London South Bank University
Evaluating Your Board (and why it matters)
28th November 2013
Simon Osborne FCIS, Solicitor
Chief Executive & Joint Head of ICSA Board Evaluation
Institute of Chartered Secretaries and Administrators
16 Park Crescent, London W1B 1AH, UK
UK Corporate Governance Code
Main Principle B.6
“ The board should undertake a formal and rigorous
annual evaluation of its own performance and that of its
committees and individual directors”
N.B. “Evaluation of the board should be externally
facilitated at least every three years. Where consultants
are used a statement should be made available of whether
they have any other connection with the company.” – Code
Provision B.6.2
Why Should Boards Be Evaluated?(1)
Self-evident – they control major resources
Shareholders seek reassurance –
“The prime risk that shareholders take is that the
management of a company will mismanage it”
– Jonathan Sumption QC, Defendants’ Counsel in Weir &
Others v. Secretary of State for Transport & Another,
2005 (the Railtrack Shareholders Case)
Why Should Boards Be Evaluated?(2)
“I try to buy stock in businesses that are so
wonderful that an idiot can run them. Because
sooner or later, one will.” - Warren Buffett
Why Should Boards Be Evaluated?(3)
“The Code’s emphasis on evaluation of Board,
Committee, and individual performance attracted
universal support. Views differed on the frequency,
scope and method of evaluation . . . What was clear. . . .
is that formal evaluation is seen as a valuable tool for
improvement.” - FRC on FTSE 100 Chairmen’s views
(2006)
Why Should Boards Be Evaluated?(4)
“The thing about boards is that you only know how
good they are in a crisis. Otherwise, it’s a case of
‘Everything’s all right while it’s going all right’. It’s when
there’s a BP situation or a scandal that you find out
when a board works or not.”
Sir Nigel Rudd, chairman of Invensys plc, quoted in
the Financial Times, 27th March 2011
What Should A Board Be Doing?
• Develop strategy and make timely strategic decisions
• Ensure operations are in line with strategy & monitor
management’s performance against agreed goals
• Provide help and advice as a sounding board for
management
• Ensure integrity of financial information & robustness of
financial and other controls
• Oversee management of risk and review effectiveness of risk
management processes
• Ensure that right people are in place and coming through
Summary of a board’s responsibility!
“What a CEO really expects from a board is good
advice and counsel, both of which will make the
company stronger and more successful; support for
those investments and decisions that serve the
interests of the company and its stakeholders; and
warnings in those cases in which investments and
decisions are not beneficial to the company and its
stakeholders.”
The late Kenneth Lay, former CEO of Enron,
speaking at the Centre for Business Ethics at the
University of St Thomas in Houston in April 1999
Before starting an evaluation
• Chairman must give support – doing it “because the
Code says so” may be damaging
• Board must know/understand the process at least in
outline
• Chairman must have thought through what needs to
be achieved –radical overhaul; health check;
addressing a problem; guarding against
complacency/inertia?
What Are The Alternative Approaches?
• In-house – currently the favoured approach for
>70% of UK listed companies
• In-house facilitated by external person
• External provider
When May External Involvement Be Useful?
• For new chairmen
• For “old” boards
• When tenure of certain directors is being challenged
• Every so often if in-house evaluation is generally
preferred
• When there is a known problem requiring tactful,
impartial handling
What should an external provider be offering?
• Independence and confidentiality
• No conflicts e.g. cross-selling
• The process must cover the ground
• Tact and diplomacy throughout the process
• Provide board with agenda for improvement
The approach of ICSA Board Evaluation
• Initial meeting with chairman and company secretary
• Detailed briefing from company secretary
• One on one structured interview with each director
• Circulate interview notes confidentially to each director
for sign off
The approach of ICSA Board Evaluation
• Prepare draft report based on interview notes quoting
anonymously comments made in interview
• Moderator makes detailed review of draft report
• Draft report sent privately to company secretary
• Near final draft report sent to chairman for meeting with
chairman and company secretary
• Feedback to board of directors.
Why we eschew questionnaires
• The structured interview permits a director to seek an
explanation if he or she is unsure about the question being
asked by the evaluator.
• An interview encourages him or her to be totally frank and
open without committing views to paper (a good
psychological point!).
• The evaluator is able to ask follow-up questions when a
director expresses dissatisfaction with an issue, or to probe
if the evaluator feels that a response merits deeper
discussion.
Why we eschew questionnaires
• The whole evaluation process is personalised and tends
to elicit better information.
• Questionnaires are generally devised in-house and
have a tendency to miss some of the key issues.
Sometimes they get stale which can create a boredom
factor.
• We are not convinced the use of a questionnaire alone
will satisfy the requirements of Main Principle B.6 of the
2010 UK Corporate Governance Code regarding rigour.
Benefits (1)
Well conducted evaluations have potential to
achieve various benefits:
• Confirmation that board has good balance of skills
• Focus attention on attributes required in a new
director
• Focus on any inadequacies
• Identify strategic priorities and gaps between strategy
and delivery
Benefits (2)
• Assurance that key relationships really work
• Focus on risk tolerance and effectiveness of risk
management processes
• Assurance of subsidiary governance and internal
control regime
• Review practices/procedures to improve governance/be
more efficient
• Timeliness of board meetings/agenda items
Benefits (3)
• Relevance and objectivity of information
• Sufficiency of succession planning
• Develop skills, knowledge in individual directors
• Identifies any “dead wood”
• Justify recommending re-election of each director
• Make board evaluation report available for prospective
directors’ due diligence
Principal Findings (1)
• People factors are of greater importance than process
factors
• Strategy day: poorly planned; too much information
• More attention should be paid by the board to risk
identification and management; and to business continuity
• Quality of board discussion about risk
• Complacency that board is performing well
Principal Findings (2)
• Interaction between EDs/NEDs and between NEDs/
“marzipan layer”
• The obstructive NED
• Succession planning: NomCo not always fully
engaged
• NomCo’s thinking at odds with other directors’ views
• Insufficient discussion of social media policies
• Directors not really keeping up to date
Principal Findings (3)
• Getting right level of information to the board
• Factions: may produce mushrooms!
• Getting optimum number of meetings
• Boards taking insufficient interest in work of committees
• Audit committees being overworked
• More attention should be paid to subsidiary governance
Reporting to Shareholders (1)
The board should state in the annual report how
performance evaluation of the board, its committees
and its individual directors has been conducted.
UK Corporate Governance Code Provision B.6.1
Reporting to Shareholders (2)
• What has been reviewed (board, committees, directors)
with an explanation if, say, only the board was being
reviewed
• Who conducted the evaluation and an explanation of
how any conflicts were managed or disregarded
• An outline of the nature of the process
• An outline of key findings, lessons learned
• Follow up actions agreed by the board
Conclusion
• Purpose of evaluation is to help company boards,
main committees and directors to perform to
maximum capability
• Evaluation must be honest and rigorous to be
effective