NCUA’s examiner training in Orlando last month and listening sessions that continue this summer are a step in the right direction, trade organizations say, and senior NCUA officials have been open to discuss exam issues and ways to improve the process. However, despite the progress, trades are not backing off in supporting H.R. 3461, the Financial Institutions Examination Fairness and Reform Act, which would require examiners to cite authority for exam exceptions.
CUNA shared with Credit Union Times an April 17 letter that President/CEO Bill Cheney received from NCUA Chairman Debbie Matz on the issue. In that letter, Matz outlined the steps the agency has taken to improve the exam process and cited current policies and guidance that credit unions may not be aware.
For example, Matz quoted the NCUA’s Examiner’s Guide that says, “When identifying a finding, the examiner should cite the specific section of the FCU Act, FCU bylaws, NCUA rules and regulations, or other authority.”
If such guidance exists for examiners, is H.R. 3461 necessary? Yes, said CUNA senior vice president and deputy general counsel Mary Dunn.
“They’re just not doing it,” she said. “Examiners’ feet aren’t being held to the fire to do it. So, having Congress pay attention to it will bring it more attention among the exam force.”
NAFCU President/CEO Fred Becker agreed. “In some cases, they are not doing it,” he said.
Another key provision in the law is the formation of an ombudsman at the Federal Financial Institutions Examination Council that would provide credit unions with a channel to appeal exam decisions.
Matz stressed in her letter to Cheney that the NCUA currently has a four-step exam appeals process in place. If credit unions disagree with their examination report, they should first approach their examiner and then speak with their supervisory examiner. If the matter remains unresolved, a credit union may contact the regional director. Finally, credit unions have the right to appeal to the NCUA supervisory review committee, a three-person panel composed of senior NCUA executives that will consider issues such as appeals of CAMEL codes and review of loan- loss allowances.
“Surprisingly, few credit unions actually avail themselves of this fourth step in the appeals process,” Matz wrote.
Dunn applauded Matz for clarifying the appeals process but said, “A lot of credit unions are very leery and wary of even trying to use the appeals process because even though NCUA said at the board level credit unions need not worry about retaliation, I think a credit union having issue, especially a safety and soundness issue, wants to avoid a situation where an examiner might impose a subjective ruling.”
The NCUA has instituted a zero-tolerance retaliation policy, Matz added, and “examiners may not take retaliatory action against a credit union for using any formal or informal appeal channel.”
Becker said he was unaware of the policy and added that it’s hard to definitively label an action as retribution.
“How can you prove a person’s motives when they come at you with respect to a different issue?” he said. “I don’t see how you could determine whether the action examiner is taking is retribution or not. That would be awfully difficult.”
Both trade representatives said they think NCUA’s examiner training in Orlando will bring more consistency to the exam process, as will this summer’s listening sessions, which kicked off May 2 in Boston.
“I think the training will make an impact, and the listening sessions, but it remains to be seen what the agency does in response to issues raised during the listening sessions,” Becker said. “To listen is one thing, to act is another.”
However, Becker said NCUA officials have been “comfortable sharing issues.” He said NCUA Director of Public and Congressional Affairs Todd Harper spent considerable time with a credit union CEO during NAFCU’s April CEO Conference discussing problems she was having with her exams.
Dunn said she thinks NCUA appears to genuinely want to improve the process, and noted that CUNA hasn’t seen any other regulators indicate they are willing to do the same.
“Most people, including NCUA, want to have a good exam process, and want credit unions to feel like the exam process works well,” she said.
Credit unions are also hoping the NCUA allows for more flexibility in safety and soundness issues, given the improved financials emerging in the aftermath of the financial crisis.