NCUA Proposes New Conversion - Merger Regulations
The proposals are the latest round of continuous NCUA efforts to tighten its rules governing credit union conversions, still the most controversial issue for credit unions. And they come as several agents who have converted credit unions to banks say there is growing interest among credit unions in converting charters because of the difficult economic conditions. (Ed Roberts - CU Journal - March 18, 2010)
NCUA Dials Back on Regulatory Flexibility
Credit Union Journal Daily Briefing | Thursday, March 18, 2010 - By Ed Roberts
ALEXANDRIA, Va. — With losses growing among credit unions, the NCUA Board last week proposed reining in its popular regulatory flexibility program, known as Reg-Flex, which eases restrictions on healthy, well-run credit unions.
Under the proposal issued for public comment, four of the ten Reg-Flex areas would be eliminated, those allowing participating CAMEL 1 and CAMEL 2 credit unions to be exempt from the agency's limits on fixed assets, personal guarantees on member business loans, requirements for regular stress tests on risky investments and discretionary control of investments.
"We would like to give credit unions as much discretion as possible," said NCUA Chairman Debbie Matz, but "times are different today." She was referring to when Reg-Flex was introduced in 2002. "In our opinion it's time to make some changes.
Matz said there has been some evidence that shortfalls in some of these areas have contributed to losses among recent credit union failures. There are currently 3,140 credit unions eligible for Reg-Flex.
Separately, for the first time in decades the NCUA Board issued for comment new rules on the behavior and duties of directors. The proposed rules would require for the first time that directors gain some proficiency in finance within a reasonable period of being elected, generally three months.
The proposal also sets out certain fiduciary duties for directors and would bar a credit union from indemnifying a director or employee from incidents that are "grossly negligent, reckless, or willful" in connection with a decision that affects the fundamental rights of members."
Those provisions were included in a proposed measure that would make it harder for credit unions to convert to or merge into banks.
The provisions would require boards and management contemplating a conversion into a bank to obtain a pre-merger valuation of the credit union's net worth and consider paying out a special dividend to members before the conversion or merger.
It would also make major changes to the voting procedures for conversions by barring management from reviewing vote counts before a final tally is available to everyone. And it would require management to make additional disclosures on the estimated costs of the conversion and the effects on existing facilities, like branches and ATMs, and require disclosures of any compensation or employment agreements any managers or directors may have related to the conversion.
The proposals are the latest round of continuous NCUA efforts to tighten its rules governing credit union conversions, still the most controversial issue for credit unions. And they come as several agents who have converted credit unions to banks say there is growing interest among credit unions in converting charters because of the difficult economic conditions.
On the vote tally issue, Elizabeth Wirrick, an NCUA attorney who helped draft the rule, said in past conversions to mutual savings bank there have been incidents when the management has learned of running vote counts that enabled them to either boost the vote or to abandon the conversion altogether.
The proposed rules would make it clear that a director's fiduciary responsibility is clearly to the members and not to the "institution," as one state court ruled in the failed conversion of Columbia CU five years ago.