WASHINGTON — Four former San Diego officials have agreed to pay civil penalties totaling $80,000 to settle charges with the Securities and Exchange Commission that they were negligent in misleading investors about the city’s pension and retiree health care liabilities.
The settlements, which were agreed to earlier this year but not publicly released until Friday, mark the first time issuer officials have had to pay civil penalties in connection with an SEC enforcement action. U.S. District Judge Dana Sabraw must still sign off on the settlements, according to the San Diego Union Tribune, which reported on them Wednesday morning.
Though the SEC had originally claimed that the former city officials intentionally misled investors, the four individuals agreed to settle the matter by consenting to lesser charges of negligence and to the civil penalties. They did not admit or deny the SEC’s allegations, but are enjoined from further violations of the securities laws.
The four former officials are: former city manager Michael T. Uberuaga; former city auditor and comptroller Edward P. Ryan; former deputy city manager of finance Patricia Frazier; and former city treasurer Mary E. Vattimo.
Uberuaga, Ryan and Frazier each agreed to pay $25,000 in civil penalties and Vattimo agreed to a $5,000 penalty.
No settlement has been reached with a fifth individual, former assistant city auditor and comptroller Teresa A. Webster, who was also charged with securities fraud in the SEC’s April 2008 lawsuit. She is reportedly still negotiating with the SEC.
If agreed to by Sabraw, the settlements would bring the SEC and city a step closer to concluding enforcement cases that were first sparked when the city revealed in early 2004 that it had not disclosed to bond investors the extent to which is had underfunded its employee pension plan. The consequences included SEC sanctions against the city, announced in November 2006.
According to the SEC’s original complaints, which were filed in federal court in April 2008, the five former officials knew that the city had been intentionally under-funding its pension obligations so that it could increase pension benefits but defer the costs. They were aware that the city would face severe difficulty funding its future pension and retiree health care obligations unless new revenues were obtained, pension and health care benefits were reduced, or city services were cut, the SEC said.
The complaint said that the former officials specifically knew that the city’s unfunded liability to its pension plan was projected to dramatically increase, growing from $284 million at the beginning of fiscal year 2002 to an estimated $2 billion by 2009, and that the city’s liability for retiree health care was another estimated $1.1 billion. But the officials failed to disclose these and other material facts to rating agencies or to investors in bond offering documents and continuing disclosures.
The complaint alleged that Uberuaga signed the closing letter for one of the bond offerings, falsely certifying that it was accurate and did not contain any misleading statements. Ryan signed letters falsely representing that the city’s audited financial statements included in the securities offering documents were accurate.
Frazier regularly reviewed and revised the allegedly false and misleading disclosure documents, and signed the closing letter for two of the five bond offerings, the SEC said. She falsely certified that the disclosures were accurate and did not contain any misleading statements. Additionally, she reviewed and made presentations to the rating agencies.
Webster, who has not settled, reviewed the city’s financial statements that contained some of the false and misleading disclosures, and Vattimo participated in drafting the city’s false and misleading disclosures. Additionally, Vattimo and Webster both knew that in 2003, the rating agencies had concerns about the city’s growing pension obligations and that those obligations could negatively affect the city’s credit rating. Nevertheless, they withheld material facts from the rating agencies, the SEC said.