In the flood of corporate reform unleashed by recent business scandals, one issue has been largely ignored, shareholder activists say: the stratospheric level of executive pay and the nearly impossible task investors face in trying to figure out who is getting how much.
Now that may be changing, according to Securities and Exchange Commission Chairman William H. Donaldson and others who follow the issue.
In a recent interview, Donaldson criticized both the level of executive pay in the United States and the clarity with which businesses disclose compensation to shareholders, especially the lavish retirement packages that often hide in the small print of SEC filings, if they are disclosed at all.
"I believe in people being well paid for really doing something," Donaldson said. "[But] as far as salaries and compensation are concerned, there remains obfuscation about who's being paid what. . . . We have to think through what new rules we want to make things more clear than they are now."
Shareholder groups say it has been over a decade since significant changes were made to compensation disclosure requirements.
In that period, they say, corporate managers have become increasingly adept at camouflaging pay and benefits and reporting the smallest numbers possible in the charts they are required to file with the SEC. The media and investors rely on those filings for summary pay information.
"I started hearing about disclosure changes several years ago," said Carol M. Bowie, director of the corporate governance service at the Investor Responsibility Research Center, which advises institutional investors and others on governance issues.
"But I think the SEC got sidetracked after Enron and now [pay disclosure] is really the last remaining area for reform that has not been addressed," Bowie said, referring to the implosion of energy trader Enron Corp.
Donaldson said in the interview that SEC commissioners and staff are still in the early stages of considering possible new rules that would require greater disclosure -- in plain English -- of the true costs of retirement packages and other forms of executive compensation.
SEC spokesman Matthew Well said it was too soon to speculate about what new disclosure rules might entail. The new rules probably will not be in place until sometime next year at the earliest.
Alan L. Beller, director of the division of corporate finance at the SEC, is scheduled to give a speech at a conference later this month on what the agency expects in terms of compensation disclosure and actions it plans to take when it does not consider disclosure sufficient.
Those who closely follow executive pay say a handful of changes being discussed inside the SEC could strongly discourage boards from awarding enormous compensation packages that might result in shareholder backlash and a drop in their firms' stock prices.
Perhaps foremost among the possible changes would be to require more precise and easier-to-understand disclosure of executive pensions and supplemental executive retirement plans, or SERPs. Experts say companies can hide large SERP payments, in part because they are not required to disclose the yearly increase in value of such plans in compensation tables.
In addition, firms generally calculate pension plan payments based on an executive's years of service. But in many cases, executives are given credit for many more years than they actually were on the job, something it can be hard for shareholders to figure out without wading through fine print or reading executive biographies to determine how long an individual actually has worked at a company.
For example, Delta Air Lines Inc.'s Leo F. Mullin received credit for an additional 22 years of service toward his executive pension plan when he retired as chief executive this year. US Airways' Stephen M. Wolf took a $15 million lump-sum pension payment when he stepped down as chief executive before the firm filed for bankruptcy protection the first time in 2002. The payment rewarded Wolf for an extra two decades of service to the airline.
Complicated retirement plans that even some board members who approved them said they did not understand helped former New York Stock Exchange chairman Dick Grasso pocket $139.5 million in 2003. The payment led to widespread outrage and Grasso's ouster from the NYSE, which is not a publicly traded company. New York Attorney General Eliot L. Spitzer is suing Grasso in attempt to get much of the money back.
Another factor that makes handsome retirement packages easy to hide is that firms are not required to include pay to former executives in compensation tables, corporate governance experts said.
In the interview, Donaldson also complained that big retirement payouts generally are unrelated to performance measures, meaning retired executives usually are entitled to every penny even if their companies performed poorly or collapsed after they left due to decisions they made on the job.
"I've always felt there ought to be more attention paid to the immediate years after a CEO goes out to pasture," Donaldson said. "A big part of compensation should be tied to that period. You have this big game that everyone plays where a new person comes in and you write everything off and start over."
Another area in which stronger disclosure could be required is the real value of non-cash perks to current and former executives, such as the use of corporate jets, limousines and apartments.
The SEC already has begun to show its enforcement teeth on this issue, most prominently in a September settlement with General Electric Co. that accused the company of failing to "fully and accurately disclose" sumptuous benefits given to former chairman John F. Welch Jr.
Those perks, which did not become public knowledge until they were disclosed in Welch's divorce proceedings, included use of corporate aircraft, a New York apartment, laundry, flower arrangements, sports tickets and much more.
The GE settlement did not include a fine. But many shareholder watchdog groups and advisers to corporate boards viewed it as a signal of the SEC's resolve to address the issue. Tyson Foods Inc. also recently disclosed that the SEC may file civil charges over perks given to former chairman Donald J. Tyson.
Brandon Rees, a research analyst in the investment office of the AFL-CIO, said companies should be required to be much more forthcoming about the dollar value of all perks and benefits afforded to current and former executives. "Right now there is pretty wide latitude and a lot of gray area," he said.
Paul Hodgson, a senior researcher at the Corporate Library, an investor advocacy group, said corporate boards are increasingly asking for "tally sheets" that total up the value of all pay, perks and benefits given to current and former executives.
"For those boards that have requested and been given the total cost, most have had what is being called a 'holy cow moment,' as in 'Holy cow, we're paying them that much?' " Hodgson said. "There is also a growing awareness that if boards haven't figured this out, they will be open to breach of fiduciary duty charges for not doing their job properly."
Hodgson and others said one reform could be to require companies to disclose these tally sheets so investors have an easier time assessing exactly how their money is being used to pay executives.
Executive compensation is under scrutiny in Congress as well. For example, Andrew C. Liazos, an attorney at McDermott Will & Emery LLP, said the corporate tax bill passed by Congress yesterday would put new restrictions on executives' ability both to defer and to accelerate payment of retirement benefits.
Starting in 2005, the bill would make it harder for executives to defer payment of certain retirement money until they are in a lower tax bracket. It would also make it harder for them to take big lump-sum retirement payments right away, a practice that has been criticized because it can allow executives to cash out before their companies file for bankruptcy protection.
Meanwhile, even as shareholder groups embrace the possibility of stronger compensation disclosure, many say the most significant change to address the pay issue is one the SEC is already struggling with: giving shareholders a stronger hand in selecting corporate directors.
Donaldson has expressed his desire to reach some kind of agreement that would allow shareholders to nominate board candidates under certain limited circumstances. But business groups are adamantly opposed to the idea, and it could still fail. Investor advocates say this could mean compensation will continue to escalate no matter what happens with disclosure rules.
"There is no shareholder response or possibility of shareholder response and certainly no regulatory response that will make anywhere near the difference that an end to the 'Let me put you on my board and you can show your gratitude by hiking my pay' system will," said Nell Minow, co-founder of the Corporate Library.