Compliance November 10, 2003

SEC Fills in Sarbanes-Oxley Details

October 23, 2002 (PLANSPONSOR.com) - Congress may have laid out general reform measures to deal with the corporate world's financial scandals, but it is up to the US Securities and Exchange Commission (SEC) to fill in the details.
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That’s why SEC officials have scheduled two meetings for October 30 and October 31 to further consider proposals mandated by the Sarbanes-Oxley Act of 2002 passed as part of a sweeping corporate accounting reform, according to a Dow Jones news report.

In the October 30 session, the SEC will consider proposing rules for the use of pro forma financial information in company earnings reports. It will also consider a rule to require companies to discuss off-balance sheet arrangements in their Management’s Discussion and Analysis section in annual and quarterly reports.

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Under the new rules, companies may be required to provide a table of contractual obligations due in the short and long run, and either a table or text disclosure of total contingent liabilities and commitments in the short and long-term, the Dow Jones story reported.

Also scheduled for October 30, the SEC will look into rules that would prohibit a company’s directors and executives from purchasing, selling, or otherwise transferring any equity securities of the company during a pension plan blackout period in which line employees are also prohibited from making equity transactions in company stock, Dow Jones said.

This rule would also require companies to provide advanced notice of pension plan blackout periods.

New Attorney Standards

The next day, the SEC said it would consider rules establishing standards of professional conduct for attorneys who represent companies before the commission.

These standards would include a rule requiring an attorney to report evidence of a material violation of securities laws or breach of fiduciary duty by the company or its officers to the chief legal counsel or the chief executive officer of the company, the SEC said.

If these executives don’t respond appropriately, the attorney may be required to report the evidence to the audit committee, another committee of independent directors or the full board of directors, Dow Jones said.

Finally, the SEC will look into changing the definition of terms used in the definition of dealer for banks under certain securities laws. These proposals relate to the implementation of the specific exceptions for banks from the definitions of “broker” and “dealer” that were amended by the Gramm-Leach-Bliley Act, the SEC said.

On October 16, the SEC proposed new rules to  strengthen corporate controls and ethics .

According to the Dow Jones story, those proposals would require companies to designate a financial expert on their corporate boards, adopt internal controls, and disclose whether they have a code of ethics. Another proposed rule would bar corporate executives from coercing, manipulating, or misleading the firm’s auditor.

Administration November 9, 2003

Uncle Sam: Florida Pension Fund Owes $267M

September 11, 2003 (PLANSPONSOR.com) - The state of Florida's public pension fund should fork over $267 million to Uncle Sam to pay for pension overcharges, according to a finalized federal audit.
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The US Department of Health and Human Services (HHS) inspector general’s office said Florida charged the federal government too much between 1999 and 2002 for employees working in federally funded programs such as Medicaid, the Associated Press reported.

HHS officials even suggested how to pay the bill. The audit said the state should refund the money from the $12.8 billion in surplus funds in the $93-billion pension plan, either by paying all at once or over the long term by reducing future pension costs for the federal agency. The bill was actually substantially less than the one for more then $500 million in a draft audit revealed earlier this year (See Sunshine State Pension Overcharged Uncle Sam $517 Million ).

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Florida state officials in Tallahassee now have 30 days to respond to the HHS audit. Florida Governor Jeb Bush’s staff said the governor hasn’t yet decided on his next course of action. However, state leaders said they’ll fight the findings, arguing that the department’s assumptions about what rates the state should charge would undermine the pension fund’s long-term strategy for meeting its financial obligation to the state’s retirees and beneficiaries.

“This is one dispute that is going to land in the courts and the attorneys are going to have to sort out,” said state Senator Ken Pruitt, Senate budget committee chairman. “As strong as the feds feel we owe them money, we feel just as strongly we don’t owe it.”

The audit has been the subject of much controversy over allegations the federal officials agreed to delay it during Bush’s re-election efforts. It was originally scheduled to begin in April 2002, but Janet Rehnquist, daughter of US Supreme Court Justice William Rehnquist and then HHS Inspector General postponed the audit until July 2002 after receiving a call from Kathleen Shanahan, Bush’s chief of staff.   Shanahan and Bush said the delay was requested because both Florida agencies that would be involved, the state’s investment staff and its retirement division, were in the midst of leadership changes.

But Democrats, noting the delay insured the audit would not be finished until after November’s election, contend Bush’s office sought the delay to avoid negative publicity about the pension fund.   “It is very possible that this was a deliberate action on the part of the state to make our budget look better than it really was,” said Senate Minority Leader Ron Klein, a South Florida Democrat.

Rehnquist resigned in June, saying she wanted to spend more time with her family and pursue other opportunities. Her decision to delay the audit was among a number of controversial actions that led to an investigation of her management by Congress and a committee of fellow inspectors general (See  Janet Rehnquist Ends Controversial Tenure with Resignation ).

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