U.S. President Obama said to a reporter recently, "We have corporate governance that allows CEOs to pay themselves ungodly sums."
Why should this be the case, and how might this problem be addressed?
Following say on pay protests in Canada at CIBC, Barrick Gold and Yamana Gold, and others at BP, HSBC and JP Morgan, the Securities and Exchange Commission (SEC) recently proposed rules linking pay to performance, six years after Congress passed the law directing them to so in the first place.
Will the new rules work? Regulators have a poor track record of getting executive pay right. Indeed, some say Congress has been the single greatest driver of increasing CEO pay.
According to a survey by Mercer, a majority of UK board members believe the executive pay model is broken. Here are three ways to fix it.
First, look at who is negotiating the pay. A CEO pay contract is negotiated between a subset of company directors -- the compensation committee -- and the CEO. I remember a CEO telling me once, "I will out-gun any compensation committee." He is right. For any contract to work, there needs to be proper motivation and equality of bargaining power. Many directors on pay committees are former CEOs, have been on the board for over nine years, or tend to be men recruited on the basis of prior relationships. These types of directors are not effective in negotiating a CEO pay contract.
Directors confide to me how perks compromise them, including jobs for acquaintances, gifts, vacations, and so on. There is no free market for CEO pay if the people on the other side of the table are captured.
An effective bargaining party should be independent of management and selected directly by shareholders to represent investor interests. In other words, shareholders should be selecting the directors, not directors and certainly not management.
I advise large investors that they should press for this right to select directors. Industry Canada is considering corporate reforms, and should give shareholders the right to select and remove directors without artificial barriers. In the Canadian companies above, not a single director on the compensation committees was forced to resign, including the compensation committee chair on the Quebecor board who failed to garner majority support.
Second, CEO pay has been driven upwards by a process known as "peer benchmarking." Invented by pay consultants, one CEO's pay is compared to pay of other CEOs, often at larger, complex companies ("peers"). Compensation committees, who purchase this comparative data, want to pay their own CEO, not at a 50th percentile (meaning that half of CEOs are better than their CEO), but at the 75th or 90th percentile. This inflationary effect, as you can imagine, has resulted in structural increases to CEO pay. Research confirms this. The process is made worse by rivalry, because CEOs see what other CEOs are earning, and think they deserve more. This knowledge and mindset increases the leverage of the CEO during pay negotiations.
One public sector organization, about to disclose pay for its employees, whom I recently advised, is not disclosing the identity of employees and their pay, but only the position title. This pay disclosure promotes good governance and accountability, but addresses peer rivalry, privacy and safety concerns. More regulators should exercise care over the inflationary results of disclosing pay. Compensation committees should focus less on inter-company comparison, and more on the performance and value creation within their company.
This brings me to the final pay reform, which is linking pay to sustained value creation within the company over the longer term. Performance metrics are what drives management. Most performance metrics for executive pay are short-term, financial, and based on total shareholder return (TSR). Even the new SEC rules rely on TSR. Research shows, however, that much of TSR is not under the control of management, but rather reflects exogenous market forces. In other words, executives benefit from factors beyond their control, such as a bull market.
Most of the business model and market value of companies are composed of broader, leading indicators that are non-financial in nature. By focusing just on financial results, boards lack the ability to track leading indicators, which could be customers, reputation, employees, innovation, R&D, ethics, risk management, safety, and so on, that measure risk and broader performance. Many boards desire these metrics but they are under-developed by management, which reflects board complacency.
Ninety per cent of pay is short term, which is fewer than three years. This short-term focus causes executives to swing the fences for short-term gains, taking risks, because their pay incents them to do so, rather than being aligned with the product cycle of the company, which is in the range of five to seven years.
International Monetary Fund chief, Christine Lagarde, has called for banks to change the culture of short-term risk taking. There is also director leadership responding to short-termism: The subject of the Institute of Corporate Directors conference next month is titled "Short-Termism: A Problem or Not."
The problem is that opposing the above reforms -- shareholders selecting compensation committee members; relying less on peer benchmarking; and relying more on broader long-term performance metrics -- are so entrenched into the status quo and vested interests that these reforms are almost unachievable. CEO pay problems will continue. To truly solve this issue, more leadership is needed from investors and directors. Models and best practices are needed to devise roles for shareholders in selecting directors and long term pay principles. Thoughtful regulation and more industry leadership and cooperation are needed.
Richard Leblanc is a governance consultant, lawyer, academic, speaker and advisor to leading boards of directors. He can be reached at email@example.com or followed on Twitter @drrleblanc.
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