StrategyDriven Editorial Perspective – Government as Owner and Regulator: The Ultimate Conflict of Interest

What would it be like to have the ultimate home court advantage? How about:

• Defining the rules of the game;
• Changing the rules of the game, in your favor of course, at any time after the game has started;
• Refereeing the game and being allowed to choose when and when not to penalize your team for rules violations;
• Enticingly recruiting the opponents best players; and
• Examining the other teams’ playbooks, trade secrets, and other confidential materials on demand?

That’s not just a home court advantage, it’s cheating – and in the business world there exists laws against such behavior… or does there?

Anti-trust laws and regulatory agencies overseeing monopoly businesses prevent any one company from gaining such significant market dominance as to create an unfair competitive advantage and establishing conditions of consumer vulnerability. Other laws, most notably the recently enacted Sarbanes-Oxley regulations, establish separation between auditors and the audited to eliminate conflicts of interest.

Recent bailouts by the U.S. government created an imbalance in the marketplace; introducing a ‘super competitor’ who is business owner, rule maker, and law enforcer. This ‘super competitor’ has no marketplace rival with even a fraction of its power and no immediate oversight as ballot box accountability occurs in only two year increments. As executives from Goldman Sachs learned, having had to sit through the U.S. Senate’s berating and vulgarities, there is little defense to be made once government officials have decided to target your organization.

As business owners, government officials act to further their companies’ goals; the problem is they have demonstrated a propensity to further their political interests as well. While at the center of the U.S. economic meltdown of 2008, poor business practices by mortgage lenders Fannie Mae and Freddie Mac, now owned by the U.S. government, are not addressed by the proposed financial markets regulatory bill being considered by Congress.¹ And this is not be the first time Fannie Mae appears to have benefited from Congressional favoritism.²

StrategyDriven Recommended Practices

The conflict of interest created by the government’s entry into the marketplace is not likely to end soon. Therefore, StrategyDriven recommends organization leaders take the following actions:

• Always behave ethically and promote ethical behavior among your employees. The best way to avoid government scrutiny is to not place yourself or your organization in a position of question. Ask yourself… How would this read on the front page of The New York Times? or Would I be proud to tell my mother I did this?
• Respond to legitimate, legal government/regulatory requests for information; providing only what is asked for in a clear, concise, and truthful manner. Providing government officials with information they are either not entitled to or that is extraneous invites further questioning and scrutiny. This presents officials seeking a diversion from their own political ills an avenue to shift the public’s attention to you and your business; inappropriately if you and your organization have behaved ethically.
• Establish an email content policy. Business email systems should be used for business purposes only – not for personal communications. Additionally, if emails are written for only business purposes, then they should only contain business appropriate language – no vulgarities.
• Create an email/document retention and destruction policy. Some emails/documents must be retained for legal purposes; others for business reasons. Emails/documents not having a legitimate retention need should be destroyed within an appropriate timeframe.
• Act quickly to restrict departing employee access to email, files, and records and quarantine their business materials particularly if they are joining a competitor or the government. This practice is unfortunate but necessary. As a corporate leader, it is your responsibility to protect your organization’s intellectual property and confidential materials as well as that of your clients and suppliers. Now that the government is a competitor and regulator, those going into government service represent a real business risk as government officials have demonstrated a propensity to act in both the interest of government companies and their political careers.
• Don’t accept government bailout money. Companies accepting government funding become beholden to politicians whose goals and ambitions may not align with that of the business or its shareholders. Avoid the conflict of interest by not allowing it to exist in the first place.

None of these recommendations should be construed as a suggestion to avoid legal requirements or ethical behavior. Rather, they are recommendations to comply with the letter and intent of the law and to act with the utmost integrity. What we are suggesting is that action going beyond compliance or showing generosity toward the ‘super competitor’ U.S. government is unwarranted and should be avoided.

Final Thought…

The purpose of this editorial is to highlight actions executives and managers should take in this era of heightened government business ownership and marketplace participation rather than debate the unfortunate and often inappropriate actions of those responsible for these circumstances. StrategyDriven does not condone the actions of Goldman Sachs leaders and employees. We are also disappointed by the unbecoming behavior exhibited by Senators Carl Levin (D-Michigan) and Claire McCaskill (D-Missouri) during the Goldman Sachs hearings³ and the other seemingly inappropriate relationships between members of Congress and various financial institutions.

Final Request…

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Sources

1. “Senator Dodd’s Regulation Plan: 14 Fatal Flaws,” James Gattuso, The Heritage Foundation, April 22, 2010 (http://www.heritage.org/research/reports/2010/04/senator%20dodds%20regulation%20plan%2014%20fatal%20flaws)
2. “Lawmaker Accused of Fannie Mae Conflict of Interest,” Bill Sammon, Fox News, October 3, 2008 (http://www.foxnews.com/story/0,2933,432501,00.html)
3. “Video: Sen. Claire McCaskill Talks S**t to Goldman Sachs Execs,” Keegan Hamilton, Riverfront Times, April 28, 2010 (http://blogs.riverfronttimes.com/dailyrft/2010/04/video_senator_claire_mccaskill_talks_shit_goldman_sachs.php)

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