Crystal Clear Now – ESG Focus Must Be at the Top of the Corporation, for the Board Room & Executive Suite

July 2021

by Hank Boerner – Chair & Chief Strategist – G&A Institute

Remember those 1970s /early ‘80s ubiquitous TV commercials with the tag line, “When EF Hutton Speaks, People Listen?” The point was that when the EF Hutton financial services firm “said” something about investing possibilities, we would be wise to sit up and listen carefully to the advice.

These days we are tuning in to the Securities & Exchange Commission to discern the future directions of corporate sustainability / ESG disclosure. To us it is clear: the broadening flow of comments indicates something is about to happen regarding corporate ESG disclosure.

Prime example: the keynote address of former Acting Chair and current Board Member Commissioner Allison Herren Lee, sharing important points of view with those gathered at the Society for Corporate Governance 2021 National Conference. Herren Lee put ESG in the context of the recent proxy season for the corporate secretaries (who are on the front lines of the proxy voting).

2021 proxy season shareholder proposals included those focused-on climate change. Manufacturing giant General Electric saw 98% of shareholders voting to approve a proposal for disclosures on how the company would achieve Net Zero.

At ConocoPhillips, 58% of shareholders approved a measure to have the large fossil fuel firm achieve Scope 3 emissions reductions. At United Air Lines, 65% voted in favor of a resolution to have the transport giant provide more information about how its lobbying efforts align with the goals of the Paris Agreement.

Said the influential Commissioner (“D” members now are the agency’s board majority) about the backdrop of these types of resolutions coming from the providers of capital: “This is a broad reckoning with the need for advanced transparency on sustainability…also occurring amid ever-more powerful signals from major institutional investors of their commitment to sustainability.”

Commissioner Herren Lee talked about top-of-mind issues for board rooms and C-suites for mid-year 2021 (six months into the Biden-Harris Administration) on the “climate change crisis”: board challenges — climate, racial injustice, economic inequality, corporations and social & economic well-being of people and communities); public input on climate change disclosures; mitigating risks and maximizing ESG opportunities; enhancing board diversity; increasing board expertise; inspiring management success; public pledges on ESG issues that are actually backed by corporation action…and much more.

The Commissioner explained that the SEC itself is “listening” as well to the “thousands of comments in response to the request for public input on climate change disclosures.”

There is much more in the Commissioner’s comments to the corporate secretary universe that we bring to you in this post (including 58 footnotes). Safe to say these days – in board rooms and executive suites, when the SEC leaders speak, many in the corporate sector and capital markets are indeed listening.

Two related items are also on top for you. One is a recap from GreenBiz about this year’s “angst-filled proxy year” and another from Bloomberg Law about corporate leaders calling on their law firms to help “navigate the world of ESG governance.”

Here at G&A Institute, since the time of our founding 15 years ago, as the “ESG lockup” was coming together, we have advised that it could be “GES” – the governance (“G”) of the “E” and the “S” is a critical task up top of the organization…the details of this are neatly spelled out in abundance in the SEC Commissioner’s keynote address and in the many items that we bring you each week. If you are not already sharing these with board room and C-suite, please consider doing that!

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Pension Fund Activists Focus on Climate Change, Diversity, Director Nomination Process — with New York City Funds in the Lead

by Hank Boerner– Chairman, G&A Institute

Leading and influential activists in the sustainable & responsible investment community are focusing on the filing of their 2015 corporate proxy ballots with ESG issues top-of-mind. Let’s take a look at the actions of the New York City (5) pension funds (with US$160 billion in Assets Under Management).

The city comptroller, Scott M. Stringer, was elected in November 2013, along with the new high-visibility mayor (Bill DeBlasio).  Under Comptroller Stringer’s direction, the fund(s) are filing proxy proposals with 75 companies to demand a greater voice in the nomination of boards of directors.  This is the characterized as “giving shareowners a true voice in how boards are elected.” .

This campaign is designed to roll out proxy access demands across the broad public company universe in the United States.  Back in the 1800s, one of the corrupt big city political bosses was William M. “Boss” Tweed.  Said Comptroller Stringer:  “The current ]corporate] election procedures would make Boss Tweed blush. We are seeing to change the market by having more meaningful director elections through proxy access, which will make boards more responsive to shareowners.  We expect to see better long-term performance across our portfolio…”

(As local point of reference, Boss Tweed of Tammany Hall was a member of Congress and director of the Erie Railroad Company and 10th National Bank.  He was convicted of corruption and died in jail in 1878.  His name is synonymous with corruption, cronyism, political back slapping.)

The NYC comptroller serves as investment advisor to, and custodian and trustee of the 5 funds, which are for city employee beneficiaries — teachers, police, fire department, board of education, city employees.

Proxy access” is the ability for owners to nominate directors in addition to — or in opposition to — the company’s slate of directors (in the proxy statement).  Comptroller Stringer wants to give shareholders with (1) 3% of shares and (2) holding the shares for 3 years the “threshold” of being able to nominate candidates for board service, up to (3) 25% of the total board membership.  Those companies not agreeing to the proposal received the NYC fund ballot initiative.

And big corporate names are involved; the resolutions are being filed at:

  • 33 carbon intensive coal, oil & gas, and utility companies (such as Duke Energy, ExxonMobil, Chevron, Apache, AEP (power), Southwestern Energy, ConocoPhilipps, Peabody Energy);
  • 24 companies with few / or no women on the board, and “little or no” racial or ethnic diversity – including eBay, Priceline, Level 3 Communications, Urban Outfitters, Alexion Pharma;
  • 25 companies that received “significant” opposition to 2014 shareholder votes (advisory, not binding) on their executive compensation plans.

In focus: :”Zombie directors”  – of 41 corporate directors receiving less than a majority vote in 2013, 40 remain on their boards.  As Comptroller Stringer described them, “unelected, but still serving…

“This is all part of what the pension fund leaders call their “Boardroom Accountability Project,” designed to call attention to as boards of directors and their perceived failure to address critical issues — climate risk, excessive compensation and lack of diversity in the board room.

Note that under “”plurality” voting in un-contested elections, a director who receives just one vote (his or hers counts if shares are owned) is re-elected…even if every other vote is cast against him.  The project seeks to have companies amend their bylaws to change that situation.

New York State Comptroller Tom DiNapoli was re-elected by an overwhelming statewide majority in November; he enthusiastically endorsed the city funds’ project (he is the sole trustee of the US$180 billion New York State Common Fund). He described the Board Accountability Project as a wake-up call to boards of directors to change the way business in the board room is done.

Also in support:  Anne Stausboll, CEO for California Public Employees Retirement System (CalPERS) — the nation’s largest public employee pension fund with US$ 300 billion in AUM.

Her colleague, Anne Sheehan, corporate governance director at the California State Teachers Retirement System (CalSTRS) termed the board accountability project “long overdue for our country,” voicing her support.  The fund has US$186 billion AUM.

This is not just a “New York City” liberal-leaning thing — voicing support for the project were other public sector fiduciaries:

  • William R. Atwood, executive director of the Illinois State Board of Investment. (US$5 billion AUM)
  • Francis X. Bielli, executive director of the Philadelphia Board of Pensions & Retirement.   (US$4.5 billion AUM)
  • Travis Williams, chairman of the Firefighters Pension System of Kansas City, Missouri (US$460 million AUM)
  • Alex Fernandez, chairman of the Miami (Florida) Firefighters Relief and Pension Fund.( US$1.5 billion AUM)

Comptroller Scott Singer explained that the U.S. Securities & Exchange Commission (SEC) first proposed “universal proxy access” (for all shareholders) back in 2003 as a “way to end the Imperial CEO,” as Enron, WorldCom and other large-caps imploded and many went out of business.  In 2010, the SEC approved a universal policy access rule in response to the financial crisis.” In a federal district court case, the rule was set aside; the SEC still allows “private ordering,” the ability for shareowners such as pension funds to file resolutions to be placed on the annual voting ballot.

And so the battle lines are being drawn for 2015 corporate engagements.  Many of the public companies named by New York City funds are seen as leaders in sustainability, responsibility and accountability.  The proxy resolutions would seem to state otherwise.

It will be interesting to see how the Board Accountability Project progresses, and how corporate boards and C-suites see the demands presented for greater “Corporate Democracy.”