United States: Are We Misunderstanding The Elements That Lead To Good Governance?

What does good governance really mean? What does it mean to follow best practices? Are there really best practices that make sense for all companies? Do we tend to latch onto easily identified and measured structural features that may not really be effective for good governance and ignore qualities that may be more effective but are not as easily identified or measured? Do we even have a common understanding of the meaning of concepts central to governance? These are some of the questions addressed in an interesting paper, "Loosey-Goosey Governance Four Misunderstood Terms in Corporate Governance," from the Rock Center for Corporate Governance at Stanford.

The authors contend that, years of study notwithstanding, "we still do not have a clear understanding of the factors that make a governance system effective." The authors identify two problems: the "tendency to overgeneralize across companies—to advocate common solutions without regard to size, industry, or geography, and without understanding how situational differences influence correct choices. The second problem is the tendency to refer to central concepts or terminology without first defining them. That is, concepts are loosely referred to without a clear understanding of the premises, evidence, or implications of what is being discussed," i.e., it's "loosey-goosey."

Good Governance

First among these misunderstood terms is the main category itself: what is "good governance"? Although it's highly valued, it's meaning is often misconstrued. According to the authors, good governance is "a set of processes or organizational features that, on average, improve decision making and reduce the likelihood of poor outcomes arising from strategic, operating, or financial choices, or from ethical or behavioral lapses within an organization." But instead of this broad and encompassing definition, the authors contend, many use the term to refer to the adoption of "certain structural features that increase board independence and shareholder rights, under the assumption that these are synonymous with good governance." But do these standards actually improve governance quality? Not so much, say the authors.

For example, according to the article, shareholder proposals to separate combined CEO/board chair positions and require an independent board chair were the most common governance-related shareholder proposal submitted in 2019. Presumably, the argument is that an independent chair without ties to management will provide more vigilant oversight, acting as an effective counterweight to management when required. Nevertheless, the authors contend, the research does not support the conclusion that independent board chairs are necessarily beneficial. Several studies showed no correlation between chair status and performance, or on attributes of governance quality such as managerial entrenchment, organizational risk taking, or executive pay practices; one study even showed that compelled separation of chair and CEO positions was detrimental to performance.

Staggered boards are another frequent target of governance mavens. Because staggered boards can serve to insulate management and deter unsolicited takeovers (requiring two years to complete a proxy contest successfully), they are often viewed by governance experts to be adverse to shareholders' interests and, as a result, both proxy advisory firms will regularly vote in favor of de-staggering boards. Although the authors acknowledge research showing that classified boards can be detrimental when they are used to entrench management and prevent deals that might be attractive to shareholders, lowering firm value, they also highlight research showing that staggered boards can be beneficial for shareholders in some circumstances, such as to "protect valuable business relations, thwart unsolicited offers, and boost firm value....A staggered-board structure itself is not indicative of governance quality. It can be a feature of good governance or a feature of bad governance, depending on the company and the people who control it."

And then, of course, there is the much maligned multi-class share structure, frequently vilified as a "poor governance choice" because it gives a group of shareholders voting rights that are disproportionate to their economic interest. (Of course, some might argue that there would be a much lower incidence of multi-class structures if there were more tolerance among governance experts of features such as staggered boards.) The authors acknowledge that, although much of the research on multi-class structures

Although it is widely considered to best practice for corporate governance to avoid these three board structural features, the authors argue that the research does not necessarily support that conclusion. In particular, take a look at Exhibit 4, which contains a table showing the research findings with regard to the impact on performance and monitoring of 15 board attributes and structural features commonly associated with good governance: much of the evidence is mixed and little of it demonstrates a clear impact, with the exceptions of overboarding (negative) and audit committee requirements (positive). Instead of these conventional attributes, the authors contend,

The authors suggest that the "Commonsense Principles of Governance" released in 2016 (see this PubCo post) and updated in 2018 (see this PubCo post) are on the right track "by emphasizing the knowledge, judgment, and character of board leadership and management, and allowing for discretion in the choice of governance features." Perhaps, the authors suggest, more study should be devoted to looking at common attributes of companies with poor outcomes: "do common organizational features exist among companies that exhibit FCPA violations, material restatements, litigation, etc.? Do common features exist among companies that have low levels of violations and superior financial performance over long periods of time?"

Board Oversight

What does "board oversight" really entail? A director's job is to both "advise and monitor" the corporation and management, concepts that in some respects are inherently inconsistent—one conveying a form of collaboration and the other suggesting independence. Boards have extensive oversight responsibilities, yet companies with rigorous board oversight mechanisms can perform poorly and boards with weak oversight mechanisms can perform very well. What's more, it is often difficult to discern how much of the company's performance is attributable to management and how much to the board's oversight, if any. If shareholders don't have broad insight into what board oversight involves, how can they judge the quality of the oversight their boards provide?

Nevertheless, the authors contend, "research shows that intangible factors contribute to board quality, and on average, these contribute to performance. Among these are expertise, independence, and board culture." Research supports the idea that boards with greater industry-related expertise or connections seem to provide better oversight. In addition, independent judgment—but not necessarily as defined in Exchange listing standards—can improve board oversight. "The research literature," they observe, "is highly mixed on this point." NYSE standards for independence measure primarily commercial independence, based on business- or comp-related ties, but directors can be indebted to management in other ways, through a kind of "social dependence" in terms of work experience, education and background. (Of course, the NYSE definition recognizes the limitations of its definition and advises that, in determining independence, all relevant facts and circumstances be considered.) In their earlier article, the authors posit that "people who share social connections feel psychological affinity that might bias them to overly trust or rely on one another without sufficient objectivity." One study showed that socially independent directors provided "better oversight in terms of setting compensation and willingness to terminate underperforming CEOs." Another study showed that companies with a high percentage of directors appointed during the current CEO's tenure (who tend to be less independent, or "co-opted," than those appointed previously) have "higher CEO pay levels, lower pay-for-performance, and lower sensitivity of CEO turnover to performance." And yet another study demonstrated that powerful directors (those with large professional networks and lots of opportunities) are "associated with more valuable merger-and-acquisition decisions, stricter oversight of CEO performance, and less earnings management."

Finally, the authors identify cultural practices that they believe "positively contribute to board oversight, including high engagement, honest and open discussion, and continuous board refreshment to ensure a proper mix of skills." But survey data showed that almost half of directors responding did not view their boards as effective in refreshing board composition, being open to new viewpoints or tolerant of dissent, and a third lacked trust in other directors and management. According to the authors, an "objective evaluation of board quality requires understanding the composition and skills of individual directors and the board as a whole, the quality of information that a board has access to, and cultural factors that influence how boards process this information to reach decisions. These are inherently difficult for outside observers to assess."

Pay for Performance

It's not exactly news that most people think that CEOs are paid too much and that their pay is not really tied to performance. But the authors suggest that the concept of pay for performance is not well understood. First, as anyone who looks at proxy statements knows, despite voluminous disclosure, the size of a /ceo pay package is not very clear: the complex structure of comp plans can make them indecipherable, and the pay tables reflect a confusing combination of elements: amounts realized, contingent amounts, accounting values, forward-looking amounts and backward-looking amounts. Not to mention "individual practices—such as severance agreements, golden parachute provisions, and supplemental pensions—and it becomes more evident why outside observers express frustration over the size and structure of CEO pay."

In addition, the authors highlight, when addressing performance, how much of the performance was actually created during the period and how much was attributable to the work of the CEO? If stock price is a measure, it can easily be influenced by outside factors. Even relative measures and KPIs compared to peers can be affected by outside factors and may not reflect real operating improvements. As a result, comp plans often include a mix of metrics, but the complexity still makes it hard to determine the level of value creation.

Finally, how do you determine the proportion of value created that is attributable to the efforts of the CEO? The authors report that "[s]urvey data shows—rightly or wrongly—that the boards of most companies do believe their CEO and senior management teams are responsible for most of the value created at their companies. A 2015 survey finds that, on average, board members of Fortune 500 companies estimate that the senior management team is directly responsible for almost three-quarters (73 percent) of the company's overall performance, and that the CEO is directly responsible for 40 percent of performance." Of course, those estimates are completely subjective and many critics would disagree.

Sustainability

Finally, the authors contend that the concept of sustainability is not well understood. A common complaint is that "companies today are too short-term oriented and are not making sufficient investment in important stakeholder groups (such as employees, customers, suppliers, or the general public) because they are overly focused on short-term profit maximization. As a result, their business models are presumed to be unsustainable," leading to a deterioration or societal ills at some point in the future. The solution on offer is typically to make companies more sustainable and, the authors maintain, there is a cottage industry of consultants to help with that effort.
But are companies really that myopic? The authors take issue with underlying criticism:

To support that contention, the authors point out that 68% of the Fortune 100, with a combined market value of $9.4 trillion, are recognized on at least one ESG list. Moreover, the authors, indicate, "[e]ven companies that are widely criticized by advocacy groups for their business practices are rated highly by third-party observers for ESG factors....If third-party providers are reliable, corporate America is already sustainable."

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