Today in Finance for April 8, 2008
SEC Charges Five Ex-Officials in San Diego Muni Fraud
Commission Chairman Christopher Cox has cited the city government's scandal as a reason to expand the SEC's regulatory powers over municipal bonds.
CFO.com | US
April 8, 2008
The Securities and Exchange Commission has filed civil fraud charges against five former San Diego city officials—mostly finance professionals—for their roles in the city’s financial crisis in 2002 and 2003.
The SEC charged the individuals for failing to disclose to investors buying the city’s municipal bonds that there were funding problems with San Diego's pension and retiree health care obligations and those liabilities had put the city in financial peril.
advertisement The five named were former city manager Michael Uberuaga, former city treasurer Mary Vattimo, former auditor an comptroller Edward Ryan, former deputy city manager of finance Patricia Frazier, and former assistant auditor & comptroller Teresa Webster.
"The facts will clearly demonstrate that all city officials and staff members acted with good faith and honest intention with regard to the bond offerings by the city of San Diego," stated Webster's attorney, Frank Vecchione. "At no time did Terri Webster act inappropriately or with intent to deceive any potential investor. The time has come to put the misperceptions and misrepresentations regarding Ms. Webster and these bonds to rest. We intend to do so."
Frazier's attorney could not be reached at presstime. Lawyers for the remaining three former officials did not return phone calls from CFO.com.
In the fraud complaint filed by the SEC on Monday, the commission charges that the five former San Diego officials knew that the city had been intentionally underfunding its pension obligations so that it could increase pension benefits while deferring the costs. The officials were allegedly aware that the city would face severe difficulty funding its future pension and retiree health care obligations unless it raised new revenues or pension and health care benefits or city services were cut.
The SEC alleges the ex-officials knew that the city’s unfunded pension liability was projected to grow dramatically from $284 million at the beginning of fiscal year 2002 to an estimated $2 billion by 2009 and that the city’s liability for retiree health care was another estimated $1.1 billion. But the officials failed to disclose those and other material facts in bond-offering documents and continuing disclosures, it added.
In a speech, SEC Chairman Christopher Cox has cited securities fraud within San Diego's city government in those years as a rationale for extending the commission's regulatory powers over municipal bonds. "While the SEC has anti-fraud authority -- allowing us to come in and clean up messes like [San Diego] after the fact," he said in a July 2007 speech, neither the SEC nor any other federal regulator can compel the municipal bond market to make the same sorts of disclosures that the SEC requires in the corporate securities market. "It's a basic common-sense consumer protection that is way overdue," Cox said at the time, calling for legislation giving the SEC "limited powers" to assure transparency in muni offering.
In its current complaint, the SEC alleges that Uberuaga signed the closing letter for one of the bond offerings, falsely certifying that it was accurate and did not contain any misleading statements. Ryan signed letters falsely representing that the city’s audited financials included in the securities offerings were accurate, the regulator alleged.
The commission also charged that Frazier regularly reviewed and revised the false and misleading disclosure documents and signed the closing letter for two out of a total five bond offerings relevant to the case. She falsely certified the disclosures as accurate and did not contain any misleading statements reviewed and made presentations to the rating agencies, the SEC alleged.
Webster reviewed city financials that contained some of the false and misleading disclosures, the commission charged, alleging that Vattimo took part in drafting the city’s false and misleading disclosures. Vattimo and Webster both allegedly knew that in 2003, the rating agencies had concerns about the city’s growing pension burdens and that those obligations could hurt the city’s credit rating. "Nevertheless, they withheld material facts from the rating agencies," the SEC added.
The SEC previously issued a sanction against San Diego for committing securities fraud by failing to disclose to investors important information about its pension and retiree health care obligations in the sale of its municipal bonds in 2002 and 2003. To settle the action, the city agreed to cease and desist from future securities fraud and to retain an independent consultant for three years to foster compliance with its disclosure obligations under the federal securities laws.
In December 2007, the SEC and the outside auditors for the city and its pension system, Thomas J. Saiz and Calderon, Jaham & Osborn, settled charges against the firm. Without admitting or denying the allegations in the complaint, the audit firm consented to the entry of a final judgment permanently enjoining them from violating the antifraud provisions of federal securities laws. The firm, which acted as the auditor of the city and the benefits plan, also paid a civil penalty of $15,000.