Commentary

A Lack of Accountability: The Real Obscenity at the SEC

Thanks mainly to the efforts of the Inspector General at the Securities and Exchange Commission (SEC), we know that the agency’s staff was nothing less than asleep at the wheel as imbalances and frauds built up in our financial system. Worse, we also know several employees spent a considerable portion of their work day visiting pornographic websites, rather than monitoring the capital markets. The most obscene part, however, is that years after these discoveries have been made, the employees in question have yet to lose their jobs. Yes, some left the agency voluntarily, while others remain on paid administrative leave (sounds like a vacation to me). But none have been fired.

In an extreme instance, dealing with a SEC employee who ignored the warning signs of Bernie Madoff’s Ponzi scheme, both the SEC’s human resources department and an outside legal consultant recommended that the employee in question be terminated. SEC Chair Mary Schapiro’s response? No, as such “would harm the agency’s work.” I’d think having incompetent employees would harm the agency’s work.

Sadly, Madoff was not the only fraud ignored by the SEC. Allan Stanford ran a $7 billion Ponzi scheme. His 20,000 clients are still, years later, waiting to see how much they will recover. That delay did not stop the head of the SEC enforcement office in Dallas, which has oversight of Stanford, from leaving the SEC to represent Stanford. After a DOJ investigation, the SEC has reluctantly decided to bar said lawyer from appearing before the agency for a whole six months. So, apparently it’s not just current SEC employees that get a pass, but also former employees as well.

Were these just isolated incidents one might be tempted to overlook them. Even the viewing of pornography by SEC employees was more widespread than commonly believed. Between the years of 2005 and 2010, as the worst of the housing bubble was building, 33 SEC employees or contractors were found to have viewed pornography using taxpayer funded laptops and office computers. Many of these were highly paid employees. Seventeen of 33 made between $100,000 and $220,000 annually. A Senior Counsel (lawyer) in the SEC’s Enforcement Division was found with 775 pornographic images on his government computer. And contrary to the stereotypes, it wasn’t all men.

A female accountant received nearly 1,800 access denials for pornographic websites using her SEC laptop in only a two-week period and had nearly 600 pornographic images on her laptop. Perhaps worst of all was a DC-based attorney, who admitted accessing pornography and downloading images to his SEC computer during work hours so often that he sometimes spent eight hours a day accessing pornography. He downloaded so much to his government computer that he filled the hard drive and needed to move images to CDs or DVDs that he accumulated in boxes in his office. And yes, all while getting a six figure paycheck from the taxpayer.

In the private sector any of these actions would be grounds for dismissal. One would be fired on the spot, with security escorting you from the building. In fact, a private sector employer wouldn’t even have the option of deciding if your benefits to the company were worth the time wasted on Internet porn. Such activity would generally be interpreted as creating a hostile work environment; with the result that any company that didn’t fire the employee in question would expose itself to litigation by other employees.

The government “solves” the problem of hostile work environment by letting the accused employee stay at home on indefinite paid level. So yes the agency’s other employees are spared the harassment, but at great expense to the taxpayer. In addition, a federal employee is “entitled” to at least 30 days written notice of any effort to terminate said employee. On top of that the employee gets another seven days minimum to submit documents and evidence in support of keeping their job. I am all in favor of appropriate due process, but the current procedures for firing incompetent federal employees allow the process to drag out indefinitely with one required bureaucratic obstacle after another. Having spent a year managing a federal office, where we did attempt to terminate at least one employee who regularly missed work, I can say you almost have to hire someone whose sole job is to do the firing.

This is just another example, in a long list, of why relying on the relatively weak incentives of government regulatory oversight is inferior to relying on the strong incentives contained in market participants having their own wealth on the line. But then for such incentives to be effective, we need to end bailouts and have real market discipline. Sadly we are currently stuck in the worst of both worlds: incompetent and unaccountable regulators coupled with a neutering of market discipline by these very same regulators. If we continue along this path we will guarantee another financial crisis and future self-enrichment by government bureaucrats.

Mark Calabria is Director of Financial Regulation Studies at the Cato Institute.