A question we get as board advisors is: do non-executive Board Chairs and Lead Directors typically serve on board committees, and if they do serve on a board committee, or committees, is it typically as a member or as the Chair of the Committee? We analyzed practices among the 100 largest U.S. public companies, by revenue, to address this and related questions, with a focus on the three standard board committees: Audit, Compensation and Nominating/Governance.

Do non-executive Board Chairs and/or Lead Directors serve on board committees?

Among our sample, a majority of both non-executive Board Chairs and Lead Directors serve on board committees. 69% of non-executive Board Chairs serve on at least one board committee, compared to 83% of Lead Directors. Most commonly, both roles serve on one or two of the standard board committees, and on average non-executive Board Chairs serve on 1.1 board committees compared to 1.4 committees for Lead Directors. In our experience, directors serving in either of these leadership roles at times will attend committee meetings even if they are not a formal/voting member of a given board committee.

Which board committees do non-executive Board Chairs and Lead Directors serve on?

Among the non-executive Board Chairs that serve on at least one committee, they most often serve on the Nominating/Governance Committee (59%), followed by the Compensation Committee (33%), with more limited prevalence of serving on the Audit Committee (13%).

At a high level, prevalence is directionally consistent for Lead Directors, Nominating/Governance Committee has the highest prevalence (57%), Compensation Committee has the second highest prevalence (48%), and Audit Committee has the lowest prevalence (32%) among Lead Directors that serve on at least one board committee. While directionally similar in terms of prevalence, Lead Directors are more than twice as likely (32%) to serve on an Audit Committee as a non-executive Board Chair (13%). This is likely driven by the independence standards that exist for Audit Committee members on public company boards.

When non-executive Board Chairs or Lead Directors serve on a board committee, how often do they Chair that board committee?

Among non-executive Board Chairs that serve on at least one committee, when they are on an Audit Committee they serve in the Chair role 20% of the time, when they are on a Compensation Committee they serve in the Chair role 31% of the time, and when they are on a Nominating/Governance Committee they serve in the Chair role 35% of the time.

In contrast, among Lead Directors that serve on at least one committee, none in our sample served as the Chair of the Audit Committee. Serving as the Chair of the Compensation Committee is also less common for Lead Directors compared to non-executive Chairs, with the Lead Directors in our sample serving in the Chair role only 17% of the time. The Nominating/Governance Committee has the inverse relationship, where Lead Directors serve as the Chair in the majority of instances (56%) which is significantly higher than their non-executive Chair counterparts.

Conclusion

This information has compensation-related implications. For example, a question that periodically comes up during director compensation reviews, is for instances where the Lead Director also serves as the Chair of the Nominating/Governance Committee, is if the Lead Director should receive additional compensation for both roles, or just for the Lead Director role? Answering such questions in a data-based manner, in terms of both pay data and other relevant market/prevalence data, is best practice. Detailed information on pay levels and trends can be found in CAP’s annual CAPintel on non-employee director compensation here:

https://www.capartners.com/cap-thinking/director-compensation-increases-are-back-among-the-largest-us-companies/

Blackrock, Vanguard, and State Street (the “Big Three”) are among the largest and most influential institutional investors in the world with current assets under management (AUM) of $10.0, $8.2, and $4.1 trillion respectively. Given their size, they have ownership stakes in many U.S. publicly traded companies. As a result of their holdings, the Big Three have the power to influence proxy voting outcomes, and any policy update, should be closely monitored by companies.

For the 2022 proxy season, the Big Three released their proxy voting guidelines and engagement priorities. These updates are a way for the public, and companies to understand the Big Three’s positions and priorities for 2022.

In the following chart we summarize a variety of policy updates from the Big Three that focuses on executive compensation, Compensation Committee voting, human capital management, board composition and board of director overboarding.

As summarized above, there has been a focus over the last few years on ESG, particularly on diversity among the board of directors and workforce, human capital management and climate change (not summarized above). The Big Three believes companies that focus on these issues will enhance a company's ability to maximize long-term shareholder value.

This article highlights select changes and updates to the Big Three's voting policies. For full detail related to all the proxy voting guidelines, please visit:

Blackrock:

• BlackRock Investment Stewardship – Proxy Voting Guidelines for U.S. securities
• BlackRock Investment Stewardship – Engagement Priorities

Vanguard:

• Proxy voting policy for U.S. portfolio companies

State Street:

• Proxy Voting and Engagement Guidelines – North America (United States & Canada)
• CEO's Letter on Our 2022 Proxy Voting Agenda
• Guidance on Diversity Disclosures and Practices
• Guidance on Managing Director Time Commitments
• Guidance on Human Capital Management Disclosures & Practices

In anticipation of the SEC’s upcoming “Roundtable on the Proxy Process,” the SEC has withdrawn letters issued in 2004 to Egan-Jones Proxy Services and Institutional Shareholder Services, Inc. (ISS) that many argue were responsible for entrenching the influence of shareholder advisory firms. The SEC’s roundtable is expected to be held in November 2018, and more recommendations to the Commission regarding proxy advisory firms from investment advisors and corporate issuers may result.

On Thursday, September 13th, the SEC’s Division of Investment Management released this statement: “(it) has been considering (among other topics) whether prior staff guidance about investment advisers’ responsibilities in voting client proxies and retaining proxy advisory firms should be modified, rescinded or supplemented.” The statement went on to assert that “staff guidance is nonbinding and does not create enforceable legal rights or obligations.” Under this rationale and with the upcoming roundtable in mind, the letters were withdrawn to encourage and facilitate debate on the most appropriate role for the proxy advisory firms.

How did we get here?

In 2003, the SEC issued rules which required mutual funds and investment advisors to design and implement policies and procedures intended to ensure that proxies are voted in the best interests of their clients, i.e. to avoid a conflict of interest influencing decisions made on their behalf. In 2004, Commission staff issued the now withdrawn letters which allowed the outsourcing of fiduciary obligation of investment advisors to independent proxy advisory firms. This allowed advisors to rely on proxy advisory firm recommendations to fulfill their fiduciary responsibility to clients. Since then, we have witnessed the significant increase in power and influence of companies like ISS and Glass Lewis, the leading proxy advisory firms. For example, today an ISS “Against” recommendation on a Say on Pay proposal will typically reduce shareholder support by about 30%.

Proxy advisory firms play an important role in developing acceptable governance practices for companies and boards. Yet they are often criticized for applying a rigid, “one size fits all” model to companies across all industries that often disregard market conditions. While there are instances where recommendations against compensation programs and the directors responsible for them are warranted, this cookie cutter approach has led to some unfair recommendations. Companies are then left scrambling to respond, trying to draw attention to faulty analysis and salvage the shareholder vote. The frustrations produced in these instances are amplified further by the apparent conflict of interest that arises when the proxy advisory firm responsible for the “against” vote recommendation charges fees for consulting services intended to avoid similar outcomes in the future.

Impact of the Withdrawal?

While the withdrawal of these letters does little other than provide a clean slate for an open discussion in the fall, it feels like a solid punch landed for those in the corporate community lobbying for greater oversight of the proxy advisory firms. House Financial Services Committee Chairman Jeb Hensarling, R-Texas, welcomed the move this week saying, “The proxy advisory firm duopoly is in serious need of reform and SEC attention. The market power of proxy advisory firms demands greater accountability for these firms’ actions and the information that they provide institutional investors.”

In response, both ISS and Glass Lewis issued public statements that they have never relied upon these no-action letters and the withdrawal has no impact on the services they are providing or how investors use their advice.

We anxiously await the discussion at the SEC’s roundtable in November. Perhaps the withdrawal of these letters will lead to a renewed and meaningful discussion on an appropriate level of oversight, transparency, and accountability of proxy advisory firms that ultimately strengthens corporate governance.