JURIST Guest Columnist Douglas Branson of the University of Pittsburgh School of Law says that recent problems at Hewlett-Packard related to board leaks and their investigation could have been avoided with a little thought and the application of basic corporate governance principles...
In January-February, 2005, the H-P board of directors held several meetings and retreats. The subject was the high profile Carly Fiorina, her refusal to delegate, her reluctance to hire a Chief Operating Officer (CEO), her continued consolidation of power, and H-P's stock price, flat over the 4 years of Fiorina's tenure. Under pressure, Carlton Fiorina resigned.
During and following all of this, several surprisingly accurate accounts appeared in the press. The H-P board chair, Patricia Dunn, some say encouraged by advice from H-P's outside counsel, super lawyer Larry Sonsini (Wilson, Sonsini, Goodrich & Rosati, Silicon Valley's leading law firm) set out to find the leaks to the press of the board's deliberations. Dunn caused the corporation to hire a security firm, which in turn hired a Boston based private detective agency. They did find the leaks, or most of them, which had come about when a long time director, George Keyworth, had had lunch with a Wall Street Journal reporter.
As with any other board of directors witch-hunt, this one came to no good. A preeminent H-P director, Tom Perkins, founder of Kleiner Perkins, the leading venture capital firm, resigned from the H-P board in May, 2006, as had director George Keyworth, who admitted to the lunch and probable leaks. Perkins protested the fact of a witch-hunt, and the tactics used, which had included "pretexting." In pretexting, which is a felony, an investigator assumes another's identity in order to obtain the person's telephone records, in this case Pui-Wing Tam of the Wall Street Journal and Dawn Kawamoto of CNET News. Eventually, H-P board chair Patricia Dunn, who had initiated all of this, had to step down as board chair. The California Attorney General, William Lockyer, went on television to say that felonies had been committed, both within and without the company. He expressed his intention to prosecute them.
On a more modest level perhaps then criminal prosecutions, this whole mess teaches us several things about corporate governance.
- Neither Board of Director Deliberations Nor Board Minutes Are Confidential.
Even material, non public investment information (inside information) is not per se confidential. The law prohibits trading on such information or tipping others to do so. Communication of such information to persons who will neither trade nor tip is perfectly permissible.
Yet in insider trading prosecutions, SEC and Department of Justice attorneys try to convince juries that what goes on in a corporate board meeting, and is recorded in the minutes, is confidential. It is only confidential if the presiding officer first extracts a promise of confidentiality from those in attendance, before he or another person imparts the information or the discussion takes place. For serious matters, a corporation could require each director to sign an NDA (Nondisclosure Agreement), although that may be overkill.
In many corporations, the corporate secretary takes notes at the meeting but turns them over to the firm's lawyer to put in final form as minutes. Corporate minute books which contain those minutes are stacked atop the filing cabinets in many law firms. They are not in the safe or otherwise under lock and key. An enterprising reporter could probably read minutes for an hour before any associate, secretary, or file clerk noticed. They are not confidential and, rightly or wrongly, they are treated as a ho-hum sort of thing.
- Individual Directors Have No Power To Do Anything, Let Alone Initiate Corporate Action.
Directors are not agents of the corporation. They cannot bind it to anything (although one older case holds a corporation responsible for an American Express card a director procured in the corporate name). All corporate power ultimately resides in the board qua board, either seated around a table or all signing a unanimous consents to action proposed. Directors have their power as members of a collegial group, not as individuals. So the next time some one poses as a director, saying "I've got a deal for you," walk away, or at least be skeptical.
- Chairman of the Board is an Empty Vessel into Which Various Corporations Pour Various Things.
But pour they must, either by a bylaw provision or by a delegation from the full board of directors. If the corporation has not outlined duties and responsibilities for the board chair, the holder of that position has no significant powers or status independent of other directors. At most, they are a bit shy of a first among equals or just another director in many other companies. No statutes describe the position of board chair. At many companies, the chair occupies a purely ceremonial or honorary position. The non executive chair may not even preside at board meetings in companies in which the CEO is wishes to retain that function (presiding). Many CEOs try to control both the board agenda and the meetings.
At the other end of the spectrum, some sets of bylaws or governance blueprints outline a number of powers and responsibilities for the board chair. The chair may function as a senior statesperson, or have an avuncular relationship with the CEO.
Unless there had been a board delegation, Patricia Dunn had no power to do what she did as board chair, let alone as a rank-and-file director.
- Directors Should Never Spy on or Conduct Any Form of Witch-hunt Regarding Fellow Directors.
A board is a group of equals. At most, the Chair-CEO is a first among those equals. Ordering commencement of a process that may delve into telephone or other personal records is unseemly and out of place. If that action may be necessary, then the target should not be on the board of directors in the first place. I have been in several cases in which directors have tried to sanction fellow directors, mostly for statements to the press, as here. I suppose that technically they have power to do so but the end result is never any good.
- Directors Have No Power To Remove Other Directors So Sanctions and Witch-hunts Tend to Be Idle Gestures, or End Up in Nasty Fights.
Shareholders elect directors. Usually, they alone also have power to remove directors, by majority vote and with or without cause. Most courts hold director attempts to remove fellow directors to be nullities.
What then is to be done when a director allegedly has misbehaved? No witch-hunt, for certain. No private detective or security firm. No sanctions.
Instead, if a critical mass of directors has reason to suspect the honesty or integrity of a fellow board member, they should bite their tongues. Management should simply not re-nominate that person for re-election. Short of re-election, management could seek removal of that director at a special shareholders' meeting called for that purpose but that alternative would cost several hundreds of thousands (a million?) of dollars in a modern publicly held company. Besides, the offending individual may be around for only up to 11 months. More likely, they will know when they are not wanted, resigning beforehand.
It is only with a classified, or staggered, board, that more serious problems arise. State corporation laws permit corporations and their shareholders to divide directors into up to three classes (Nevada allows four), members of each class to serve 2 or 3 year terms, as the case may be, resulting in a classified board. It is conceivable that, on a classified board, a director the other board members suspect of misconduct may have 35 months left in her term. In that case, if the target director is a recalcitrant one, a proceeding to remove her from office may be an alternative.
Douglas M. Branson is W. Edward Sell Professor of Business Law at the University of Pittsburgh School of Law