NCUA Rules Require Backstage Negotiation
NCUA Board Chairman Debbie Matz would prefer to finalize both the stress testing and home-based credit union rules with three votes, but will move forward with only two votes if necessary.
The NCUA board has only three members and due to expiring terms, there are often only two board seats filled. Therefore, NCUA chairmen are sometimes faced with a choice: Get support from all board members before bringing a rule to a vote, or accept a dissenting no vote and possibly public fireworks at monthly board meetings.
Is life easier for organizations with more than three board members?
“If we had five members, we would need to get three votes, so probably from an industry perspective, five would possibly slow down the process,” Matz told CU Times.
“I don't think three is a deterrent because if you have a reasonable rule, it's not that difficult to get to two. And, most of everything we have voted on in the past 18 months anyway, with the exception of home-based, has been a three-to-nothing vote. That says to me from the board's perspective that what we’re proposing is reasonable.”
Michael Fryzel, the lone Republican on the board, voted against the proposed home-based credit union rule at the December 2013 board meeting. The stress testing rule, introduced at the October 2013 board meeting, has not been finalized yet.
Former NCUA Board Chairman Dennis Dollar, principal partner at Dollar Associates LLC, said board votes are based upon facts. However, he added that party affiliation does play a role.
“Political philosophy affects regulatory philosophy. Therefore, the way a board member views the facts is often viewed through the prism of his or her philosophy,” said Dollar, who served from 1997 to 2004. “So, when two members on a three-member board agree on their interpretation of the facts, they can proceed whether the other member comes around or not. But without two votes, a proposal stays just that – a proposal. It doesn't happen often that two votes cannot be achieved on a rule, but it happens.”
Former NCUA Board Member David Chatfield, who served with Chairman Roger Jepsen, said a strong staff is key to the effectiveness of the rulemaking process.
“Our views and objectives were similar, so we were able to get things done, usually with the support of the other board member, Elizabeth Burkhardt. I recall causing some initial discussion and questioning of the budget when I first came on board, causing a slight delay in its adoption before I was comfortable with it,” Chatfield said.
“Real deliberation of issues between board members is very difficult due to the need to comply with open meeting laws. Board members cannot get together to discuss regulatory issues other than in formal, noticed meetings, so any informal discussions must take place through staff,” said Chatfield, who served in 1988-89 and later headed the California and Nevada leagues.
Matz said senior policy advisers and NCUA staff help board members overcome the challenges of not speaking directly to fellow board members outside of the formal monthly meeting.
Matz said her goal is to hash out any differences before the meetings.
“The goal is really to answer the questions in advance and give everybody a comfort level before we get to the board meeting so that we can proceed smoothly. Even behind the scenes it's never been ugly. I think sometimes the staff might think that we have been tough on them and at them for a lot of information,” she said.
“This is a way of expediting it because you can't sit at the table and get the answers to data requests, you need to get that in advance and you need to be able to make an educated decision,” Matz added.
Matz was asked if the final stress test rule and home-based credit union rule were originally on the agenda but got pulled off before the board meeting.
She emphasized that she maintains two agendas, an internal one and the public agenda, published one week before each monthly board meeting.
Other than an interagency proposal, Matz said she did not recall any item being taken anything off the public agenda.
“These two rules in particular are on a fast track, from my perspective. I don't see any delays,” she said.
Matz explained the NCUA board's internal agenda differs from the items on the public agenda. The internal agenda is often determined by each board member's discussion with staff.
“It's not unusual to have items on the internal agenda that are not on the public agenda. Honestly, sometimes I’m pushing them too hard and they just can't get to it. Sometimes they are doing other things and they just can't get to it, or there are a lot of comment letters,” she said.
Former NCUA Board Member Gigi Hyland, like Matz a Democrat, said the majority of disagreements during her time on the board came from how a particular rule would affect credit unions, not political reasons.
“Remember that my service, for the most part, was during the financial crisis and because of the issues that we had to deal with as a board, it may have been less political than other times that other board members experienced,” said Hyland, who left the board last year and now is at the helm of the National Credit Union Foundation.
“Aside from the decisions made during the crisis, there were times when staff might propose something to the board for consideration, and we all provided input based on our own experiences that essentially send a message to staff that it wasn't right enough for a proposal,” she said.
Hyland said the vast majority of the votes on rules were unanimous.
“The times when you had a 2-1 vote, interestingly, I was the typically the one dissenting. That was typically a reflection of differences of how to regulate, maybe founded in politics, but Washington is my hometown, so I know politics pretty well and it never really felt like it was more of a political difference. It really felt like it was a difference in how far we should go or are we going far enough as a regulator,” Hyland said.
Matz said the current board members have complemented each other very well during the rulemaking process.
“Sure, there are going to be times where we disagree and sometimes things take longer than others. The CUSO rule took a long time and the loan participation rule and the liquidity rule, those rules took a long time. But in large part, (the delays resulted from) getting a lot of difficult information from staff and then having them go back and get more information,” she said.
Dollar stressed that comment letters from credit unions can alter a final rule significantly, as they did with the CUSO rule, which was amended and approved in late 2013.
“In fact, back when I was at the NCUA, commenter opposition kept the original CIP community investment program from becoming a final rule after it was proposed. It came back two years later retooled as the CAP community action program, passed on a 2-1 vote, and then was repealed a year later before it ever became effective, based on the widespread opposition in earlier comments,” Dollar said.
“Comments indeed matter if credit unions will take the time to let their voice be heard. Too many times credit unions, pro and con, leave it to others to present their views in comment letters. They should utilize the comment opportunity to try to shape the regulatory process by letting their voices be heard,” he said.