The world of digital Directors’ and Officers’ Questionnaires is evolving. Governance teams using digital questionnaires know the advantages they have over paper forms. CBE offers governance teams and their boards a full-service approach to administering D&O Questionnaires to make the process faster, simpler, and more secure.

Kaley Childs Karaffa of CBE works closely with corporate secretaries and general counsel to ensure the efficient administration of their D&O Questionnaire processes. Joan Conley, SVP and Corporate Secretary at Nasdaq, spoke with Kaley recently to share her insights on utilizing digital Directors’ and Officers’ Questionnaires and working with CBE.

KCK: Nasdaq first contracted with CBE in 2016 to facilitate its Directors’ and Officers’ Questionnaire. What factors and considerations drove Nasdaq to move to a digital D&O Questionnaire?  

JC: Sheer frustration with the onerous nature of paper questionnaires. Completing and verifying Directors’ and Officers’ Questionnaires is a time-consuming process for directors, officers, and the legal and governance teams. Directors are required to complete the questionnaire not only as part of the annual proxy and 10-K process, but also whenever there is a change in their position or a change in ownership. Due to the dynamic nature of the lives of directors, their relevant information, and changing regulatory and accounting standards, directors were having to complete questionnaires in their entirety two or three times a year. The paper format offered no opportunity to provide directors with pre-populated data to show the history of their responses and provide a clear information upon which companies can act and ensure compliance.

KCK: What are the key differentiators of digital Directors’ and Officers’ Questionnaire service providers in the market place? Why did Nasdaq select CBE as its service provider?

JC: Nasdaq jumped at the opportunity to sign on with CBE for its digital D&O Questionnaire process. The only other option we considered was to do it internally, which would have been a time consuming and costly endeavor to create the software required to create an optimal experience. CBE’s key differentiators were the expertise of the team in both the legal and technology sectors and the sophistication of CBE’s technology that their team designed to meet the complexity of D&O Questionnaires. The ability to prepopulate directors’ and officers’ information and carry their history year over year provides a significant advantage in ease of use for the directors and offices and for the company in having a clear record. Companies considering a digital format will also look at pricing and the service provider’s commitment to innovation for the future. It is important for the provider to show they are thinking about how to continue to develop and improve the process for the directors, officers, and the legal and governance teams. CBE’s team has consistently shown commitment to continuous improvement and innovation.

KCK: Most companies are still using paper questionnaires. What would you say to them?

JC: If you’re still using paper D&O Questionnaires, you need to get into the 21st century. We file our taxes digitally. The digital process modernizes an old-school workflow. The end client – the director – will love the convenience and the efficiency of the digital D&O Questionnaire. They can do it online, anywhere, at their convenience, and easily review their information.

KCK: What are the key benefits of CBE’s digital Directors’ and Officers’ Questionnaires for the legal/governance team who manage the questionnaire, directors and officers who complete the questionnaire, and the company as a whole?

JC: It is a very streamlined and efficient process for all. Paper questionnaires required a lot of back and forth. We had to FedEx each director and officer the current year’s questionnaire as well as the questionnaire they completed previously, so that they had to review two 40+ page questionnaires that included questions that weren’t relevant to them. Then the director/officer completed and mailed back the form; we reviewed it and sent it back for corrections, clarifications, and completions. The director/officer made the corrections and sent it back; it was an inefficient, expensive, and frustrating cycle for all involved. With a digital format, the data is immediately available. It is an efficient and more accurate process.

We also love the summary report we get from CBE. It is a key differentiator in showing CBE’s sophistication and understanding of all aspects of the D&O Questionnaire from the perspectives of the directors and officers, the governance and legal team, and the company. The summary report helps with preparing the 10-K and with reviewing the related-party information and prohibited list for trading stock.

KCK: What feedback have you received from your directors, officers, and internal team since using CBE’s digital Directors’ and Officers’ Questionnaire? Any concerns from directors about providing their personal information on a digital form?

JC: Our directors love the digital format. As our board evolves, we are adding directors who are increasingly digital natives. There is a high level of trust in the process, because the directors and officers know the company has been selective with respect to whom they trust with the data.

KCK: How does a company adopting a digital Directors’ and Officers’ Questionnaire signal its commitment to innovation in the boardroom and efficient governance practices?

JC: Utilizing a digital D&O Questionnaire signals that a company and its board are innovative and forward-thinking. Boards are changing, and we need to be thinking about the next generation of directors who will be more of the digital age. Using a digital format is just the beginning. CBE’s history has shown that they will continue to be a leader in the field, building even more efficiencies and improvements to the process in the future.

At CBE, our digital D&O Questionnaire and Board Excellence Assessment TM  processes emphasize meaningful and excellence-driven board practices at every step. We see governance not only as a tool or structure, but as a commitment to action and opportunity.

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Turning Ideas into Action through Board Assessments – Evaluating Excellence

“So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself-nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

–Franklin D. Roosevelt, 1933 Inaugural Address

Throughout history, notable speeches, insightful philosophers, and even song writers have challenged leaders to advance when faced with challenges. Rarely is the status quo fully acceptable. Humans strive to improve and to attain new levels of achievement. This call has led armies to victory, scientists to new discoveries, candidates to offices, musicians to halls of fame, and athletes to championships. The commonality that underlies great achievements is the willingness to honestly face one’s circumstances, think openly, and turn ideas into action. This axiom rings true in the boardroom.

Peter Drucker’s quote, “what’s measured improves” is a simple statement with broad implications for leaders and especially corporate boards. We live in an era of unprecedented social and economic change, much of which is driven by innovation and technology. Self and board assessment is an opportunity for advancement. We frequently work with boards and leaders who seek opportunities to promote high achievement in the boardroom. An annual board assessment has proven to be a mainspring process for maximizing board effectiveness.

Frequently, our clients have remarked that most of their past assessment processes have lacked compelling, insightful, and actionable reporting. Simplistic governance cloud surveys are not sufficient. Whether a board is conducting its process internally or utilizing a third-party facilitator, a well designed process is paramount. The hallmarks and outcomes of a well designed process will include:

  1. action points and plans for future governance needs,
  2. better understanding of the governance, operational, organizational, and financial risks,
  3. ability to respond to stakeholders’ demands for stronger governance and transparency into board practices, and
  4. more effectively fulfilling the board’s responsibilities and participating in the strategic vision for the organization’s future.

Why Should Boards Conduct Assessments?

The first point of consideration is why not. A robust well-designed assessment process will provide enhanced insight and help achieve or maintain governance excellence. Boards are facing increased pressure for accountability from stakeholders. Investors and regulators, in particular, have been reviewing how boards assess performance. Governance scandals of the past twenty years have put a spotlight on corporate governance practices globally. In light of increased scrutiny, pressure for board accountability has increased. Forward thinking boards and board members aren’t merely responding — they are leading.

Internal and external pressures for board assessments:

  • The NYSE listing rules require annual board assessments.
  • The UK Corporate Governance Code mandates annual board assessments.
  • Many regulators and jurisdictions globally require annual board assessments.
  • Investors today expect annual board assessments of all public companies.
  • A board that commits to a well-designed assessment process will achieve improvement and outperform peers who do not.
  • A board signals to all of management and employees that they care about everyone’s performance within the company.

Perspectives on the board’s role and the value of governance have evolved. Governance is now viewed as strategic. Strategic boards are responding and raising the standard of governance excellence. Engaging a useful, annual self-assessment is fundamental to governance excellence. Stakeholders expect it, and disclosure of it evidences the board’s effectiveness and commitment to its role.

Moving Beyond Good Enough to Excellent

Excellence is grounded in self-awareness and commitment to continuous improvement. A highly effective board:

  • fosters positive, maturing group-board dynamics
  • establishes strong governance practices
  • promotes engagement by all board members
  • maintains a healthy relationship with management
  • ensures focus on mission and strategy
  • cultivates a healthy organizational culture
  • regularly gauges its effectiveness through robust assessment processes

To move beyond “good governance,” boards must evaluate how to improve their practices beyond checking the box in basic practices. As it relates to the board assessment process, boards should take a holistic approach that evaluates the whole as well as the parts, namely the full board, committees, and individual directors.

  • Limiting the scope of the assessment process to only an assessment of the board discounts and overlooks the contributions and fundamental value of the committees and individual directors.
  • The effectiveness of a board is also directly dictated by the effectiveness of the chair, so evaluating a chair’s leadership is key to the development of the board.
  • Highly effective chairs invite director peer and self-assessment.
  • Board and management alignment is critical to organizational success. When appropriate, including an evaluation of the CEO and inviting the participation of key members of management gauges this alignment.
  • Management’s insights and candid observations about a board’s functioning and dynamics contribute to the board’s understanding of its own effectiveness.

Navigating when and how this feedback is collected and framed for board discussion augments the success of a process.

Optimizing the Process

As the maxim goes, timing is everything. The board should conduct its annual assessments during a time when directors’ schedules will allow them to provide thoughtful and complete input and when the board can build resultant actions into its work plan and agendas. Other key questions around timing are:

  1. How much time should directors and other respondents have to complete the questionnaire?
  2. How much time will analysis and reporting require?
  3. When should the results be shared and by whom?

Diligent governance leaders must navigate this to ensure that the process is efficient and results in action. A process that allows too much time to pass from directors giving feedback to reviewing results can diminish relevance. A digital questionnaire that guides respondents logically and easily through the assessment is the most efficient option for gathering basic feedback.

You don’t get the right answers if you don’t ask the right questions. The questions should be clearly worded and focused on singular topics. The number and scope of questions must focus on core areas and be comprehensive without being redundant. Including both rated questions and open-ended questions balances quantitative and qualitative inquiry that will enhance reporting. The balance of these factors in substance promotes engagement in the process. For deeper insights, telephonic or in-person interviews may follow the written assessment to add depth and breadth to the process.

What’s Next?

Third-Party Facilitators in Board Assessments

When boards first began to conduct self-assessments, the task of managing the process fell most often to general counsel and corporate secretaries. This not only imposed an additional burden, it also had the effect of limiting, if not eliminating, candor in responses. Not only does a third-party facilitator allow for a more transparent assessment process, they also bring expertise in assessments and best governance practices in the design, facilitation, and reporting.

Benefits of Engaging an Experienced Third-Party Facilitator

  • Knowledge of governance trends and best practices
  • Preservation of board resources for other governance tasks
  • Enhanced candor due to assurance of director anonymity
  • Timely and accurate collection, compilation, and distribution of results
  • Objectivity and integrity in the analysis of results
  • Ability to benchmark against past performance and peers
  • Facilitation of open discussion and committing to action
  • Preclusion of the appearance of bias, manipulation, or favoritism
  • Independent, objective, expert perspective from a facilitator whose primary role is the board assessment

Diligent Board Assessments Lead Towards Excellence

Whether you sit on the board of a multi-national corporation or local non-profit, as a diligent board member, you take your responsibility and duty seriously. Promoting an annual assessment and thoughtfully engaging in the process helps every committed director more effectively fulfill their roles.

Let’s be clear — a survey alone is not an assessment. Governance leaders who work diligently to optimize the effectiveness of their assessment process should know the hallmarks of a quality board assessment:

  1. A process customized to advance your board’s governance goals.
  2. A process structured to encourage candor and openness and maintain directors’ anonymity in the interest of eliciting actionable insight.
  3. A process designed to drive strategic discussions by providing analysis and action points, which objectively reflect the input of all of the respondents.

At CBE, our Board Excellence AssessmentTM process emphasizes meaningful and excellence-driven board practices at every step. Our mission as a company derives from our belief that increased self-awareness drives learning, which drives improvement. We see governance not only as a tool or structure, but as a commitment to action and opportunity. An assessment process that enables director growth and development is the real mission of a CBE board assessment. This is where the real value of a well designed and administered assessment lies.

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Diversity is strategic.

This axiom has been avoided due to fear, greed, corruption, and ignorance. Diversity heightens objectivity by introducing a wider variety of skills, experiences, and opinions. Prior to 1789, French aristocracy failed to realize the gravity of their arrogance and the singularity of their social and economic viewpoint. Their lack of diversity resulted in the brutal murder of over 30,000 upper class individuals. Imagine if a social revolution in the United States took a mere 10,000 business luminaries—Zuckerberg, Dimon, Iger, Cook, Bezos, Barra, etc., all gone in a matter of weeks. No matter what your opinion of top CEOs is, their contribution is arguably fundamental. A board or board member that avoids diversity embraces ignorance and irresponsibility. Diversity enhances understanding and is critical to board effectiveness.

A good company, like a good nation, should consider whether increased diversity among its leaders will benefit shareholders and stakeholders.

Fortunately, the present call to action among boards that seek greatness is to embrace diversity and realize its benefits, specifically, profit from the difference diversity offers. In our experience working with boards over the past nine years, we have seen clearly that the diverse board is far more strategic and effective. During this Board Best Practices Series and over the next year, we will be closely monitoring and studying how having board members who bring diverse thought, perspective, and experience improve a board’s effectiveness.

America’s economic system is built on democratic principles of freedom, fairness, and representative government. Among the board’s core governance duties is the responsibility to represent shareholder interests. Yet while approximately one-third of shareholder wealth is held by women, women hold fewer than 20% of public board positions.

According to the Boston Consulting Group, between 2010 and 2015 private wealth held by women grew from $34 trillion to $51 trillion. Women’s wealth also rose as a share of all private wealth, though less spectacularly, from 28% to 30%. By 2020 they are expected to hold $72 trillion, 32% of the total. And most of the private wealth that changes hands in the coming decades is likely to go to women.

Another key board responsibility is understanding the company’s positioning with respect to its current and prospective customers. Imagine a company whose customer base is 90% women of all backgrounds and yet the board is composed entirely of white males averaging 65 years of age. This notion is laughable. Yet, this scenario has been the norm. Capitalism commands us to think and act competitively. Strategy is about differentiating from the competition, connecting with customers, and identifying more efficient means of achieving uniqueness. A board composed of highly capable diverse thinkers and leaders seems obvious, but it hasn’t always been the case.

Board Diversity is Advancing, Albeit, Slowly

2020 Women on Boards 2018 Diversity Index reported the number of female directors in the Russell 3000 in 2018 was 17.7%, increasing from 16.0% in 2017.

Much of the change in board composition, albeit slow, had been a response to cultural, social, and investor pressures, and legislated requirements. Since 2015, major institutional investors such as State Street and BlackRock have changed their proxy voting guidelines, demanding more rapid change to board diversity. Take for example the BlackRock 2019 Proxy Voting Guidelines:

We expect boards to be comprised of a diverse selection of individuals who bring their personal and professional experiences to bear in order to create a constructive debate of competing views and opinions in the boardroom. We recognize that diversity has multiple dimensions. In identifying potential candidates, boards should take into consideration the full breadth of diversity including personal factors, such as gender, ethnicity, and age; as well as professional characteristics, such as a director’s industry, area of expertise, and geographic location. In addition to other elements of diversity, we encourage companies to have at least two women directors on their board.

Facing mounting pressures from many constituency groups, state legislatures are taking action and mandating board diversity. California passed a law that requires public companies headquartered in California to have a minimum of one female on their boards by December 31, 2019, with increasing minimums for larger boards by 2021. Passage of this bill contributed significantly to increasing awareness about the issue of gender diversity on corporate boards. NYC Pension Funds Comptroller Scott M. Stringer has been a strong voice calling for increased transparency, accountability, and diversity on the boards of public companies where New York City invests its pension funds.

The following graph emphasizes how the gender composition of boards compares globally.

Women on Boards – Diversity Around the World

Board Governance

Diversity is a More Solid Foundation from Which to Build

Beyond merely satisfying compliance requirements, boards are beginning to realize the inherent value of diversity. A board composed of collegial, well-rounded individuals with diverse backgrounds offers elements essential to board effectiveness. Among the hundreds of boards for which we have conducted board assessments, a vast majority of board members actually embrace true, thoughtful, action-oriented diversity. By action-oriented, we mean board members who listen well and actively and comment and question thoughtfully. Recently, a public company board member commented that diversity is more than being able to check all the different colored squares representing personal characteristics and experience and to boast that in their filings and annual reports. Diversity promotes more robust and insightful discussions, and emphasizes the board’s commitment to understanding and representing all stakeholder groups (shareholders, employees, consumers, and customers), ultimately ensuring that the board is adding value toward the company achieving the highest possible shareholder benefit.

Diverse Perspectives: Why?

  • Mitigates “inattentional blindness”
  • Improves bias understanding
  • Augments strategic discussions
  • Reduces risk
  • Defines commitment to stakeholders

Negative bias and inattentional blindness are the enemy of diversity. “Inattentional blindness is the psychological phenomenon that causes you to miss things that are right in front of your eyes.” Almost certainly, inattentional blindness existed in the boardroom and C-suite prior to Lehman Brother’s failure and eventual bankruptcy.

Benefits of a Diverse Board

  • Promotes robust discussion and constructive debate through new and broader perspectives.
  • Optimizes connections for the board through directors’ broader circles and deeper resources for the board to tap into and inform their decision-making process.
  • Maximizes opportunities for innovation and advancement.
  • Minimizes the development of group-think and the possibility of missing major red flags.
  • Promotes a culturally inclusive environment and strengthens global reputation.
  • Passes the “smell test” for progress and evolution.

Making Diverse Perspectives Felt

After a board has determined what new perspectives and characteristics it needs to optimize its functioning and effectiveness, it must shift its focus to making those new diverse perspectives felt. This side of diversity moves from representation to inclusion and speaks to the board’s culture. To analogize, when you pour oil into a bowl of vinegar and add in seasoning, the ingredients remain isolated. However, stirring the contents so that they interact creates a more interesting and vibrant new substance—a vinaigrette. Similarly, boards that add new members but fail to effectively onboard or include them in the culture will not realize the full benefit of the diversity.

Great board culture includes active listening, inquiry, and continuous improvement. Boards, particularly their chairs and other leaders, must make concerted efforts to build respect for diversity and foster a culture of inquiry by acknowledging the benefits of each different personality and a sum that is superior to its parts.

Closing Thoughts: Tearing Down Walls that Prevent Beneficial Evolution

A barrier to expanded economic progress is global businesses’ historical resistance to diversity. Diversity elevates competition, reduces risk, and promotes healthier markets. This plays out in both business and politics. In her 2019 Harvard Commencement address, Angela Merkel reflected that:

The Berlin Wall limited my opportunities. It quite literally stood in my way. However, there was one thing which this wall couldn’t do through all those years: It couldn’t impose limits on my inner thoughts, my personality, my imagination, my dreams and desires.

Women on boards, people of difference, diversity in general are elevating global economic standards. We aren’t talking about diversity for diversity’s sake; we are talking about diversity for prosperity’s sake. Diversity liberates creativity, dreams, desires, and growth. The belief in a universal dream of prosperity should be encouraged for all. Boards hold trillions of dollars of responsibility and influence. Acting diversely is a conviction that many board members now hold dear.

Time will help determine the strategic value of diversity, but early results indicate that diverse boards reflect diverse companies that think and act more nimbly and creatively and are producing superior results.

Resource from Women Corporate Directors 2019

Find the resources for your board to assist in the full scope of governance responsibilities.

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Board’s Role in the Company’s Culture

Imagine moments in which culture impacted your life. Perhaps it was a Van Gogh painting or a ballet or an energizing business forum. Culture connects and impacts our lives profoundly. Culture happens. In business, good or bad, evil or benevolent, culture is a motivator and a key ingredient to our purpose and meaning as employees. Each of us, CEO or intern, board member or CMO, who works for a company as an employee, is a member of the team. Teams have leaders and, depending on the team’s complexity, many sub-level leaders. The responsibility to set the tone for the right culture for the team starts with those leaders.

Great leaders – Level 5 leaders to use Jim Collins’ jargon – possess a relentless drive to succeed but do so with humility.  “The X factor of truly great leadership is humility,” according to Collins. What sets a Level 5 leader apart is that their “energy and drive and ambition is channeled outward into a cause, into a company, into a culture, into a quest, into something that is bigger and more enduring than they are. Level 5s lead in a spirit of service.” Great leadership is about inspiring a positive culture so that each member of the team is moved to perform at their highest or best purpose. Success isn’t about the leader. Success is about the team.

How a Focus on Culture Is Driving Change

The recent emphasis on “environmental, social, governance” (ESG) and Corporate Social Responsibility (CSR) is born from a concern for our culture. Anyone who ever lived near a polluted river or lake as a young person has a keen sense of the importance of a healthy environment from time spent yearning to swim or play in clean waters. The #MeToo movement was a very public response to a culture that for too long ignored or covered up workplace behavior with a wink and a nod to those who were complicit. CEO compensation has made headlines as the media spotlight on the pay gap between CEO and the rank-and-file pay has grown. How companies respond to issues like these factors not only into shareholder and investment decisions, but also into decisions made by, just to name a couple, cities considering which new businesses to court and by prospective employees considering which opportunity best matches their personal and professional priorities. The response is a strong indicator of a company’s culture.

Governance is the foundation on which an effectively managed organization is built and culture is promoted and elevated.  This foundation includes policies and procedures that provide for both opportunity and accountability. An effective corporate governance framework includes structural elements that facilitate valuable, coherent, board, management, and stakeholder communication and interaction.  These elements include:

  • Charters that clearly articulate board responsibilities and limitations
  • Fundamental principles that promote long-term growth and value
  • Provisions for effective two-way shareholder communication
  • Board selection criteria and an annual assessment process that promote effectiveness
  • Following the rules and regulations of culture, a nation, and a jurisdiction
  • Oversight of both individual leader and corporate culture bias
  • Allowing management to manage for the long term

In today’s often hyper-competitive business environment, when two similar teams face off, the team that exercises superior governance outperforms rivals. Governance and culture are inextricably linked.  By definition, great governance affords teams and, therefore, companies greater ability to capitalize on opportunities.  The operative word in our definition of corporate governance is opportunity.  Often academics and leaders will opine about the need for enterprises to “think like an entrepreneur.” Well, entrepreneurs eat, sleep, and drink opportunity.  An excited, excellence-focused business culture will devour a stale, uninventive one.  To borrow Peter Drucker’s often quoted phrase, “Culture eats strategy for breakfast.” The greatest strategy in the world will perish in the hands of an unmotivated, fatalistic culture.

How Leaders and Boards Influence Culture

Business culture gave Steve Jobs a “pass” because, in spite of his rude and harsh behavior, he motivated people to be the best they can be.  Historically, a toxic culture of machismo tolerated and promoted rude behavior from men. Was his behavior part of or essential for his and Apple’s success? Truth is, we’ll never know.  Possibly a more evolved leader in the future will accomplish Jobs-like success as a fiercely driven but humble Level 5 leader. And this notion of a more evolved leader will be part of the board-leadership-gender debate.

Are we learning from these lessons?  Like many workplace evils of the past, disrespectful and rude behaviors are certainly less tolerated than they once were. There are signs that we are improving and evolving towards a more enlightened culture shift in business globally. For starters, the expectation for boardroom gender parity is gaining widespread acceptance. Groups like Corporate Board Member, the Society for Corporate Governance, both in the U.S., Financial Reporting Counsel and ICSA in the U.K., and the Pearl Initiative in the Middle East are active promoters of governance excellence. The Cadbury Report (U.K.) issued in 1992 and the King Code (King I, 1994, South Africa) were early corporate governance and board excellence initiatives.

Stakeholders are calibrating their leadership expectations to include board-management alignment and the extent to which the relationship, vision, and interaction set the right tone for the right culture. As we’ve noted, among highly skilled young workers, a company’s culture is central to considerations of employment options. Our research and experience with clients indicate that this will continue as long as employment conditions favor the job seeker.

What to know about ‘attracting Millennials’
1. They prioritize culture.
2. They want to enjoy their working experience.
3. They want open and honest communication.
4. They want flexibility.

To attract top talent, boards and management must understand this: An important distinction exists between two dominant culture groups: one, a culture of continuous improvement that rewards the drive to succeed creatively, and two, a culture of fear and rebuke where the spirit of confidence is inhibited.  “Stress can be either a triggering or aggravating factor for many diseases and pathological conditions.”

Cyrus Taraporevala, president and chief executive officer of State Street Global Advisors, recently stated in a January 2019 letter, “We believe that at a time of historic disruption, increased focus on corporate culture and how it supports strategy is essential to sustainable, long-term value creation. This is good for investors…and good for our shared prosperity.”

Ten Lessons for Board Members adapted from Peter Drucker’s Ten Lessons Learned
1.   First, manage thyself
2.   Do what you’re made for — contributing to the board
3.   Work how you work best (and let others do the same)
4.   Count your time, and make it count
5.   Prepare better board meetings (particularly if you’re the committee or board chair)
6.   Don’t make a hundred comments when one will do
7.   Find your one big distinctive impact
8.   Stop what you would not start
9.   Run lean and think strategically
10. Be useful to management

Great leaders infuse the culture around them with that magical sense of “I can be the best me” at this job. In the best organizations, a deep sense of purpose saturates the organization and becomes a cultural value. Culture is ethereal and yet describable.  A senior management team and board aligned on being the best they can be are likely to positively infect their company’s culture, as well. Great culture promotes good governance. Good governance sustains great culture. Team efforts that encourage employees are solid ground on which to build a successful company.

“People don’t leave jobs, they leave toxic work cultures.”

Dr. Amina Aitsi-Selmi, The #1 toxicity factor at work, March 20, 2019

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Duty of care: it’s more than legal

“Care” is a strong word. Care is ubiquitous and imparts responsibilities on people in many aspects of their lives.

In personal relationships, care stems from moral, cultural, and religious ideals that drive human interface. In business, care forms the standards by which we conduct ourselves and uphold professional responsibilities. Care extends beyond the individual and into organizations. A well-run organization is composed of people at all levels who carry out their duties with great care, engendering stakeholder loyalty and market confidence.

Ten years ago, the world was in the midst of the worst financial crisis since the 1930s. From 2008 to 2012, 465 banks in the United States failed, whereas only 10 banks failed in the 5 years prior to 2008. (See FDIC Failed Bank List.) But the crisis was not predicated on mere financial failures; it was a crisis of character and care. Many other iconic institutions have failed or struggled in recent years due to engaging in excessive risks, including financial, behavioral, and culture. What has changed? The notion of care has broadened.

Legal Perspectives on Care

Historically, the duty of care has been of such importance that it has been codified into corporate laws. It along with the duty of loyalty and duty of obedience are the three major fiduciary duties imposed on directors. The duty of care is deemed the most important responsibility owed by a director to an organization. The Model Business Corporation Actrequires that directors “shall discharge their duties with the care that a person in a like position would reasonably believe appropriate under similar circumstances.” Many states, including Delaware, have similarly modeled laws. The duty of care is frequently tested through legal proceedings that assess whether or not a board exercised due care in fulfilling its responsibilities.

Courts and legislatures have worked to define the breadth of requirements to uphold the board’s duty of care. In recent decades, in cases such as Smith v. Van Gorkam (Del. 1985), Unocal Corp. v. Mesa Petroleum Co. (Del. 1985), Revlon v. MacAndrews & Forbes Holding, Inc. (Del. 1986), and In re Caremark Int’l Inc. (Del. 1996), among others, the courts have sought to identify whether a board upheld its fiduciary duties in varied circumstances and decisions. Basic legal standards have evolved that allow a board to show it has upheld its fiduciary duties by applying their best business judgment, acting in good faith, and promoting the best interests of the corporation. These standards developed during the late 1900s limited the reach of the board’s duty of care.

Care Informed Governance

The latter half of the 20th century will be known in business circles as the era of management, with seemingly endless volumes of management books highlighting the vast study of how to manage a company well. The financial crisis of 2008 significantly impacted the business world’s view of risk and governance. The focus on management performance and especially short-term performance contributed to hundreds of bank failures and thousands of business failures. The distance between board and management precipitated these failures and broadened the concept of care and good governance. As a result, the first quarter of the 21st century will be known as the era of governance.

From a board governance perspective, meeting basic legal requirements is insufficient. As fiduciaries of an organization, directors are entrusted with ensuring the organization’s financial, operational, and cultural health and sustainability. Construing the duty of care narrowly to only major board decisions for the purpose of avoiding legal liability inherently limits the effectiveness of a board. Boards should aspire to exceed the minimum legal requirements for meeting the duty of care required by laws and courts and look to exercise care in all governance practices, striving for a higher standard of consistent governance excellence.

Cloudy Governance Signals a Lack of Diligence and Lack of Care

caring and diligent board maintains:

  • Clarity and Transparency
  • Accountability and Independence
  • Diversity and Inclusiveness
  • Interactive Culture and Engagement
  • Preparedness and Full Information
  • Discipline and Keen Observation
  • Inquisitiveness and Thoughtfulness
  • Proactive Approach

Exercising Duty of Care in Governance Practices

These characteristics should guide the practices and dynamics of the board to ensure it exercises requisite care in its oversight and in major board decisions. A holistic approach to care ensures that a board’s governance practices promote a healthy corporate culture, which influences the overall health, functioning, and success of an organization. An effective board embeds care into its practices through key action points:

  • Regular assessment of board composition
  • Candid and open discussion
  • Thoughtful selection, evaluation and oversight of the CEO
  • A healthy, collaborative relationship with management
  • Alignment of the board’s role in strategy
  • Oversight of financial and operational performance
  • Thorough review and approval of major transactions
  • Understanding of talent development and culture
  • Annual assessment of the organization’s governance policies
  • Timely disclosure of conflicts of interest
  • Cyber and physical protection of the organization’s assets
  • Reviews to ensure integrity of financial statements and compliance with laws
  • Engagement of outside experts, as necessary
  • Regular assessment of the board’s practices and effectiveness

Care and governance are tightly linked concepts. Boards and board members who care are ones who understand the business. Care is more than showing up for four board meetings and reviewing financials. Highly effective leaders exercise care on an intellectual, emotional, and even spiritual level, as in what do you really believe about the business and its contribution to society. The Duty of Care is a legal board responsibility; caring is deeper human level of engagement.

Business influencers have been increasingly vocal about board diversity. The debate has primarily focused on: gender, age, and ethnicity. Having a board that reflects and understands the values and perspectives of your organization’s current and future customers is essential to sustaining organizational relevance. Board and executive leaders must promote diversity of perspective when considering who is best qualified to meet the leadership needs of their organization.

Following the European Union’s boardroom gender diversity mandate, California passed Senate Bill 826, requiring public companies based in California to have at least one woman on their boards by the end of 2019. According to Forbes, nearly  40% of new directors on Fortune 100 boards in 2016 were women, but women are still woefully underrepresented on boards. According to executive search firm Stanton Chase, diversity contributes to strategic value, brand perception, and benefits a company’s bottom line making gender diversity “a strategic investment”.

Board member age has been an aspect of diversity rarely considered or challenged in the past. A vast majority of public and private equity backed directors tend to be white males above the age of 50, often the result of a recognition of their time-earned expertise and reputation in their professions. These are important characteristics; however, there is a need to consider the multifaceted nature of expertise that is not solely gained through years of experience.

Organizations must adopt a well-rounded view in considering how to have diverse view points around the table to adapt to the current disruptive and innovative business climate. For example, research conducted by MNI Targeted Media shows that millennials now represent the largest consumer spending group in the United States (accounting for 40% of all spending). Having insights into millennial’s priorities at the board and executive level will provide for a competitive and forward-looking perspective, which is now being recognized by some leaders. According to PwC’s Census of Directors 50 and Under, 90% of directors say that age diversity is important. As technology continues to disrupt at an increasing pace, having younger members may assist the board’s effort to look forward and around the corner of the competitive landscape. Qualified younger members understand innovation and digital transformation and bring an otherwise missing perspective to the decision making process.

Finally, ethnicity and race continue to be an important topic in the discussion about diversity as demographics continue to change globally. The U.S. Census Bureau estimates that by 2050, the country’s population will have grown by approximately 75 million people, and those residents will have a vastly different racial profile than today’s population. The changing demographic trends require that companies change as well, or then risk becoming irrelevant. Through boards around the world, we gain insights into the changing perspectives on diversity.

During a recent assessment interview with a 60+ year old white, male, Fortune 500 director, he shared that his opinion of the importance of diversity has dramatically changed. Whereas he thought it was a political or social issue ten years ago, he and many of his colleagues are witnessing the benefits of diversity represented on the boards they serve today. He noted that he enjoys the meetings more, appreciates the diverse perspectives, and believes the board’s performance is improving. By starting with transformation in the boardroom, leading organizations are dedicating resources to ensuring that they holistically represent their customers, employees, shareholders, and other stakeholders.

What are the benefits of a diverse board? Having a board comprised of diverse gender, age, race and ethnicity:

  • Promotes a more multifaceted discussion of strategy and the competitive landscape.
  • Brings in new and broader perspectives.
  • Optimizes members’ diverse backgrounds, creating new connections for the board. 
  • Maximizes opportunities for advancement – especially in technology and innovations.
  • Minimizes the development of “Group Think.”
  • Promotes a culturally inclusive environment that is attractive on the global stage.
  • It’s the right thing for culture progress (passes the “smell test”).

More on board diversity

In his article, “Reboot, Not Refresh”, published in International Banker, our CEO, Byron Loflin, writes about diversity and optimizing board composition.

Discover how our partner, Stanton Chase, a global specialization leader is the top diversity and inclusion executive search firm.

New Collaboration Strengthens Both Firms’ Board Service Offerings

Baltimore, MD and Greensboro, NC, November 15, 2018 – Stanton Chase and the Centre for Board Excellence (CBE) announce a new partnership for corporate governance excellence. This strategic alliance strengthens board and leadership offerings globally by aligning Stanton Chase’s executive search services with CBE’s proprietary governance solutions and expertise.

CBE brings extensive experience in the design and implementation of third-party board self assessments for board performance and effectiveness, and they tailor online and interview inquiry to meet the needs of a board’s unique governance objectives. CBE’s core offerings include customized board, CEO, and management assessments utilising CBE’s secure EnGauge platform. CBE’s platform includes interviews and the facilitation of governance action plans. CBE’s best in class governance solutions coupled with Stanton Chase’s world class executive search deliver cost effective solutions for both firms’ existing and future clients. Each firm will maintain autonomy so as to remain un-conflicted.

The partnership was announced at Stanton Chase’s Global Partner meeting in Los Angeles, California by Byron Loflin, CEO of CBE. “This new partnership will benefit organisations around the globe who seek to strengthen their board’s effectiveness. Stanton Chase is a company with transparent values that complement a global mission and experience oriented approach to public, private, and NFP/NGO boards and leaders large and small. Unlike the competition who are often conflicted, CBE and Stanton Chase will maintain full disclosure and strict autonomy with clients.”

Mickey Matthews, Stanton Chase International Chairman, also expressed his excitement about the partnership. ”CBE is culturally and philosophically aligned with Stanton Chase values as a relationship-focused, professional, strategic business advisor. I look forward to the many benefits this new relationship will bring to our clients.”

For more information about the Centre for Board Excellence and its governance solutions, visit:

To learn more about how the CBE-Stanton Chase partnership can benefit your business, contact your local Stanton Chase consultant:

About Stanton Chase:
Stanton Chase is ranked within the top 10 global retained executive search firms. With proven expertise in key sectors of the global economy, it has 9 specialist practice groups that operate as international teams. Stanton Chase is owned by its partners who take individual responsibility for delivering outstanding quality for each assignment. Stanton Chase is a member of the Association of Executive Search Consultants.

About Centre for Board Excellence:
Centre for Board Excellence is the leading global provider of corporate governance and compliance solutions, merging expertise, technology, and innovation to augment board governance while streamlining labour-intensive governance tasks for directors, executives, and corporate attorneys. CBE’s proprietary reporting delivers insightful metrics that promote strategic and governance alignment. CBE is a trusted, third-party provider to many of the world’s iconic companies, including many Fortune 500 and Forbes’ Most Trustworthy companies.

“Long-range planning does not deal with future decisions, but with the future of present decisions.” – Peter Drucker

In the incredibly fast-paced environment our world has embraced, staying relevant and profitable has become a challenge for all industries—banking included.

In an increasingly competitive digital age, community banks still play a very important role in supporting their communities and the local business owners, students, entrepreneurs and families who live there—all of whom depend on you to meet their unique banking needs. To remain relevant and competitive, your bank needs to embrace a strategy that is both sustainable and enduring.

This may mean keeping many of your current business practices in place, but it will also undoubtedly require important changes and a new approach in others. How can your bank’s board and executives make an informed decision on the best way forward? Answer: Conduct a third-party board and management self-assessment.

This tried-and-true corporate governance tool is like an executive’s annual physical checkup; it’s a process that results in an actionable report. It informs you where your bank is, so you know where it needs to get to and what it will take to get there. Good corporate governance is essential to long-term sustainability, value creation and risk mitigation.

The Center for Board Excellence’s proprietary online assessment solutions elevate corporate governance and leadership standards while saving your community bank time, effort and money.

Today’s most successful banks pursue governance excellence that inspires:

  • strategic alignment between the bank’s board and management
  • maximum support for the CEO
  • a culture of continuous improvement and success
  • leadership that is relevant, purposeful and effective
  • board agility, development and diversity
  • social and environmental responsibility (ESG)
  • total ownership (shareholder) value and growth

Our platform, process and reporting capture and establish important metrics to transform board governance from ad hoc, one-time initiatives into a strategic process for continuous improvement. They exceed the assessment standards required by publicly listed companies on the NYSE and Nasdaq.

Our clients include many members of the Fortune 500 and Forbes’ 100 Most Trustworthy Companies, as well as smaller public and private companies and organizations, all of whom know the value of CBE’s unique performance assessment reporting. Board members, CEOs, general counsel, corporate secretaries and governance professionals we’ve worked with tell us that CBE’s tools equip them to be more effective in their respective roles.

Explore how CBE’s fully customizable governance solutions can help your community bank sustain its relevance and profitability over the long haul.

This article was originally published in the Independent Bankers magazine

Byron Loflin, CEO of Center for Board Excellence (CBE) moderated a panel at Corporate Board Member’s Building Better Boards: Committee Series in Chicago on September 20, 2018.  The panel was entitled “New Trends in Board Refreshment” and the other panelists were Gayla Delly, Board Member, Broadcom and Flowserve, Darrell Freeman, Lead Director, AAC Holdings, Cross Country Healthcare and Reliant Bancorp, and Tony LeVecchio, Chairman of the Board, Legacy Texas Bank, Board Member, Dougherty’s Pharmacy.

Byron queried the directors on how they rate overall public board performance, and in particular,  whether boards have improved their performance during the decade since the 2008 financial collapse.  The panelists also discussed all elements of diversity on their boards, including thought diversity.  The panelists shared their experiences of relationships with other directors and management, and how their boards have conducted assessments to measure performance.

We’re in Washington DC for the Society of Corporate Governance National Conference. There’s nothing like forefathers and experience to bring together America’s top governance professionals. Stop by booth #25 and say hello to a Board Excellence Expert.

This year, we’ve joined forces with Nasdaq’s Board & Leadership Solutions team. Both teams will be onsite to walk you through how CBE’s governance workflow integrates with the Boardvantage Portal to bring better answers to the Boardroom.

On Thursday, Check out Joan Conley, Senior Vice President & Corporate Secretary for Nasdaq on the Service Provider Panel on Technology and Software Solutions.

This year’s agenda includes sessions on ESG, crisis management, corporate culture, SEC developments and more. This year, the national conference will have customized event itinerary designed for private companies, small and mid-cap companies and large-cap companies. There’s also a single day registration for non-profit organizations.

Speakers include:

  • J.D. Vance, New York Times best-selling author of Hillbilly Elegy
  • Robert J. Jackson Jr., Commissioner, U.S. Securities and Exchange Commission
  • Eric Holder, Former Attorney General of the United States
  • Kate Andersen Brower, best-selling author of The Residence: Inside the Private World of The White House
  • The Honorable Karen Valihura, Justice, Supreme Court of Delaware

The Center for Board Excellence is a proud Organizational Partner for the Society of Corporate Governance.

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