Independent Fiduciary Consultant, Economics and Financial Ethics

One who intends to leave others better off for his having existed.

11/23/14

"Christopher Cox"

"Charles Christopher Cox (born October 16, 1952) is an American lawyer and former Chairman of the U.S. Securities and Exchange Commission...

In September 2008, the U.S. Congress passed and President Bush signed the Emergency Economic Stabilization Act of 2008, which placed Cox on the newly established Financial Stability Oversight Board that oversees the $700 billion Troubled Assets Relief Program.

Working with the Public Company Accounting Oversight Board, the SEC under Cox replaced the original auditing standard for Section 404 with a streamlined, more cost-effective version, and also provided new guidance for management intended to reduce unnecessary costs.

Under his leadership, the SEC on September 17 and 18, 2008, imposed a variety of both permanent and emergency restrictions on short selling in response to the liquidity crisis.

 In September 2008, short selling of 799 financial stocks was temporarily curtailed[93] in response to rumors accompanied by heightened short selling activity in the shares of major financial institutions.

Cox added that the Commission's decision to impose a three-week ban on short selling of financial company stocks was taken reluctantly, but that the view at the time, including from Treasury Secretary Henry M. Paulson and Federal Reserve chairman Ben Bernanke, was that "if we did not act and act at that instant, these financial institutions could fail as a result and there would be nothing left to save."

Cox stepped down as Chairman of the SEC at the end of the Bush administration, on January 20, 2009.

He joined the Boston-based international law firm of Bingham McCutchen LLP as a partner in the firm's Corporate, M&A and Securities practice"

http://en.wikipedia.org/wiki/Christopher_Cox

"Mary L. Schapiro"

"Mary L. Schapiro (born June 19, 1955) served as the 29th Chairperson of the U.S. Securities and Exchange Commission (SEC). She was appointed by President Barack Obama, unanimously confirmed by the U.S. Senate, and assumed the Chairwomanship on January 27, 2009. She is the first woman to be the permanent Chair of the SEC.

In 2008, her last year at FINRA, Schapiro earned a regular compensation package of $3.3 million; on departure from FINRA, she received additional lump sum retirement benefit payments to a total of just under $9 million.[9]She received $8.99 million as a “final distribution,” including $7.6 million in vested retirement benefits, according to a Finra report. She makes $163,500 at the SEC.

An early setback for Schapiro as SEC chairwoman occurred in September 2009 when U.S. District Judge Jed Rakoff rejected the SEC's proposed $33 million settlement with Bank of America. BoA had been charged with failure to disclose bonuses paid to Merrill Lynch executive before the two companies merged. Under the settlement's terms BoA was allowed to deny any wrongdoing, which they did when pressed by Rakoff on the matter of guilt.n Rakoff said the settlement did not "comport with the most elementary notions of justice and morality".  Seven months later, Rakoff approved a $150 million settlement of the BoA case; BoA did not have to change its declaration of innocence.

In April 2013, Schapiro joined Promontory Financial Group where she is Advisory Board Vice Chair.

Promontory Financial Group is a global consulting firm that advises clients on a variety of financial services matters, including regulatory issues, compliance, risk management, liquidity, restructuring, acquisitions, due diligence, internal investigations and cyber security.

The company was founded by former U.S. Comptroller of the Currency (1993−98) beneath the administration of Bill Clinton Eugene Ludwig and Alfred H. Moses who also works for the most prestigious international law firm Covington & Burling LLP. [Same law firm Eric Holder worked at]

Approximately 170 of the consultants working for Promontory were former employees of authorities in financial supervision, hence, the enterprise applies as a sort of "shadow regulator" for the Wall Street.

For the execution of Foreclosure Reviews from more than 250,000 loan contracts for the Bank of America, PNC Financial Services and Wells Fargo Promontory received $927 million which led to strong criticism and doubt about the independence of the examination.  A hearing was arranged by the U.S. Senate Banking Committee to check whether too many duties of the finance supervision were alienated by authorities to private companies."

http://en.wikipedia.org/wiki/Mary_Schapiro

Eric Holder, Attorney General of the United States, Get Ready to be a Defendant

"Eric Himpton Holder, Jr. (born January 21, 1951) is the 82nd Attorney General of the United States, in office since 2009. ...As of 2014 Holder is one of three members of the original Obama cabinet that are still serving in their posts...

Holder previously served as a judge of the Superior Court of the District of Columbia and a United States Attorney. While a U.S. Attorney, he prosecuted Congressman Dan Rostenkowski (D–Illinois) for corruption charges related to his role in the Congressional Post Office scandal.

Later, he was Deputy Attorney General of the United States and worked at the law firm of Covington & Burling in Washington, D.C. He was senior legal advisor to Barack Obama during Obama's presidential campaign and one of three members of Obama's vice-presidential selection committee. During the Fast and Furious investigation, he became the only cabinet member in U.S. history to be held in contempt of Congress.

On September 25, 2014, the Justice Department announced Holder would resign when his successor was confirmed.

From 2001 until he became Attorney General, Holder worked as an attorney at Covington & Burling in Washington, D.C., representing clients such as Merck and the National Football League.

He represented the NFL during its dog fighting investigation against Michael Vick.

In 2004, Holder helped negotiate an agreement with the Justice Department for Chiquita Brands International in a case that involved Chiquita's payment of "protection money" to the United Self-Defense Forces of Colombia, a group on the U.S. government's list of terrorist organizations.  In the agreement, Chiquita's officials pleaded guilty and paid a fine of $25 million. Holder represented Chiquita in the civil action that grew out of this criminal case.  In March 2004, Holder and Covington & Burling were hired by Illinois Governor Rod Blagojevich to act as a special investigator to the Illinois Gaming Board.

During his years in private practice, Holder represented the Swiss private bank UBS. Because of this, he recused himself from participating in the Department of Justice investigation of UBS's abetting of tax evasion by U.S. account-holders and the prosecution of Brad Birkenfeld.

After the U.S. government filed suit against the Swiss bank UBS AG, whom Holder had represented during his time in private practice, the attorney general recused himself from all legal matters concerning the bank, which stands accused of conspiracy in U.S. tax fraud.

Under Holder, the Justice Department has legally argued that journalists have no legal protection to maintain the confidentiality of their sources, and can be compelled by the government to reveal them, or potentially face criminal contempt charges.

...Refusal to prosecute financial institutions

On March 6, 2013, Holder testified to the Senate Judiciary Committee that the size of large financial institutions has made it difficult for the Justice Department to bring criminal charges when they are suspected of crimes, because such charges can threaten the existence of a bank and therefore their interconnectedness may endanger the national or global economy. "Some of these institutions have become too large,” Holder told the Committee, “It has an inhibiting impact on our ability to bring resolutions that I think would be more appropriate."

In a January 29, 2013 letter to Holder, Senators Sherrod Brown and Charles Grassley had criticized this Justice Department policy citing "important questions about the Justice Department's prosecutorial philosophy." After receipt of a DoJ response letter, Brown and Grassley issued a statement saying, "The Justice Department's response is aggressively evasive. It does not answer our questions. We want to know how and why the Justice Department has determined that certain financial institutions are 'too big to jail' and that prosecuting those institutions would damage the financial system."

Holder has financial ties to at least one law firm benefiting from de facto immunity to prosecution.[citation needed] Prosecution rates against crimes by large financial institutions are at 20-year lows.  Holder has also endorsed the notion that prosecutors, when deciding to pursue white-collar crimes, should give special consideration to "collateral consequences" of bringing charges against large corporate institutions, as outlined in a 1999 memorandum by Holder. Nearly a decade later Holder, as head of the Department of Justice, put this into practice and has demonstrated the weight "collateral consequences" has by repeatedly sought and reached deferred prosecution and non-prosecution agreements and settlements with large financial institutions such as J.P. Morgan Chase, HSBC, Countrywide Mortgage, Wells Fargo, Goldman Sachs, and others where the institution pays a fine or penalty but faces no criminal charges and admits no wrongdoing.  Whereas in the previous decade the Bush administration's Department of Justice often sought criminal charges against individuals of large institutions regardless of "collateral consequences" such as cases involving Enron, Adelphia Communications Corporation, Tyco International, and others.

In September 2014, he described the department's rationale in a speech at New York University:

"Responsibility remains so diffuse, and top executives so insulated," Holder said, "that any misconduct could again be considered more a symptom of the institution's culture than a result of the willful actions of any single individual."

http://en.wikipedia.org/wiki/Eric_Holder

11/22/14

"Our consumer society is dying – asphyxiated by debt – shorter of breath and one day closer to death."

"...Even with the two stock market collapses since 2000, your average annual return in the stock market since 1980 still exceeds 11%. That’s 34 years with an average annual total return of better than 11%.

Every person who had a job over this time frame should have accumulated a decent level of retirement savings.

That is why the chart below is so shocking.

Over 15% of all people 60 and older and 23% of people 45 to 59 years old have NO retirement savings...

http://www.mybudget360.com/wp-content/uploads/2014/11/retirement-savings.png

...over 50% of 18 to 29 year olds have no retirement savings. With the terrible job market, declining real wages, massive levels of student loan debt, two stock market crashes in the space of eight years, and 4% annual returns since 2000, young people today have neither the means nor trust in the system to save for retirement.

Their elders had no such excuse.

Just a minimal amount per paycheck saved over the last 30 years would have compounded to well over $100,000, even at modest salary levels. It is disgraceful that 25 million people over the age of 45 have saved nothing for their retirement. Far more disgraceful is the median household retirement balance of $3,000 for all working age households. There are 122 million households in this country and 61 million of them have $3,000 or less in retirement savings.

http://www.mybudget360.com/wp-content/uploads/2014/11/20130620__figure9.jpg

The far worse data points are the $12,000 median retirement balance of aged 55 to 64 households and the $10,100 median retirement balance of aged 45 to 54 households. These people are on the edge of retirement and have less than one year’s expenses saved. 

...The concept of delayed gratification is unknown to the millions of nearly broke Boomers and Xers, shuffling towards an old age of poverty, misery and regret.

The question is how did it happen.

...Individuals in every generation have bucked the trend, lived within their means, saved for the future, and accumulated significant nest eggs for their retirement. But the aggregate numbers don’t lie.

The majority of those over the age of 45 have squandered their chance at a relatively comfortable retirement.

...The generations of live for today... bought those 4,500 sq foot McMansions with negative amortization 0% down mortgages. They had to keep up with the Jones-es by putting in granite counter-tops, stainless steel appliances, home theaters, Olympic sized swimming pools, and enormous decks. They have HDTVs in every room in their house and must have every premium cable channel, along with the NFL package. They upgrade their phones every time Apple rolls out a new and improved version. They pay landscapers to manicure their properties. They lease new BMWs every three years. They have taken exotic vacations on an annual basis. They haven’t packed a lunch for themselves since they were 16 years old. Eating out for lunch and dinner has been a staple of their existence for decades. That morning Starbucks coffee is a given. A new wardrobe of name brand stylish clothes for every season is a requirement because your neighbors and co-workers are constantly judging you.

...The "have it now" generations got it then and have virtually nothing now because they acquired all of these things with debt.

Real cumulative household income is up 10% since 1980.

Consumer debt outstanding has risen from $350 billion in 1980 to $3.267 trillion today.

That is a 933% increase.

We’ve had decades of faux prosperity aided and abetted by Wall Street shysters, corrupt politicians, mega-corporation mass merchandisers, and Madison Avenue maggots trained in the methods of Edward Bernays to convince willfully ignorant consumers to consume. And consume we did.

Saving, not so much.

..Saving money requires only one thing – spending less than you make.

Most Boomers and Xers chose to spend more than they made and financed the difference. When the average credit card balance is five times greater than the median retirement account balance, you’ve got a problem. The facts about our consumer empire of debt are unequivocal as can be seen in these statistics:

Average credit card debt: $15,593
Average mortgage debt: $153,184
Average student loan debt: $32,511

$11.62 trillion in total debt
$880.3 billion in credit card debt
$8.05 trillion in mortgages
$1.12 trillion in student loans

...The Wall Street/Federal Reserve scheme to boost home prices and repair their insolvent balance sheets has successfully kept young people from ever being able to afford a home. So you have young people unable to save, invest or spend. You have middle aged and older Americans with little or no savings, mountains of debt, low paying service jobs, and an inability to spend. The only people left with resources are the .1% who have captured the system, peddle the debt, and reap the rewards of consumption versus saving. They may be able to engineer a stock market rally to further enrich themselves, but they can not propel the real economy of 318 million people.

...The Federal government has already made $200 trillion of entitlement promises it can’t keep.

State governments have made tens of trillions in pension promises they can’t keep. 

They can’t tax young people who don’t have jobs. Older generations who think the government is going to rescue them from their foolish shortsighted choices are badly mistaken. Their benefits are likely to be reduced because the unsustainable will not be sustained.

So you run and you run to catch up with the sun but it’s sinking
Racing around to come up behind you again.

The sun is the same in a relative way but you’re older,
Shorter of breath and one day closer to death.

Every year is getting shorter; never seem to find the time.

Plans that either come to naught or half a page of scribbled lines
Hanging on in quiet desperation is the English way

The time is gone, the song is over,

Thought I’d something more to say.

Pink Floyd – Time

http://www.theburningplatform.com/2014/11/20/no-one-told-you-when-to-run-you-missed-the-starting-gun/

11/20/14

Same Day Rhino Times and News & Record Civil Rights Museum Articles; Earl wants $500,000 per year with no strings

"Greensboro Mayor Nancy Vaughan dropped a bombshell on Monday, Nov. 17, and it started a war.

...Vaughan proposed that the City of Greensboro take over the operations and management of the museum, open up the financial records and make all of the museum’s board meetings open to the public.

Shortly before that press conference, the NAACP released the following statement: "...The museum was built for and empowered by the community and should remain in the hands of the community, and not the city of Greensboro.”

Last I heard, the mueum property
 remains in the hands of Skip Alston and Earl Jones
via Museum Landlord, LLC.

Alphonso McGlen, the president of the Greensboro chapter of the NAACP, ...said that Vaughan’s claims that the museum was in financial straights were not true.

“The museum is relatively stable,” he said.  He said the integrity of the museum should not be jeopardized by wresting control from the hands of those who founded it and built it.

...The museum has been the subject of much heated debate over the years and that was also the case last year when the civil rights museum sought and received a loan last year from the city for $1.5 million.  Of that $1.5 million, so far $1.25 million has been paid to the museum with the remainder of that money scheduled to be paid out in mid-2015.

...Matheny said one thing that should not happen is for the city to pump even more taxpayer money into a sinking enterprise and allow the museum to continue to be run the way it always has.

...Vaughan said that a particularly dire financial outlook for the museum helped spur her decision to have the city take over the museum...

“The reports we got from the development committee – money being raised for the gala and other things – were positive,” [Bruce] Davis said.  “Everything was doable.  It would be different if it were all gloom and doom.”

...Earl Jones, one of the founders of the museum, also said the financial picture for the civil rights museum was very good.  

...Jones added that, though the finances are good, the museum is going to request that the city give the museum $500,000 annually in the future.  

The preceding two sentences
appear to contradict each other.

He said that, just as the museum asks other public and private sources for funding, it is going to ask the city for the $500,000 in the next budget and request a like appropriation for years after that.

$500,000 per year, which according to the city, 
Earl and Skip will be able to recieve some of
as the owners of Museum Landlord, LLC.

...“What the city should be doing is what they are doing now in other places – making annual appropriations,” he said.

Why would the museum need $500,000 per year
if the finances were good?

...He also said that the mayor, in her effort to drum up support for a city takeover of the museum, has been spreading a great deal of misinformation about the state of the museum’s finances.

“She has been giving false and misleading information to the public,” Jones said."

http://www.rhinotimes.com/civil-rights-museumtug-of-war-gets-intense.html
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"Museum’s debt close to $26 million"

On Oct. 14, then-civil rights museum director Lacy Ward Jr. delivered some sobering news about the museum’s finances to donors from years past.

“We have no operating reserve,” Ward told the 1960 Society, whose members gave money to the International Civil Rights Center & Museum in 2010.

“It’s at zero.”

Ward’s statement is the most recent — and the most specific — reflection of what city leaders have said in general terms this week:  The museum is broke — and almost $26 million in debt.

And without a takeover by the city, the museum is unlikely to survive.

[Lacy Ward's] firing prompted an uncharacteristically frank dialogue among civic leaders about the museum’s bleak financial position.

...On Wednesday, [Earl] Jones disputed Ward’s comment about the museum’s reserve fund running dry.  “We’ve got $150,000 in reserve,” Jones told the News & Record.

He added: “By any objective standard, the museum is extremely successful.”

But an auditor hand-picked by Jones and other board members — expanded this year from 15 to 25 — found evidence to the contrary.

An audit for 2013 provides a snapshot of the museum’s financial position, showing that as of Dec. 31, the museum:

• Owed creditors roughly $25.9 million...
• Had raised $272,950 in 2013 from contributions, special events and grants.

2014 “Contributions/Membership” expectations = $800,000

2014 “Special Event” expectations =  $370,000, and $825,000 in 2015.

2014 “Grant” expectations = $700,000

• Held about $36,800 for operating expenses.
• Had collected $378,500 from ticket sales.
• Had paid employees $442,000 in salaries.
• Held pledges for $82,646, payable within one year, and others totalling $5,500, payable in one to five years.

Walker Sanders, the executive director of the Community Foundation of Greater Greensboro, said Wednesday that he expects the museum to repay a $50,000 loan when it comes due on March 13.  The foundation loaned the money so the museum could hire an auditor — a condition of receiving the forgivable loan from the city last year.  Sanders said it was a loan, rather than a grant, “because we felt like that was something an organization should be able to pay for.”

...Jones said he blames the addition of Vaughan and Westmoreland on the museum’s board for this most recent public relations crisis.

“We never should have had them on the board,” he said."

If they had not been on the board, 
there would not be a board to be on.

http://www.news-record.com/news/museum-s-debt-close-to-million/article_0a7a4ef6-704e-11e4-af53-4ffcbc3fdf3c.html
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Fiduciary Duties of Directors and Officers of Distressed Nonprofit Organizations

http://www.thelawproject.org/wp-content/uploads/2010/03/FiduciaryDuties-NFPdistress-2.pdf
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"[Non-Profit] Board members are legally required to be informed and active participants in corporate governance in acting to fulfill the nonprofit’s charitable mission.

...A person who has a relationship of trust or confidence with another is called a fiduciary. A fiduciary’s relationship with an organization is one-sided, meaning that the relationship is designed to meet only the needs of the organization and the fiduciary must act without regard to his or her own needs. ...They must be principally concerned about the performance of the nonprofit and that its interests are pursued faithfully.

...This relationship between board member and the organization is a legal one, and board members have an obligation to monitor and oversee not only the organization’s financial dealings, but its ongoing regulatory compliance program.

Legal Duties

...members should require management to provide sufficient information to make an independent decision. If board members find that the information is invalid or incomplete, they are expected to ask questions about it. Independent advice is required if the nonprofit is buying or selling significant assets, or is entering into a material contract.

...Failure to comply with fraud and abuse statutes, patient privacy regulations and other federal and state laws can expose a [non-profit] to significant criminal and civil monetary penalties...

Duty of loyalty: When acting on behalf of an organization, board members must set aside their own interests, whether professional or personal, or the interests of any other organization. Simply put, the nonprofit organization must come first. A board member cannot seize an opportunity for his or her own gain.

...Members of the organization may sue a trustee on the organization’s behalf because of a breach of duty in a type of lawsuit called a derivative action. Donors also may sue, alleging misuse of gifts or assets."

http://www.trusteemag.com/display/TRU-news-article.dhtml?dcrPath=/templatedata/HF_Common/NewsArticle/data/TRU/WebExclusives/2013/WebExclusive0613legalduties

Continuing violations doctrine

"In tort law, if a defendant commits a series of illegal acts against another person, or, in criminal law, if someone commits a continuing crime (like molesting a child over a long period of time, which can be charged as a single offense), the period of limitation may begin to run from the last act in the series. In the 8th Circuit case of Treanor v. MCI Telecommunications, Inc., the court explained that the continuing violations doctrine "tolls [i.e freezes] the statute of limitations in situations where a continuing pattern forms due to [illegal] acts occurring over a period of time, as long as at least one incident ... occurred within the limitations period."

http://en.wikipedia.org/wiki/Statute_of_limitations

11/19/14

"It is generally conceded that we are living in an era of Peak Everything:"

"...peak central bank omnipotence, peak powerless of the non-elites, peak wealth inequality, peak media-induced delusion, peak market-rigging, peak bogus official statistics, peak propaganda, peak bread and circuses, peak deception, peak distraction, peak sociopathology, peak central statism, peak debt, peak leverage, peak derealization...

Peaks generate bubbles.

Bubbles reach extremes and then they pop.

There is nothing mysterious about this causal chain: peaks generate extremes that manifest as bubbles, which eventually implode as extremes revert to the mean and mass delusions are shattered by the unwelcome reality that extremes are not sustainable.

The status quo solution to the devastation of a popped bubble is to inflate another even bigger bubble. If debt reached extremes that imploded, the solution [has been] to expand debt far beyond the levels that caused the implosion.

If fudging the numbers triggered a loss of confidence, the solution is to fudge the numbers even more...

If gaming the system crashed the system, the solution [has been] to game the system even harder.

If the masses protest their powerlessness, the solution is to push them further from the centers of power.

And so on.

This blowing new bubbles to replace the ones that popped [has worked] for a while, [like ancient Athens etc...], but at the expense of systemic stability. Each new bubble requires pushing the system to new extremes that increase the risk of instability...

The processes used to inflate the new bubble suffer from diminishing returns. The nature of stimulus-response is that overuse of the stimulus leads to diminishing responses. This is a structural feature...

Goosing public confidence in the status quo with phony statistics and rigged markets works splendidly the first time, less so the second time, and barely at all the third time.

Why is this so?

The distance between reality and the bubble construct is now so great that the disconnection from reality is self-evident to anyone not marveling at the finery of the Emperor's non-existent clothing.

...If the drug/debt has lost its effectiveness, a higher dose is needed.

...This dynamic can be visualized as The Rising Wedge Model of Breakdown, which builds on the well-known Ratchet Effect: the system enables easy expansion of debt, leverage, employees, etc., but it has no mechanism to allow contraction...



When the system's ability to inflate another bubble breaks down, it's no longer fun...

It is generally conceded that the global economy is currently experiencing a third bubble. The first expanded in the 1990s and popped in 2000, the second one expanded in 2002 and burst in 2008, and the third one inflated in 2009 and has yet to implode.

...what if there can be no fourth bubble to bail out the status quo, due to the systemic limitations of bubble-blowing as a solution to previous bubbles popping?

Given that we're still in Peak Central Bank Omnipotence, it is widely believed central banks can continue inflating bubbles of confidence, assets, debt and consumption at will...

...what do we do when the bubble economy cannot be reflated?

http://charleshughsmith.blogspot.com/2014/11/why-living-in-post-bubble-world-is-no.html

11/14/14

Halliburton retaliated against a whistleblower by outing him to his colleagues

Law360, San Diego (November 12, 2014, 8:10 PM ET) -- A Fifth Circuit panel on Wednesday denied Halliburton Inc.’s attempt to overturn a U.S. Department of Labor finding that it retaliated against a whistleblower by revealing his name in a document preservation notice, ruling an administrative board did not ignore Sarbanes-Oxley Act precedent.

Former Halliburton employee Anthony Menendez complained to both the U.S. Securities and Exchange Commission and Halliburton’s board about the company’s accounting practices. Halliburton’s general counsel, having seen Menendez’s internal complaint, assumed that an SEC notice about its inquiry was tied to Menendez...

...Halliburton retaliated against a whistleblower by outing him to his colleagues, an appeals court upheld in a Wednesday ruling.

The Fifth Circuit Court of Appeals affirmed a U.S. Department of Labor Administrative Review Board ruling that found the firm retaliated against former staffer Anthony Menendez by disclosing his identity to his colleagues, which led to them ostracizing him.

Mr. Menendez in 2005 raised concerns internally about some of Halliburton’s accounting practices. Later that year, he submitted a confidential complaint with the Securities and Exchange Commission over the same concerns, according to the order.

When the Securities and Exchange Commission told Halliburton it was investigating allegedly improper accounting practices in 2006, Bert Cornelison, the general counsel at the time, sent Mr. Menendez’ colleagues an e-mail that identified him as the whistleblower behind the agency’s probe, the order said. Colleagues then started to avoid Mr. Menendez and treat him differently.

Later that year, the SEC closed its investigation without taking action.

The Administrative Review Board said the company’s conduct constituted illegal retaliation under the 2002 Sarbanes-Oxley Act, which prohibits retaliation against staffers that report certain kinds of suspected wrongdoing.

http://www.law360.com/articles/595565/halliburton-can-t-reverse-sox-retaliation-ruling-5th-circ-
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"October 31, 2014, the federal Court of Appeals for the Sixth Circuit upheld a trial court's dismissal of an assertion of unlawful retaliation under the Tennessee Public Protection Act (TPPA) (Hugo v. Millennium Laboratories, Inc.). This statute provides that an employee may not be discharged or terminated solely for refusing to participate in or remain silent about illegal activities. Without reviewing the facts of the case in detail, it is noteworthy that the Court indicated that a plaintiff must provide more detailed evidence than "personal beliefs, conjecture and speculation." The employee must have been discharged "solely for ... [his] refusal to participate in or remain silent about the illegal activity."

The Sixth Circuit wrote that a common law claim for retaliatory discharge requires that a substantial factor in the discharge was the employee's exercise of protected rights or compliance with a clear public policy. Evidence must establish a causal connection between the employee's termination and protected activity. Additionally, the Court noted in a footnote, the Tennessee Supreme Court has stressed that this "exception to the employment-at-will doctrine" "must be narrowly applied and not be permitted to consume the general rule ... that employers need freedom to make their own business judgments without interference from the courts."

A whistleblower must have very clear and specific evidence of retaliatory conduct as well as clearly meet the statutory procedures and coverage. "

http://www.huffingtonpost.com/brad-reid/whistleblower-statutory-p_b_6154148.html

11/10/14

Greensboro ICMA-RC 457 plan fund alternatives which City management refuses to look into

As the City of Winston Salem already has all but one of the following funds available in its ICMA-RC 457 plan, please consider the following lower cost alternatives for the City of Greensboro's ICMA-RC 457 plan;
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Under the "Bond" catagory, Greensboro's participants are currently invested in

VT PIMCO Total Return Intermediate-Term Bond - Expense Ratio = 0.71%
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Under the "Bond" catagory, Greensboro's participants could be invested in the following funds Winston Salem already offers;

Vanguard Short-Term Inv-Grade Short-Term Bond - Expense Ratio = 0.10% 

Vanguard Intermed-Term Inv-Grd Corporate Bond - Expense Ratio = 0.10%
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Under the "Balanced" catagory, Greensboro's participants are currently offered nothing.

Winston Salem's "Balanced" catagory offering;

Vanguard Wellington Admiral Moderate Allocation - Expense Ratio = 0.18%
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Under the "U.S. Stock" catagory, Greensboro's participants are currently invested in

VT Vantagepoint Equity Income Large Value - Expense Ratio = 0.78% 

VT Invesco Diversified Div Large Value - Expense Ratio = 0.63%

Victory Diversified Stock A Large Blend - Expense Ratio = 1.08% 

Vanguard 500 Index Signal Large Blend - Expense Ratio = 0.05%
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Under the "U.S. Stock" catagory, Greensboro's fiduciaries could eliminate the VT and Victory funds and participants could be invested in the following funds Winston Salem already offers via ICMA-RC;

Vanguard Equity Income Admiral Large Value - Expense Ratio = 0.21%

Vanguard 500 Index Signal Large Blend - Expense Ratio = 0.05%
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Under the "Mid-Cap" catagory, Greensboro's fiduciaries could eliminate their current lineup and participants could be invested in the following funds Winston Salem already offers via ICMA-RC;

Greensboro's current "Mid-Cap" lineup;

Artisan Mid Cap Value Inv22 Mid-Cap Value - Expense Ratio = 1.20% 

Goldman Sachs Mid Cap Value A Mid-Cap Value - Expense Ratio = 1.14%

T Rowe Price® Mid-Cap Growth Mid-Cap Growth - Expense Ratio = 1.05% 

VT AMG TimesSquare Mid Cap Gr Mid-Cap Growth - Expense Ratio = 1.27% 

Columbia Acorn Z Mid-Cap Growth - Expense Ratio = 0.82%
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Winston Salem's current "Mid-Cap" lineup with invested funds;

Vanguard Mid-Cap Index Signal Mid-Cap Blend - Expense Ratio = 0.10% 
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Under the "Small-Cap" catagory, Greensboro's fiduciaries could eliminate their current lineup and participants could be invested in the following funds Winston Salem already offers via ICMA-RC;

Greensboro's current "Small-Cap" lineup;

VT AllianzGI NFJ Sm-Cap Val Small Value - Expense Ratio = 1.02% 

VT T Rowe Price® Sm-Cap Value Small Blend - Expense Ratio = 1.24% 

Royce Value Plus Service Small Growth - Expense Ratio = 1.45% 
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Winston Salem's current "Small-Cap" lineup with invested funds;

Vanguard Small-Cap Index Sig Small Blend - Expense Ratio = 0.10% 
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Under the "International/Global Stock" catagory, Greensboro's fiduciaries could eliminate their current lineup and participants could be invested in the following funds Winston Salem already offers via ICMA-RC;

Greensboro's current "International/Global Stock"lineup;

Templeton World A World Stock - Expense Ratio = 1.05% 

VT Fidelity Diversified Intl Foreign Large Blend - Expense Ratio = 0.95% 
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Winston Salem's current "International/Global Stock" lineup includes;

Dodge & Cox Global Stock World Stock - Expense Ratio = 0.65%
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An alternative not in Winston's "International/Global Stock" current lineup;

Vanguard FTSE All-World ex-US Index Fund Admiral - Expense Ratio = 0.15%
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As ICMA-RC currently charges Winston Salem's $19,933,124 an extra 0.34% on top of the expenses listed above, the extra fee for Greensboro's $87,898,314 should be substantially less, should ICMA members Jim Westmorland and Mary Vigue choose to negotiate and ask ICMA-RC to quote a price, which from what I have been told so far, they have neglected to do.
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ICMA-RC, located in the same Washington D.C. building as ICMA, was created by the International City/County Management Association (ICMA) in 1972.  "its 10-member board includes four current or retired government officials and the executive director of the ICMA (as of 9/22/2010), who also is a retired government official. The ICMA-RC pays the ICMA a licensing fee...", like Nationwide pays the National Association of Counties for the same thing only different.

According to ICMA-RC's 2012 IRS form 990, Robert O'neal, ICMA's Executive Director, serves as a paid director of ICMA-RC.  

San Antonio’s Assistant City Manager and ICMA member Frances Gonzalez serves on ICMA-RC's board. San Antonio has $254,377,728 of City employee funds with ICMA-RC.

Decatur, Georgia’s City Manager and ICMA member Peggy Merriss serves on ICMA-RC's board as Decatur offers an overpriced ICMA-RC 457 retirement plan. 
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Previous attempts to save City of Greensboro 457 plan participants money;

From: Zack Matheny
Date: Tue, Oct 14, 2014 at 11:38 AM
Subject: Re: Council Request- ICMA-RC
To: "Vigue, Mary"
Cc: "Hammond, Connie" "Carruthers, Tom" "Lusk, Rick"

Mary -

I spent over 8 years in this industry as a professional and have invested in mutual funds since I was in high school.

I would like to set a meeting with you, and anyone else that oversees this account.

There are some changes that could be made and their response was underwhelming.

Please, let me know when you can meet.

Zack
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from: George Hartzman
to: "Westmoreland, Jim", Rick Lusk, "Hammond, Connie", "Vigue, Mary", bcc: Nancy Vaughan,
 Zack Matheny, Tony Wilkins, Katie Cashion, donnie.turlington, "Healy, Sarah", "Clark, Jim (Legal)", "Jamiah.Waterman, Thomas.Carruthers, marlene.druga, Mike Barber, "Doyle, Steven",
 Jeff Gauger, Amanda Lehmert, Joe Killian, "Craver, Richard N.", "abuzuaiter, Jeffrey Sykes,  "McCollough, Mary", sharon.bell, "Schwartz, Sue, "Davis, Larry, Andy Scott, "Fischer, Adam",
 "Harris, Barbara, "Wilson, Christian A (P&R)"
date: Wed, Oct 22, 2014 at 9:24 AM
subject: On October 21, 2014's ICMA 457 plan meeting with Mayor Vaughan and Mary Vigue

On Tuesday, I met with Greensboro Assistant City Manager Mary Vigue and Nancy Vaughan in the Mayor's office.

Mary, a member of ICMA, had met with a representative of ICMA-RC on Monday.

Mary became confrontational from the outset of the meeting, and seemed to be advocating for ICMA's justifications of Greensboro's current 457 plan fees as opposed to what's in the best interests of Greensboro's employees invested in the plan.

Mary cited a hidden asset based fee in Winston Salem's fee structure to assert Winston Salem doesn't pay less than Greensboro.

After adding in the $55,417 on the fifth page (53) of the attached Winston Salem PDF, which is clearly misleading on the part of ICMA, as the total at the bottom of the page doesn't reflect the top number, to the $94,097 on the first (49), I came up with

$94,097 + $55,417 = $149,514 total annual fees all participants are paying.

There are 1,029 participants in Winston.

$149,514 / 1,029 = $145.30 per participant for Winston Salem.
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Both the attached 5 and 6 page Greensboro and Winston Salem fee document extracts are as of the first quarter of 2014.

Greensboro's plan is charged annualized total of $741,132 on the first page of the attached "Greensboro fee pages".

$741,132 total annual fees participants are paying.

There are 2,781 participants in Greensboro.

$741,132 / 2,781 = $266.50 per participant for Greensboro.
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$266.50 per participant for Greensboro is more than $145.30 per participant for Winston Salem.

$121.20 more per participant in Greensboro than Winston.

Mary Vigue objected to the idea of considering the plan's fees per participant and asserted that Winston paid more during the meeting on several occasions.
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Greensboro's VT Vantagepoint Equity Income "Large Value Fund" (page 67), which ICMA owns, which is inherently a conflict of interest, charges a total of  0.78% on $1,609,652 in Greensboro's plan.

Winston Salem's Vanguard Equity Income Admiral "Large Value Fund" (page 50), which is essentially the same thing Greensboro's Equity Income Large Value Fund only different, charges a total of 0.21% on $2,011,041.  Adding in the 0.34% ICMA charges Winston on the back end, I found the total annual charge for Winston's participants to be 0.55%.

Greensboro's 0.78% is larger than Winston's 0.55%.
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Winston Salem's Mid and Small Cap index funds (page 50), where most of the participant's money is invested, is charged a total of 0.44% by ICMA. (0.10% + 0.34%)

Greensboro's Mid and Small Cap funds total annual ICMA charges (pages 67 and 8) are 1.20%, 1.14%, 1.09%, 1.05%, 1.27%, 0.82%, 1.02%, 1.24% and 1.45%.
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It's my understanding Mary did not ask for or inquire about any possible fee reductions during her meeting with ICMA-RC's representative on Monday, but instead appears to have consumed a great deal of ICMA cool aid to regurgitate to the benefit of ICMA, as opposed to proactively looking out for what the best course of action was for Greensboro's employees.

Mary asserted that nothing needed fixing in Tuesday's meeting with Mayor Vaughan and I.

Mary cited Rick Lusk, Connie Hammond, Larry Cooper and herself as experts who agreed that nothing needed to be done with the ICMA 457 plan's fee structure and fund line up in the face of an opportunity to leave more money in the retirement accounts of City of Greensboro participants.

Please confirm Mary's assertion that Rick Lusk, Connie Hammond and Larry Cooper found no need to look into potential savings in Greensboro's 457 plan fees.

Trying to do the right thing in this case has become much more difficult than it should have been.

Inaction has occurred for more than 12 months since these issues were initially raised.

Let's give Greensboro's 457 participants a raise and more money to spend locally in retirement by lowering their fees, which are demonstrably too high and retarding the prospect of wealth creation for 2,781 employees.

This email should not have been necessary.
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from: Tony Wilkins
to: George Hartzman,  "Westmoreland, Jim", Rick Lusk, "Hammond, Connie",  "Vigue, Mary"
cc: nancy.vaughan,  yvonne.johnson, mike.barber, marikay.abuzuaiter, sharon.hightower, jamal.fox, zack.matheny, nancy.hoffman, tony.wilkins
date: Wed, Oct 22, 2014 at 2:57 PM
subject: RE: On October 21, 2014's ICMA 457 plan meeting with Mayor Vaughan and Mary Vigue

Jim Westmoreland,

Please tell me, in language that I can understand,
if George Hartzman’s claims in this e-mail are true.

Thanks,

Tony Wilkins
Greensboro City Council
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from:  George Hartzman
to:  "Vigue, Mary"
date:  Thu, Oct 30, 2014 at 12:14 PM
subject:  Fund Lineup

Any word on the fund line up we spoke of and you said you would inquire about?
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From: George Hartzman
to: "Westmoreland, Jim", "Vigue, Mary",  "Hammond, Connie", Nancy Vaughan,
 "nancy votehoffmann, Zack Matheny,  Rick Lusk
date: Wed, Nov 5, 2014 at 10:34 PM
subject: Fwd: Response to PIRT # 4006

Mary told me on Monday night, after telling both Nancy Vaughan and myself on October 21st that Mary would personally contact ICMA-RC, that she had been in touch with HR about getting the fund list of alternative investments with lower costs from ICMA-RC.

I spoke with ICMA-RC Deputy General Counsel Angela C. Montez this afternoon, who told me municipalities have the lattitude to negotiate fees and switch funds as fiduciaries deem prudent and in the best interests of participants.

Mary said otherwise.  Jim doesn't seem to have a problem with it, or he doesn't know and should.

ICMA members Mary and Jim appear to be acting in the best interests of ICMA-RC.

Mary incorrectly informed both Mayor Vaughan and I that Winston Salem was paying less per participant on October 21st, acting as an overt advocate for ICMA-RC after meeting with an ICMA-RC rep the day before.

It's been about two weeks since Mary said she would personally get with ICMA-RC on the fund list, and two days since she said she directed HR to do so.

The information request attached suggests otherwise.

Nancy Hoffmann and Zack know what a fund list is.

To my knowledge, no one at the City has made any effort to save Greensboro's employees money within the 457 plan, despite more than a year's worth of effort on my part.

ICMA members Mary and Jim don't seem to mind ICMA-RC skimming off of Greensboro's employees.

It seems ICMA members Mary and Jim are acting in the best interests of ICMA-RC.

I would like to hear some good news on saving Greensboro's 457 plan participants some money by the close of business tomorrow.

Those names above are the only recipients of this email.

At this point, ICMA members Mary and Jim are involved in a betrayal of 2871 Greensboro 457 participants, in my view.

At this point, I believe ICMA members Mary and Jim have violated ICMA's ethics code conflict of interest rules, and probably the City's ethics code as well, as if either really means anything.

I am trying to do the right thing.

It appears ICMA members Mary and Jim are not only impeding my efforts, they are helping ICMA-RC maintain and increase profits at the expense of thier non-ICMA co-workers.

I have tried to get this done relatively quietly.

That period of time is coming to a close.

By doing nothing, I believe those involved in non-action are actively stealing from other people's kid's futures.

g
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As of Monday, November 10, 2014, niether ICMA member and City of Greensboro Manager Jim Westmorland nor Assisstent City Manager Mary Vigue have responded.
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The fine print on "VT", an acronym for Vantage Trust;

"Section 401 or 457 plans invest in these “underlying” funds through the funds of the VantageTrust (“VT Funds”).  Reference to such underlying mutual fund ticker symbols or other non-performance data by VT Funds is for reference only and NOT reflective of the returns of the corresponding VT Funds [due to VT layered on fees].

The revenue amounts listed for VT Vantagepoint Funds and the VT PLUS Fund include all compensation paid by the fund to ICMA-RC and/or its affiliates.

The Vantagepoint Funds are distributed by ICMA-RC Services LLC, a wholly owned broker-dealer subsidiary of ICMA-RC.

ICMA-RC or its affiliates receive payments [kickbacks to ICMA-RC via VT] from third-party mutual funds that underlie certain VantageTrust Funds that may be available for investment through your plan. These payments are for services rendered by ICMA-RC or its affiliates to plans and participants, and are in the form of 12b-1 fees, service fees, compensation for sub-accounting and other services provided by ICMA-RC or its affiliates."

11/8/14

"Alayne Fleischmann: From witness to whistle-blower"

"Former JPMorgan Chase lawyer Alayne Fleischmann, a secret witness who said she gave federal prosecutors evidence of mortgage-securities wrongdoing she saw at the bank in 2006-07

"What he was doing, to me as a lawyer, is not how you're supposed to deal with securities fraud," Fleischmann added in the telephone interview. "At that point, I stopped believing the government was going to go forward with cases against individuals, no matter how strong the case was."

...neither the bank nor any of its executives faced criminal charges. That dismayed Fleischmann, a securities lawyer nearing the end of her 30s. She said she gave prosecutors detailed evidence against several JPMorgan executives, including two former bosses who'd pushed approvals of mortgage loans that were expected to be packaged into multimillion-dollar securities and sold to investors.

Years after she left the bank, federal prosecutors interviewed Fleischmann for what she said was a civil case focused on JPMorgan. They appeared to credit her account of what had happened, she said, seeming "almost giddy with the case they had."

Fleischmann said she had been scheduled to meet with other prosecutors separately weighing potential criminal charges against the bank last December, the month after record settlement was announced. The meeting never took place, she said.

...Her message, she said, is relatively simple: Concerned citizens should contact their elected representatives and voice their concern about financial wrongdoing and efforts to address that conduct by prosecutors and regulatory agencies.

Regardless of her allegations, the bank ultimately could avoid criminal charges, Fleischmann acknowledged."

http://www.usatoday.com/story/money/business/2014/11/08/alayne-fleischmann-jpmorgan-whistleblower/18652819/