Sunshine Law Workshop July 21.

A free workshop pertaining to the Missouri Sunshine Law will be held on Tuesday, July 21, 2009 at 1:30 p.m in Room 101 of the Jasper County Courthouse. The Courthouse is located at 302 S. Main Street in Carthage, Missouri. The one-hour class will be conducted by Tom Durkin, public education director for the Missouri Attorney General’s Office. The public is invited to attend, along with all interested elected officials and members of boards and commissions.

The workshop is part of an on-going effort by the Attorney General to provide government officials with the support they need to be well informed in conducting their business in a way that brings transparency and fairness to all aspects of government. Topics in the presentation will include:

Who does the Sunshine Law apply to? What is a public meeting? What is a public record? Liberal construction of the law; Procedures and limitations for closing meetings and records; Appointing a custodian of records; and Fees for copying public records.

Partial Testimony of Henry M. Paulson

Before the House Committee on Oversight

and Government Reform July 16, 2009

"During his testimony before this Committee, Ken Lewis, the CEO of Bank of America, set forth the relevant events, which I will reiterate briefly. On September 15, 2008, Bank of America entered into an agreement to acquire Merrill Lynch. On November 26, 2008, the Board of Governors of the Federal Reserve approved the merger. The shareholders of both firms ratified the merger agreement on December 5, 2008.

"On December 17, 2008, Mr. Lewis called me and told me that Bank of America was considering exercising the ‘material adverse change’—or MAC—clause to terminate the Merrill Lynch acquisition. I recognized the danger that the potential dispute arising from invocation of the MAC clause would pose for Bank of America, for Merrill Lynch, and for the economy as a whole, and that evening, at my request, Mr. Lewis met with Chairman Bernanke, me, and other Federal Reserve and Treasury officials to discuss the matter. Mr. Lewis explained that Bank of America’s concerns related to Merrill Lynch’s accelerating fourth quarter loss projections and the effect they would have on the combined entity.

"Late December of 2008 was a period of great vulnerability for our markets and our economy. In December our economy hit a low point. Bank earnings were particularly weak and our financial markets and institutions were fragile. There was not sufficient TARP capacity to respond to the financial chaos that would have been triggered by Bank of America’s invocation of the MAC clause.

"In the few days following Mr. Lewis’s call to me, officials from the Federal Reserve and Treasury conferred among themselves and with Bank of America representatives regarding these issues. My participation in that process consisted of conversations with people from the Federal Reserve, including several with Chairman Bernanke, and with Treasury personnel. During this period, the clear conclusion of Federal Reserve lawyers was that exercise of the MAC clause was not a legally reasonable option and, accordingly, that the merger contract was binding. Moreover, all public officials involved, including Mr. Bernanke and me, believed that the failure to consummate the merger would likely create immediate financial market instability, would threaten the viability of both firms, and would call into serious question the judgment of Bank of America’s leadership.

"On December 21, 2008, I relayed the substance of those conclusions to Mr. Lewis. My conversation with Mr. Lewis, which has been the subject of much subsequent commentary, was accurately recounted in Mr. Lewis’s testimony before this Committee, and I will discuss it again in a moment.

"On December 22, 2008, we learned that Bank of America’s board had determined not to exercise the MAC clause, and that Bank of America intended to work with the Federal Reserve and Treasury to obtain government financial support for the combined entity once the merger was closed. Although Bank of America did not, at that time, have any firm agreement with the government, its decision was reached against the backdrop of a clear public commitment undertaken by Chairman Bernanke and me, dating back at least to October 14, 2008, that the government would act to prevent the failure of any systemically important financial institution. I had reiterated that commitment often in the months preceding Bank of America’s decision to forgo any attempt to invoke the MAC clause. Given that commitment, it was clear that if the merger proceeded and the combined Bank of America Merrill Lynch entity needed financial support, the government would work to provide such appropriate and necessary support.

"On January 1, 2009, the Bank of America Merrill Lynch merger was completed as planned. Over the following weeks, representatives of Bank of America worked closely with officials from the Federal Reserve, Treasury, and the FDIC to arrange an appropriate support package. On January 16, 2009, Treasury, the Federal Reserve, and the FDIC announced an agreement to provide Bank of America with $20 billion in TARP funds, as well as FDIC protection against losses on certain assets, in exchange for preferred stock, restrictions on executive compensation, and other covenants. Subsequent analysis of these events has raised three issues that should be addressed at the outset of this hearing.

"First, some have opined that government officials involved in examining the Bank of America Merrill Lynch merger—myself included—allowed concerns about systemic risk to our nation’s financial system to outweigh concerns about potential harm to Bank of America and its shareholders. That simply did not happen. In my view, and the view of the numerous government officials working on the matter, the interests of the nation and Bank of America were aligned with respect to the closing of the Merrill Lynch transaction. An attempt by Bank of America to break its contract to acquire Merrill Lynch would have threatened the stability of our entire financial system and the viability of both Bank of America and Merrill Lynch. Those who participated in the discussions concerning this matter recognize this point. For example, as Mr. Lewis explained to this Committee last month, ‘I think they thought that by us—by all of this happening [i.e., the potential failure of the merger], and the uncertainty coming back into the financial system, that, in fact, that would hurt the system and us.’

"I agree with that general sentiment. Also, although I did not see the document at the time, I agree with the detailed analysis conducted by Bank of America’s regulator, the Federal Reserve, which concluded that the failure of the merger would have caused significant disruption to the interbank and credit markets which would have rippled out to financial institutions broadly and Bank of America specifically. In his testimony on June 25th before this Committee, Chairman Bernanke said it succinctly: ‘ . . . I expressed concern that invoking the MAC would entail significant risks not only for the financial system as a whole, but also for Bank of America itself.’

"Moreover, based on my own experience working in financial markets, I knew that the attempt to revoke the merger contract would have caused great uncertainty and fear in the market, would likely have caused the markets to question Bank of America’s financial strength and managerial competence, and would have led to rating downgrades, weakened liquidity, possible failure and, of course, regulatory action. In short, Bank of America’s completion of the merger, and the subsequent assistance from the government, not only protected our country’s financial system, but also was in the best interest of the shareholders, customers, employees, and creditors of Bank of America and Merrill Lynch. Or, as Mr. Lewis put it, ‘there was serious risk to declaring a material adverse change and . . . proceeding with the transaction with governmental support was the better course. This course made sense for Bank of America and its shareholders, and it made sense for the stability of the markets.’

"Second, some have suggested that there was something inappropriate about my conversation of December 21st with Mr. Lewis in which I mentioned the possibility that the Federal Reserve could remove management and the board of Bank of America if the bank invoked the MAC clause. I believe my remarks to Mr. Lewis were appropriate. I explained to him that the government was supportive of Bank of America, but that it felt very strongly that if Bank of America exercised the MAC clause, such an action would show a colossal lack of judgment and would jeopardize Bank of America, Merrill Lynch, and the financial system. I further explained to him that, under such circumstances, the Federal Reserve could exercise its authority to remove management and the board of Bank of America. By referring to the Federal Reserve’s supervisory powers, I intended to deliver a strong message reinforcing the view that had been consistently expressed by the Federal Reserve, as Bank of America’s regulator, and shared by the Treasury, that it would be unthinkable for Bank of America to take this destructive action for which there was no reasonable legal basis and which would show a lack of judgment.

"I want to make clear that my words in speaking to Mr. Lewis were my own. Chairman Bernanke never asked me to indicate any specific action the Federal Reserve might take.

"I also want to make clear, however, that I was expressing what I am confident was the strong opinion of the Federal Reserve, namely, that exercise of the MAC clause was not a legally viable option; that it threatened significant harm to Bank of America and to the financial system; and that it would raise serious questions about the competence and judgment of Bank of America’s management and board. I had gained this understanding of the Federal Reserve’s position over the course of meetings and several telephone calls in the preceding days. I note that what I said echoes sentiments expressed in internal Federal Reserve emails, including the sentiment attributed to Chairman Bernanke in a December 20, 2008 email from Jeffrey Lacker, in which Chairman Bernanke is said to have remarked the he "intended to make it even more clear that if [Bank of America] plays that card [invokes the MAC clause] and then needs assistance, management is gone." Chairman Bernanke, when he appeared before this committee in June, put it this way: ‘ . . . I don’t think it’s unreasonable if someone makes a decision that endangers his company, that he’d be accountable for that.’

"The sentiment makes sense to me. The management and board of a regulated entity that triggered such destabilization within their own institution could be subject to removal by the Federal Reserve under federal statute, and should be. Mr. Lewis, in his testimony, acknowledged this authority held by the Federal Reserve. And, Chairman Bernanke also recognized this in his June 25th testimony before this Committee when he said, ‘the supervisors at the Federal Reserve can make changes or recommend changes in management . . . .’ I hasten to add that I do not believe the circumstances ever brought us close to that eventuality, and Bank of America, after its own detailed consideration, acted appropriately in deciding not to invoke the MAC clause.

"Third, the suggestion has been made that I discouraged Mr. Lewis from making required disclosures to the public markets about losses at Merrill Lynch. That simply did not happen—and Mr. Lewis has accordingly denied it unequivocally in testimony before this Committee. Mr. Lewis said, "neither Secretary Paulson nor the chairman of the Federal Reserve, Mr. Bernanke, ever told me not to disclose something that we publicly—that we felt should be publicly disclosed." And, he further stated that, ‘during all of that time there was never, ever a time that the Federal Reserve or the Treasury Department told me that we should not disclose something that we thought would be a disclosable event.’

"As Mr. Lewis recounted, he did request a letter from me confirming government support, and I declined to provide it. In doing so, I told him that a letter would be vague and unsatisfactory because no program had yet been developed. For example, we had not determined the size of the potential program, the type of equity it would use, or which assets it would involve. I also told him that if Treasury provided a letter, then Treasury would publicly disclose it. I did not—nor to my knowledge did anyone at the Federal Reserve or Treasury—tell Mr. Lewis not to disclose any information to the public markets, including Merrill Lynch losses, that Bank of America believed it was legally required to disclose.

"Although attention has recently focused on brief moments of stress during the events of December 2008, those moments are not foremost in my recollection. What I recall most vividly is a nation faced with the threat of an unparalleled economic crisis and the efforts of the men and women from both the public and private sectors who worked hard to steer our country away from that precipice. It was my privilege to work with them, and I am proud of what we accomplished."