Ken Daly, NACD president and CEO, is featured on CEO Talk Radio discussing the role the board plays in helping to shape and refine a sustainable strategy. Directors play a key role by selecting the right CEO for the company’s future, and by working with the CEO and senior management to revise the strategy as the company’s situation evolves. Monitoring execution of the current strategy is another key role, according to Daly.
As Daly explains in the interview, there is a powerful relationship between exemplary board performance, sustained profitability and job growth. Directors serve as fiduciaries for shareowners, but not merely for the short term; boards serve owners best by focusing long-term on corporate performance and growth.
The board’s strategy role extends to the function of the board and the way board meetings are conducted. The most effective meetings focus on actionable items, with agendas set to allow for dialogue about key issues. Between meetings, directors can complement management information by conducting their own research. Board members also need to listen to shareowners to understand their concerns and, in turn, help them understand what the company is doing. (Note: In face to face meetings, directors need to ensure that they speak with one voice and comply with Regulation Fair Disclosure.)
NACD has a number of resources available, including white papers, blue ribbon commission reports and surveys, to help directors and boards navigate their roles and deliver value for their companies. NACD also hosts a number of conferences and forums around the country where board members can learn best practices from corporate governance experts and leading directors, as well as network with other directors and boards.
On Wednesday, it was revealed that one of the largest insider-trading cases seen in decades stemmed from a violation of boardroom policy. In the insider-trading trial of Raj Rajaratnam, Goldman Sachs CEO Lloyd Blankfein testified that former director Rajat Gupta violated the firm’s code of conduct in disclosing confidential information from 2008 board meetings. According to Blankfein’s testimony, Gupta allegedly revealed to Rajaratnam via telephone strategic discussions regarding the possibility of Goldman Sachs acquiring a commercial bank or insurance company, as well as advance notice of Berkshire Hathaway’s vitalizing five billion dollar investment in Goldman.
Often companies do not articulate boardroom confidentiality agreements, as confidentiality is implied in a director’s duty of loyalty. According to this fiduciary duty, a director cannot use confidential information for his or her own benefit, or to the benefit of a person or entity outside the company. However, a lack of clear policy would prove a weak defense for Gupta, as Goldman Sachs clearly defines a boardroom confidentiality policy in its corporate governance principles:
Confidentiality. The proceedings and deliberations of the board and its committees shall be confidential. Each director shall maintain the confidentiality of information received in connection with his or her service as a director.*
While confidentiality policies are not explicitly required, in 2000 the SEC enacted a policy to enhance fairness and transparency: Regulation Fair Disclosure, commonly referred to as “Reg FD.” With the intent to eliminate “selective disclosure,” Reg FD mandates that publicly traded companies must disclose material information to all investors at the same time. While this mandate does not necessarily extend to nonpublic boardroom discussions, the gray area created can be easily solved by including a code of conduct or other confidentiality agreement in the company’s corporate governance principles.