Financial Regulation: Review of Selected Operations of the Federal Housing Finance Board
Released: 2003-02-28T00:00:00

Letter

Background

Congress has authorized two different models for governing financial regulatory agencies: a single-director and board. Among financial regulators, single directors head the Office of Thrift Supervision (OTS), the Office of the Comptroller of the Currency (OCC), and the Office of Federal Housing Enterprise Oversight (OFHEO). In contrast, boards or commissions run FHFB, the Fed Board, NCUA, SEC, CFTC, FDIC, and FCA. Advantages and disadvantages exist for both models. In the single- director model, the director is responsible for making all the decisions at the agency, without the potential hindrance of having to consult or get the approval of board members. The primary advantage of the board model is that it provides the potential to benefit from the diverse perspectives and experiences of board members. However, one potential disadvantage of the board model is that consultation among board members could create inefficiencies in running the agency.

To overcome the potential inefficiencies associated with the board model, responsibilities for policy and day-to-day administration are divided between the board and chair at many regulatory agencies. Policy decisions include making rules and regulations or authorizing enforcement actions. Day-to-day administration might include directing staff, overseeing safety and soundness examinations, and expending funds as authorized by the board. Administrative responsibilities that are often considered to be more significant (that is, not day-to-day) include the hiring and removal of senior officials and restructuring the agency.

FHFB has a five-member board of directors. The Secretary of the Department of Housing and Urban Development (HUD) serves as an ex officio member, and the remaining four full-time directors are appointed by the President with the advice and consent of the Senate for 7-year terms. Each of the four appointed directors must have experience or training in housing finance or a commitment to providing specialized housing credit. Not more than three of the five members can be from the same political party. The President designates one of the four appointed members to serve as chair. As discussed in this report, since 1990 the board has operated under a resolution that delegated most administrative functions to the chair.

The FHFB board operated with all appointed members serving on a full- time basis for the first time in December 2001. From 1990 to 1993, the board operated with four appointed members who served on a part-time basis. Beginning in January 1994, FHFB board membership became full time. However, from 1994 through 2001, the board operated with at least one vacant seat and sometimes two or three. In December 2001, the President appointed FHFB’s new chair, and the board operated with four full-time appointed members plus the HUD designee throughout 2002.

As of September 2002, FHFB’s 104 staff members were organized into four program offices: Office of Supervision (OS) – The office is responsible for conducting on- site examinations of the FHLBanks and the FHLBank System’s Office of Finance and conducting off-site monitoring and analysis. OS is also responsible for overseeing the FHLBanks’ implementation of their risk- based capital plans. In addition, OS is responsible for providing expert policy advice and analyzing and reporting on the economic, housing finance, community investment, and competitive environments in which the FHLBank System and its members operate.

Office of General Counsel (OGC) - The General Counsel is FHFB’s chief legal officer and is responsible for advising the board, the chair, and other officials on interpretations of law and regulation. OGC prepares all legal documents on behalf of FHFB and prepares opinions, regulations, and memorandums of law. The office represents FHFB in all administrative adjudicatory proceedings before the board and in all other administrative matters involving FHFB. Also, OGC represents FHFB in judicial proceedings in which the agency’s supervisory or regulatory authority over the FHLBanks is at issue.

Office of Management (OM) - The OM director is the principal advisor to the FHFB chair on management and organizational policies and is responsible for the agency’s technology and information systems, finance and accounting, budget, personnel, payroll, contracting and procurement, and facilities and property management.

Office of Inspector General (OIG) - OIG is responsible for conducting and supervising audits and investigations of FHFB’s programs and operations.

The costs of FHFB’s operations are financed through assessments on the FHLBanks. In fiscal year 2003, FHFB’s operating budget was about $27 million.

FHFB Chair Has Greater Authority to Make Key Administrative Decisions Than the Chairs of Most Other Financial Regulators

The FHFB chairs’ authority to administer the agency is broader than that of the chairs of the other financial regulators included in our review, with the exception of the FDIC. Under a delegation of authority, the chair can make important administrative decisions that may have policy implications (such as appointing senior officials) without obtaining the approval of other board members. Over the years, some FHFB board members have complained that the delegation of authority allows the chair to act unilaterally, and it has been the source of disputes among board members. On January 29, 2003, the FHFB board considered and rejected by a 3 to 2 vote a proposal to revise the delegation and limit the chair’s authority.

FHFB and FDIC Chairs Have Broad Administrative Powers

The FHFB and FDIC chairs have broader authority to make key administrative decisions than the chairs of other financial regulators (see fig. 1). Specifically, at FHFB and FDIC, the chairs can appoint senior officials without a board vote or approval. At each of the other financial regulators we reviewed, appointments of most senior officials require a vote or the approval of a majority of the board. However, in some cases, agency chairs can appoint Schedule C officials to run certain staff offices, which is discussed in more detail later in this report and in appendix II. We also note that at some agencies, such as CFTC, the chair or other senior career agency officials appoint staff responsible for carrying out the agencies’ functions.

As also shown in figure 1, at four of the regulators we reviewed, including FHFB, the chair can reorganize the agency without seeking board approval. While CFTC officials said that the chair has authority to reorganize the agency, the practice has been to submit such proposals to the commission for a vote. At three agencies, major reorganization proposals must be submitted to the board or commission for a vote or approval. For example, the Fed Board has a two-tier process by which reorganizations that meet specific criteria may require the approval of the entire board. At FCA, the board must approve major organizational changes, but the chair has the authority to make organizational changes within particular units.

Delegations of Authority Serve as Basis for FHFB and FDIC Chairs’ Powers

The basis for the FHFB chair’s significant administrative power is a delegation of authority approved by the board in 1990 and 1993. According to former FHFB Chair, Dan Evans, the 1990 delegation of authority facilitated the administration of the agency due in part to the fact that board members served on a part-time basis. According to the FHFB former managing director who served under Evans, the agency’s part-time board members spent most of their time in geographic locations across the United States and came to Washington several days each month to conduct the agency’s business, particularly policy issues. According to Evans and the former managing director, the 1990 delegation facilitated the administration of FHFB as convening the part-time board members for administrative decisions was challenging. The 1990 delegation of authority authorizes the chair to “. . . effect the overall management, functioning, and organization . . .” of the FHFB. Although FHFB’s statute authorizes the board to employ and set the compensation of agency staff, the delegation of authority ceded appointment, removal, and pay authorities to the chair. The delegation of authority included a provision that allowed board members to challenge decisions made under the delegation, obligating the chair to call a special session of the board to consider any matter or business at the request of any two or more board members.

In November 1993, FHFB’s part-time board made technical revisions to the 1990 delegation of authority that allowed the HUD secretary to serve as the chair in the absence of a chair or vice chair. Otherwise, the terms of the 1993 delegation are substantially similar to the 1990 delegation and grant significant administrative authority to the FHFB chair (see fig. 2). According to a 1996 FHFB OGC memorandum that discusses the basis for the delegation and FHFB’s former managing director, some of the part-time board members did not continue on the board as full-time members. The FHFB memorandum states that the part-time board members were concerned that the agency would not be able to function in the absence of the chair and other board members. The 1993 delegation of authority has remained in effect because it has not been overturned by a majority vote of the board.

The FDIC board has also voted to give significant administrative authority to its chair through its bylaws and a delegation of authority. Through its bylaws, the FDIC board delegated certain appointment authority as well as reorganization authority to the chair. On January 29, 2002, the board members voted unanimously to delegate additional authority to the chair. The delegation expanded the chairs’ authority to appoint senior officials without a board vote. In contrast to FHFB’s delegation of authority, FDIC’s delegation expires when the current chair leaves office and the rules for administrative decision making revert to the rules in place prior to the revised delegation.

FHFB Chairs’ Exercise of Administrative Authority under Delegation Has Contributed to Conflicts among Board Members

Disagreements among board members about the chair’s use of the delegation of authority to make unilateral administrative decisions have historically caused tensions between the chair and other board members. In a recent example of the disputes among FHFB board members, Democratic members stated that the current Chair did not consult them in any significant way prior to announcing a major agency reorganization on August 7, 2002 (the specifics of the reorganization are discussed later in this report). As done in 10 previous FHFB reorganizations under the delegation of authority, the Chair did not seek board approval. According to the Chair, he notified other board members about the key points of the reorganization several weeks prior to the announcement. However, other board members have stated that they were not involved in the planning of the reorganization and did not receive details about the reorganization until it was announced. For example, at the September 2002 board meeting, one member stated “. . . we’ve just had a major restructuring that wasn’t done by the board, that there wasn’t advance notice, which had a real impact on the office.”

FHFB board members who served under former Chair Morrison also stated that he used the delegation of authority to exclude other board members from key administrative decisions. For example, one board member stated that Morrison appointed senior officials and reorganized the agency without any consultation. The board member stated that he disagreed with these decisions and believed that they undermined FHFB’s regulatory effectiveness. Morrison said that his actions were consistent with the administrative powers authorized to the chair under the delegation.

Morrison also said that he met frequently with other board members to explain his actions and that other board members never called special board meetings to question his decisions, as permitted under the delegation.

FHFB board members have also complained that chairs have used their delegated authority as the basis for unilateral actions on policy, which is the responsibility of the board as a whole. For example, two board members said that the current Chair acted unilaterally in selecting FHLBank public interest director candidates in 2002 and had minimal consultation on these selections with other board members. In past years, FHFB approved public interest director candidates by notational vote. In 2002, these two board members requested that the vote on the candidates take place in an open meeting, and they expressed their concerns at this public meeting about not having been consulted. FHFB officials said that the current Chair has initiated actions to improve the selection of public interest directors. In particular, the Chair developed new criteria governing the appointment of public interest directors. The new criteria require public interest directors to have an understanding of such issues as finance, political awareness, and corporate governance. On January 29, 2003, the FHFB board voted unanimously to approve the appointment of 28 public interest directors.

Disputes about the FHFB’s powers under the delegation of authority also took place during Chair Morrison’s tenure, between 1995 and 2000. For example, in a letter sent to Members of Congress, a former board member alleged that “Mr. Morrison has used and expanded the delegation of authority to unilaterally implement his policy objectives by thwarting Board consideration of issues where there may be disagreement with the Chairman by the independent directors.” Morrison said that his decisions under the delegation were proper and did not stray into policy matters reserved for the board.

FHFB Board Considered and Rejected a Proposal to Revise the Delegation of Authority

On January 29, 2003, while a draft copy of this report was with FHFB for official comment, the board debated and rejected by a 3 to 2 party-line vote a proposal to revise the existing delegation of authority and limit the chair’s administrative authorities. FHFB’s Chair placed the proposal on the agenda for meeting at the request of the agency’s two Democratic board members. Although FHFB board members’ staff said that they exchanged proposed language to revise the delegation of authority prior to the board meeting, they did not engage in substantive discussions over the proposal during that period. The proposed revisions to the delegation discussed at the January 29 board meeting would have allowed the FHFB board to approve the appointment of the agency’s office directors and reorganizations down to the office level. A board member who proposed the revision said that the current delegation had been “misused” by FHFB chairs and used as a basis to usurp the policy-making responsibilities of the board. Among other statements, FHFB’s Chair denied that he had “misused” his authority under the delegation and stated that the delegation was appropriate, among other reasons, because organizations need a single individual to direct operations to ensure efficient administration.

Certain FHFB Reduction-in-Force Actions Were Not Fully Consistent with Applicable Federal Age Discrimination Statutes and Regulations

On August 7, 2002, the FHFB Chair announced a major reorganization, and the agency sent RIF notices to nine staff members. Although FHFB provided significant financial compensation and career transition services to affected employees, certain FHFB actions in connection with the RIFs do not appear fully consistent with federal age discrimination statutes, regulations, or court decisions. We have informed EEOC of our findings in this area. In addition, FHFB placed each of the affected staff on administrative leave during the 60 day advance notice period (the period from the RIF notification on August 7 until actual separation from federal service). While OPM regulations require federal agencies to keep employees on active duty status during the advance notice period, FHFB officials said the agency had statutory authority to place the staff on administrative leave.

FHFB Reorganization Included a RIF

According to the FHFB Chair and Director of Management, the August 2002 reorganization was focused on improving supervision of the FHLBank System. Through a review of the organizational structure of FHFB, the Chair concluded that the agency dedicated too few resources to FHLBank supervision and too many resources to support functions and public and congressional relations. Accordingly, the Chair decided to eliminate the Office of Managing Director and the Office of Communications and merge OS with the Office of Policy, Research, and Analysis (OPRA) (see figs. 3 and 4). The Chair also decided to shift resources and positions from the eliminated offices to OS. In addition, FHFB changed the title of the Office of Resource Management to the Office of Management. The Chair and the Director of Management assumed responsibility for the day-to-day administrative duties formerly carried out by the Managing Director and, as is discussed later in this report, the Chair’s personal staff assumed responsibility for the Office of Communication’s public and congressional affairs functions.

As part of the reorganization, FHFB notified nine employees that they were subject to the RIF and that they would be separated from the federal service in 60 days (referred to as the advance notice period). To minimize the effect on the employees, FHFB hired an outplacement firm to help them prepare resumes and develop job search strategies. FHFB also notified each employee that he or she would receive federal severance and accrued annual leave benefits. Further, FHFB presented each of the affected employees with a “Negotiated Settlement Agreement” that offered 3 to 6 months salary (depending upon employment status) in exchange for agreement not to file any administrative actions or lawsuits against the FHFB, its chair, directors, or employees in connection with the employees’ employment with the agency or involuntary separation. According to documentation provided by FHFB, the agency gave the affected employees 47 days to decide whether to sign the settlement agreement. According to FHFB officials, eight of the nine affected employees signed the settlement agreements.

FHFB Settlement Agreement Waiver Provisions Not Fully Consistent with Age Discrimination Requirements

FHFB’s settlement agreements included provisions that waived employees’ rights to file lawsuits based on the Age Discrimination in Employment Act (ADEA), as amended. Waivers of rights under ADEA are valid and enforceable only if the waiver is knowing and voluntary, and courts have generally required employers to strictly comply with ADEA standards regarding waivers. Although FHFB took steps to comply with ADEA and EEOC regulations, certain provisions in the settlement agreements are not consistent with requirements. First, the settlement agreements required that employees waive their rights to file complaints, charges, or appeals with EEOC, which is not consistent with statutory and regulatory requirements. Second, FHFB did not advise each affected employee in writing to consult an attorney prior to signing the agreements and waiving his or her ADEA rights. Third, FHFB did not provide required information to the affected employees to assist them in determining whether to waive their rights under ADEA.

The Older Workers Benefit Protection Act (OWBPA) includes detailed provisions that deal with the validity of releases and waivers under ADEA, and sets forth minimum requirements for a knowing and voluntary release of claims under the ADEA. EEOC regulations implementing OWBPA apply to waivers of rights and claims under ADEA, and the regulations provide specifically that they apply to all waivers of ADEA rights and claims, regardless of whether the employee is employed in the private sector or public sector, including federal employment. The statute and regulations require that the agreement be in writing, refer specifically to claims under ADEA, be given in exchange for consideration that is above and beyond any benefit to which the employee is already entitled, and give the employee adequate time to consider the waiver before signing it.

The settlement agreements appear designed to comply with several of these requirements. For example, employees were given 47 days to consider the waiver and the settlement agreement refers specifically to claims under ADEA. As required by ADEA, the settlement agreements also provided affected employees over 40 years of age 7 days after signing the agreement to revoke the agreement. In addition, the settlement agreements included payments above and beyond what the employees were entitled to receive by statute. That is, FHFB agreed to pay each affected employee 3 to 6 months salary in exchange for agreeing to sign the settlement agreement.

However, a provision in the settlement agreements requiring employees to waive their rights to file charges, complaints, or appeals with EEOC does not appear to be consistent with OWBPA requirements and EEOC regulations. OWBPA provides that “No waiver agreement may affect the Commission’s rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” The EEOC regulations provide that “no waiver agreement may include any provision prohibiting any individual from “. . . (i) Filing a charge or complaint, including a challenge to the validity of a waiver agreement, with EEOC, or (ii) Participating in any investigation or proceeding conducted by EEOC.”

The settlement agreements also do not appear consistent with OWBPA requirements and EEOC regulations that require employers to notify employees in writing to consult with an attorney prior to agreeing to waive their rights under ADEA. The courts have determined that employers must specifically advise employees to consult an attorney. In FHFB’s settlement agreements, the relevant provision states that the “employee understands that he has had the opportunity to contact a representative of his choice to discuss the terms and conditions of this Negotiated Settlement Agreement. . .” An FHFB attorney stated that agency officials pointed out this statement in the settlement agreements to the affected employees. However, the settlement agreement does not advise the employees in writing to consult an attorney before agreeing to waive their rights under ADEA, and FHFB did not provide any other written advice for employees to consult an attorney.

In addition, FHFB did not provide information to the affected employees as is required under OWBPA and EEOC regulations. Employers that offer additional benefits to a group of involuntarily terminated employees in exchange for a waiver of claims under ADEA must satisfy additional requirements. These employers must provide detailed written information to employees describing the group termination program, including a listing of the job titles and ages of the employees selected for the program, and similar information for individuals who were not selected. This information is designed to permit older workers to make more informed decisions concerning waiver of ADEA rights. FHFB’s settlement agreements were part of a group termination program (e.g., a RIF). However, FHFB officials said that while the names of the terminated employees were provided, written information on the job titles and ages of all employees who were offered the settlement agreement was not provided. According to FHFB, the EEOC regulations do not require that this information be provided if the employer decides to eliminate all of the positions in a particular unit, as FHFB did with respect to the Office of the Managing Director and the Office of Communications. However, OWBPA and EEOC regulations do not distinguish between situations where employers terminate selected positions in a particular unit and others where all positions are terminated.

Employers are required to provide information on employee ages and job titles under either circumstance.

FHFB Placed Staff Subject to the RIF on 60 Days of Administrative Leave

FHFB restricted the access of employees subject to the RIF to the agency’s headquarters during the 60-day advance notice period—the period from the RIF notification on August 7, 2002, until actual separation from federal service—and placed them on administrative leave. FHFB’s decision to restrict staff access during the advance notice period was not consistent with OPM regulations, but FHFB officials said that the agency had statutory authority to take this action.

OPM regulations that apply to RIFs state that, when possible, employees should remain in active-duty status during the advance notice period. When in an emergency the agency lacks work or funds for all or part of the notice period, it may place employees on annual leave with or without their consent, leave without pay without their consent, or nonpay status without consent. While no statute governs the use of administrative leave, OPM regulations and federal administrative decisions have established standards for its use. These regulations and decisions have permitted agencies, in certain situations, to excuse an employee for brief periods without a loss of pay. However, agencies generally may not place employees on administrative leave for long periods unless their absence furthers an agency’s mission.

FHFB officials said that the agency’s authorizing statute provides authority to place employees on administrative leave during the advance notice period. FHFB officials said that the statute allows the agency to set the compensation of its employees without regard to the statutes affecting other agencies. FHFB officials said that all forms of leave, including administrative leave, are forms of compensation, and therefore, the agency was authorized to place the affected staff on administrative leave. Further, FHFB officials said that (1) placing the staff on administrative leave allowed them to take full advantage of the job placement services that the agency offered and (2) requiring the employees to report to the agency during the advance notice period when there was insufficient work for them to do was not cost effective. Although FHFB’s statute provides broad authority to set compensation of its employees, we note that the scope of FHFB’s authority and whether it appropriately supercedes OPM’s RIF regulations has not been established.

FHFB Has Announced Plans to Improve Its FHLBank Examination Program

Although we identified weaknesses in FHFB’s examination program in a 1998 report, FHFB did not address these weaknesses, and they persisted for several years. In August 2002, FHFB announced plans that could significantly improve its examination program and more than double the number of examiners. However, because FHFB has just started to revise its examination program, it is too early to evaluate the effectiveness of these plans.

FHFB Did Not Fully Address Examination Program Weaknesses

Our 1998 report identified limitations in FHFB’s examination program, which raised questions about the agency’s ability to help ensure that FHLBanks operate in a safe and sound manner. For example, the report found that FHFB examiners did not thoroughly review FHLBank internal control systems. Internal controls are defined as arrangements, such as procedures, organization structure, and technical methods, designed to provide reasonable assurance that (1) assets are protected from unauthorized use or disposition; (2) transactions are in compliance with law, regulation, FHFB policy, and the policy directives of the FHLBank’s director and management; and (3) financial reporting is accurate. According to our report, in September 1996, FHFB examinations stated that internal control reviews were “limited.” FHFB officials cited the limited number of examiners, 8 to 10 individuals, as one explanation for not conducting thorough internal control evaluations.

From 1998 through 2001, FHFB did not develop an examination program to ensure that each FHLBank has established an adequate internal control system. We reviewed all 36 FHFB bank examinations conducted in 1999 to 2001. Each of the 36 examinations stated that the review of internal controls was “limited in scope and did not involve a comprehensive review of the entire system of controls.” As of late July 2002, FHFB had 10 examiners, or the same number as in 1998. Moreover, from 1998 through 2002, direct mortgage acquisition programs added risks to the FHLBank System and the FHLBanks developed increasingly complex approaches to manage these risks.

Further, our 1998 report noted that FHFB examination workpapers did not adequately document corporate governance reviews or indicate that such reviews were conducted. Board of director and management oversight are essential elements of the corporate governance of financial institutions and financial and other risk management. At the September 2002 FHFB board meeting, discussion among board members suggested a concern about the lack of emphasis on corporate governance in the examinations. One board member stated that he believes the FHLBanks’ corporate governance is “uneven” and that FHFB’s examinations have not devoted sufficient attention to this critical area. The Chair and the other board member discussed directing FHFB’s examination staff to conduct an audit of corporate governance in the FHLBank System. The next section discusses this audit.

Our 1998 report noted that off-site monitoring in the FHFB examination program was weak and conducted in an uncoordinated manner. Off-site monitoring involves the analysis of financial data to monitor bank financial performance and to identify risks. Off-site monitoring can serve as an effective means to supplement the work of examiners working on-site. Regular monitoring between examinations, which generally take place on an annual basis, is important because the FHLBanks’ financial conditions and risks can change significantly in a short period. The 1998 report noted that OS off-site monitoring consisted of four periodic reports as well as monthly reviews of various bank information. While these reports were potentially beneficial, FHFB suspended them in 1997 due to staff constraints in OS. The 1998 report also noted that coordination between OPRA and OS on off-site monitoring activities was lacking.

We found that FHFB’s off-site monitoring program is still limited. For example, FHFB’s OS director said that in July 2002 that only one individual performs off-site monitoring functions. Rather than assess the financial performance of the FHLBanks, the director said that the individual tracks FHLBank compliance with existing examination recommendations. Although this function is important, it does not provide FHFB with information about safety and soundness issues, such as changes in the FHLBanks’ financial condition. A more comprehensive off-site monitoring program could help alert FHFB officials to the need for an on-site examination.

FHFB Has Initiated Steps to Significantly Revise the FHLBank Examination Program

In August 2002, FHFB’s Chair announced that FHFB would significantly increase the resources devoted to OS. FHFB set the fiscal year 2003 budget for OS at $9.7 million, a $2.8 million increase from fiscal year 2002 funding levels. FHFB also hired a new OS director and deputy director, both of whom have experience in examinations at other financial regulatory agencies. FHFB also plans to increase the number of examination staff from 10 to 24 by fiscal year 2004 and to open satellite locations in different parts of the country in which to base examiners. Under the previous examination approach, 8 to 10 examination staff spent 6 to 7 months on travel each year. FHFB officials said satellite locations would reduce travel demands on the examination staff and aid in hiring and retaining qualified staff. At the time of our review, OS was in transition; however, FHFB had increased the number of examiners. As of February 5, 2002, there were 14 examiners on staff at FHFB, an increase of 4.

According to the OS Director, FHFB also plans to significantly change its approach to conducting examinations to obtain a fuller understanding of FHLBank operations as FHLBank System business becomes more complex. Prior to September 2002, FHFB assigned its examiners to teams that included 4 to 5 members. In general, each examiner was responsible for conducting annual examinations at 6 of the 12 FHLBanks. According to FHFB officials, the examination teams reviewed different banks from year to year, and their membership was rotated as well. Therefore, an FHFB examiner might work on a particular bank’s examination one year but not the next. Moreover, FHFB examiners did not necessarily specialize in the areas (e.g., credit risk, interest rate risk, or affordable housing programs) that are examined on an annual basis. Instead, an examiner might review a bank’s interest rate risk operations at one examination and review another bank’s affordable housing program at the next examination.

The OS Director said that under the revised examination approach, by the fourth quarter of fiscal year 2003, FHFB plans to have three examination teams in place. Each team will consist of 8 members, with each team responsible for 4 of the 12 FHLBanks for 3 to 4 years. In addition, each examiner will focus on a particular area, such as interest rate risk or affordable housing compliance, at each of the four FHLBank examinations for which the individual is responsible annually. For example, the OS Director said that two recent hires on the examination staff have expertise in the area of corporate governance. According to FHFB, as of February 2003, OS had completed ten targeted corporate governance reviews at the FHLBanks, and expects to complete a final report on all 12 banks’ corporate governance by March 2003.

The OS Director also said that FHFB plans to develop a proactive and risk- based management approach to conducting FHLBank examinations. Prior to FHFB’s recently announced changes to its examination program, examiners might examine a particular FHLBank as of June 30 of a particular year. The examiners would then assess whether the bank was operated in a safe and sound manner and complied with all laws and regulations as of that date. Under the new risk management approach, the OS director said that the examination staff would try to identify the future risks facing each FHLBank and develop plans to help ensure that FHLBank management establish systems and controls to adequately manage those risks.

Overall, FHFB’s planned examination program is similar to the examination program of OFHEO, which regulates Fannie Mae and Freddie Mac. Fannie Mae and Freddie Mac are large government-sponsored, privately owned and operated corporations chartered by Congress to enhance the availability of mortgage credit across the nation during good and bad economic times. Similar to FHFB’s proposed examination program, OFHEO has established a risk-based examination program that assesses the controls Fannie Mae and Freddie Mac use to manage significant risks. In addition, OFHEO assigns staff with specialized skills, such as interest rate risk management, to its examination teams. OCC, FDIC, OTS and the Fed Board have also implemented similar risked-based examination programs.

FHFB has plans to expand off-site monitoring. Specifically, as of October 21, 2002, an FHLBank analyst was assigned to each FHLBank in an effort to enhance the OS off-site monitoring program. According to the OS Director, the recently announced merger between OS and OPRA (see figs. 3 and 4) provides opportunities for FHFB to enhance its off-site monitoring capability. In particular, examination and OPRA staff will now work in the same unit, which should allow better coordination of their activities.

Majority of FHLBank Public Interest Directors Made Political Contributions Prior to Their Initial Appointments

Available data indicate that 50 (67 percent) of the 75 public interest directors that FHFB appointed for the first time from January 1, 1998, through May 8, 2002, made one or more political contributions in the 8-year period prior to their initial appointments (see fig. 5). We obtained public interest director appointment data from FHFB and contribution data from CRP. CRP provided data that covers all federal election cycles from 1990 through 2002. We organized and presented the CRP contribution data to cover the tenures of the three FHFB chairs who were in office when FHFB made public interest director appointments during 1998 to 2002: Bruce Morrison, June 1995 to July 2000; William Apgar, July 2000 to December 2000; and John T. Korsmo, December 2001 to present. We focused our analysis on the 8-year period prior to each public interest director’s appointment to ensure a standard means of comparison between the three FHFB chairs.

Figure 6 shows that 28 (or 56 percent) of the public interest directors who reported making contributions prior to their appointments had done so 1 to 10 times while 22 (44 percent) had done so 11 or more times. Of the 5 directors appointed during Apgar’s tenure, all reported making 1 to 10 donations. The public interest directors appointed during the Morrison and Korsmo tenures were generally divided equally between those who reported 1 to 10 donations and those who reported giving 11 or more contributions.

Table 1 summarizes the number of contributions and the total amount of those contributions that each FHFB public interest director appointee made prior to his or her appointment. When we totaled each director’s contributions, we found the median value of those totals ranged from $3,250 for the 5 appointments made during Apgar’s tenure to $8,364 for the 26 appointments made during Korsmo’s tenure.

As shown in table 2, during the Morrison and Korsmo tenures, FHFB did not appoint public interest directors who give exclusively to the party that is not the party of the chair. That is, FHFB did not appoint any public interest directors who had made contributions exclusively to the Republican Party during Morrison’s tenure, nor did FHFB appoint any public interest directors who gave exclusively to the Democratic Party during Korsmo’s tenure. However, during the Morrison and Korsmo tenures, FHFB appointed public interest directors who gave to both parties. During Apgar’s tenure, FHFB appointed three individuals who gave exclusively to the Democratic Party, one who gave exclusively to the Republican Party, and one who gave to both parties.

We also analyzed data obtained from Fannie Mae and Freddie Mac to determine the political contributions of members of their boards of directors who are appointed by the President. Using CRP data, we determined the political contributions of Fannie Mae and Freddie Mac directors appointed from January 1, 1998, through 2002. Our analysis shows that 18 of the 19 (95 percent) of the Fannie Mae and Freddie Mac directors appointed during that period had made political contributions in the 8-year period prior to their initial appointments. The median value of the total number of contributions for an individual was 11, and the median of the total preappointment donations was $7,000.

FHFB’s Use of Schedule C Positions Sometimes Differs from the Practices of Other Financial Regulators

In some cases, FHFB’s use of Schedule C positions differs from the practices of other financial regulators. At FHFB and five of the six other financial regulatory agencies that we reviewed, the agencies allot Schedule C positions to the chair and other board members. Unlike FHFB, four of these five agencies appoint Schedule C officials to head certain staff offices, such as Office of Policy or the Office of General Counsel. The FHFB chair’s personal staff, including a Schedule C appointee, are responsible for the agency’s public and congressional affairs functions, a practice unique among the regulatory agencies that we reviewed.

FHFB Schedule C Positions Are Allotted to the Chair and Other Board Members

Schedule C appointees at FHFB and five other agencies work directly for the agencies’ policymakers: the chair and other board members (see table 3). Unlike FHFB and CFTC, the other four agencies allot Schedule C positions to head some staff offices. For example, FCA has Schedule C appointees in positions such as Director of the Office of Congressional and Public Affairs, Director of the Office of Policy and Analysis, and Chief Operating Officer. SEC has Schedule C appointees for three director positions: Director of the Office of Communications, Director of the Office of Legislative Affairs, and the Director of Office of Public Affairs. SEC also allots Schedule C positions to several nondirector-level positions within the organization.

FHFB Chair’s Staff is Responsible for Public and Congressional Affair Functions

We compared FHFB’s approach to managing its public and congressional affairs functions to the approaches of the six other financial regulatory agencies. Unlike FHFB, each of these six agencies has a separate public and congressional affairs office, typically staffed by full-time career employees. At SEC, FCA, and NCUA, the chairs appoint Schedule C officials to run these offices; while career officials run the offices at the Fed Board and FDIC. At CFTC, a noncareer and non-Schedule C executive heads the public and congressional affairs office.

Since FHFB’s August 7, 2002, reorganization, the Chair’s personal staff has been responsible for the agency’s public and congressional affairs functions. Specifically, FHFB officials said that a Schedule C appointee from the Chair’s staff has assumed responsibility for managing media relations and a career staff member who is also on the Chair’s staff is responsible for congressional relations. According to the FHFB officials, the Chair’s personal staff have been able to incorporate the public and congressional affairs functions into their normal duties. FHFB officials said that the Chair’s staff have been able to assume these responsibilities because, with about 100 employees, FHFB is a comparatively small agency with limited congressional and public affairs responsibilities.

Conclusions

Due to the delegation of authority, the FHFB chair has relatively broad administrative power, compared with most financial regulatory chairs, to appoint senior officials and reorganize the agency without obtaining a board vote or approval. The delegation prevents the full board from participating in key administrative decisions that have potential policy implications. At a January 29, 2003, FHFB board meeting, the board in a close 3 to 2 vote along party lines rejected a proposal to revise the delegation of authority that would have required board approval for senior appointments and major agency reorganizations. Although FHFB board member staff exchanged proposed language to revise the delegation of authority prior to the meeting, there was little collaboration among the staff. While the FHFB board has determined that the delegation remains the most efficient means to administer the agency, we continue to believe that the decision potentially frustrates one of Congress’ objectives in establishing a board to regulate the FHLBank System. That is, the board structure is designed to help ensure that key decisions benefit from the experiences and perspectives of all board members. In addition, the FHFB board’s decision will likely result in the continuation of the sometimes bitter conflicts that have periodically characterized the relationships among board members over the past 8 years.

Going forward, the FHFB board would benefit from considering a range of options that would involve all board members in key administrative decisions. Some of these options may not involve any changes to the current delegation of authority. For example, the chair could notify and brief other board members of key administrative decisions prior to their implementation and seek other board members’ advice and counsel on these decisions. Or, the FHFB board could consider practices at other financial regulatory agencies that provide for board or commission involvement in key administrative decisions. At CFTC, for instance, the chair’s authority to reorganize the agency is similar to that of the FHFB chair, but CFTC’s practice has been for the chair to submit major reorganization proposals to the commission for a vote. In addition, board members and their staffs could work together to determine if there are any areas of agreement on approaches—including revising the delegation of authority—that would increase board participation in key administrative decisions while preserving the chair’s authority to administer the agency on a day-to-day basis. While there is no requirement or guarantee that FHFB board members agree on all key administrative decisions, establishing processes and practices to ensure full board participation could enhance the quality of such decisions and improve relations among board members.

FHFB offered significant financial compensation to staff that received RIF notices during the August 2002 reorganization. However, provisions in the settlement agreements do not appear fully consistent with federal age discrimination statutes and regulations. For example, a provision in the settlement agreements that required employees to waive their rights to file charges, complaints, or appeals with EEOC is not consistent with ADEA’s prohibition against waivers of these rights. FHFB also (1) did not include required language in the settlement agreements advising employees in writing to consult with an attorney prior to signing the settlement agreements and waiving their ADEA rights and (2) failed to provide the affected staff with information on the job titles and ages of staff, as required under ADEA and EEOC regulations. We have informed the EEOC about our findings regarding the FHFB settlement agreement provisions pertaining to the waiver of ADEA rights.

FHFB did not take actions in a timely way to address FHLBank examination program weaknesses that we identified in a 1998 report. However, in 2002, current FHFB Chair Korsmo announced plans and initiated actions, such as hiring more examiners that have the potential to improve the quality of the agency’s safety and soundness oversight. Continued FHFB management focus on the examination program is essential over the next several years to ensure that the reforms are fully implemented and their effectiveness evaluated.

We also note that FHFB’s Chair, initiated these changes to the examination program under the delegation of authority. While these changes hold out the potential for improving FHFB’s examination program, the unilateral manner in which they were carried out resulted in further disputes among board members. Permitting greater board involvement in such key decisions would provide greater opportunity for consensus without necessarily delaying any changes. Decisions that have the potential to affect the critical means by which FHFB ensures FHLBank safety and soundness merit the attention and consideration of the full board.

Recommendations

To ensure full board participation in key administrative decisions that have policy implications, such as senior appointments and major reorganizations, we recommend that the FHFB board consider a range of options that could be implemented within the current delegation of authority. These options include the chair (1) notifying, briefing, and/or soliciting input from other board members on major administrative decisions prior to their implementation and (2) submitting key administrative decisions to the board for a vote or approval. We also recommend that board members and their staffs hold discussions on approaches—including potential revisions to the delegation of authority— that would ensure board participation in key administrative decisions while preserving the chair’s authority to administer the agency on a day-to-day basis.

We also recommend that FHFB fully comply with applicable federal age discrimination statutes and regulations in offering settlement agreements to employees subject to RIFs.

Agency Comments and Our Evaluation

We received FHFB’s comments on a draft of this report from the Director of the Office of Management and written comments from FHFB board members Franz S. Leichter and Allan I. Mendelowitz, which are reprinted in appendix IV and V, respectively. We also provided relevant excerpts from a draft of this report to the six other financial regulatory agencies that we reviewed (SEC, FDIC, NCUA, Fed Board, CFTC, and FCA). FCA’s Chair provided written comments, which are reprinted in appendix VI. Representatives from all six regulatory agencies that we contacted provided oral comments and we received technical comments, which we have incorporated as appropriate.

FHFB disagreed that the board should revise the delegation of authority to allow for board participation in key administrative decisions. FHFB agreed with one of our findings regarding the settlement agreements offered to employees subject to the 2002 RIF but disagreed with two others. FHFB also commented on the draft report’s findings regarding the examination program, public interest director appointments, and Schedule C positions. Among other statements, Leichter and Mendelowitz agreed with our recommendation regarding the delegation of authority and expressed concern about how the agency conducted the RIF. The FCA Chairman’s comments related to the number of Schedule C positions that are filled at the agency. Representatives from each of the six agencies that we contacted agreed with the draft report’s findings regarding their agency’s operations. The following summarizes FHFB’s comments and, where appropriate, our evaluation for the five report sections: (1) the delegation of authority, (2) FHFB’s compliance with age discrimination requirements in connection with the RIF, (3) FHFB’s examination program, (4) public interest director appointments, and (5) Schedule C positions at financial regulatory agencies. We also summarize the comments of Leichter, Mendelowitz, and the FCA Chairman.

FHFB Comments and Our Evaluation

Delegation of Authority

FHFB noted that at the January 29, 2003, meeting the board had considered, as we recommended in the draft report, and rejected a proposal to revise the delegation of authority that would have required board approval for senior appointments and major reorganizations. FHFB stated that a majority of the board believes that vesting broad administrative responsibility in the chair is the best method to manage the agency’s day-to-day operations. However, we continue to believe that full board participation in key administrative decisions is essential.

FHFB also made several points to support its view that the board should not revise the delegation of authority. First, FHFB stated that the current delegation of authority allows individual board members to propose items to the board for action. Second, FHFB stated that we did not provide sufficient evidence to support the assertion that there was tension and conflict among board members regarding the delegation of authority. FHFB also stated that Congress intended for tension to exist in creating FHFB— due to the divided partisan composition of the board—and that such tension can serve a “constructive purpose.” Third, FHFB stated that we made an error in figure 1 of the draft report “ . . . in asserting that the appointment of senior officials and personnel decisions at the Securities and Exchange Commission must be made with board approval.” FHFB stated that reorganization and top-level appointments at SEC do not require a board vote. In addition, FHFB included a lengthy attachment to its official agency comments, which has not been included in this report. The attachment discussed a range of issues, including a history of the delegation of authority, theories on management and delegations of authority at other agencies, and information on FHFB’s examination and supervision program for the FHLBanks.

Regarding FHFB’s first point, we believe that the provision in the delegation allowing board members to call board meetings to challenge the chair’s key administrative decisions does not provide for enhanced board collegiality and consultation. Rather, the delegation of authority allows the chair to make and implement such decisions without consulting other board members and requires any board members who oppose these decisions to marshal a majority vote to overturn the decision. In our view, board member collaboration would be enhanced if consultations and votes or approvals took place before key administrative decisions were made and implemented. While there is no requirement or guarantee that all board members would agree to vote for or approve key administrative decisions, full board participation in the process could serve to improve the decisions and enhance collegiality.

We disagree with FHFB’s second point and believe that this report offers significant evidence of tensions and conflicts between board members resulting from the delegation. Such tension and conflicts have periodically characterized the board member relations over the past 8 years. We acknowledge that tension and conflict are inevitable at any board with divided representation and that such tension can in some cases be beneficial. However, we note that at FHFB, unlike most other financial regulatory agencies, there is no appropriate process or forum for board members to consider key administrative decisions before they are made and implemented.

We also disagree with FHFB’s final assertion that our report incorrectly described the process for appointing senior officials at SEC. The report draft stated that at most other financial regulators boards either vote on or must give approval for senior appointments. The relevant authority regarding SEC—Reorganization Plan No. 10 of 1950—states that the commission is responsible for approving senior appointments. The commission has established a practice to fulfill this responsibility whereby the chair obtains the approval of other commissioners prior to making senior appointments. SEC officials agreed with our report’s statements regarding the agency’s appointment process.

FHFB’s Compliance with Age Discrimination and Other Requirements in Connection with the RIF

FHFB said it agreed with one of our findings regarding the settlement agreements but disagreed with two others. FHFB said it concurs that the settlement agreements should have advised employees to consult with an “attorney” rather than a “representative” prior to signing. However, FHFB also stated that the language in the settlement agreements was not intended to interfere with EEOC’s enforcement authority. FHFB stated that any employee was clearly free to challenge the settlement agreement at a later date. FHFB also stated that it disagreed with a statement in the draft report that it was required to provide the names, ages, and positions of employees who were not selected for separation from the agency. FHFB also stated that since it abolished all of the positions in the former Office of Communications and the Office of Managing Director, OWBPA and EEOC requirements on providing information to employees who were offered the settlement agreement did not apply. Additionally, FHFB disagreed with a statement in the draft report that FHFB’s decision to place staff subject to the RIF on administrative leave during the advance notice period was inconsistent with OPM regulations. FHFB said that its statute authorizes the agency to pay the compensation of its employees without regard to the laws affecting federal employees, and that administrative leave is a form of compensation.

While FHFB agreed with our findings regarding advising employees to consult with an attorney prior to signing the agreements, we need to clarify that the problem with the separation agreements was not confined to the use of the term “representative” rather than the term “attorney.” OWBPA and EEOC regulations require that the employer advise the employee in writing to consult an attorney prior to waiving their ADEA rights. FHFB’s settlement agreements were deficient in that they did not directly advise or recommend that employees consult with an attorney prior to signing them. Rather, the settlement agreements used more passive language stating that each employee had the opportunity to contact a representative to discuss the terms and conditions of the agreements, which the courts have held does not meet the statutory requirements. If FHFB had replaced the word “representative” in the settlement agreement with the word “attorney,” the agreements still would not have been consistent with OWBPA and EEOC requirements.

We disagree with FHFB that the settlement agreement provisions pertaining to EEOC and information requirements were consistent with applicable requirements. EEOC regulations clearly prohibit any agreement that interferes with an individual’s right to file a complaint with EEOC or affects the EEOC’s rights and responsibilities to enforce the ADEA. While FHFB asserts that employees were clearly free to challenge the agreements at a later date, the broad language of the settlement agreement states that employee agrees not to file a complaint or appeal with the EEOC. Such a broad prohibition could deter an individual from contesting the agreement and the validity of the waiver of ADEA rights. Additionally, the draft report stated that FHFB did not provide information on the job titles and ages of staff offered settlement agreements to all such staff. The draft report did not state that FHFB should have provided such information for staff who were not subject to separation. There is also no requirement that employers provide names of employees, and the draft report did not state that FHFB should have done so. Nonethless, FHFB’s failure to provide information on the job titles and ages of employees subject to the RIF to all such employees was inconsistent with EEOC regulations. While the EEOC regulations define the scope of the information requirement, the regulations do not suggest that when all of the positions in a particular office are eliminated, no information needs to be supplied. The purpose for providing the information is for employees to have the opportunity to assess the viability of an age discrimination claim and whether or not to waive their rights to pursue such a claim. FHFB employees were not provided with the information necessary to make such a decision.

Regarding FHFB’s comments on placing staff on administrative leave, we have added language to the report stating that FHFB believes it has statutory authority to disregard OPM regulations requiring staff to be kept on active status during the advance notice period. However, we note that the scope of FHFB’s authority and whether it appropriately supercedes OPM’s RIF regulations has not been established.

FHFB’s FHLBank Examination Program

FHFB stated that Chair Korsmo initiated significant changes to enhance the capabilities of the agency’s FHLBank examination program and that the draft report did not sufficiently recognize that he was responsible for these initiatives. FHFB stated that at the start of Korsmo’s tenure in December 2001, the agency’s Office of Supervision was understaffed and insufficiently focused on the FHLBanks’ risk assessment processes, internal control systems, and systems of corporate governance. FHFB also listed the steps that the Chair initiated to improve supervision, including hiring experienced management for OS and increasing the number of examiners. FHFB also stated that while it agrees with our assertion that these changes have the potential to improve the agency’s examination program, it believes that the changes have already resulted in significant progress.

We agree that Chair Korsmo has initiated important steps to improve its examination program and have added language to the report describing these initiatives. However, we continue to believe that additional time and management oversight is needed to ensure that this critical FHLBank examination function is improved.

Public Interest Director Appointments

FHFB stated that the draft report had a narrow focus on the political contributions of FHLBank public interest directors and that this narrow focus resulted in an incomplete portrayal of the selection process, recent improvements in that process, and the critical roles played by public interest directors. FHFB also stated that the draft report’s focus called into question the integrity of the appointment process and that political contributions are a determining factor in the appointment process. FHFB stated that public interest directors are now appointed in public votes and that the Chair instituted new criteria for the selection of public interest directors. FHFB also noted that the board voted unanimously to approve 28 public interest directors at the January 29, 2003, board meeting.

We were asked to provide an analysis of the political contributions of public interest directors prior to their initial appointments. We did not conduct a broader review of the appointment process or the qualifications and capabilities of public interest directors. Our review was not intended to call into question the appointment process or the integrity or qualifications of individual public interest directors. We have added language to this report discussing the Chair’s criteria for appointing public interest directors and the January 29, 2003, board meeting.

Schedule C Positions

FHFB noted that the report did not identify any Schedule C practices at FHFB that violated OPM rules and that Chair Korsmo has instituted changes to correct past practices that improperly categorized employees who should have had Schedule C appointments. FHFB stated that all of the agency’s Schedule C officials serve as confidential advisers to board members. FHFB also reiterated that the small size of the agency serves as an appropriate basis for assigning its public and congressional affairs functions to the Chair’s personal staff.

Comments of Board Members Leichter and Mendelowitz

In their comments, Leichter and Mendelowitz said that because the FHFB board did not consider or vote on an agency response to our draft report, there is no official agency response to the report. We have not attempted to resolve this dispute among FHFB officials, and we treat the response from FHFB’s Director of Management as the agency’s official response.

Regarding the major issues discussed in the draft report, Leichter and Mendelowitz made the following comments: Delegation of Authority: Leichter and Mendelowitz stated that the delegation of authority (1) resulted in conflicts between board members; (2) was contrary to FHFB’s authorizing legislation, which vests agency management in the board rather than the chair; and (3) was “anachronistic” because it was enacted when the board had a part-time membership. In response to a comment from Leichter and Mendelowiz regarding changes that the FHFB board made to the delegation of authority in 1993, we have added language to the report.

FHFB Actions in Connection with the RIF: Leichter and Mendelowitz said that they were “deeply concerned” about the way in which FHFB conducted the RIF and expressed concern about the elimination of the Office of Managing Director because the action impeded communication between board members and agency staff. They also raised concern that the draft report did not discuss other procedures that FHFB followed in conducting the RIF. Such an analysis was outside the scope of this review.

Public Interest Director Appointments: Leichter and Mendelowitz said that the appointment of public interest directors has become increasingly “political,“and they expressed concerns that public interest directors lack expertise in the FHLBanks increasingly sophisticated financial practices. As discussed previously, our review was limited to an analysis of public interest director political contributions prior to their initial appointments.

Schedule C Practices: Leichter and Mendelowitz questioned whether it was “appropriate” for one board member’s staff to perform functions that the former Office of Communications previously performed for the entire board. While the FHFB Chair’s staff currently performs these functions, we note that at other agencies (SEC, CFTC, NCUA) the chairs can appoint and remove the Schedule C officials who run public or congressional affairs offices. Therefore, it is not clear that the FHFB Chair exercises greater control over these functions than is the case at the other agencies.

Comments of the FCA Chairman

The FCA Chairman stated that of the agencies’ 12 Schedule C positions, 6 are currently held by career staff.

We will send copies of this report to Chairman of the Senate Committee on Banking, Housing and Urban Affairs; the Chairman of the House Financial Services Committee; and the Ranking Minority Member of the Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises of the House Committee on Financial Services. We will also send copies to FHFB, NCUA, FCA, CFTC, SEC, FDIC, and the Fed Board. We will also make copies available to others upon request. In addition, this report will be available at no charge on the GAO Web site at http:// www.gao.gov.

Please contact Mathew J. Scire at (202) 512-6794 if you or your staff have any questions concerning this report. Key contributors to this report were Rachel M. DeMarcus, M’Baye Diagne, Nadine Garrick, Ayeke Messam, Marc W. Molino, Andy Pauline, Wesley M. Phillips, Mitchell B. Rachlis, and Barbara M. Roesmann.

Objectives, Scope, and Methodology

As discussed with your staff, our report objectives are to (1) compare the Federal Housing Finance Board (FHFB) chair’s administrative authorities to those of the chairs of other financial regulators and discuss the basis for that authority; (2) assess FHFB’s compliance with selected applicable statutes and procedural requirements in connection with a reduction-in- force (RIF) that was carried out as part of an agency reorganization announced on August 7, 2002; (3) assess FHFB’s progress in enhancing its Federal Home Loan Bank (FHLBank) safety and soundness examination program; (4) provide data showing the political contributions of FHLBank public interest directors prior to their appointments; and (5) compare FHFB’s use of Schedule C appointments and the organization of its public and congressional affairs functions with the practices of other financial regulatory agencies.

To study the source of the FHFB chairs’ administrative authorities and how they compare to those of other financial regulators, we reviewed the Federal Home Loan Bank Act, the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and FHFB’s delegation of authority to its chair. We also reviewed the legislation, regulations, delegations of authority, and other legal documents that govern or describe the scope and limitations of each chair’s authority at six other selected financial regulators. We interviewed officials from each of the selected financial regulators, including former FHFB officials, to obtain their views on the authorities of chairs and board members at each of these entities. Using this information, we compared the FHFB chairs’ administrative authorities to those of the selected financial regulators.

To study FHFB’s compliance with required Reduction-in-Force (RIF) and other procedures, we reviewed the Age Discrimination in Employment Act, as amended, the Older Workers Benefits Protection Act, applicable Equal Employment Opportunity Commission (EEOC) and Office of Personnel Management (OPM) regulations, and case law. We also contacted senior FHFB officials regarding the RIF. Our review did not include an analysis of the “bumping rights” procedures that FHFB followed in carrying out the RIF.

To study FHFB’s progress in enhancing its FHLBank safety and soundness examination program, we assessed whether FHFB addressed recommendations about its examination program that we made in a 1998 report. We reviewed 1999 to 2001 examination reports for the 12 FHLBanks. We also interviewed FHFB officials, as well as officials at OFHEO, to which we compared FHFB’s examination program.

To study the data showing the political contributions of FHLBank public interest directors prior to their appointments, we obtained public interest director appointment data from FHFB for 1998 to 2002 and contribution data from the Center for Responsive Politics (CRP) for 1990 to 2002. CRP organizes and provides political contribution data that is initially reported to the Federal Election Commission (FEC). To ensure a standard comparison, we determined whether directors made a political contribution in the 8-year period prior to their appointment. We matched and merged the two data sets and analyzed the data to determine the number of public interest directors who made contributions prior to their initial appointments. We also collected data from Fannie Mae and Freddie Mac on the names and appointment dates of board members who received their initial presidential appointments from 1998 through 2002. We obtained data from CRP to determine the Fannie Mae and Freddie Mac directors’ political contributions in the 8-year period prior to their appointments.

We took several steps to assess the reliability of the CRP data and concluded that the data were sufficiently reliable for our purposes. First, we interviewed CRP officials to determine their data management procedures and the approach that they followed to match the list of public interest directors that we provided to the CRP contribution database. Second, we reviewed the matched data set that CRP provided and corrected erroneous matches between directors and contributors. Third, in performing our analysis, we conducted basic tests on the data we used. In performing our analysis, however, we did not verify the accuracy of the FEC political contribution data on which CRP records are based. Our review did not include an analysis of FHFB’s appointment process or the integrity and qualifications of individual board members.

To study FHFB’s use of Schedule C appointments and organization of the public and congressional affairs functions and compare it with the other financial regulatory agencies, we interviewed agency officials at each of the selected financial regulators, and reviewed documents that described the allocation of Schedule C appointments, as well as the management and staffing structure of the agencies’ public and congressional functions.

We conducted our review in Washington, D.C., San Francisco, and Seattle from April 2002 through February 2003 in accordance with generally accepted government auditing standards.

Administrative Powers of Financial Regulatory Chairs

We compared FHFB to six other regulatory boards and commissions. We reviewed each board or commission’s statute and policies relating to the administrative authority of the chair. We focused on two administrative areas: appointment of senior officials and reorganization decisions. In cases where the chair is authorized to make key administrative decisions without board approval, we also determined whether board members had authority to review decisions made by a chair in these circumstances.

We reviewed the following seven agencies: Commodity Futures Trading Commission (CFTC), Farm Credit Administration (FCA), Federal Deposit Insurance Corporation (FDIC), Federal Housing Finance Board (FHFB), Board of Governors of the Federal Reserve System (Fed Board), National Credit Union Administration (NCUA), and Securities and Exchange Commission (SEC).

Commodity Futures Trading Commission

The commission consists of five members, appointed by the President with the advice and consent of the Senate, and each serve staggered 5-year terms.

General Administrative Powers of the Chair: According to the statute that established CFTC, the chair is the chief administrative officer. Executive and administrative functions are generally exercised solely by the chair, according to budget categories, plans, programs, and priorities established and approved by the commission.

Key Administrative Powers of the Chair: Appointment of Senior Officials: According to the statute establishing CFTC, the chair’s appointment of heads of major administrative units is subject to approval of the commission.

Reorganizations: While the chair is generally authorized to reorganize the staff of the agency pursuant to his or her power over executive and administrative functions, as a practice the commission votes on agency reorganizations.

Farm Credit Administration

The board consists of three members, appointed by the President with the advice and consent of the Senate, and each serve staggered 6-year terms.

General Administrative Powers of the Chair: The President designates one of the members as chairman, and the chairman serves as the agency’s chief executive officer (CEO). The powers of the chair as CEO that are necessary for day-to-day management may be exercised and performed by the chairman through such other officers and employees of the FCA as the chair shall designate. Policy Statement 64, originally adopted by the board of FCA in 1994 and revised as recently as September 24, 1999, provides rules for the transaction of business (Rules) and operational responsibilities of the board.

Key Administrative Powers of the Chair: Appointment of Senior Officials: According to the statute that established the FCA, the appointment of the heads of major administrative divisions is subject to the board’s approval. Under Policy Statement 64, the board interprets “heads of major administrative divisions” to mean the chief operating officer and career office directors. However, in some cases, such as the Director of the Office of Congressional and Public Affairs, the chair can appoint Schedule C officials to run these offices.

Reorganizations: Under Policy Statement 64, the board approves the FCA organizational chart down to the office level along with relevant functional statements for each office. Under Policy Statement 64, the authority to make organizational changes within any division rests with the CEO.

Review of Decisions Made by Chair: As noted in Article V and Article IX of Policy Statement 64, Special Meetings of the board may be called: 1. by the Chairman; 2. by any two members; or 3. if there is at the time a vacancy on the board, by any member.

Any call for a Special Meeting shall set forth the business to be transacted and shall state the place and time of such a meeting. Except with the unanimous consent of all members, no business shall be brought before a Special Meeting that has not been specified in the notice of call of such a meeting.

Section 1. The business of the Board shall be transacted in accordance with these Rules (Policy Statement 64) as the same may be amended from time to time: Provided, however, that upon agreement of at least two members convened in a duly called meeting, the Rules may be waived in any particular instance, except that action may be taken on items at a Special Meeting only in accordance with Article V, Section (3) b, hereof.

Section 2. These Rules may be changed or amended by the concurring vote of at least two members upon notice of the proposed change or amendments having been given at least 30 days before such vote.

Federal Deposit Insurance Corporation

The President with the advice and consent of the Senate appoints three members of the five-member board for a term of 6 years. In addition to the three appointive directors, there are two ex officio members of the FDIC board: the Comptroller of the Currency and the Director of the Office of Thrift Supervision.

General Administrative Powers of the Chair: One of the appointive directors shall be designated by the President, with the advice and consent of the Senate, to serve as chair of the board for a term of 5 years. The chair serves as the CEO. The board has delegated to the chair the authority to manage the FDIC’s day-to-day operations and the general powers and duties usually vested in the office of the CEO of a corporation.

Key Administrative Powers of the Chair: Appointment of Senior Officials: A delegation of authority to chair, approved on January 29, 2002, gave authority to the chair to appoint and remove senior officers.

Reorganizations: Under the delegation of authority, the chair has authority to reorganize the agency.

Challenging Administrative Decisions Made under Delegation: Two or more board members may initiate a review of any decision made under the delegation of authority.

Federal Housing Finance Board

The board consists of four members appointed by the President with the advice and consent of the Senate and each serve staggered 7-year terms, and the fifth member is an ex-officio member, the Secretary of Housing and Urban Development.

General Administrative Powers of the Chair: The President designates an appointed director as chair. The board has adopted a delegation of authority that authorizes the chair to effect the overall management, functioning, and, organization of the board.

Key Administrative Powers of the Chair: Appointment of Senior Officials: Under the delegation of authority, a chair can appoint agency personnel without a board vote or obtaining board approval.

Reorganizations: Under the delegation of authority, a chair can reorganize the agency without a board vote or consent.

Challenging Administrative Decisions Made under Delegation: Under the delegation of authority, the chair must call a special session of the board to consider any matter of business on the request of any two or more board members.

Board of Governors of the Federal Reserve System

The board consists of seven members appointed by the President with the advice and consent of the Senate. The full term of a board member is 14 years, and the seven terms are staggered so that one expires in each 2-year period.

General Administrative Powers of the Chair: The chair, subject to board supervision, serves as its “active executive officer.”

Key Administrative Powers of the Chair: Appointment of Senior Officials: The board votes on the appointment of senior officials.

Reorganizations: The board votes on major administrative reorganizations, which are defined as those that involve changing officers (appointing or removing an officer).

National Credit Union Administration

The NCUA has a full-time, three-member board, which is appointed by the President with the advise and consent of the Senate.

General Administrative Powers of the Chair: The Federal Credit Union Act provides that the chair is the spokesperson for the board and implements policies and regulations adopted by the board.

Key Administrative Powers of the Chair: Appointment of Senior Officials: The board votes on the appointment of senior officials. However, in some cases, such as the directors of the Office of Congressional and Public Affairs, the chairs can appoint Schedule C officials to run it.

Reorganizations: The board votes on reorganizations of the agency.

Securities and Exchange Commission

Five members serve staggered 5-year terms, and are appointed by the President with the advice and consent of the Senate.

General Administrative Powers of the Chair: There is no statutory reference to the selection of a chair. However, under section 3 of the Reorganization Plan No. 10 of 1950, the function of the commission, with respect to choosing a chair from among the members was transferred to the President. The Reorganization Plan also transferred to the chair from the commission the administrative and executive functions of the commission, including appointment and supervision of personnel, the distribution of business, and the use and expenditure of funds. Appointment by the chair of the heads of the major administrative units is subject to the approval of the commission. However, in some cases, such as the Director of the Office of Public Affairs, the chair can appoint Schedule C officials to run these offices.

Key Administrative Powers of the Chair: Appointment of Senior Officials: Under Reorganization Plan No. 10 of 1950, the board approves the appointment of senior officials.

Reorganizations: Under Reorganization Plan No. 10, the chair can reorganize the agency.

Waivers of Rights Under the Age Discrimination in Employment Act

While employees generally may agree to waive rights to pursue employment related claims if the waiver is knowing and voluntary, special considerations apply to waivers of rights under the Age Discrimination in Employment Act (ADEA). Title VII of the Civil Rights Act of 1964 (Title VII) does not include age as a basis for illegal discrimination in the workplace. However, in 1967, Congress enacted the ADEA to promote the employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination, and to help employers and employees find ways of meeting problems arising from the impact of age on employment. The ADEA forbids arbitrary discrimination against workers on the basis of age in hiring, promotion, terms of employment and discharge. The ADEA was enacted with characteristics of both Title VII and the Fair Labor Standards Act of 1928 (FLSA); while Title VII’s substantive prohibitions on discrimination were included, the enforcement mechanisms of FLSA were also incorporated.

This structure caused controversy over waivers of rights under ADEA because Title VII waivers are treated differently from FLSA waivers. Title VII rights may be waived without government supervision so long as the waiver is knowing and voluntary. In contrast, rights provided by the FLSA cannot be waived without government supervision. Waivers must be supervised by the Secretary of Labor or under a federal court-supervised settlement of a lawsuit filed pursuant to FLSA.

On August 27, 1987, EEOC issued a final rule that allowed unsupervised waivers if the waiver was knowing and voluntary and provided that a valid ADEA waiver may not release prospective claims and may not be in exchange for consideration that includes employee benefits to which the employee was already entitled. The EEOC rule also listed several factors as being relevant to determining whether a waiver is knowing and voluntary. These factors included whether the employee was encouraged to consult with an attorney. However, Congress suspended the rule, citing concerns that the rule was contrary to public policy and, in the spring of 1988, held hearings concerning waivers of ADEA rights and EEOC’s regulation.

In October 1990, the Older Workers Benefit Protection Act (OWBPA) amended ADEA to add specific requirements for releases of ADEA claims. The legislative history of OWBPA provides that the legislation is intended to protect individuals covered by ADEA, and it further provides that the legislation establishes minimum requirements that must be satisfied before a court can proceed to determine factually whether a waiver was knowing and voluntary. All of the requirements are necessary independent of the knowing and voluntary considerations. The informational requirements are designed to permit older workers to make more informed decisions and to determine whether an employment termination program gives rise to a valid claim under ADEA.

OWBPA requires that no individual may waive any right or claim under ADEA unless the waiver is knowing and voluntary. OWBPA specifies the minimum requirements for a knowing and voluntary release of claims under ADEA. The waiver must, at a minimum, comply with the following requirements: 1. Be written in a manner calculated to be understood by the average individual eligible to participate, 2. Specifically refer to rights and claims arising under ADEA, 3. Not waive rights and claims that may arise after the date the waiver is 4. Provide for consideration in addition to anything of value to which the individual already is entitled, 5. Advise the individual in writing to consult with an attorney prior to 6. Give an individual a period of at least 21 days within which to consider the agreement, and 7. Provide that the individual may revoke the agreement for a period of at least 7 days following the agreement’s execution.

A waiver in settlement of a charge filed with EEOC or a court action must meet the first five factors listed above, and the individual must be given a reasonable period of time within which to consider the agreement. Additional informational requirements apply in the case of a waiver requested in connection with an exit incentive or other employment termination program offered to a group or class of employees. The employer must inform the individual in writing as to the following: 1. Any class or group of individuals covered by the program, and 2. The job titles and ages of all individuals, eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

In addition, the individual must be given at least 45 days within which to consider the agreement. These additional requirements were added because, in the case of group termination programs, additional protections are required for individuals from whom a waiver is sought. More time is provided to weigh options, understand the program, and consult with an attorney. Employers are required to provide detailed, written information describing the group termination program.

The OWBPA also mandates that a waiver not affect EEOC’s rights and responsibilities to enforce ADEA and further states that “ waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.”

In June 1998, EEOC published final regulations that provide guidance on all waivers of ADEA rights and claims, regardless of whether the employee is employed in the private or public sector, including employment by the United States.

OWBPA Compliance Requires Strict Adherence to Terms of Statute

“The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee ‘may not waive’ an ADEA claim unless the employer complies with the statute . . . The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications.”

Other courts have used similar language in describing the operation of OWBPA. “Since the OWBPA establishes minimum or threshold requirements, absolute technical compliance with its provisions is required. The absence of even one of the OWBPA’s requirements invalidates a waiver.” Butcher v. Gerber Products Company, 8 F. Supp. 2d 307, 314 (S.D.N.Y. 1998). “Under the OWBPA, a release cannot be deemed knowing and voluntary unless all of the requirements of the OWBPA have first been satisfied.” Collins v. Outboard Marine Corp., 808 F.Supp. 590, 594 (N.D. Ill. 1992). “When an employee signs a purported release of claims arising under the ADEA, that release will not bar an ADEA claim unless the release strictly complies with the statutory requirements of the OWBPA.” Thiessen v. General Electric Capital Corporation, 232 F.Supp.2d 1230, 1233 (D. Kan. 2002).

Waiver of the Right to File an EEOC Complaint

While an employee can waive the right to recover from an employer based on a claim of age discrimination under ADEA, OWBPA provides that a waiver may not affect the EEOC’s rights and responsibilities to enforce ADEA. In addition, no waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in EEOC investigations or proceedings. EEOC regulations also provide that no waiver agreement may include any provision imposing any limitation adversely affecting any individual’s right to file a charge or complaint, including a challenge to the validity of the waiver, with the EEOC.

According to EEOC guidance, the OWBPA language is evidence that Congress reaffirmed the public policy against interference with EEOC enforcement efforts. EEOC’s guidance cites the legislative history of OWBPA, which states that the provision is intended as a clear statement of support for the principle that the elimination of age discrimination in the workplace is a matter of public as well as private interest, and that no waiver agreement may be permitted to interfere with the achievement of that goal.

In connection with the OWBPA’s statutory prohibition, the Senate Committee report expresses support for the holding and reasoning of the Fifth Circuit in EEOC v. Cosmair, Inc., 821 F. 2d 1085 (5th Cir. 1987). In Cosmair, the court found that a waiver of the right to file a charge with the EEOC is void as against public policy in part because the public interest in private dispute settlement is outweighed by the public interest in EEOC enforcement of ADEA. Allowing the filing of charges to be obstructed by enforcing a waiver of the right to file a charge could impede EEOC enforcement of the civil rights laws. The court found that the EEOC depends on the filing of charges to notify it of possible discrimination. The court determined that an employer and an employee cannot agree to deny to the EEOC the information it needs to advance the public interest in preventing employment discrimination. However, an employee can waive the underlying cause of action and the right to recover from the employer in a lawsuit.

Employee Must be Advised in Writing to Consult an Attorney

Both the OWBPA and EEOC regulations provide that an employee must be advised in writing to consult an attorney. Courts analyzing waivers have applied the requirement strictly. In American Airlines v. Cardoza- Rodriguez, 133 F. 3d 111 (1st Cir. 1998), the court considered a waiver of rights offered to certain employees in connection with an early retirement program. The First Circuit found that language contained in the release that stated “I have had reasonable and sufficient time and opportunity to consult with an independent legal representative of my own choosing before signing this . . . ” was insufficient because employer did not advise employees to consult with counsel before executing the release.

In Thiessen, the court considered a release stating “the Company advised the employee in writing to consult with a lawyer before signing this Agreement.” The court found that this language suggests that the Company, at some previous time, advised the employee to consult with an attorney and determined that this language, standing alone, does not comply with OWBPA’s requirement that an employer advise the employee in writing to consult an attorney prior to executing the release. The court also said, however, that the employee could have complied with the statute by providing the employee with prior written advice so that the statement in the release was factually accurate.

In Cole v. Gaming Entertainment, L.L.C., 199 F. Supp. 2d 208 (D. Del. 2002), the court considered a provision in a written release of employment claims that the “mployee acknowledges that he/she has been advised to consult with an attorney prior to executing this Agreement.” The court found that the language was insufficient to satisfy the requirements of ADEA. Citing American Airlines, the court found that the passive language used by the release was insufficient under current case law. However, the court found that the release language might have met OWBPA standards if the employer’s representatives had advised the employee of his right to counsel as contemplated by the release language.

OWBPA Informational Requirements

The OWBPA provides that a waiver cannot be considered knowing and voluntary unless, at a minimum, if the waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer informs the individuals in writing in a manner calculated to be understood by the average individual eligible to participate, as to (1) any class, unit, or group of individuals covered by the program; any eligibility factors for such program; and any time limits applicable to such program and (2) the job titles and ages of all individuals eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

The EEOC regulations provide that “other employment termination program” as set out in OWBPA usually means a group or class of employees who were involuntarily terminated and who are offered additional consideration in return for their decision to sign a waiver. The regulations go on to state that the existence of a program will be determined based upon the facts and circumstances of each case. A “program” exists when an employer offers additional consideration for the signing of a waiver pursuant to an exit incentive or other employment termination (e.g., a reduction in force) to two or more employees. The regulations also state that typically, an involuntary termination program is a standardized formula or package of benefits that is available to two or more employees. The terms of the program are generally not subject to negotiation between the parties. The regulations make clear that the number and identity of employees who must be provided with the information will depend on how the employer chose persons who would be offered consideration for signing a waiver. In some cases, the information requirement extends to all employees within a certain job category; and in some cases, extends to all employees within a particular division or to all employees in the employer’s facility.

The legislative history of OWBPA indicates that group termination programs raise additional issues and require additional protection for individuals from whom a waiver is sought. These informational requirements are designed to permit older workers to make more informed decisions in group termination programs. The employees affected by these programs have little or no basis to suspect that action is being taken based on their individual characteristics. The Senate Report explains that the principal difficulty encountered by older workers in these circumstances is their inability to determine whether the program gives rise to a valid claim under ADEA and that the need for adequate information and access to advice before waivers are signed is especially acute.

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