St. Mark'sThe Venice Travel Edition continues today by focusing on Saint Mark’s Basilica, one of both Venice’s and the world’s treasures. It sits on Saint Mark’s Square, one of the most famous locations in all of Italy. While today it is the cathedral church of the Roman Catholic Archdiocese of Venice, originally it was the church of the Doge, or civic ruler of Venice. It only became the Basilica, in 1807 after the city was conquered by Napoleon and ceased to be a Republic. Napoleon wanted to move the power of the church under his administrative control so relocated the city’s Basilica to Saint Mark’s.

One of the wonders of the church is how it continually reinvented itself through new additions added to the exterior of the Basilica. The most spectacular are the Horses of Saint Mark, which were installed on the balcony above the portal of the Basilica in about 1254. The horses were long displayed at the Hippodrome of Constantinople, and in 1204 Doge Enrico Dandolo sent them back to Venice as part of the loot sacked from Constantinople in the Fourth Crusade. Another prize stolen during the Fourth Crusade, which now adorns Saint Mark’s, is the Four Tetrarchs. They honor the attempt to stabilize the Roman Empire by the Emperor Diocletian who imposed a new Imperial office structure: a four co-emperor ruling plan called The Tetrarchy. These exterior additions are but a mere fraction of the changes the structure went through over the years as it continually updated itself and its place in Venetian culture and society.

I thought about this updating in the context of your best practices compliance program. The cornerstone of any such compliance program is recognized to be your Code of Conduct. But a Code of Conduct should not be a static document. It needs to evaluated and updated as circumstances warrant. Yet such updating should not be performed in an ad hoc manner. As intoned in the FCPA Guidance, your compliance program should be thoughtful and well considered. In an article in the Society for Corporate Compliance and Ethics (SCCE) Magazine, entitled “Six steps for revising your company’s Code of Conduct”, Anne Marie Logarta and Ruth Ward discussed how you should think through the updating of your Code of Conduct.

  • When was the last time your Code of Conduct was released or revised?
  • Have there been changes to your company’s internal policies since the last revision?
  • Have there been changes to relevant laws relating to a topic covered in your company’s Code of Conduct?
  • Are any of the guidelines outdated?
  • Is there a budget to create/revise a Code?

After evaluating these initial issues, the authors suggest that you should benchmark your current Code of Conduct against others companies in your industry. If you decide to move forward the authors have a six-point guide that should assist you in making your revision process successful.

  1. Get buy-in from decision makers at the highest level of the company

Your company’s highest level must give the mandate for a revision to a Code of Conduct. It should be the Chief Executive Officer (CEO), General Counsel (GC) or Chief Compliance Officer (CCO), or better yet all three to mandate this effort. Whoever gives the mandate, this person should be “consulted at every major step of the Code review process if it involves a change in the direction of key policies.”

  1. Establish a core revision committee

A cross-functional working group should head up your effort to revise your Code of Conduct. They suggest that this group include representatives from the following departments: legal, compliance, communications, HR; there should also be other functions which represent the company’s domestic and international business units; finally there should be functions within the company represented such as finance and accounting, IT, marketing and sales.

From this large group, Code of Conduct topics can be assigned for initial drafting to functions based on “relevancy or necessity”. These different functions would also solicit feedback from their functional peers and deliver a final, proposed draft to the Drafting Committee. It is incumbent you create a “timeline at the outset of the revision is critical and hold the function representatives accountable for meeting their deliverables.”

  1. Conduct a thorough technology assessment

The backbone of the revision process is how your company captures, collaborates and preserves “all of the comments, notes, edits and decisions during the entire project.” Technology such as SharePoint or Google Cloud can be of great assistance to accomplish this process even if you are required to train team members on their use.

In addition to this use of technology in drafting your Code of Conduct revision, you should determine if your Code of Conduct will be available in hard copy, online or both. If it will be available online, you should assess “the best application to launch your Code and whether it includes a certification process”. Lastly, there must be a distribution plan, particularly if the Code will only be available in hard copy.

  1. Determine translations and localizations

Channeling my inner Jay Rosen I would note you must hire both a reputable and approved company translation expert to translate your Code of Conduct into appropriate local languages. This is particularly important if your Code is pre-2012, when the FCPA Guidance came out and made clear that translation into local languages was a minimum of a best practices compliance program. The key is that “your employees have the same understanding of the company’s Code-no matter the language.”

  1. Develop a plan to communicate the Code of Conduct

A roll-out is always critical because it “is important that the new or revised Code is communicated in a manner that encourages employees to review and use the Code on an ongoing basis.” Your company should use the full panoply of tools available to it to publicize your new or revised Code of Conduct. This can include a multi-media approach or physically handing out a copy to all employees at a designated time. You might consider having a company-wide meeting where the new or revised Code is rolled out across the company all in one day. Recent pronouncements from the Department of Justice (DOJ) have suggested that testing the knowledge of employees on the Code is becoming more important. However, the bottom-line, as with all thing compliance-related, is Document, Document and Document. However you deliver the new or revised Code of Conduct, you must document that each employee receives it and understands it.

  1. Stay on Target

If you set realistic expectations you should be able to stay on deadline and stay within your budget. They state, “You want to set aside enough time so that you won’t feel rushed or in a hurry to get it done.” They also reiterate that to keep a close watch on your budget so that you do not exceed it.

This article provides a useful guide to not only thinking through how to determine if your Code of Conduct needs updating, but also practical steps on how to tackle the problem. If you are a compliance practitioner, I would urge you to take a look at your company’s Code of Conduct. If your Code is pre-2012, I think you need to update sooner rather than later and take into account what the FCPA Guidance says about a best practices Code of Conduct. With the new information presented by the DOJ in speeches and talks last fall, you may well need to consider how you can measure how well your employees are retaining it as well. It is far better to review and update if appropriate than wait for a massive Foreign Corrupt Practices Act (FCPA) investigation to go through the process.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2016

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