Tag: SEC Inspector General

Watching the Watch Dogs

According to a story by Jean Eaglesham in the Wall Street Journal, at least two employees working for SEC’s Inspector General have filed complaints alleging that he and his senior staff retaliated against them for calling out misconduct within the inspector general’s office.

The allegations center on potential time and attendance fraud by a supervisor in the inspector general’s office and a junior subordinate. The whistleblowers said the two employees regularly disappeared together for several hours during workdays and engaged in inappropriate conduct in the office. The office’s own investigation of the complaints found insufficient evidence to conclude the two employees had an inappropriate relationship, but noted that “the supervisor created the appearance” of such a relationship. The SEC Office of Inspector General referred the complaints to a federal prosecutor, who declined to pursue the case

It was a case of the process being wrong.

The whistleblowers’ concerns focus on how Carl Hoecker, the SEC inspector general, handled their complaints.  The whistleblowers allege that the internal investigation wasn’t sufficiently independent to be fair. They also claim that they suffered retaliation for voicing their concerns.

Federal agencies have inspectors general to oversee the agencies and to encourage whistleblowing. They are supposed to be a model for private firms.

The internal probe was led by two senior officials in the office. But one of those was a senior investigator who hired and supervised the two employees at the center of the complaints. Of course there is an inherent conflict. If the employees were misbehaving, the supervisor would look bad for not having dealt with the problem.

Now the Office of Special Counsel is involved. That office is yet another federal agency whose primary mission is to safeguard the mer​it system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.

I’m not sure there is much here for the underlying case. A supervisor may have been canoodling with one of his co-workers. You stop that prevent all the likely harm and drama that comes along with that. But the lesson for compliance is to make sure the process looks transparent and that the whistleblower understands what is going on . Now the whistleblower problem is bigger than the original problem.

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Review of SEC’s Process for Selecting Adviser Examination Targets

Review of the Commission’s Processes for Selecting Investment Advisers and Investment Companies for Examination

To continue the Madoff dogpile on the SEC, the SEC’s Office of Inspector General released a report criticizing the SEC’s process for selecting investment advisers and investment companies for examination.

Review of the Commission’s Processes for Selecting Investment Advisers and Investment Companies for Examination pdf-icon

As a result of OCIE never having examined Madoff’s investment firm, the Inspector General conducted this review to determine OCIE’s rationale for not performing an examination of Madoff’s investment advisory business. They came up with 11 recommendations:

Recommendation 1:

The Office of Compliance Inspections and Examinations (OCIE) should implement a procedure requiring, as part its process for creating a risk rating for an investment adviser, that OCIE staff perform a search of Commission databases containing information about past examinations, investigations, and filings related to the investment adviser.

Recommendation 2:

The Office of Compliance Inspections and Examinations (OCIE) should change the risk rating of an investment adviser based on pertinent information garnered from all Divisions and Offices of the Commission, including information from OCIE examinations and Enforcement investigations, regardless of whether the information was learned during an examination conducted to look specifically at a firm’s investment advisory business.

Recommendation 3:

The Division of Enforcement and the Office of Compliance Inspections and Examinations should establish and adhere to a joint protocol providing for the sharing of all pertinent information (e.g., securities laws violations, disciplinary history, tips, complaints and referrals) identified during the course of an investigation or examination or otherwise.

Recommendation 4:

The Office of Compliance Inspections and Examinations (OCIE) should establish a procedure to thoroughly evaluate negative information that it receives about an investment adviser and use this information to determine when it is appropriate to conduct a cause examination of an investment adviser. OCIE should ensure its procedure provides for timely opening of a cause examination.

Recommendation 5:

When the Office of Compliance Inspections and Examinations (OCIE) becomes aware of negative information pertaining to an investment adviser, OCIE should examine the investment adviser’s Form ADV filings and document and investigate discrepancies existing between the adviser’s Form ADV and information that OCIE previously learned about the registrant.

Recommendation 6:

The Office of Compliance Inspections and Examinations (OCIE) should establish a procedure to thoroughly evaluate an investment adviser’s Form ADVs when OCIE becomes aware of issues or problems with an investment adviser. OCIE should document areas where it believes a Form ADV contains false information and initiate appropriate action, such as commencing a cause examination.

Recommendation 7:

The Office of Compliance Inspections and Examinations (OCIE) should re-evaluate the point scores that it assigns to advisers based on their reported assets under management. OCIE should assign progressively higher risk weightings to firms that have greater assets under management.

Recommendation 8:

The Office of Compliance Inspections and Examinations (OCIE) should re-evaluate the point scores that it assigns to firms based on their reported number of clients to which they provide investment advisory services. OCIE should assign progressively higher risk weightings to investment advisers that serve a larger number of clients.

Recommendation 9:

The Office of Compliance Inspections and Examinations (OCIE) should recommend to the Chairman’s office that it institute a Commission rulemaking that would require the following additional information to be reported as part of Form ADV:
• Performance information;
• A fund’s service providers, custodians, auditors and administrators, and applicable information about these entities;
• A hedge fund’s current auditor and any changes in the auditor; and
• The auditor’s opinion of the firm.

Recommendation 10:

The Commission should finalize the proposed rule titled Amendments to Form ADV [Release No. IA-2711; 34-57419]. In finalizing this rule, the Commission should consider what, if any, additional information investment advisers should include in Part II of Form ADV by consulting with the Office of Compliance Inspections and Examinations (OCIE) and the Division of Investment Management (IM). Further, the Commission, in consultation with OCIE and IM, should consider provisions that would assist OCIE to efficiently and effectively review and analyze the information in Part II of Form ADV.

Recommendation 11:

The Office of Compliance Inspections and Examinations (OCIE) should develop and adhere to policies and procedures for conducting third party verifications, such that OCIE verifies the existence of assets, custodian statements, and other relevant criteria.

This is now the fourth report the SEC’s OIG has issued as a result of Madoff, following up on:

SEC’s Office of Compliance Inspections and Examinations Gets a Review

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The SEC’s Division of Enforcement was not alone in getting a report from the SEC’s Inspector General: Improvements Needed Within the SEC’s Division of Enforcement. The Office of Compliance Inspections and Examinations also got a review from the Inspector General: Review and Analysis of OCIE Examinations of Bernard L. Madoff Investment Securities, LLC. pdf-icon

For this report, the Office of the Inspector General hired FTI Consulting, Inc. to help with the review. Not to be outdone by the report on the Division of Enforcement, FTI came up with 37 recommendations, topping the other report’s 21 recommendations.

So far that’s a total of three reports and 58 recommendations from the SEC’s Inspector General as a result of the Madoff incident.

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Improvements Needed Within the SEC’s Division of Enforcement

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The SEC’s Inspector General, H. David Kotz, released his most recent report: Program Improvements Needed Within the SEC’s Division of Enforcement.pdf-icon

The report is sort of a follow-up to the Madoff Report. The Office of the Inspector General conducted a review “to identify systemic issues that would prevent Enforcement from accomplishing its mission to enforce the securities laws and protect investors and determine from discussions with staff and supervisors which programmatic improvements are needed.”

The Inspector General’s 21 recommendations are:

  1. Establish formal guidance for evaluating various types of complaints (e.g., Ponzi schemes) and train appropriate staff on the use of the guidance. The guidance should address the necessary steps and key information required to be collected when conducting preliminary inquiries of various types of complaints, specify what information should be documented, and list whom should be consulted in other offices within the SEC with relevant expertise in various subject matters and other pertinent data.
  2. Ensure the SEC’s tip and complaint handling system provides for data capture of relevant information relating to the vetting process to document why a complaint was or was not acted upon and who made that determination.
  3. Require tips and complaints to be reviewed by at least two individuals experienced in the subject matter prior to deciding not to take further action.
  4. Establish guidance to require that all complaints that appear on the surface to be credible and compelling be probed further by in-depth interviews with the sources to assess the complaints validity and to determine what issues need to be investigated. Such guidance should also require that staff obtain all relevant documentation related to such complaints.
  5. Provide training to staff to ensure they are aware of the guidelines contained in Section 3.2.5 of the Enforcement Manual and Title 17 of the Code of Federal Regulations, Section 202.10 for obtaining information from media sources.
  6. Annually review and test the effectiveness of its policies and procedures with regard to its new tip and complaint handling system. Enforcement should also modify these policies and procedures, where needed, to ensure adherence and adequacy.
  7. Put in place procedures to ensure that investigations are assigned to teams where at least one individual on the team has specific and sufficient knowledge of the subject matter (e.g. Ponzi schemes) and the team has access to at least one additional individual who also has such expertise or knowledge.
  8. Train staff on what resources and information is available from the national specialized units and when and how assistance from these units should be requested.
  9. Make it mandatory that planning memoranda be prepared during an investigation and that the plan includes a section identifying what type of expertise or assistance is needed from others within and outside the Commission. The plan should also be reviewed and approved by senior Enforcement personnel.
  10. Require that after the planning memorandum is drafted, it is circulated to all team members assigned to the investigation, and all team members then should meet to discuss the investigation approach, methodology and any concerns team members wish to raise.
  11. Establish procedures so that junior-level Enforcement attorneys who are having difficulty with obtaining timely assistance from outside offices are able to escalate their concerns to senior-level management within Enforcement.
  12. Conduct periodic internal reviews of any newly implemented policies and procedures related to information sharing with Divisions and Offices outside of Enforcement to ensure they are operating efficiently and effectively and necessary changes are made.
  13. Require that the planning memorandum and associated scope, methodology and timeframes be routinely reviewed by an investigator’s immediate supervisor to ensure investigations remain on track and determine whether adjustments in scope, etc. are necessary.
  14. Ensure that sufficient resources, both supervisory and support, are dedicated to investigations upfront to provide for adequate and thorough supervision of cases and effective handling of the investigations.
  15. Put in place policies and procedures or training mechanisms to ensure staff have an understanding of what types of information should be validated during investigations with independent parties such as the Financial Industry Regulatory Authority, Depository Trust Company, and Chicago Board Options Exchange.
  16. Include in its complaint handling guidance proper procedures for ensuring complaints received even if an investigation is pending closure, are properly vetted.
  17. Conduct periodic internal reviews to ensure that MUIs are opened in accordance with any newly developed Commission guidance and examine ways to streamline the case closing process. Enforcement should also ensure staff have adequate time in which to complete these types of administrative tasks.
  18. Put in place a process to periodically remind staff of their responsibilities regarding impartiality in the performance of official duties and instruct staff where they can find additional information regarding impartiality.
  19. Establish or utilize an existing working group to analyze the OIG survey information regarding staff concerns over communication of program priorities and make recommended improvements to the Director of Enforcement.
  20. Establish or utilize an existing working group to analyze the OIG survey information regarding staff concerns regarding case handling procedures within Enforcement and make recommended improvements to the Director of Enforcement.
  21. Establish or utilize an existing working group to analyze the OIG survey information regarding staff concerns over working relationships within Enforcement and make recommended improvements to the Director of Enforcement.

Robert Khuzami, Director of Enforcement, responded to the Inspector General’s report (The response is in Appendix IV of the report.) and concurred with all 21 recommendations.

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