Dan Gallagher, often a contrarian voice of the Securities and Exchange Commission, spoke up again this week to denounce recent SEC enforcement actions against compliance officers at investment advisory firms.
Gallagher, a Republican appointee to the SEC and set to leave the Commission later this summer, took the unusual move Thursday of publishing his own statement about two enforcement actions that he opposed: the first against the chief compliance officer of Blackrock Advisors, doled out in April; the second against the CCO of SFX Financial Advisory, handed down on June 15. “These recent actions fly in the face of my admonition,” he said, “and I feel compelled to explain my rationale for dissenting.”
And explain he did, in an 893-word fusillade aimed squarely at how the SEC applies Rule 206(4)-7. That rule dictates the policies and procedures that registered investment advisers should have to avoid violations of the Investment Advisers Act, “and is not a model of clarity,” Gallagher said. “On its face, Rule 206(4)-7 speaks directly to the responsibility of the adviser, but all too often, the Commission interprets the rule as being directed at CCOs.”
Gallagher argued that the rule only requires a compliance officer to administer those policies and procedures; ultimately responsibility for implementing them rests with the adviser itself. The Blackrock and SFX enforcement actions conflate those two roles, he said, and continue a trend toward strict liability for CCOs that unfairly holds them accountable for compliance failures they cannot control.
In the SFX case, the SEC found that chief compliance officer Eugene Mason, 51, failed to review cash flows in client accounts and did not perform an annual compliance review; he agreed to pay penalties of $25,000. In the Blackrock case, former chief compliance officer Bartholomew Battista, 56, was to blame for failure to report another executive’s violation of Blackrock’s private investment policy. The firm itself paid $12 million to settle the charges, Battista $60,000.
“The Commission needs to be especially cognizant of the messages it sends to the compliance community, and in particular to CCOs of investment advisers,” he said. “To put it bluntly, for the vast majority of advisers, CCOs are all we have. They are not only the first line of defense, they are the only line of defense.”
Gallagher said he was especially troubled by the lack of clear guidance about Rule 206(4)-7, forcing compliance officers to divine the SEC’s logic through enforcement actions. He called for the agency to consider amendments or staff guidance to clarify the rule. “The status quo will not do,” he said. “As it stands, the Commission seems to be cutting off the noses of CCOs to spite its face.”
Gallagher has served on the SEC for four years. He announced his departure earlier this year, and will leave once the Obama Administration and the Senate agree on a replacement.