ConnectOne Bancorp’s Chairman and CEO Frank Sorrentino discusses the bank’s decision to fight a shareholder lawsuit and how it paid off.
ConnectOne Bancorp’s Chairman and CEO Frank Sorrentino discusses the bank’s decision to fight a shareholder lawsuit and how it paid off.
Many bank boards are considering a sale of their institution for a variety of reasons—heightened regulatory burdens, board and management fatigue, or an opportunity to partner with a growing bank are just a few. But while the financial crisis has taught important lessons about bank management, for many bank directors, the sale of their financial institution is uncharted territory. As you typically only have one opportunity to get it right, directors considering a sale should focus first on establishing a sound process around the board table.
Although it is rational for directors to worry more about specific aspects of the proposed deal than procedural matters, we have found that establishing an appropriate process for considering a possible transaction is often a prerequisite for success on the business issues. Moreover, in today’s world of heightened scrutiny of board actions, directors cannot neglect procedure and expect to fulfill their duties of loyalty and due care. In most states, fulfilling those duties gives directors the benefit of the business judgment rule, which insulates directors from liability provided the decision is related to a rational purpose.
In the context of a sale, most directors can meet their duty of loyalty by acting in good faith to achieve the best result for the company and its shareholders and by disclosing any conflicts of interest to the board prior to the beginning of the deliberations. But with respect to the duty of care, establishing a thorough process leading to a sale is key. A recent court case decided in Georgia provides a helpful roadmap.
In the recent opinion on FDIC v. Loudermilk, the Georgia Supreme Court, in applying the business judgment rule to bank directors, distinguished between claims alleging negligence in the decision-making process from claims that do no more than question the wisdom of the decision itself. The court’s opinion indicates that claims relating to the board’s process will be subject to more scrutiny in the context of litigation than claims that ask the court to be a Monday morning quarterback for board decisions made in good faith.
Considering the emphasis on the board’s deliberation and diligence in making business judgments, it falls on the directors to ensure that the board puts into place procedural controls as it considers a strategic transaction. Hallmarks of a strong process include the following:
Bank directors certainly find themselves living in interesting times, with their obligations and responsibilities changing rapidly. But if a board fosters communication and participation around the board table to reach a deal, the directors can discharge their duties successfully, and bring value to their shareholders.
There is little doubt that technology is rapidly changing lifestyles, not to mention banking. More than half of all Americans owned a smartphone in 2013, up from 35 percent just two years prior, according to the Pew Research Center.
Jack Schultz, chairman at Effingham, Illinois-based Midland States Bancorp, which has $1.7 billion in assets, says his bank’s board and management keep an eye on the competition from both inside and outside the banking industry, and then rapidly adapt. He uses mobile banking as an example. “It’s a much quicker game than what it was 5 or 10 years ago,” he says.
Technology moves at a rapid pace, and much of that change could result in better service to potential and current clients, all while making the institution more efficient. Here are some items that bank boards can consider to avoid becoming irrelevant.
But finding these directors can be a challenge. “Most people like me don’t want to be on bank boards,” Gilbert says. Aside from the liability posed by serving on a bank board, he says that the difference between the banking industry, focused on safety and soundness, and the technology sector, focused on innovative problem-solving, can result in a culture clash. “Working with banks as a financial innovator is super difficult,” he says. “Banks and regulators put the ‘no’ into innovation.”
“Unfortunately many banks, or bankers, do not get very involved in IT matters, and prefer to either outsource or really not lend too much attention to these issues,” says Agustin Abalo, who uses his expertise as a former chief information officer at Banco Santander International, a subsidiary of Spanish global bank Banco Santander, to chair the IT committee of BAC Florida Bank, a $1.3 billion-asset institution headquartered in Coral Gables, Florida. This board-level committee is composed of three independent directors and several officers, including the bank’s president, chief risk officer, chief operating officer and chief information officer. Abalo says that just like other committees focus on relevant risks, like large loans, IT committees can help tackle the growing issue of cyber-crime. He recommends that the IT committee keep the board informed about the bank’s technology needs and related budget requirements.
Mobile banking continues to have a big impact on the industry, and when done right, can result in satisfied customers and a more efficient institution. “Access and convenience are key to the customer,” says Dustin Luton, chief executive officer at Covina, California-based Simplicity Bank, a savings bank with $867 million in assets. “They want things on their own timeline.” If more tasks, like cancelling a debit card or stopping payment on a check, can be done through mobile or online banking, it’s convenient for customers. It can also allow branch and call center staff to better focus on customers that need more assistance or want more products and services from the bank. “These little things will make the difference in the long run from a customer perspective, all these little things that [customers] just don’t really think about,” says Luton.
Today’s banking industry is constantly being buffeted by waves of financial, regulatory and operational challenges. The increased regulatory burden and related costs impact every financial institution in both the approach to doing business and the expense of doing business. The industry is in transition, with no clear path forward. As a result, there has never been a greater need for well functioning, informed and courageous boards of directors of banks and bank holding companies. There has also never been a more important time for board members to keep in mind that their responsibilities can be boiled down into one simple goal: the creation of sustainable long-term value for shareholders.
Achieving long-term value for shareholders may seem an elusive goal in the current environment. On more than one occasion, bank board members have commented to me that they feel they are now working for the benefit of the regulators. However, as with any time of turmoil and change, the challenges we now face will pass. As bank boards look for ways to strengthen their institutions, they should not overlook the opportunity to strengthen themselves as a group. One way of doing that is to adopt the practices of the most effective boards of directors.
Over the past several decades my partners and I have attended hundreds of bank board meetings, for institutions ranging in size from under $100 million in assets to well over $10 billion. Regardless of the size of the entity, we have noticed a number of common characteristics and practices of the most effective boards of directors. This is the first in a series of articles which will describe the 10 best practices we have observed among highly effective boards of directors. In this article I focus on two fundamental best practices – selecting good board members and adopting a meaningful agenda for the board meetings.
Best Practice No. 1 – Select Good Board Members
Some of the most challenging and distracting issues a board can face are those related to its own members. These issues typically arise in connection with conflicts of interest between board members and the banks they serve, or when board members experience financial stress. They can also arise when there are personality clashes in the boardroom or when one or more board members seek to dominate the conversation. The best time to avoid such issues is during the selection process for new directors. Compromise and wishful thinking in the selection of directors will almost always dilute the effectiveness of the board as a whole. Key characteristics of good directors include:
A group of good, solid and dependable board members is, in my experience, preferable to a big-hitter, all-star line-up of directors. A board is most effective when it acts as a group, with a culture in which all members can voice their opinions, and in which probing, and sometimes difficult questions can be asked. Dominant personalities and board cultures in which constructive debate never occurs have contributed to the demise of many banks in the current downturn. Careful selection of new board members, keeping in mind the strengths and weaknesses of the other members of the board, is well worth the time and effort involved.
Best Practice No. 2 – Adopt a Meaningful Agenda
Take the time to review, revise and update your board agenda. I’m aware of several banks that are using the same approach to board meetings and the same agenda as 30 years ago. The absence of any objection from board members may only mean that they are drifting off to sleep during the half-hour-long financial presentation. Board members greatly appreciate a shift to a more efficient and effective agenda, with a focus on committee reports and presentation of only meaningful information about the condition and operations of the bank .This can free up substantial time for the board to focus on the overall direction and progress of the bank.
Most directors only visit the bank once or twice a month, which makes a full understanding of the bank’s plans and status very difficult. There needs to be an educational element in board meetings. Most directors have an ongoing need, and desire, for growth and development in their understanding of the banking industry. With such education, directors can become more effective in their recognition and understanding of the risks to be monitored, as well as the factors that most influence a bank’s strength and performance.
Board packages should be delivered well in advance of each meeting in order to provide the directors with adequate time to prepare. Committee chairs should be prepared to give concise but informative reports at the meeting. Financial and operational presentations by management should focus on telling the board members what time it is, not how the watch was built. This approach can result in more interesting and informative board meetings and will likely result in greater interaction and contribution by the board members.
Links to the other 3 parts in this series
Originally published on October 25, 2011.
Upon receiving (with great relief!) a gentleman’s C in the one accounting course I took in college oh-so-many years ago, I vowed to steer clear of the topic from then on. It’s almost impossible to spend the better part of your working life as a financial journalist and not pick up a little bit of accounting knowledge along the way—and I have, although I have been home schooled so-to-speak rather than formally educated, and I still find the discipline to be a little mystifying.
It’s because of this arms-length relationship I’ve long maintained with accounting that I’m always a little surprised by how much I enjoy our Bank Audit Committee Conference, which took place June 5-7 at the JW Marriott in Chicago. This was our seventh year for the event and we attracted 330-plus attendees, most of whom were bank audit committee chairs or members. We don’t really talk about accounting issues all that much at this conference. Instead, we dive into some really fascinating non-accounting topics like government-mandated stress tests, cyber risk, regulatory compliance, enterprise risk management, whistle blowers and forensic investigations.
In recent years, the audit committee has become the most important board at most banks because just about everything of any significance that happens inside of a bank ends up passing through the audit committee in some form or fashion. The audit committee’s significance in the world of public companies was greatly elevated 11 years ago by the Sarbanes-Oxley Act, which among its many provisions made the audit committee responsible for overseeing the company’s relationship with its outside auditor.
If that was the first shoe to fall, the second shoe was the 2007-2008 financial crisis, which led to a greatly heightened emphasis by the bank regulatory agencies on risk governance at the board level. While a growing number of bank boards (especially at the larger institutions) have established separate risk committees, most institutions still handle risk governance oversight through their audit committees. I think it’s fair to say that the financial crisis was a wakeup call for most banks that they needed to do a better job of managing risk at the operating level, and that directors had to improve their understanding as well. Certainly the regulators expect bank boards to be taking a leading role in setting the institution’s risk appetite and monitoring its risk profile on a regular basis.
As you might expect, there were a lot of risk topics on the conference agenda, including overviews of enterprise risk management, board level risk committees and risk dashboards. Two sessions in particular stood out for me. One was a panel discussion that I moderated on cyber risk. I think you could describe the contest between banks and criminal hackers as an arms race in which the banks might be falling behind. Because of the creativity and sheer doggedness with which hackers try to penetrate banks, audit and risk audit committees need to make sure their management teams are placing as much emphasis on cyber security as possible. This is not an area of strength for most bank directors—they need to educate themselves about cyber risk so they can ask intelligent questions about their institution’s security practices. Over the next decade, cyber risk might end up replacing credit risk as the greatest threat facing the banking industry.
The other session that I thought was particularly insightful was a keynote presentation by Fifth Third Bancorp CEO Kevin Kabat. The Cincinnati-based bank was one of the top performing institutions in the country before it hit a rough patch prior to the financial crisis. Kabat made a compelling argument that Fifth Third’s resurgence owes a great deal to the cutting-edge risk management practices that began to develop even before the crisis.
Banking is a risky business, and managing that risk has become job one for many bank audit committees.
I frequently speak to groups of bank CEOs and directors at state and national conferences. One of my favorite topics is “best practices for bank boards.” The audience reaction always confirms my belief that bank boards of directors all face the same fundamental challenges, regardless of the size or geographic location of the bank and the shareholder base which they serve. Boards of directors are groups of people, and every group of people develops its own set of shared expectations and priorities. It can be helpful for a bank board to occasionally take the time to reflect on its approach to self governance and decision making, especially when this is done by examining the experience and success of other boards of directors in the industry.
This is the fourth and final article in a series on best practices for bank boards. This series of articles describes ten of those best practices. In this article, I will discuss the last two best practices—developing real board leadership and making use of special purpose board meetings.
Best Practice No. 9 – Develop Real Board Leadership
Every board should periodically evaluate whether it has effective leadership. Just as no director has a “right” to sit on a board, which gives rise to the need for director assessments and evaluations, leadership positions also are not tenured. To be effective, a leader must be engaged, prepared for meetings, willing to take on difficult issues, and, in my view, willing to lead by example. Burnout and growing complacency can be expected in all leadership roles. It is in the best interest of the board, the bank and its shareholders for the board to have the ability and willingness to recognize and address these issues when they arise, and not delay action.
If the CEO is also chairman of the board, is that arrangement working for the board? A test for whether such an arrangement is working is for the non-management independent directors to consider whether the board is truly making its own decisions. If not, then reconsider the existing leadership structure and, at a minimum, appoint a lead director to bring more balance to the board’s decision making process and better ensure a flow of important information to the board.
Also, consider rotating committee leadership on a regular basis, particularly among the most important committees such as the audit, asset-liability and loan committees. Fresh leadership perspective can be an effective risk management tool.
Best Practice No. 10 – Make Use of Special Purpose Board Meetings
Have at least two meetings a year dedicated to focusing on the bank’s strategy and why it works (or should work) and its strengths and challenges. Include in one such meeting a discussion of “Buy, Sell or Hold,” since management needs to know the direction of the board on this fundamental issue in order to effectively run the bank and position it for the future.
Consider scheduling a special meeting to address any questions or concerns that directors may have but won’t express in a regular board meeting. For example, in this time of increased regulatory burden and more aggressive regulatory enforcement, many directors are interested in knowing what their personal liability exposure is and what protections exist, whether they ask or not. Directors also are very interested these days in hearing a more complete description of the impact of the Dodd-Frank Act and the scope of authority and impact of the Consumer Financial Protection Bureau.
Finally, consider setting aside most or all of a board meeting to have the directors hear directly from the key senior staff of the bank. This can be helpful for the board to gain confidence in the bank’s overall management team, and it can also be a source of insight into the strength of the institution. Good banking is fundamentally about good people, and in-person communication is the best way for the board to take the measure of the bank’s people.
I wish you and your board great success. The other articles in this series are below:
Many financial institutions, particularly community banks, have enhanced the experience level of their boards by adding a director who is a banker or serves on the board of another financial institution. In general, utilizing a director who has current experience with another financial institution is a great way to add valuable perspective to a variety of issues that the board may encounter. In addition, as private equity funds made substantial investments in financial institutions, they often bargained for guaranteed board seats. The individuals selected by private equity firms as board representatives often serve on a number of different bank boards. As market conditions have led to increased bank failures, however, a problem has resurfaced that may cause some financial institutions to take a closer look at nominating directors who also serve other financial institutions: FDIC cross-guarantee liability.
The concept of cross-guarantee liability was added to the Federal Deposit Insurance Act by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). The pertinent provision states that any insured depository institution shall be liable for any loss incurred by the FDIC in connection with:
This means that if two banks are “commonly controlled” and one of them fails, the other bank can be held liable to the FDIC for the amount of its losses or estimated losses in connection with the failure. As many of us see each Friday, the amounts of these estimated losses are often quite high. In fact, the FDIC’s estimated losses for 2011 bank failures were approximately 20 percent of total failed bank assets for the year. Accordingly, the prospect of cross-guarantee liability can be a tremendous financial issue for the surviving bank.
The concept of cross-guarantee liability was developed in response to some perceived abuses by multi-bank holding companies during the 1980s. In those instances, one or more institutions owned by a multi-bank holding company failed, causing significant losses to the FDIC, while the other subsidiaries of the multi-bank holding remained open and viable, allowing the holding company to continue to profit from their operations while the FDIC was stuck with the losses from the failed institutions. With authority to assess cross-guarantee liability now in hand, however, the FDIC has shown a willingness to assert cross-guarantee liability under facts that would not be considered by most to be abusive. In this cycle, the FDIC appears to be willing to take full advantage of the assessment authority granted to it by FIRREA, using cross-guarantee liability as a “sword” to provide a recovery to the Deposit Insurance Fund.
The imposition of cross-guarantee liability starts with an assessment of control. Whether institutions are “commonly controlled” for purposes of determining cross-guarantee liability depends upon whether each institution is under the control of a common entity under the Bank Holding Company Act of 1956, as amended (BHC Act). Because the determination of control is made under the BHC Act, the Federal Reserve’s BHC Act control guidance is a useful guide. However, this guidance is very dense and can be quite complicated, requiring a review of the ownership structure, management practices, and other business affiliations of the two institutions. However, one thing is clear: In questions of control, institutions that share “management officials”—common directors and/or executive officers—are generally more likely to be found to be under common control than those that do not, all other factors being similar.
As a result, institutions with directors who serve on other bank boards or as officers of other banks should assess potential cross-guarantee risk through the director nomination process. Nominating committees (or other committees of the board reviewing director qualifications) should ask the following questions:
If the answer to all of these questions is “yes,” the nominating committee should think carefully about whether nominating that individual is a good idea. In addition, institutions guaranteeing board seats to investors (such as in connection with a private equity investment) should consider an exception to the nomination requirement when the election of the representative could create a risk of assessment of cross-guarantee liability.
A risk assessment requires an in-depth factual, legal and financial analysis. There are few organizations that will find out this issue places them at risk, but it’s worth attention because the consequences can be severe. As a result, an assessment of this risk should be an integral part of the annual nomination process.
Hear from three bank directors who have completed recent transactions as they share their insight on how to handle board dynamics during the process.
Over the past several years we have seen the regulatory agencies become much more focused on board oversight and performance. This is a natural point of focus for regulators in a time of crisis in the banking industry. The fiduciary and oversight obligations of members of boards of directors are well established, and there is a road map in the corporate records for following the actions and deliberations of a board. I would suggest, however, that a board could receive a gold star for the quality of its minutes and its adherence to the established principles of corporate governance, and yet fall well short of being an effective working group.
This is the third in a series of articles of best practices for bank boards. Over the past several decades my partners and I have worked with hundreds of bank boards. Regardless of the size of the entity we have noticed a number of common characteristics and practices of the most effective boards of directors. In this article, I will discuss three additional best practices—meeting in executive session, making use of a nominating committee and director assessments and participating in the examination process.
Best Practice No. 6 – Meet in Executive Session
It is not uncommon for the most passionate and meaningful discussions among board members to occur in the parking lot of the bank following a board meeting. Much more time is spent in these parking lot sessions discussing a possible sale of the bank and the compensation and performance of the bank CEO than ever takes place in the board room. The most effective boards of directors move these conversations to the board room by means of executive sessions. Whether monthly or quarterly, the independent (i.e., non-management) directors meet in executive session and set their own agenda for those meetings.
I have found that CEOs who welcome and facilitate such executive sessions never regret doing so. Executive sessions provide a structured forum for the independent directors to meet as a group and speak freely regarding matters of interest and concern to them. Many positive ideas and discussions can result from these sessions. If the CEO is also chairman of the board, a “lead director” can chair the executive sessions. A best practice is for the chairman or lead director to meet with the CEO following an executive session and report on the substance of the matters discussed.
Best Practice No. 7 – Make Use of a Nominating Committee and Director Assessments
No director has a “right” to sit on a board. Members of the most effective boards of directors have an active desire to serve the bank, which is evidenced by a high level of engagement, preparation and participation. There should be a transition from the typical practice of automatically re-nominating existing board members to a process of conducting annual director assessments coupled with a nominating committee for director elections.
The CEO should not be involved with either director assessments or the nominating committee—these are board functions and should be managed by the board under the direction of the chairman or the lead director. Annual director assessments could initially be done by means of self-assessments, coupled with a one-on-one meeting between each director and the chairman. These one-on-one meetings can serve as the basis for discussion of the director’s enthusiasm for and participation in the activities of the board.
The process of implementing an active nominating committee and annual director evaluation process is also about risk management going forward. In these times of continued economic uncertainty and increased regulatory scrutiny, it is important that banks have active and engaged directors.
Best Practice No. 8 – Actively Participate in the Examination Process
Members of the board should be involved in the regulatory examination process. The regulators really do want and expect the board to be involved in and understand the issues which the regulators believe may be facing the bank. Involvement of the entire board or key members of the board from the first management meeting with the examiners to the exit meeting is tangible evidence that the board is actively engaged in oversight of the bank. It can also be beneficial for members of the board to hear the concerns of the regulators directly, and to observe management’s interaction with the examiners.
I recently attended an exit meeting with bank management following conclusion of an exam. Several of the bank’s directors were present because they wanted to get a preview of the exam findings on asset quality. During the exit meeting the lead examiner raised concern about a risk management issue of potentially significant magnitude. The issue clearly took the bank’s CEO by surprise, but the presence at the meeting of the board’s chairman had a calming effect. The chairman looked across the table at the lead examiner and said in a convincing tone, “We will fix this immediately.” The issue was then quickly resolved, and the final examination report commented favorably on that action. The end result may well have been the same without the presence of board members at the exit meeting, but I believe their presence was very helpful and reflected well on the bank.
Over the past several years I have attended dozens of meetings of boards of directors of banks in troubled condition. The vast majority of these boards were well functioning and had dedicated and hard working directors. Geographic location has been the predominant factor in determining winners and losers among banks in this challenging economy. However, there have been several situations in which it appeared to me that the composition of a board, and the interpersonal dynamics among its members, had magnified the impact of the economic downturn. A bank board is like any other working group in that the direction and decisions of a board can be heavily influenced by members who dominate the conversation, or by members who actively discourage discussion or dissent.
This is the second in a series of articles on best practices for bank boards. During the past several decades, my partners and I have worked with hundreds of bank boards, for institutions ranging in size from under $100 million in assets to well over $10 billion in assets. Regardless of the size of the entity, we have noticed a number of common characteristics and practices of the most effective boards of directors. This series of articles describes ten of those best practices. In the first article in the series, I focused on two fundamental best practices—selecting good board members and adopting a meaningful agenda for the board meetings. In this article I will discuss three additional best practices—providing the board with meaningful information, encouraging board member participation and making the committees work.
Best Practice No. 3 – Provide the Board with Information, Not Data
Change the monthly financial report to something meaningful. Most boards need to know only about 20 to 30 key data points and ratios and how those numbers compare to budget, peer banks and prior year results to have a good handle on the condition of the bank. By contrast, the typical financial report at a bank board meeting is encompassed in a 25 to 30 page document that blurs into a very detailed, and often meaningless, recitation of data that is difficult to follow.
Providing meaningful information in an understandable format is essential for the board members to identify and manage risk. Less is often more in effective board presentations.
Best Practice No. 4 – Encourage Board Participation
No board should be burdened with a devil’s advocate who has to speak in opposition to everything, but there should be an atmosphere in the board room which allows for dissenting views and occasional no votes. Far too many meaningful questions go unasked in the board room. Board members need to feel empowered to ask challenging questions, and also to say that they don’t understand a proposal or a presentation.
In my experience, a very powerful question is the question: Why? A sense of momentum and inevitability can develop during the discussion of a proposal in a board room, particularly when the discussion is dominated by one or more directors who are persuasive or who feel strongly about a position.
I know several bank boards that greatly benefitted from a few independent thinking directors in the years running up to the current economic downturn. Those directors had the insight and the courage to question generally held beliefs in a boom real estate market. More importantly, the culture of the boards on which they served allowed for real discussion of concerns expressed by directors.
Best Practice No. 5 – Make the Committees Work
The best functioning bank boards almost always have an active and involved committee system. There is effective leadership of their committees, and the committee members take the time to read and analyze management reports and related materials in advance of meetings. If you ever need to provide motivation for committee members to be more focused and attentive, give them a copy of one of the complaints filed in litigation by the FDIC against directors of a failed institution. Almost all of the FDIC lawsuits assert a lack of adequate attention and focus by directors, and particularly by loan committees.
Directors should not become micro-managers, but management of the bank should feel that board members are holding them to a certain level of performance and accountability. “Noses in and fingers out” is a good maxim for directors to follow, whether in the committee setting or on the board as a whole.
A strong committee system also helps build real expertise on the board, which can help support management. Future board leaders can be identified through their work on committees. We recommend that committee chair positions, particularly among the two or three most active committees of the board, be rotated every few years. This allows for broader exposure of directors to leadership positions, and can heighten their overall understanding of the bank’s business. It also brings a fresh perspective and approach to the committees. Leadership ability and the commitment of time and energy should be the main criteria for selecting committee chairs.