February 17, 2011
Dear Ms. Murphy:
As an appointed board member of the Environmental Improvement and Energy Resources Authority (EIERA), a state issuing authority of the State of Missouri, I am troubled by proposed Rule 15Ba1 of the Securities and Exchange Commission. EIERA relies upon paid professionals to provide guidance on bond issuances and financings. As board members, we make the final decision-a municipal entity cannot act but through decisions of its board. Board members are the clients of our advisors, we are not the advisors. To require registration of appoint board members of an issuer is to mischaracterize the role and legal status of the board.
I serve the EIERA as an unpaid volunteer. The time and effort which I expend as a board member is done in the spirit of service to my state and takes my time and attention away from activities for which I receive remuneration. If the SEC requires my registration as a municipal advisor, it would unnecessarily add to the expense, time and liability incurred in voluntarily serving our State. It is highly likely that I and other current or prospective appointed members will look at the registration requirements including certification of qualifications and training, record-keeping requirements, additional disclosure requirements and exposure to the risk of fines and sanctions and determine that service in this capacity is no longer a viable option. Please consider the quality of volunteers who would have so much free time that they would even be able to consider this amount of invested time; it is hard to imagine that it would be an improvement for our State.
As an appointed board member, I am subject to State laws, rules and regulations regarding qualifications, conflicts of interest, financial disclosure and removal. I am appointed by the Governor and subject to confirmation by the State Senate. Our meetings and records are open to the public. To say that because we are not elected we are therefore not accountable to the public is overlooking and dismissing the appropriate role and laws of the States.
Being told that appointed members of an issuer must register only if we give advice to the issuer is meaningless in light of the absence of a bright line standard. Any decision on whether advice is given would be made after the fact and made based upon an unclear, or yet to be determined, standard. Any discussion, deliberation or debate relating to a bond issuance or financing would subject the board member to potential liability. At the very least, a rule such as this will chill open, deliberative discussions regarding the issuance of bonds, financings and investments by appointed board members. This seems contrary to the goals of transparency, accountability and a sound decision making process.
Advisors must be held to appropriate standards; however, to subject appointed board members to registration mischaracterizes the legal nature of a board, will decrease the number of those willing to serve in this capacity as well as hinder the open, sound deliberative processes that are vital in this area. As such, I respectfully request that appointed board members be excluded from the definition of municipal advisor.
LAREE DEFREECE JD, LEEDŽ AP
Business Director, Global Sustainability Consulting Services