There has always been a level of subjectivity in the regulatory process. In the past, it manifested itself as interpretations of written regulations. The post-crisis regulatory environment continues to evolve—as does the subjective aspect of regulation—creating new challenges for bank boards. Bank directors are now faced with subjective terms like “risk culture” and “deceptive acts and practices” included in their exam reports as standards, as well as a regulatory focus on “adequacy” when evaluating strategic planning and capital and liquidity management. Bank directors are now challenged to understand what needs to be done to meet these evolving subjective expectations of the regulators and, in turn, hold senior management accountable.
Trying to define these terms is probably futile, but there are things the board can and should do to ensure these standards are being met.
Directors should start by learning as much as they can about these subjective requirements. Understanding how they evolved and what they are intended to correct or prevent will help you understand what has to be done to meet them. The regulators have made it clear they have higher expectations for director oversight of risk taking activities, and the board is expected to challenge, question and, where necessary, oppose management proposals. Education is key to meeting these expectations.
Actions speak louder than words. Too many organizations rely solely on policies or pronouncements to demonstrate compliance with subjective requirements. Take risk culture, for example. The board should ask and understand how everyone in the firm is held accountable for risk. How do compensation plans incorporate risk concepts? How do you deal with policy violations? Are employees rewarded for identifying and addressing risk matters? Directors must then ask whether the answers to these questions demonstrate the type of risk culture the firm is trying to achieve.
Learn From Others
Directors should be acutely aware of industry trends when it comes to subjective regulation. Regulators are relying more and more on horizontal reviews of financial firms to identify best practices. Understanding what has been considered inadequate when it comes to a financial firm’s capital or liquidity planning can provide guidance on evaluating a firm’s own plans. For example, the Federal Reserve publishes the results of its Comprehensive Capital Analysis and Review for the largest banks, which is a good place to start. The public release of capital planning results showed there is both a quantitative and qualitative aspect to planning. While the quantitative aspect of planning is made public through establishing acceptable minimums, the qualitative aspect (how you got there) can best be met by understanding how others succeeded or failed to properly plan.
Create a Program
Understanding what needs to be done is the first part of the challenge. The second step is making sure your firm is doing it properly. Subjective standards have to be incorporated into risk and audit programs. It may seem impossible to audit for something like risk culture, and an audit of risk culture is certainly more art than science, but some questions the audit should include are:
- Is there an understanding, communication and alignment of values in the firm?
- Are risk commitments being met and does the firm and management do what they say they will do?
- Are there any exploitations of gray areas to benefit individuals?
- Is there evidence of a balance in the firm between achieving results and managing risk?
Bottom line is the board should insist audits and risk assessments take into consideration how these areas of subjective regulation are reflected in the operation of each area, procedure or process they review.
Tell Your Story
Directors should be ready and able to express their understanding of how they meet today’s subjective standards. For example, understanding the strategic planning process and the manner risk factors are taken into account in both planning and execution of strategy allows directors to ask the right questions throughout the process. The same is true for capital and liquidity planning, where reflecting the right level of question and debate in the minutes will likely be crucial to meeting the regulatory “adequacy” standard.
The examples shared are just some of the subjective terms permeating the regulatory process in today’s environment. Like written regulations, they will continue to evolve and will be heavily influenced by the regulatory climate. Dealing with this regulatory uncertainty will continue to be an important practice for directors.