision, purpose, and beliefs.

Wetherill Associates: DefiningRight ActionWetherill Associates, Inc.—a small, privately heldsupplier of electrical parts to the automotive market—has neither a conventional code of conduct nor a state-ment of values. Instead, WAI has a Quality AssuranceManual—a combination of philosophy text, conductguide, technical manual, and company profile—that

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describes the company’s commitment to honesty andits guiding principle of right action.

WAI doesn’t have a corporate ethics officer whoreports to top management, because at WAI, the com-pany’s corporate ethics officer is top management.Marie Bothe, WAI’s chief executive officer, sees hermain function as keeping the 350-employee companyon the path of right action and looking for opportu-nities to help the community. She delegates the “tech-nical” aspects of the business—marketing, finance,personnel, operations—to other members of theorganization.

Right action, the basis for all of WAI’s decisions,is a well-developed approach that challenges mostconventional management thinking. The companyexplicitly rejects the usual conceptual boundaries thatseparate morality and self-interest. Instead, theydefine right behavior as logically, expediently, andmorally right. Managers teach employees to look atthe needs of the customers, suppliers, and the com-munity—in addition to those of the company and itsemployees—when making decisions.

WAI also has a unique approach to competition.One employee explains, “We are not ‘in competition’with anybody. We just do what we have to do to servethe customer.” Indeed, when occasionally unable tofill orders, WAI salespeople refer customers to com-petitors. Artificial incentives, such as sales contests,are never used to spur individual performance. Norare sales results used in determining compensation.Instead, the focus is on teamwork and customer serv-ice. Managers tell all new recruits that absolute hon-esty, mutual courtesy, and respect are standardoperating procedure.

Newcomers generally react positively to companyphilosophy, but not all are prepared for such a radicaldeparture from the practices they have known else-where. Recalling her initial interview one recruitdescribed her response to being told that lying wasnot allowed, “What do you mean? No lying? I’m abuyer. I lie for a living!” Today she is persuaded thatthe policy makes sound business sense. WAI isknown for informing suppliers of overshipments aswell as undershipments and for scrupulous honestyin the sale of parts, even when deception cannot bereadily detected.

Since its entry into the distribution business 13years ago, WAI has seen its revenues climb steadilyfrom just under $1 million to nearly $98 million in1993, and this in an industry with little growth. Onceseen as an upstart beset by naysayers and industryskeptics, WAI is now credited with entering and pro-fessionalizing an industry in which kickbacks, bribes,and “gratuities” were commonplace. Employees—equal numbers of men and women ranging in agefrom 17 to 92—praise the work environment as bothproductive and supportive.

WAI’s approach could be difficult to introduce ina larger, more traditional organization. WAI is a smallcompany founded by 34 people who shared a beliefin right action; its ethical values were naturally builtinto the organization from the start. Those values areso deeply ingrained in the company’s culture andoperating systems that they have been largely self-sustaining. Still, the company has developed its owntraining program and takes special care to hirepeople willing to support right action. Ethics and jobskills are considered equally important in determin-ing an individual’s competence and suitability foremployment. For WAI, the challenge will be to sus-tain its vision as the company grows and taps intomarkets overseas.

At WAI, as at Martin Marietta and Nova Care, amanagement-led commitment to ethical values hascontributed to competitiveness, positive workforcemorale, as well as solid sustainable relationships withthe company’s key constituencies. In the end, creat-ing a climate that encourages exemplary conductmay be the best way to discourage damaging mis-conduct. Only in such an environment do roguesreally act alone.

Source: Lynn Sharp Paine is a John G. McLean professor atthe Harvard Business School, specializing in managementethics. Her current research focuses on leadership and orga-nizational integrity in a global environment. Reprinted bypermission of Harvard Business Review. From “Managing forOrganizational Integrity” by Lynn Sharp Paine, March/April,1994. Copyright © 1994 by the Harvard Business SchoolPublishing Corporation; all rights reserved.

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The Whistle-Blower: Patriot or Bounty Hunter?

Andrew W. SingerAcross the Board, November 1992

The False Claims Act provides financial incentives foremployees to report their companies’ transgressions tothe government. Does that debase their motives?

While serving in Vietnam, Emil Stache had the mis-fortune to stumble onto a booby-trapped Viet Congbomb. The explosion killed several of his fellow sol-diers, and Stache himself suffered severe shrapnelwounds to his left arm and shoulder. He later learnedthat the trap had been made from a defective U.S.bomb—one that never exploded.

Years later, Stache was manager of quality engi-neering and reliability at Teledyne Relays, a sub-sidiary of Teledyne, Inc. He suspected that TeledyneRelays falsified tests on the electromagnetic relays(electronic components used in missiles, planes, rock-ets and other military hardware) the company manu-factured for the U.S. government.

Stache felt it his ethical duty to report the matter:He knew only too well the price of defective hard-ware. “It was the only thing he could do,” explains hislawyer, John R. Phillips. “He complained about it. Hegot fired.”

Stache brought a lawsuit against Teledyne Relaysunder the federal False Claims Act: he was laterjoined in the action by the Department of Justice. Thesuit claims that Teledyne Relays’ failure to properlytest the relay components defrauded the governmentof as much as $250 million. If found guilty, the LosAngeles–based company could be liable for as muchas $750 million in damages, treble the amount thatthe government claims it was defrauded.

Who is Emil Stache? A patriot who just did hisduty? That certainly is how Phillips and others seehim. But if Stache’s lawsuit succeeds, he stands tobecome a very rich patriot, indeed. According to pro-visions of the amended False Claims Act. Stache andhis co-plaintiffs in the suit—another Teledyne Relaysemployee named Almon Muehlhausen andTaxpayers Against Fraud, a nonprofit organizationfounded by Phillips—could get 15 percent to 25 per-cent of any money recovered by the government.Stache himself theoretically could receive as much as$62 million.

(Contacted for comment on the case, Teledynespokesperson Berkley Baker said, “We have no com-ment to make. It’s in the legal system now.”)

Creating Market IncentivesThe amended False Claims Act grew out of publicoutrage in the mid-1980s over reports of fraud andabuse on the part of military contractors—of $600toilet seats and country-club memberships billed tothe government. Congress decided to put some teethinto its efforts to reduce contracting fraud. In 1986, itpassed the False Claims Act amendments, whose quitam provisions allow employees who bring forwardinformation about contractor fraud to share with thegovernment in any financial recovery realized bytheir efforts. (Qui tam is Latin shorthand for, “He whosues for the king as well as himself.”)

Those market incentives are now bearing fruit. InJuly, the government recovered $50 million in a casebrought by a whistle-blower against a former divi-sion of Singer Co. And a week later, the governmentrecovered the largest amount ever in such an action:a $59.5 million settlement with General Electric Co.(GE). That case, a scandal involving the sale of mili-tary-jet engines in Israel, was brought initially by themanager of a GE unit.

U.S. Rep. Howard L. Berman of California, acosponsor of the 1986 amendment, expects recoveriesfrom qui tam actions, most of which are againstdefense contractors, to reach $1 billion in the next twoto three years. The Teledyne Relays suit looms as oneof the largest cases, but Phillips speaks of two othersin the pipeline, one against Litton Industries Inc. andanother that is under court seal, that could bring thegovernment “staggering” amounts.

Undermining Voluntary Efforts?Not surprisingly, many of the defense industry areaghast at the new False Claims Act—and, specifically,its qui tam provisions. The law has created “enormousconcern in the defense industry,” says Alan R.Yuspeh, a government-contracts attorney and partnerin Howrey & Simon in Washington, D.C. Some fearthat cases may proliferate and people with essentiallytechnical disagreements may bring suits in the hopeof reaping payoffs from an out-of-court settlement.

The qui tam provisions encourage “bounty hunt-ing” and undermine voluntary ethics efforts, add

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critics. Why should an employee report wrongdoingto his company when he can hold out and earn mil-lions from the government? And from the larger eth-ical perspective: Shouldn’t people report fraudbecause it’s the right thing to do, and not becausethey hope to reap a windfall profit?

“I think personally that the provision of bountiesis misguided,” said Gary Edwards, president of theEthics Resource Center, a nonprofit education andconsulting organization based in Washington, D.C.“It creates an incentive for individuals in companiesthat are trying to do a better job—not to reportwrongdoing, but to gather data so as to participate inthe reward.”

“Encouraging tittle-tattles is destructive,” declaresCharles Barber, former chairman and CEO of Asarco,Inc., a Fortune 500 company that produces nonferrousmetals. “The integrity of the organization has to bebuilt another way,” such as with corporate ombuds-man offices. “You can’t run a defense company ifeveryone is being watched.”

“I deplore the way we have developed into such alitigious society in which everyone is jumping on thebandwagon to sue about anything that comes up,”says Sanford N. McDonnell, chairman emeritus ofMcDonnell Douglas Corp., the nation’s largestdefense contractor.

“If We All Lived In an Ideal World . . .”Phillips, who is generally credited with drafting theamended False Claims Act, responds: “If we all livedin an ideal world, where all did the right thing on prin-ciple, we would have no need for such a law. But wedon’t live in such a world.” People who bring chargesagainst their companies take great risks—to their jobs,their families and their careers, he says.

Most agree that the plight of the corporate whis-tle-blower has historically been a bleak one. A surveyof 85 whistle-blowers by the Association of MentalHealth Specialties (now Integrity International) inCollege Park, Md., in the late-1980s found that 82percent experienced harassment after blowing thewhistle, 60 percent got fired, 17 percent lost theirhomes, and 10 percent reported having attemptedsuicide. “You can’t expect them to [report fraud]when there is nothing but risk and heartache downthe road,” says Phillips. Sharing in the recovery ofdamages is one way to right the balance.

Yuspeh, for one, isn’t convinced. It is an “unsoundpiece of legislation. It almost invites disgruntledformer employees who may have had some technicaldisagreement to go out and file a lawsuit.” (It should

be added that in recent years, large contractors haveincreasingly reported instances of wrongdoing orfraud to the government voluntarily, before evidencecame to public light.)

Congressman Berman says the law works preciselyas intended: By providing marketplace incentives, itencourages people to protect the government and thepublic from waste, fraud and abuse. “I’m not onlyhappy with the law, I’m proud of it,” he tells Across theBoard.

Morally problematic”? “You mean like: If youhave any information about a wanted criminal, we’llpay a reward?” asks Berman, rhetorically.

Those companies that commit fraud don’t like theAct, suggests Berman, while those in compliancewith the law aren’t troubled by it. And he is skepticalof detractors who claim that these are merely techni-cal disputes. “The test here is commission of fraud,”he says.

Harks Back to the Civil WarThe original False Claims Act dates back to the CivilWar, where it was used to prosecute manufacturerswho substituted sawdust for gunpowder in Unionarmy supplies. Employees who exposed contractorswho overcharged the government could, theoreti-cally, earn 10 percent of the amount recovered. Butunder the old law, federal prosecutors who took overcases had the option of removing private plaintiffs,leaving whistle-blowers high and dry.

“Very few people were willing to do it under theold system,” either through fear of losing their jobs,being black-balled within their industry, or shunnedby their friends, says Phillips, a partner in the LosAngeles law firm of Hall & Phillips. It took a kind ofheroic figure to blow the whistle, he says.

The amended False Claims Act aimed to fix someof those problems, “We tried to rebuild the law, togive it some teeth,” explains Berman. “Where thegovernment is not privy to information about fraud,the taxpayers are represented by private parties.”

Even more important than the sheer amounts ofmoney recovered, says Phillips, is the preventiveeffect of the statute on corporations. “The law hasshaken up their internal practices. People who werepreviously inclined to go along with questionablepractices are now doing the right thing,” he says.

But companies say the statute undermines theirvoluntary ethics efforts. “I know their argument,”replies Phillips. “But there’s no basis to it. They’resaying, ‘We have a whole system set up. You shouldcome to us first.’ With fraud, he says, the government


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Portrait of a Whistle-Blower

Corporate whistle-blowers have traditionally beentreated as malcontents, troublemakers, and misfits.And many have paid a steep price for their actions.

A 1987 survey of 87 whistle-blowers by Dr. DonaldSoeken, president of Integrity International in CollegePark, Md., noted: “All but one respondent reportedexperiencing retaliation which they attributed to theirwhistle-blowing. And that one individual merelyindicated that ‘nothing could be proved.’”

Soeken, who was a government whistle-blowerhimself, compares the whistle-blower to a crossbetween a bloodhound and a bulldog. “He will track itdown [i.e., the wrong-doing] and stand his ground. . . .His conscience is very strong, unwavering. He’s thefirst one to feel guilty when something happens.

That certainly applies to Richard Walker, a whis-tle-blower in the era before the amended False ClaimsAct. A scientist with a Ph.D. in physics, Walkerworked for 27 years at American Telephone &Telegraph Co.’s (AT&T) prestigious Bell Laboratories.

In 1971, as head of a team of scientists working ona high-level military project for the U.S. Navy, he dis-covered serious errors in Bell Labs’ computer projec-tions. He informed his superior of the errors, and saidthey had better report them to the Navy. When hisboss refused, Walker took matters into his own hands.

He decided to give a corporate seminar withinBell Labs, which was his prerogative as a manager.Walker spent an hour exposing the errors he hadfound and explaining how the company had over-estimated the effectiveness of the project. “The wayto avoid corruption is to get it out in the open,” hetold Ethikos in a 1987 interview, recalling his think-ing at the time.

The immediate response within the company tohis seminar seemed positive. “I thought, in view ofhis feedback, that I had gotten through to thesepeople,” said Walker.

He was mistaken, Several months later, Walker’sboss wrote a letter to a high Bell Labs officer ques-tioning Walker’s technical competence. “On thebasis of that criticism, I was moved out of that areaand put into a totally inappropriate assignment. Itwas just a way of getting rid of me.”

There was a succession of increasingly demeaningand meaningless assignments. He spent three-and-a-half years in a marine-cable engineering depart-ment, followed by a supervisory appointment at a“planning” center in which “for three-and-a-halfyears, they wouldn’t tell me what my responsibili-ties were.”

In 1979, Bell Labs fired Walker for allegedly nottaking an active interest in his assigned work. In1982, Walker brought suit against AT&T, chargingthat he had been fired without good cause. Walkerdevoted himself full time to his case. He had anentire room in his apartment set aside to store dep-ositions and other evidence relevant to his case. Hespent $50,000 of his own money pressing the litiga-tion. During this time, his wife divorced him andhe was forced to sell the house he designed inaffluent Mendham, N.J., where he raised his fourchildren.

On March 23, 1987, Walker vs. Bell came to trial.Eight days later, the New Jersey judge dismissedthe case that Walker had brought.

According to AT&T, justice was served. “Dr.Walker had ample opportunity to prove his allega-tions before the court, and the court rejected thoseallegations as being totally unfounded,” the AT&Tattorney who tried the case commented.

Walker took the defeat hard. Despite the adviceof people like Soeken and others, he refused to letthe matter rest. For years he tried to interest journal-ists, government officials and employee-rightsorganizations in this case. He barraged AT&T offi-cers and directors with letters seeking redress for thewrong he felt he had suffered. All to no avail.

Eventually, Walker moved back to his home stateof Michigan, where he remarried and is now work-ing to establish a retreat for whistle-blowers.

Walker may have been ahead of his time. NewJersey has since passed legislation to protect whistle-blowers. AT&T now has an excessive network of cor-porate ombudsman to handle cases like his. And theamended False Claims Act has since been enacted.

John Phillips, an attorney who has representedother whistle-blowers and a principal author of theamended False Claims Act says that one key effect ofthe amended Act is that it no longer requires a“heroic” figure to blow the whistle. The Act couldalso bring forth a higher order of whistle-blower, hesuggests. In the past, whistle-blowers “were notalways the most stable people,” noted Phillips in a1989 interview with Ethikos. Many, he said, had a“need to confess” or to “point the finger at someone.”

The people whom Phillips sees coming forwardnow to report wrongdoing by government contrac-tors are still idealistic in some ways, but in manyways they are “far more credible, substantial, seniorpeople than whistle-blowers, from the pre-[FalseClaims Act] amendment era.”—A.W.S.

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has an interest in being the first to know. The govern-ment is saying, ‘We want information to come directlyto us in cases of fraud.’ “

“It will enhance corporate efforts, because compa-nies can get socked with treble damages for fraud,”says Berman. “Companies will become more vigilant.”

Does he know of any contractors who support theamendments? “The goal of the act is not to pleasegovernment contractors,” snaps Berman. “The goal isto protect the government and the public.”

The GE CaseThe case involving General Electric’s aircraft-enginedivision is one of the more interesting False ClaimsAct actions to arise. Employees in the division con-spired with an Israeli general, Rami Dotan, to submitfraudulent claims for work done for the Israeli AirForce. General Electric eventually pleaded guilty tofour federal criminal-fraud charges. It agreed to paythe Justice Department $9.5 million in fines for thecriminal charges and $59.5 million for the civil casebrought under the False Claims Act.

The Justice Department said the company’semployees helped divert as much as $40 million toDotan and others, money that ultimately came fromthe U.S. government. The scheme became known

through a lawsuit filed by Chester Walsh, who servedas general manager of the aircraft-engine division’sIsraeli unit from 1984 to 1988.

What irks General Electric is that Walsh reportedthe matter first to the government instead of the com-pany, despite the fact that Walsh, like others at GE,signed an ethics statement each year affirming that hewould report wrongdoing to the company if andwhen it was discovered.

“The man involved decided not to report wrong-doing,” says Bruce Bunch, a GE spokesman. “He tookno steps to stop it. “He participated in it, and all thetime he signed our written statement each year that hewould report any improprieties to management.” It isGeneral Electric’s position that Walsh gathered infor-mation from 1986 to 1990 and then filed his lawsuit,from which he hoped to gain personally. Walsh couldreceive 25 percent of the nearly $60 million recoveredby the government as a result of the civil suit. (A hear-ing that will determine the exact amount is set to beginin November in Cincinnati.)

If he had reported the corruption immediately, thecase would have come to light, continues Bunch. “Wehad an ombudsman telephone number at the corpo-rate office, outside of the business loop. Additionally,he could have called the Department of Defenseombudsman.”


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False Claims Suits Growing

How does the government view the False ClaimsAct? “It is hardly a secret that the Act is critical tothe government’s anti-fraud effort,” Stuart Gerson,assistant attorney general, acknowledged last year,Gerson added, however, that the statute’s qui tamprovisions, which allow private citizens to bringactions on behalf of the government, have been con-troversial, affecting as they do “the climate of gov-ernment contracting and the dynamics of acorporation’s relationship with its employees.”

As of April 1, six years since the amendmentspassed, 407 qui tam suits had been filed. The govern-ment took over 66 of these cases; it is currently litigat-ing 29 cases and has settled or obtained judgements in37 others. The total recoveries of $147 million from quitam suits under the Act comprise about 13.5 percent ofthe governments’s total fraud recoveries for the six-year period. Individuals who brought suits had won$14.5 million as of April, but 75 cases were still underinvestigation. (The dollar amount doesn’t include thelarge recoveries in July from the General Electric Co.case reported in the main story.)

The number of qui tam suits has grown steadilysince 1986, notes Gerson, and it is expected to risefurther. Thirty-three were filed in all of fiscal-year1987, for example, while 78 were filed in the firsteight months of fiscal-year 1991 alone. Casesinvolving the Department of Defense are by far themost numerous, but now actions being taken inother areas, including health care, agriculture, andthe Department of Housing and UrbanDevelopment.

“In short, as attention is focused on the whistle-blower suits, and significant recoveries have beenreported, this form of action is proliferating,” saidGerson.

However, some government officials recentlyhave expressed second thoughts about the poten-tially large awards to individual whistle-blowers. Inthe GE fraud case, Gerson said he had reservationsabout just how much credit and money the whistle-blower and his lawyers should receive. It remains tobe seen whether attempts will be made to curb suchawards.—A.W.S.

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A case of bounty hunting? “That clearly appearsto be what happened here,” says Bunch.

Phillips, who represents Walsh, claims that GeneralElectric has smeared his client. “They claim Walsh is amoney grubber. That’s their party line.” (GE ChairmanJohn F. Welch, Jr. had been quoted in the CorporateCrime Reporter, a weekly legal publication, labelingWalsh as “a money-grubbing guy who sat back andwaited in the weeds so the damages would mount.”Bunch declines to comment on the accuracy of thatquote.) Phillips tells a different story: “It was hisdream job. It was very painful for him to do this.”

Walsh feared for his job and even his life, Phillipssays. He worried that anything he told GE would getback to Dotan, whom Phillips characterizes as a ruth-less, violence-prone individual. His superiors at theaircraft-engine division were all aware of the arrange-ment with Dotan, Walsh believed, “He says thatDotan had people removed from their jobs at GE. Theidea that he would go back and write a letter toCincinnati [where the aircraft-engine division isbased] about what he had seen was simply not credi-ble,” says Phillips.

As proof that Walsh’s suspicions were well-founded.Phillips points to the fact that Dotan is now serving 13years in prison in Israel. The general was charged by theIsraeli government with kickbacks, theft, fraud,obstruction of justice and conspiring to kidnap andharm a fellow Israeli Ministry of Defense official.

Couldn’t Walsh have gone to General Electric’scorporate ombudsman, who is based in Fairfield,Conn., and is presumably outside the aircraft-enginedivision loop? “He doesn’t know who’s on the otherend,” answers Phillips. For all Walsh knew, Phillipssays, the ombudsman might just get on the phonewith Cincinnati to find out what was going on.

But couldn’t he have called anonymously? “It’s an800 number. They can find out where it came from.There was no way he could protect his anonymity.”Or so Walsh believed, Phillips says.

“The idea that people will call up blindly somenumber is ludicrous,” Phillips says. “I don’t thinkpeople have confidence in the GE program.”(Subsequent to this interview, The Wall Street Journalran a front-page story on the company headlined:“GE’s Drive to Purge Fraud Is Hampered byWorkers’ Mistrust,” which appeared to support manyof Phillips’ assertions.)

“A Detrimental Effect”Whatever the whys and wherefores of the GE case, itseems clear that the qui tam provisions are causinghavoc among those in charge of compliance at somedefense companies. “Pandemonium” was how the

ombudsman at one large defense company character-ized the provisions and the large suits now beingfiled.

“I’ve heard from some company representativeswho believe the availability of the qui tam rewardshave had a detrimental effect, that they have causedpeople not to use their internal systems,” says theEthics Resource Center’s Edwards.

“No company can be happy with qui tam proce-dures,” says John Impert, director of corporate ethicspolicy and assistant general counsel at The BoeingCo., even though his company has been virtuallyuntouched by the False Claims Act. “It providesincentives to employees to take an adverse position.This is illustrated graphically in the GE case.”

It’s important that people report matters of ethicalconcern, says McDonnell of McDonnell Douglas, “ButI don’t think they should receive remuneration forthat,” he says.

Won’t this help eliminate the steep price whistle-blowers have paid for coming forward?” “I’m sure itwill stimulate more action, more people coming for-ward, but I’d rather see it come from individuals whotake it to the company ombudsman, and report itwithout attribution,” says McDonnell.

Deputizing CitizensAttorney Yuspeh and others are fundamentally atodds with the notion that individuals should bringlawsuits on the part of the U.S. government. “Therole of initiating [lawsuits] on the part of the govern-ment is a role for the officer of the U.S. government. Ihave a big problem with individuals who have a per-sonal profit motive, who have inside information,and who may be disgruntled because of downsizing,having the power of the government to advance apersonal agenda.”

Yuspeh notes that plaintiffs’ lawyers tend to profitfrom the amended False Claims Act and its controver-sial qui tam provisions: “There’s a lot of money for themto make.” He would prefer an arrangement whereinformants would get some money from the govern-ment, but would not bring suit themselves. “At leastthe government is then deciding whether to bring asuit.” This would also cut out the plaintiffs’ legal fees.

“The problem with qui tam suits is that someonewho would otherwise do this as part of their normalduties might now wait until they are no longeremployed, or until they have an opportunity toenrich themselves,” says LeRoy J. Haugh, who is vicepresident for procurement and finance of theAerospace Industries Association, an organizationbased in Washington, D.C.


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Late in 1996, the Chancery Court of the State ofDelaware—a very influential court in corporate mat-ters—handed down a decision that changed theexpectations of directors for monitoring the affairs ofthe organizations they direct. The change held in the

Caremark National Inc. case was to require directorsto monitor organizational activities even when thereis no cause for suspicion of wrongdoing.

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“Our biggest concern with qui tam proceedings isthat someone who wants to bring a suit is at no riskat all,” Haugh says. “If they can get a lawyer tohandle it on a contingency basis and they win, theystand to win a great deal of money. And if they lose,they haven’t lost anything, except the lawyer’s time.”

Answers Congressman Berman: “The situationhere is that no one gets anything unless fraud is com-mitted. Lawyer’s won’t take cases if they’re not legit-imate.”

Still, Haugh says, the negative publicity generatedfrom such suits—even if the company accused ofwrongdoing is eventually found to be not guilty—”often overshadows efforts over the last seven oreight years on the part of many companies to complywith Defense Industry Initiative guidelines [a set ofvoluntary guidelines developed by the nation’slargest defense contractors to promote ethical busi-ness conduct] and to put into place adequate checksand balances.”

Importance of Building Trust“I’m not saying that every suit that is brought is afrivolous suit,” says Yuspeh, who served as coordina-tor of the Defense Industry Initiative (DII) steeringcommittee. (He makes clear that he is speaking onlyfor himself in making these comments, not the DIIcompanies.) “Clearly some cases are meritorious. Butit makes more sense to have officials of the U.S. gov-ernment handle them.”

Ethics Resource Center’s Edwards doesn’t quarrelwith the notion that whistle-blowers have historicallybeen treated very badly. But he points out that today

they have protection under the law against retalia-tion, and that many excellent voluntary corporateprograms have been initiated since the amendmentswere passed. Many companies today have ethics hot-lines, ombudsman offices, extensive ethics-trainingprograms and ethics committees. “Maybe severalyears ago it was necessary to entice them to blow thewhistle,” he says. But that isn’t the case in manymajor American corporations today. “A well-devel-oped ethics program should obviate the need forthat,” he adds.

Even Phillips concedes that voluntary corporateethics efforts could be effective. “But you’ve got toconvince people that the corporation wants you to dothis, and that the corporation will reward you,” hesays.

Phillips may have hit on something there. Or toput the problem in quasi-dialectical terms: If thethesis back in the 1980s was egregious defense-indus-try waste and abuse, and the antithesis was the puni-tive (at least, from the industry perspective)bounty-hunting provisions of the False Claims Act,the synthesis could well be voluntary corporate ethicsefforts that enjoy the full confidence of employees—and that really work.

“It takes time, no doubt about it,” says McDonnell,referring to building trust within a company. “Youcan’t just mandate it. It has to be built up by actualcases, and it’s difficult to advertise it, because that[confidentiality] is the sort of thing you’re trying toprotect. But when it’s done right, it gets the desiredresult.”

Source: Across the Board, November 1992, pp. 16–22.Reprinted with permission.


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Law Case Summary: Caremark National Inc.

L. J. Brooks

READINGS

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Until the Caremark decision, the guiding case wasthe Delaware Supreme Court’s 1963 decision inGraham v. Allis-Chalmers Manufacturing Co. In Allis-Chalmers, a case involving director’s liability for vio-lations of U.S. antitrust laws, the court had foundthat, “absent cause for suspicion,” a board of direc-tors had no legal duty to create a system for moni-toring of or compliance with organizationalactivities. This allowed directors to argue an“ostrich” defense in the event of wrongdoing to theeffect that they had “seen no evil nor heard no evil”and had made their decisions in good faith and to thebest of their ability. As a result, the fiduciary duties ofdirectors and the duty of care were somewhat cir-cumscribed from the level of responsibility that somestakeholders felt reasonable.

The Chancery Court took the view, in the CaremarkCase, a derivative lawsuit to one involving kickbacksto health care providers in violation of the FederalAnti-Referral Payments Law, that the directors couldbe liable for recovery of some of the company’s $250million in fines from its directors for breach of theirduty of care by failing to take good faith measures toprevent or remedy the violations. The court noted,

since employee actions could prevent a corporationfrom achieving its strategic goals, “that a director’sobligation includes a duty to assure in good faith that[an] information reporting system, which the Boardconcludes is adequate, exists and that failure to do sounder some circumstances may, in theory at least,render a director liable for losses caused by non-com-pliance with applicable legal standards.” Moreover,due to the issuance of the U.S. Sentencing Guidelineson November 1, 1991, and their subsequent integra-tion into expectations, directors must now considerthe “due diligence defense” criteria that those guide-lines have spawned when advancing their “goodfaith” defense. This means that the Chancery Court nolonger considers a corporate compliance and monitor-ing program to be optional.

For further information, the reader is referred toan article by Frank M. Placenti in The National LawJournal on Monday June 23, 1997 (pages B5, B6).Further insights are possible if higher courts modifythe Chancery Court’s Caremark decision, but, untilthen, directors are well-advised to be ethically proac-tive in the development of strategic plans and oper-ating policies and in the monitoring of performance.

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