Compliance officers looking for ways to become even more disliked can try this: Insist on writing down and circulating around the C-suite every major compliance decision. Include background, facts, and reasons for “yes” or “no” decisions. That should make everyone mad.
But wait. Is there a serious idea here? Maybe there is.
Here’s how written compliance decisions can enhance the program and protect a compliance officer’s integrity and independence.
#1. Writing is committing. I know. Corporate life is supposed to be about consensus-building. Being a team player and joining the time-honored consultative process. Lots of discussion while everyone has their say. It’s a talky process with shifting outlines and subtle mid-course corrections. Writing, on the other hand, is sharp, definite, and immediate. It’s a commitment to an idea and outcome. That’s what makes it a good fit for gatekeeping compliance officers.
#2. Writing is thinking. Most of us would agree that we can truly understand a problem only by writing about it. Writing reveals logical fallacies and missing connections. Talking, on the other hand, is easier for most people. Spoken words float away. Half-formed thoughts might sound fine. Even half-baked ideas can sound smart (“I’m not sure what they just said, but the way they said it is so great!”) Compliance decisions are important. They deserve the deep thought that comes through writing.
#3. Writing records history. Accountability for our thoughts is scary, as so many stuffed Twitter users have discovered. But the flip side is that writing creates historical records. Precedent, if used wisely, leads to predictability and stability. It provides context and a framework for new decisions. A written record also guides those seeking compliance decisions.
#4. Others bring their input. Compliance officers don’t have to launch only final written decisions. They can send drafts and invite written comments and suggestions. Are the facts stated correctly? Are they complete? Does the conclusion logically follow? Do business-line managers have more relevant information that could influence the outcome? The “review and comment” process adds depth to the written record.
#5. Writing provides balance. It’s healthy for compliance officers to explain their decisions. Part of their explanation means looking at both sides. That doesn’t always happen if “no” is just a checked box or a conversation with the CEO. But comprehensive written decisions are a place to fully explain “no” determinations and thereby blunt some of the anger and frustration toward compliance.
What’s the downside?
Written compliance decisions put compliance officers under the gun. Writing is hard work. It can’t be rushed. Bottlenecks are never good.
If privilege doesn’t somehow protect compliance’s written work product, it could become evidence against the company. That’s always a risk when internal corporate deliberations are written down. Prosecutors and plaintiff’s lawyers dine out on documents and data discovered inside companies. But if compliance-related writing is handled with care — using privilege as much as possible, sticking to vetted templates, employing technical instead of emotional or judgmental language — the risk may be acceptable.
And finally, as I mentioned at the start, compliance officers committed to written decision-making may become even more unpopular. Written decisions inartfully done can look like bullying, or lording it over others, or trying to show them in a bad light. That won’t end well.
Due diligence is usually evidenced by written reports. It’s another matter whether compliance officers routinely marshal that due diligence with other relevant facts and reasoning to produce comprehensively written “yes” or “no” decisions.