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7 months ago

What ethical and legal action can you take when you are forced to bribe? by Robin Singh

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law will always

law will always question, “Why didn’t you stop or say no on the face of it”? But humans and cultures differ in a multicultural environment, and it is not easy to say no on the face of it. However, it may be an operations person or a compliance officer who knows that “ignorance of the law is not an excuse” and will be held against that standard and prosecuted with that objective in mind. The bottom line is that ethics does not always jive with the law. No matter the training that compliance people might conduct, when you are caught up in a practical situation, more often than not, the pressures will not allow you to make an immediate correct decision. Certain thoughts would always come to mind, such as the pressure that, “Mr. X is an important vendor to my company. Mr. X is in good terms with my boss. What will my superiors think if I reject this ‘gift’?” These are the exact aspects of the Fraud Triangle (i.e., pressure, opportunity, and rationalization). Together, these three components lead to fraudulent workplace behavior. However, I see it as the same question as “Can someone be killed without intent?” The answer is yes. Imagine a pedestrian crossing a street. A hot coffee spills on a driver, and the distracted driver does not notice the traffic signal and hits the poor pedestrian. I know it would be considered a host of things, including negligence, but not intent. So what are the ethical steps one can take, and are only operations people responsible for facing the brunt of it? Well, I believe no. The second line of defense is risk management and compliance is the third line of defense, and both are equally responsible. This brings us to an aspect of how can people be trained, role play, etc. to help employees safeguard themselves from such situations? It’s easier to say no to a parallel person or a junior employee; however, it’s not easy to say no to an ambassador, or a person very This article appears with permission from the Society of Corporate Compliance & Ethics. Call +1 952 933 4977 or 888 277 4977 with reprint requests. ethikos January/February 2018 3

high in stature and, at the end of the day, that person will have nothing to do with you either. But a framework can be put in place by the Compliance function to safeguard in situations of ethical dilemmas. Now, bear in mind that this is different from being forced or asking someone to do something in response to a gift (or bribe)—an innocent mind. On the other hand, if someone is trying to force you, there is something that can help more than law and that is courage to report. Most of the compliance trainings fail to build courage/open lines of commutation to report, and thus people—the first line of defense—get caught up under a paramount pressure of the unknown. Not everyone has the courage to be a whistleblower and take on corporations by filing a case with government authorities. Again that courage is an aspect which requires a cumulative training from HR and Compliance to report, to help people build an understanding that they can report, and that tone at the top is just not another word in the standard of conduct, as it was in Enron’s case. However, the other part of this article concentrates on the visible aspect of bribery, that is, if someone is faced with an intentional bribe, what can a courageous employee do? Anti-bribing laws in the U.S. In general, statutes such as federal prosecutions of public corruption under the Hobbs Act (enacted 1934), the mail and wire fraud statutes (enacted 1872), the honest services fraud provision, the Travel Act (enacted 1961), and the Racketeer Influenced and Corrupt Organizations Act (RICO) (enacted 1970), all codified under Title 18 of the United States Code, were never set out to prosecute official corruption; each has been interpreted to provide a means to do so. Over due course of time, the federal official bribery and gratuity statute, 18 U.S.C. § 201 (enacted 1962), the Foreign Corrupt Practices Act (FCPA) (enacted 1977), and the federal program bribery statute, 18 U.S.C. § 666 (enacted 1984) directly address public corruption. All of the aforementioned statutes differ in: •§ their jurisdictional elements, •§ the mens rea (intent) that they require (e.g., a quid pro quo or a nexus), •§ the species of official actions that are cognizable, and •§ whether or not non-public official defendants can be prosecuted. Specifically, the federal official bribery and gratuity statute defines that whoever indirectly or directly offers an item of value (usually money) to a public official with the intent of influencing their actions will be required to pay a fine. The fine as an amount is three times more than the value of the item offered as a bribe. Or, the offender (recipient and offeror) will receive up to a 15-year prison sentence. Depending on the case, the punishment could include both the fine and the prison sentence. The recipient of the bribe, who is usually a public official, will also be dismissed from his/her role as a public official and will 4 January/February 2018 ethikos This article appears with permission from the Society of Corporate Compliance & Ethics. Call +1 952 933 4977 or 888 277 4977 with reprint requests.

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