Chapter 3

The Board: Role and Composition

The Legal Framework

From a legal perspective, the board of a public corporation is charged with setting a corporation’s policy and direction, electing and appointing officers and agents to act on behalf of the corporation, and acting on other major matters affecting the corporation. In this context, individual directors’ duties and responsibilities are described in the American Bar Association’s Corporate Director’s Guidebook, Fourth Edition (2004) with language, such as the following:

This language provides guidance about how directors should comply with the underlying duty of obedience, the duty of care, the duty of loyalty, and the business judgment rule, briefly introduced in chapter 2, which we restate here more formally:²

In general, a conflict of interest exists when the corporation does business with a director of the corporation or with another entity in which a director of the corporation is also a trustee, director, officer, employee, consultant, or agent; or another entity in which a director has a financial interest (a “financial interest” can generally be defined to include an ownership or investment interest in the entity with which the corporation is contracting, or a compensation arrangement with such entity). To avoid even the appearance of a conflict of interest, a director may want to treat as a conflict any transaction between the corporation and (1) the director’s spouse, descendants, or ascendants, (2) any entity in which such a relative is a trustee, director, officer, employee, consultant, or agent, or (iii) any entity in which such a relative has a financial interest. In addition, the corporation may have its own conflict of interest policy that must be followed.

If a conflict of interest is or may be present, the director must (1) disclose to the board of directors or relevant committee of the board the material facts as to his or her relationship or interest and (2) not participate in any board discussion or vote, unless the corporation’s board determines that the director may participate in such discussion or vote. If the board determines that the director may participate, the director may still decide that a conflict exists and that he or she should not participate in any discussion or vote. If a director follows these disclosure and recusal procedures, the party challenging a transaction on the grounds of conflict of interest/breach of fiduciary duty will face a heightened burden.

Liability can exist for officers and directors when they cause financial harm to the corporation, act solely on their own behalf and to the detriment of the corporation, or commit a crime or wrongful act. Certain acts may subject an officer or director to personal liability, and other acts, although they would otherwise subject them to liability, may be either indemnified by or insured against by the corporation.

The Board's Role: A Governance Perspective

What does the phrase “direct the affairs of the company” really mean? To provide greater clarity, numerous individuals and organizations have developed more specific descriptions in recent years. One frequently cited description was developed by the Business Roundtable:

Milstein, Gregory, and Grapsas (2006) take a somewhat broader perspective. First, they note, the board needs to take charge of its own focus, agenda, and information flow. This enables the board to provide management with meaningful guidance and support. It also helps the board focus its attention appropriately, determine its own agenda, and obtain the information it needs to make objective judgments. Second, the board must ensure that management not only performs but performs with integrity. Selecting, monitoring, and compensating management and, when necessary, replacing management, therefore continue to lie at the heart of board activity. Third, the board must set expectations about the tone and culture of the company. The standards of ethics and business conduct that are followed—or not followed—throughout the company impact the bottom line in many ways. “Tone at the top” should be a priority throughout the company and not viewed simply as a compliance matter. Fourth, the board should work with management to formulate corporate strategy. After agreeing to a strategic course with management through an iterative process, the board should determine the benchmarks that will evidence success or failure in achieving strategic objectives and then regularly monitor performance against those objectives. Fifth, it is the board’s duty to ensure that the corporate culture, the agreed strategy, management incentive compensation, and the company’s approach to audit and accounting, internal controls, and disclosure are consistent and aligned. And sixth, it is the board’s duty to help management understand the expectations of shareholders and regulators. Boards can help management recognize that shareholders have a legitimate interest in more meaningful input into the board selection process, in terms of both nominating procedures and voting methods. Similarly, boards can help management recognize and address the concerns that excessive compensation raises among shareholders, regulators, rating agencies, and others.⁴

Both descriptions are useful for developing a basic understanding of a board’s responsibilities. In broad terms, they fall into three categories: (a) to make decisions, (b) to monitor corporate activity, and (c) to advise management (Figure 3-1). The key issue here is deciding which board posture is appropriate at what time. While the law, corporate bylaws, and other documents frame many of the decisions a board must make, such as appointing a CEO or approving the financials, they do not provide much guidance with respect to the most important decision a board must make—when must board oversight become active intervention? For example, when should a board step in and remove the current CEO? When should directors veto a major capital appropriation or strategic move?

Lists never can fully capture the complexity and intricacies of the board’s governance function because they do not consider the specific challenges associated with different governance scenarios. In particular, the precise role of a board will vary depending on the nature of the company, industry, and competitive situation and the presence or absence of special circumstances, such as a hostile takeover bid or a corporate crisis, among other factors.

The Nature of the Company, Industry, and Competitive Situation

It seems self-evident that a board’s role depends largely on the nature and the strategic challenges of the company and the industry. The challenges faced by small, private, or closely held companies are not the same as those of larger, public corporations. In addition to their traditional fiduciary role, directors in small companies often are key advisers in strategic planning, raising, and allocating capital, human resources planning, and sometimes even performance appraisal. In large public corporations, directors are focused more on exercising oversight than on planning, on capital allocation and control rather than on the raising of capital, and on management development and succession activities rather than on broader human resources responsibilities.

Public company ownership patterns are not homogeneous either, and different ownership structures may call for different governance approaches. The first, and most common, board situation is one in which a corporation has no controlling shareholder. In that case, directors should behave as if there is a single absentee owner whose long-term interests they serve. A primary responsibility for the board in this scenario is to appoint and, if necessary, change management, just as an intelligent owner would do if he were present. Commenting on individual director’s responsibilities in these circumstances, Buffett (1993) writes:

The second situation occurs when the controlling owner is also the manager. At some companies, such as Google, this arrangement is facilitated by the existence of two classes of stock endowed with disproportionate voting power. In these situations, the board does not act as an agent between owners and management, and directors cannot affect change except through persuasion. Therefore, if the owner or manager is mediocre—or worse, is overreaching—there is little a director can do about it except object. And if there is no change and the matter is sufficiently serious, the outside directors should resign. Their resignation will signal their doubts about management, and it will emphasize that no outsider is in a position to correct the owner or manager’s shortcomings.⁶

The third public corporation governance situation occurs when there is a controlling owner who is not involved in management. This case—examples of which are Hershey Foods and Dow Jones—puts the outside directors in a potentially value-creating position. If they become unhappy with either the competence or integrity of the manager, they can go directly to the owner (who may also be on the board) and make their views known. This situation helps an outside director, since (s)he needs to make her (his) case only to a single, presumably interested owner who can immediately make a change if the argument is persuasive. Even then, the dissatisfied director has only that single course of action. If he remains unsatisfied about a critical matter, he has no choice but to resign.⁷

It will also be readily apparent that the role of the board will vary depending on the size of the company, the industries it serves, and the competitive challenges it faces. Global corporations face different challenges from domestic ones; the issues in regulated industries are different from those in technology or service industries, and high-growth scenarios make different demands on boards than more mature ones. Finally, in times of turbulence or rapid change in the industry, boards often are called on to play a more active, strategic role than in calmer times. Special events or opportunities, such as takeovers, mergers, and acquisitions, fall into this category.

The Presence or Absence of Special Circumstances

Corporate news can materially affect a company’s stock price. For example, when Apple, Inc. issued a press release announcing the iPhone on January 9, 2007, the stock trading volume increased more than fourfold and remained almost as high on the following day before dropping by half the day after. The stock price also significantly increased from the day before the announcement to 5 days after. During that period, Apple’s stock realized a cumulative return of 9.31% in excess of the market. The Apple story is a positive one for shareholders. By contrast, a crisis can be a calamity for investors and threatens the continued existence of the corporation. Crises can take on many different forms—defective products, hostile takeovers, executive misconduct, natural disasters that threaten operations, and many more. Consider the following examples.

As these examples attest, there are a few situations in which the directors’ fiduciary duties to shareholders are so clearly on view as in times of crisis.⁸

The Board's Role: Governance, Not Management

Beyond implementing reforms and best practices, boards are being counseled to become more involved.⁹ Rubber-stamping decisions, populating boards with friends of the CEO, and convening board meetings on the golf course are no longer acceptable. Today’s boards must focus on engagement, transparency, independence, knowing the company inside and out, and on adding value. This all sounds good. There is a real danger, however, that the rise in shareholder activism, the new regulatory environment, and related social factors are pushing boards toward micromanagement and meddling.

This issue is troubling, and clear evidence that the important differences that separate governance from management—critical to effective governance—are still not sufficiently well understood by directors, executives, regulators, and the popular press alike. And regrettably, faced with the need to be more involved, the most obvious opportunity (and danger) is for boards to expand their involvement into—or, more accurately, intrude into—management’s territory.

The key issues are how and to whom boards add value.¹⁰ Specifically, the potential of directors to add value is all too often framed in terms of their ability to add value to management by giving advice on issues such as strategy, choice of markets, and other factors of corporate success. While this may be valuable, it obscures the primary role of the board to govern, the purpose of which is to add value to shareholders and other stakeholders. John Carver, well-known governance consultant and author, does not mince words:

A greater arms-length relationship between management and the board, therefore, is both desirable and unavoidable. Recent governance reforms focused on creating greater independence and minimizing managerial excess while enhancing executive accountability had already created greater tension in the relationship between the management and the board. The Sarbanes-Oxley Act, for example, effectively asks boards to substitute verification for trust. Section 404 of the act requires management at all levels to “sign off” on key financial statements.

This is not necessarily bad because trust and verification are not necessarily incompatible. In fact, we need both. But we should also realize that effective governance is about striking a reasonable accommodation between verification and trust—not about elevating one over the other. The history of human nature shows that adversarial relationships can create their own pathologies of miscommunication and mismanaged expectations with respect to risk and reward. This makes defining the trade-offs that shape effective governance so difficult. Is better governance defined primarily by the active prevention of abuse? Or by the active promotion of risk taking and profitability? The quick and easy answer is that it should mean all of those things. However, as recurrent crises in corporate governance around the world have shown, it is hard to do even one of those things consistently well. What is more, a board trying to do all of these things well is not merely an active board; it is a board actively running the company. This is not overseeing management or holding management accountable—it is management. Therefore, the corporate governance reform agenda risks becoming an initiative that effectively dissolves most of the critical, traditional distinctions between the chief executive and the board.¹²

Governance Guidelines

As part of the recent wave of governance reforms, the NYSE adopted new rules that require companies to adopt and publicly disclose their corporate governance policies. Specifically, the following subjects must be addressed in the guidelines:

Best practice suggests that the board should review the guidelines at least annually. By elaborating on the board’s and directors’ basic duties, a carefully constructed set of governance guidelines will help both the board and individual directors understand their obligations and the general boundaries within which they will operate.

Recent Board Trends¹³

Board Size

The optimal size of a board has been the subject of much debate in recent years. As a general proposition, smaller boards have a number of advantages over larger ones: They are easier to convene, require less effort to lead, and often have a more relaxed, informal culture. Research on group decision making supports the contention that smaller groups typically are more effective.

As a practical matter, however, board size should be governed by the skills needed to do the job. Larger corporations with more complex structures, substantial global interests, or multibusiness operations will require larger boards than smaller, mainly domestic, single-business firms. Today, the average Standard & Poor’s (S&P) 500 board has 11 directors, compared to 18 directors about 25 years ago. It is unlikely that boards will shrink further, however, because of new rules and proposals requiring that the audit, nominating or governance, and compensation committees of boards in publicly held companies be composed of independent directors only and, in some cases, with specialized expertise (audit committee).

Compared to the 2011 findings, 4% fewer public companies report a classified, also known as “staggered,” board structure. The most significant change in this area is with small-cap company boards, 46% of which had a staggered election of directors in 2012, down from 52% in 2011. Also, the proportion of public companies with special meeting rights for shareholders increased among large- and mid-cap companies to 70% in 2012. The Deloitte survey also reveals that more directors report having direct contact with shareholders or shareholder groups—42% in 2012 compared to 36% in the 2011 survey.

Interestingly, the survey showed that boards are beginning to meet more frequently, and for longer periods of time. Fifty-three percent (53%) of financial services companies report meeting 10 or more times per year, which is significantly more than the 23% of nonfinancial services companies. Board meetings are also longer; almost half (42%) of mid-cap, 50% of large-cap, and 37% of small-cap companies report meetings of six or more hours, excluding committee meeting time.

Board Selection, Recruitment, and Composition

Fewer CEOs join boards. Fewer CEOs are accepting directorships, for two reasons. Today, more than half of active CEOs do not serve on outside boards. As a result, boards are recruiting more retired top executives and other corporate executives. Active CEOs represented just 24% of all new directors in 2011, down from 47% a decade ago, while retired CEOs made up 19% of this year’s new recruits, up from 12% a decade ago. Division/subsidiary presidents and other line and functional leaders now account for 21% of all new directors, versus just 9% a decade ago.

This trend reflects two new realities. First, many boards now insist that the chief executive concentrate fully on his or her job and restrict the number of outside boards the CEO can serve or, in some cases, prohibit it altogether. Second, as boards expand their role to areas, such as company strategy, they look for directors who have risen through specific functional areas in which the company must excel in order to compete effectively—sales and marketing, global operations, manufacturing, and others. And, in the aftermath of Sarbanes-Oxley, directors with a background in finance, especially chief financial officers (CFOs), are in strong demand.¹⁴

For a while, it looked as though the reduced availability of CEOs and the growing demand for specialized directors would significantly reduce the talent pool of qualified directors and make it even more difficult for companies to attract new board members. Fortunately, this has not proven to be the case. If anything, the talent pool has become larger as boards are changing the definition of what constitutes a qualified candidate and widening their search. Instead of focusing almost exclusively on CEOs as candidates for the board, companies are increasingly tapping division presidents and other executives who have experience running large operations or bring specialist expertise. The redefinition of director qualifications has also expanded the talent pool of diversity candidates who may not have risen to chief executive but excel in a critical, functional area. It is encouraging, for example, that while still under-represented, women and minorities show small gains. Of the 294 new independent directors, 21% are women and 14% are minorities. Nine percent of the S&P 500 companies still have no women directors at all, and 12% of the S&P 200 firms have no minority directors. Overall, women now account for just over 16% of all independent directors.

Boards still lack diversity and have few young directors but score better on international representation. Only 18% of all public company boards and 22% of large-cap boards are composed of at least 26–50% women. Just 11% of all public companies have 26–50% minority directors.

Not unexpectedly, for 95% of public companies the youngest director on their board is more than 40 years old. Interestingly, while almost none of the large-cap companies have directors under 40, 13% of small-caps do. As social media and related technologies become more mainstream, the number of younger directors on boards can be expected to increase. For example, Starbucks Coffee Company recently added 29-year-old Clara Shih, CEO and founder of a social media company, to its board.

Non-U.S. directors have minimal representation on mid- and small-cap boards. However, more than 70% of large-cap boards now have international representation; 42% have European directors, followed by 18% from Central and South America, and 14% from Canada.

Companies increasingly use executive search firms to fill board slots. Attracting qualified directors is hard. Although the pool of qualified candidates is larger, many candidates are far more reluctant to serve. More than ever, candidates perform extensive due diligence about the companies recruiting them and look for ways to mitigate as much as possible the risk of associating themselves with a disaster or incurring personal liability. They are also far more critical and objective about their ability to add value, particularly in complex organizations, such as conglomerates, or industries like financial services and insurance. The overwhelming reason why candidates decline to serve, however, remains a lack of time. Given their already enormous responsibilities, many qualified and desirable director candidates feel that they will be unable to devote adequate attention to the job.

It is logical, therefore, that the use of executive search firms to fill board positions is increasing. Specifically, compared to 2011, small-cap companies report a 13% increase in the use of executive search firms, compared to 4% and 5% increases by large- and mid-cap companies, respectively. From an industry perspective, there has been little year-on-year variation for nonfinancial services companies, but a 20% increase by financial services companies (from 37% in 2011 to 57% in 2012). This could be the result of higher turnover among financial services company directors.

Director Independence

The proposition that boards should “act independently of management, through a thoughtful and diligent decision-making process” has been a major focus of corporate governance reform in recent years.¹⁵ In the United States, the Sarbanes-Oxley Act of 2002, as well as the revised NYSE and NASDAQ listing rules, as affirmed by the Securities and Exchange Commission (SEC), are premised on a belief that director independence is essential to effective corporate governance. In the United Kingdom, the Cadbury Commission’s report of 1990—The Code of Best Practice—included a recommendation for having at least three nonexecutive directors on the board. Currently, reflecting this broad consensus, about 10 out of the average 12 directors of a major U.S. public company board are nonexecutives; in the United Kingdom, the corresponding number is a little less than half.

The idea of an independent board is intuitively appealing. Director independence, defined as the absence of any conflicts of interest through personal or professional ties with the corporation or its management, suggests objectivity and a capacity to be impartial and decisive and therefore a stronger fiduciary disposition. At times a board needs to discuss issues that involve some or all of the company’s senior executives; this is difficult to do with senior executives on the board. The independence requirement also stops destructive practices, such as “rewarding” former CEOs for their accomplishments by giving them a role on the board. Having the former CEO on the board almost always limits the ability of the new CEO to develop his or her own relationship with the board and put his or her imprint on the organization. There is also limited evidence that outsider-dominated boards are more proactive in firing underperforming CEOs and less willing to go along with outsized compensation proposals or vote for poison pills.

Director independence should not be viewed as a proxy for good governance, however. At times, not having more insiders on the board actually can reduce a board’s effectiveness as an oversight body or as counsel to the CEO. Independent, nonexecutive directors can never be as knowledgeable about a company’s business as executive directors or senior managers. CEOs say that some of their most valuable directors are those with experience in the same industry, counter to current independence tests. The higher the proportion of outside directors, therefore, the more difficult it is to foster high-quality, deep board deliberations. Moreover, it is less likely that a CEO can mislead a board, intentionally or otherwise, when some of the directors are insiders who also have intimate knowledge of the company.¹⁶ Boards mostly comprising independent directors must, at a minimum, therefore, create regular opportunities to interact with senior executives other than the CEO. The more complex a company’s business is, the more important such communications are.

The bottom line is that effective corporate governance does not depend on the independence of some particular subset of directors but on the independent behavior of the board as a whole. The focus should be on fostering board independence as a behavioral norm, a psychological quality, rather than on quasi-legal definitions of director independence. Director independence can contribute to but is no guarantee for better governance.

Board Leadership: Should We Separate the Chairman and CEO Positions?

Few issues in corporate governance are as contentious as the question of whether the roles of chairman and CEO should be separated or combined. In the United Kingdom, about 95% of all Financial Times Stock Exchange (FTSE) 350 companies adhere to the principle that different people should hold each of these roles. In the United States, by contrast, about 50% of large, publicly listed companies currently separate the role of the chairman and CEO. In the last few years, Boeing, Dell, the Walt Disney Company, MCI, Oracle, and Tenet Healthcare all have done so.

The board leadership issue has garnered significant attention by shareholders, as reflected by the increased number of proposals calling for companies to separate the roles of the chairman and CEO, especially in financial services companies. There is a significant difference in the number of large-caps (61%) with combined roles relative to small-caps (39%). Among financial services and nonfinancial services companies, there is an even split that combine roles.

Arguments for splitting the two roles, emanating chiefly from the United Kingdom—and other countries that overwhelmingly embrace the idea of separate roles (particularly Germany, the Netherlands, South Africa, Australia, and, to a lesser extent, Canada)—reflect four schools of thought.¹⁷

The first is that the separation of the chairman and CEO positions is a key component of board independence because of the fundamental differences and potential conflicts between these roles. The CEO runs the company—the argument goes—and the chairman runs the board, one of whose responsibilities it is to monitor the CEO. If the chairman and the CEO are one and the same, it is hard for the board to criticize the CEO or to express independent opinions. A separate chairman, responsible for setting the board’s agenda, is more likely to probe and encourage debate at board meetings. Separating the two roles is, therefore, essentially a check on the CEO’s power.

A second argument is that a nonexecutive chairman can serve as a valuable sounding board, mentor, and advocate to the CEO. Proponents of this view note that CEOs today face enough challenges without having to run the board and that a relationship with the chairman based on mutual trust and regular contact is good for the CEO, shareholders, and the company. For this to happen, however, it is essential that, from the outset, the two roles be clearly defined to avoid territorial disputes or misunderstandings.

A third reason for supporting the two-role model is that a nonexecutive chairman is ideally placed to assess the CEO’s performance, taking into account the views of fellow board directors. Advocates maintain that the presence of a separate, independent chairman can help maintain a longer term perspective and reduce the risk that the CEO will focus too much on shorter term goals, especially when there are powerful incentives and rewards to do so. They add that he is also in a good position to play a helpful role in succession planning. And when a CEO departs, voluntarily or otherwise, the chairman’s continued presence in charge of the board can reduce the level of trauma in the business and the investor community.

A fourth and final argument concerns the time needed to do both jobs and do them well. It can be argued that as companies grow more complex, a strong board is more vital than ever to the upkeep of the health of the company, and this requires a skilled chairman who is not distracted by the daily pull of the business and can devote the required time and energy. This may take one or more days per week and involve such tasks as maintaining contact with directors between meetings, organizing board evaluations, listening to shareholder concerns, acting as an ambassador for the company, and liaising with regulators, thereby allowing the CEO to concentrate on running the business.

Although these arguments increasingly resonate with U.S. directors and shareholders, many CEOs resist the change. Why, they ask, should corporate wrongdoing at a small number of S&P 500 companies be a compelling reason for changing a system that has worked well for so long? Moral and ethical failures are part of the human condition, they note, and no rules or regulations can guarantee the honesty of a leader. Some allow that, at times, a temporary split in roles may be desirable or necessary—when a company is experiencing a crisis, for example, or when a new CEO is appointed who lacks governance and boardroom experience. But they maintain that such instances are infrequent and temporary and do not justify sweeping change. Overall, they argue, the combined model has served the U.S. economy well, and splitting the roles might set up two power centers, which would impair decision making.

Critics of the split-role model also point out that finding the right chairman is difficult and that what works in the United Kingdom does not necessarily work in the United States. Executives in the United Kingdom tend to retire earlier and tend to view the nonexecutive chairman role (often a 6-year commitment) as the pinnacle of a business career. This is not the case in the United States, where the normal retirement age is higher.

To allay concerns that combined leadership compromises a board’s independence, opponents of separation have proposed the idea of a “lead director”: a nonexecutive who acts as a link between the chairman–CEO and the outside directors, consults with the chairman–CEO on the agenda of board meetings and performs other independence-enhancing functions. Some 30% of the largest U.S. companies have taken this approach. Its defenders claim that—combined with other measures, such as requiring a majority of independent directors and board meetings without the presence of management—this alternative obviates the need for a separate chairman.

On balance, the arguments for separating the roles of chairman and CEO are persuasive because separation gives boards a structural basis for acting independently. And reducing the power of the CEO in the process may not be bad; compared with other leading Western economies, the United States concentrates corporate authority in a single person to an unusual extent.¹⁸ Furthermore, rather than create confusion about accountability, the separation of roles makes it clear that the board’s principal function is to govern—that is, to oversee the company’s management, and hence to protect the shareholders’ interests—while the CEO’s function is to manage the company well.

Separating the two roles, of course, is no guarantee for board effectiveness. A structurally independent board will not necessarily exercise that independence: Some companies with a separate chairman and CEO have failed miserably in carrying out their oversight functions. What is more, a chairman without a strong commitment to the job can stand in the way of board effectiveness. The separation of roles must therefore be complemented by the right boardroom culture and by a sound process for selecting the chairman. The challenge of finding the right nonexecutive chairman who must not only have the experience, personality, and leadership skills to mesh with the current board and management but also must show that the board is not a rubber stamp for the CEO should not be underestimated. The ideal candidate must have enough time to devote to the job, strong interpersonal skills, a working knowledge of the industry, and a willingness to play a behind-the-scenes role. The best candidate is often an independent director who has served on the board for several years.

Board Committees and Director Compensation

A greater and more effective use of committees also stands out as one of the key changes in board functioning over the last 50 years. Committees permit the board to divide up its work among the directors; they also allow board members to develop specialized knowledge about specific issues. The value of having standing committees has been recognized by the NYSE, the NASDAQ, and the SEC, and today public company boards are required to have independent audit, nominating (and governance), and compensation committees. In addition, a growing number of companies are creating board committees to better communicate with and stay abreast of the concerns of external stakeholders, referred to as public responsibility, corporate social responsibility, stakeholder relations, or external affairs committees.

The Audit Committee

The audit committee is charged with assisting the board in its oversight of (a) the integrity of the company’s financial statements and internal controls; (b) compliance with legal and regulatory requirements, as well as the company’s ethical standards and policies; (c) the qualifications and independence of the company’s independent auditor and the performance of the company’s internal audit function and its independent auditors; and (d) preparing the audit committee report for inclusion in the company’s annual proxy statement. The committee typically consists of no fewer than three members, all of whom must meet the independence and experience requirements of the NYSE and rule 10A-3 under the Securities Exchange Act of 1934, which hold that each member of the committee must be financially “literate” and at least one member of the committee must have accounting or related financial management expertise (the so-called audit committee financial expert). Its members, including the committee chair, usually are appointed by the board on the recommendation of the nominating and governance committee.

The Nominating (and Governance) Committee

The nominating (and governance) committee has multifaceted responsibilities and is typically charged with recommending new candidates for the board of directors and determining (a) the eligibility of proposed candidates, (b) reviewing the company’s governance principles and practices, (c) establishing and overseeing self-assessment by the board, (d) recommending director compensation, and (e) implementing succession planning for the CEO. The nominating (and governance) committee normally consists of three or more independent directors; its members and chair are usually appointed by the board on the recommendation of the chairman of the board.

The Compensation Committee

The compensation committee is charged with duties related to human resources policies and procedures, employee benefit plans, and compensation. It is also responsible for preparing a report on executive compensation for inclusion in the company’s annual proxy statement. It typically consists of three or more independent members; its members are normally appointed by the board on the recommendation of the chairman of the board with the concurrence of the nominating (and governance) committee.

Other Board Committees

In addition to these standing committees, a growing number of companies make use of ad hoc committees to address specific issues—for example, a strategy committee to look at different growth options, a finance committee to develop recommendations to recapitalize the company, or a risk management committee to implement a comprehensive approach to risk oversight. While ad hoc committees can be useful, they should have clear sunset clauses to prevent their institutionalization or a balkanization of the board on important issues.

Committees can also be used to send specific signals to employees or external stakeholders about what is important to the company. A growing number of boards are creating committees to better communicate with and stay abreast of the concerns of external stakeholders. Names for such committees include the corporate social responsibility, stakeholder relations, external affairs, or public responsibilities committees. For example, the board of General Electric has created a public responsibilities committee to review and oversee the company’s positions on corporate social responsibilities and public issues of significance that affect investors and other GE key stakeholders.

Finally, most bylaws make provision for an executive committee, usually consisting of the chair, the CEO, and other designated officers of the company, and key directors, such as the chairs of the standing committees. In theory, the executive committee has the power to act on behalf of the full board in case of emergencies or when there is no time for the full board to meet and deliberate, although this is fraught with danger. Fortunately, advances in communication technology have made executive committees increasingly redundant, and their use has all but disappeared from the corporate governance landscape.

Director Compensation

Setting director pay typically is not done by the compensation committee of the board. Rather, director pay decisions normally are made by the nominating committee. The justification for this structure is twofold. First, it provides for a separation of the director and executive compensation decisions. Second, it allows the nominating committee to integrate compensation with board-building strategies.

The job of the director has become significantly more challenging in recent years; it demands stronger qualifications, requires more time, and increasingly carries personal financial risk. In this new governance climate, the pool of available independent directors has shrunk and pushed up director pay. Directors are typically paid with a mix of cash and equity, with equity representing about half of the total direct compensation. Nonemployee chair and lead-director pay is generally structured like that of other directors on the board (retainer, meeting fees, and equity), while employee, non-CEO chairs are typically paid like an employee (salary, incentives, and benefits). A majority of companies pay a premium to committee chairs—especially audit and compensation committee chairs—reflecting the increased time commitment and additional responsibility. With respect to the equity component of director compensation, companies have reduced their reliance on stock options and increased the use of full-value awards.

In 2011, average all-inclusive annual compensation for S&P 500 directors exceeded $232,000, up 8% from $215,000 in the previous year. Cash retainers rose 11%—the largest single-year gain since 2005–2006—reaching an average of $88,858. Also, the shift toward a simplified director compensation structure continues as fewer boards pay board meeting fees on top of retainers: 37% in 2011, down from 72% a decade ago. We also see continued shifts from stock option grants to stock awards and increasing use of committee retainers.

Key Points to Remember