Baksheeh is a Persian word widely used throughout the Arabic world as well as in south east Asia and India to describe tipping, charitable giving and certain forms of political corruption and bribery. Think of it. With the same word, one can be said to be inducing someone to conduct illicit behavior or giving them alms. Isn’t language wonderful.
I come to this subject because of the landswell of press reports about that poor, struggling retailer, Walmart. You know them, they are the ones who have killed small town America by offering low, low prices on poor quality goods they acquire anywhere but America made by anyone but Americans and sold to those desperate to save money. Now, evidently, they are working their magic in Mexico. It is reported that in an effort to build even more stores faster than they otherwise would have, they have resorted to bribing public officials. I’m not talking nickels and dimes here. I mean real money…as in twenty four million dollars. Then they promoted the guy who did it, and when they were found out, appointed their own guy in the land of burritos to determine that what they did wasn’t all that bad and doesn’t warrant any action.
All of which brings me, albeit, circuitously back to baksheesh. Or maybe the word I should have used is “mordida” which actually is what Walmart paid to those Mexican officials they were attempting to induce to expedite various building permits. As most of us in Texas know, mordida translates roughly to “the little bite”. In fact, it may be big or little, but it is a part of latin american life. Mordidas are paid to the traffic cop to avoid the embarrassment and cost of a speeding ticket, to a parking lot attendant to motivate a little more care in safeguarding your car, and to the clerk at the telephone company to expedite the order you placed eighteen months ago. Were I German, on the other hand, I would have used the term “schmiergeld” which is suggestive of “smoothing things over” as in proffering smoothing money. Those subtle rascals the French have three ways to get to the same thing. They might say “dessous-de-table” which is the least subtle of all as it translates to “under the table”. More likely they would use the term pot-de-vin (which translates literally pot of wine), but which means all the same…bribe. They also often will revert to “commission occulte” which refers to a secret or hidden commission. The Italians have the cute word “bustarella” which is nothing more than a “little envelope”. Best of all is the Japanese word, which none of us can possible understand, “kuroikiri” which refers to “a black mist”. Wow! A black mist. How graphic.
Oddly, all of these terms and phrases lack the particularly negative connotation of the english word “bribe”. There is nothing good one can say about the word bribe unless you are the Governor of Louisiana who once pointed out after having been caught on camera in flagrante delicto by a correspondent of 60 Minutes accepting a sack full of cash from one trying to buy his influence on a matter of personal import. Governor Edwards pointed out to a clearly confused TV personality that “son, while it may be illegal in the Great State of Louisana to give a bribe, there’s nothing that says you can’t take one.” In english, bribe is just flat out a dirty word. Something that no good person would be involved in, but, of course, we do. Nah, not like the governor, but as a part of every day life. I refer to the money we call tips to pimply faced servers in a restaurant which we hope will induce acceptable service. The federal government, however, doesn’t like it. In fact, they passed a law about it. Well, you’re right. They pass a law about pretty much everything.
The Foreign Corrupt Practices Act was passed by our esteemed legislators and signed by president Jimmy Carter in 1977. The FCPA, as it is commonly known, vies for obfuscatory honors with the Sarbannes-Oxley Act of 2002. That is to say that the wording of the act invites more questions than it answers. Its general purpose, though, is to prohibit companies from using bribes to induce foreign officials to do something (usually in the interest of the company) to do something they shouldn’t do. As you might expect, there are exceptions and areas of vagueness that may never be well defined. The so called “ministerial exception” is the provision that causes most of the confusion. It provides for “facilitating payments” which is intended to motivate a foreign government official to do that which they otherwise should have done. Huh? How you you like to have to parse that one down. I did. Have to parse it down that is.
I was asked to approve a substantial “facilitating payment” from my company to an individual purporting to represent the Zakat (federal tax authority) of the Kingdom of Saudi Arabia. A few more details are in order. We had a relatively large contract with the Kingdom to fit out the computing facilities for the spanking new King Abdul Aziz University in Jeddah. As is their practice, they withheld twenty percent of our charges until the project was complete to their satisfaction (no it really didn’t matter what the contract said) and had documentation to prove that we had paid our taxes on the revenue received. We finished the contract. They agreed. We paid our taxes, and waited for the document we needed. It was not forthcoming. And we waited, and hired lawyers and waited some more. One day a large, somewhat oily Egyptian fellow appeared to one of our executives on the ground and with a sly smile suggested that he might be able to do something about it…the tax documentation that is. Of course, we listened. There was a lot of money at stake. What he wanted was a bag full of it, money, I mean, delivered to him on a certain date at a certain place. The decision, unfortunately, was up to me. I read the law, and I consulted all manner of counsel. No one could give me comfort on whether the payment would qualify as a facilitating payment under the ministerial exception to the harsh language of the FCPA. In a small stroke of genius and an effort to avoid the hoosegow, I determined to approach the Department of Justice and ask them for an advance ruling. If I did as requested by the Egyptian, would I be breaking the law? Of course, you know the answer. They would not or could not give me an answer. I was on my own. To make a long story shorter, I decided to request a resolution from our board of directors authorizing the payment (I do have some fairly sharply honed survival instincts) before I handed over the money. I got the resolution, paid the money, got the needed documentation, collected our hold back and got the hell out of Dodge. Thankfully, I never heard from the Department of Justice.
Baksheesh, bribery, dessue-de-table, or whatever you call it is evidently ok if you wrap yourself in bureaucratic legalisms; otherwise, beware.
Footnote: I predict that Walmart will settle this latest “mordida” brouhaha with the feds for more than $100,000,000. I will say I told you so.
