In this special five-part podcast series, I am joined by Mikhail Reider-Gordon, Managing Director of Global Affairs at Affiliated Monitors, Inc. (AMI) the sponsor of this podcast series. In this series we discuss various aspects of monitorships, including why independence matters, the American Bar Association’s (ABA) Guidelines on Monitors, Gordon’s professorial career at the International Anti-Corruption Academy, cultural differences between international and US domestic monitorships and the continuing evolution in monitorships. Today, in episode 2, we discuss the ABA Guidelines on Monitors.
Gordon has been heavily involved in the ABA for more than a decade. She currently serves on the Council, the Section of International Law and has done so for about 10 years off. She has previously served as the Rule of Law Officer and is currently serving as the Technology Officer. She has served on a number of committee levels, Co-Chair of the International Anti-Corruption Committee, the Anti-Money Laundering Committee and the Corporate Social Responsibility Committee. Basically, Gordon is “a fan of the ABA.”
Gordon has long been a part of the ABA’s discussions around monitors. These standards are found under the Criminal Justice Standards on Monitors (the “ABA Standards”). The ABA Standards emphasize the monitor selection process should encourage consideration of a broad range of monitor candidates and should not be artificially limited by demographic, professional and geographic factors. Gordon also emphasized that “qualifications, integrity, credibility and professionalism are the top of the list.”
Moreover, under potential exclusion, there are a number of examples the standard provides that should be baked into every monitor selection process. Basically, anything that appears to create a conflict of interest or would be perceived to impair the monitor’s judgment or independence are non-starters. Yet, Gordon believes the standards actually go further. She stated, “They go onto provide additional factors that should be considered, some of which may seem obvious to us; such as not having worked for the organization being monitored during the time of the activity in question; not holding prior affiliation with a firm that provided legal or other professional services to the organization being monitored; and even extending to any other factor that could bias or impair or be perceived bias or impair the monitor’s judgment, objectivity, independence, including the prospect of future engagement or other economic considerations that could influence it”. The bottom line is that the ABA Standards “emphasizes the importance of independence.”
All of this extends beyond the criminal side where a monitorship might be put into place concerning a prosecution. It also extends to the civil side of enforcement. Moreover, the ABA Standards can also be applied to a variety of over situations where the independent third-party might be an ombudsman, Independent Sector Inspector Generals or other nomenclature. Gordon believes that “encoding true independence is essential no matter what form a monitorship takes, what title you give it, or whatever you might call it.”
I asked Gordon about not simply monitor impartiality, but even the appearance of bias or the perception of partiality by a monitor selection or a monitor’s actions. Gordon believes this additional criterion, both the appearance of bias and the perception of impartiality, sometimes “gets a little lost a times during the selection process.” It is this true independence which invests trust and faith by courts and other stakeholders in the institution of oversight by independent third-party monitors. It also leads to how well external stakeholders feel about the value of the monitorship and what is being delivered to the organization.
Gordon concluded that independence cannot be over-emphasized. It is more than simply independence and non-impartiality in the selection process but in the entire monitorship. For the system to work properly for all stakeholders, there must be true independence. However, the ABA Standards go further with prohibitions on both the appearance of bias and the perception of impartiality. It is this additional step which is the cornerstone of the system.
I hope you will join us for Part 3, where we consider how Gordon’s teaching compliance and investigations at the International Anti-Corruption Academy inform her view of wide-ranging cultural differences in monitorships.