Merrill Lynch Sued by O.C. in Attempt to Recoup Losses : Bankruptcy: The brokerage denies responsibility. In other developments, a 5% pay cut for county employees is proposed and supervisors’ aides are subpoenaed.
Orange County sued Merrill Lynch & Co. Thursday, alleging that the giant Wall Street brokerage concocted an exotic investment scheme that broke state law and led to the collapse of the county’s finances.
As the county battled to recover $2.4 billion in damages, a criminal investigation into what went wrong moved to a new stage as the Orange County District Attorney sought subpoenas compelling several aides to Board of Supervisors to appear at a Grand Jury inquiry, two aides confirmed.
Aides to Supervisors Gaddi H. Vasquez, Roger R. Stanton and William G. Steiner were served Thursday as part of the investigation into whether investors in the county’s pool were misled about the safety of their money and other possible wrongdoing, according to sources close to the investigation.
County leaders sought to assign blame for the financial crisis as they sued Merrill Lynch, the brokerage that handled billions of dollars in county business over the years. The county is seeking to recover the entire amount Merrill Lynch handled in reverse repurchase agreements, investments that produced high yields when interest rates were low but tumbled when rates rose.
Vasquez, chairman of the Board of Supervisors, accused the brokerage of trampling the rights of local taxpayers and breaking state law in helping drive one of America’s most affluent counties into bankruptcy.
“Merrill Lynch abused the trust and the confidence of the people of the county by permitting and encouraging the investment of public funds in volatile financial instruments that were neither authorized by law nor suitable for the investment of taxpayers’ dollars,” Vasquez said.
The county contends that all investments and bond sales involving Merrill Lynch from June 30, 1993, to last Dec. 4--the day former Treasurer-Tax Collector Robert L. Citron resigned--should be declared void because they violated several state laws, including a provision in the California Constitution requiring that any substantial debt the county incurred be approved by two-thirds of the voters.
County officials have talked about suing Merrill Lynch, the nation’s biggest investment house, since the first days of the financial crisis, but the specifics of the lawsuit caught officials of the brokerage firm by surprise.
“Our initial reaction is one of incredulity,” said Merrill Lynch spokesman James R. Wiggins.
Wiggins denied that the brokerage was the architect of the county’s investment strategy, instead blaming Citron and the Board of Supervisors for approving a series of investments that relied on heavy borrowing.
“If this was illegal, then everybody was party to that illegality who was in a position of authority in Orange County, because it was widely known and disclosed,” Wiggins said. “This (lawsuit) reminds me a little bit of that old line in Casablanca: ‘There was gambling going on here? I’m shocked!’ ”
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After the lawsuit was filed, county officials rushed to U.S. Bankruptcy Court after hours in response to reports that the brokerage had sold most of the $1 billion in collateral it held on behalf of the county. County attorneys sought a restraining order to halt any sales, and a judge ordered that no sales could occur before another hearing on Tuesday.
In other developments Thursday:
* County Administrative Officer Ernie Schneider unveiled his “plan for recovery,” which would include cutting all employees’ salaries by 5% and halting the county’s contribution into its employee retirement fund. The county already has announced plans to lay off more than 400 workers and eliminate another 300 jobs.
“We need to demonstrate to the public that the county can weather this storm,” Schneider said, “that we have the ability to continue operation, to provide essential services, and to plan for the future.”
* Since imposing a hiring freeze Dec. 8, the county has hired nearly 150 new employees--including 97 full-time workers--a move that has angered employees who are being laid off and surprised top officials desperately trying to cut the county budget. Union officials are angry that the new jobs were not filled with laid-off workers or transfers from other departments.
* The county agreed to release $215 million in local property tax money collected before the county filed for bankruptcy Dec. 6. The county simply administers the money for local governments, who invested in the county’s pool and have battled to get the tax money back through U.S. Bankruptcy court.
* United Way of Orange County announced that it has put together an emergency loan fund to help nonprofit organizations crippled by delays in obtaining government funding. The $450,000 fund, made up of contributions from United Way and seven businesses, will offer interest-free loans to nonprofit health and human-service organizations.
* Investors in the county’s pool, which include 186 school districts, cities and special districts, said they will draft resolutions formally demanding the return of 100% of their money, which has been frozen since the county filed for bankruptcy.
* In Sacramento, State Treasurer Matt Fong called for change in state law to require public agencies to issue more frequent reports detailing the current value of investments.
Fong, in the first of three hearings on government investment practices, said more frequent reporting would have allowed elected officials and investors in Orange County to have learned “months earlier than they did that the county’s investment strategy was flawed and that losses were building up.”
* In Washington, Securities and Exchange Commission Chairman Arthur Levitt Jr. and representatives of the securities industry testified at a congressional hearing that tightening laws on municipal investing is unnecessary because governments around the county have learned from Orange County’s mistakes.
“The message of Orange County has been heard,” making it unnecessary to impose new federal restrictions on municipal finance, Levitt told the finance subcommittee of the House Commerce Committee.
An SEC directive earlier this year calling for increased disclosure by municipal bond insurers should be a sufficient reform measure, he said.
“It’s good management control that was lacking in Orange County up and down the line,” Levitt said, suggesting that someone “has to be looking over the shoulders” of the public officials who make investments. “Are there other Orange Counties? I would be surprised if there were not. Is it a calamity of national proportions? I think not.”
But Rep. Christopher Cox (R-Newport Beach) renewed his call for federal laws requiring better disclosure of municipal investments.
Cox said he wants to develop legislation requiring the same standards of disclosure for municipalities now required of corporations, without the SEC’s formal registration mandate.
“Orange County was a disclosure problem,” Cox said. “If the market had known what Citron was up to, he would have been disciplined.”
The SEC in March said that municipal issuers needed to do a better job of discussing market risks and investment strategies, underscoring that they are subject to the federal securities regulations that prohibit false or misleading statements. The use of derivatives--complex financial instruments linked to changes in interest rates or other economic indicators--also should be disclosed to investors, the directive said.
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“One of the concerns I have is that we not overreact to the Orange County situation,” said Jeffrey S. Green, general counsel of the Port Authority of New York and New Jersey, who testified on behalf of the Government Finance Officers Assn.
In Santa Ana, county officials alleged that their former treasurer was encouraged to gamble with the public’s money by the county’s main underwriter, Merrill Lynch.
Employing a novel legal argument, the county’s attorneys contend in the lawsuit that the county’s investments broke state laws, but say Merrill Lynch is to blame for pushing through billions of dollars worth of deals.
Bruce Bennett, the county’s bankruptcy attorney, said Merrill Lynch had no legal or supervisorial authorization to enter into the agreements it did with Citron.
He said the firm essentially gambled and lost about $5,000 for “each man woman and child in Orange County. . . . They should have realized that.”
Bennett said that the legal action against Merrill Lynch was only a beginning, and that other investment firms that did business with the county will become targets “as soon as we have all the information put together.” He declined to identify the other potential defendants.
In addition to the lawsuit, Bennett went to court Thursday seeking a temporary restraining order to prevent Merrill Lynch from liquidating any county securities the firm currently holds as collateral for loans it earlier made to Citron’s investment pool.
James W. Mercer, an attorney representing the county against Merrill Lynch, alleged that Citron violated state law when he leveraged the portfolio nearly threefold--from $7.5 billion to $20 billion.
The California Constitution prohibits counties from incurring “any indebtedness or liability . . . exceeding in any year the income and revenue provided for that year” without approval of two-thirds of the voters.
But the county, Mercer said, has decided against suing the former treasurer.
“Our job was to recover money for the county,” Mercer said. “How much money are we going to recover from Bob Citron?”
Citron’s attorney, David Wiechert, declined to respond to Mercer’s suggestion that Citron violated state law. After reviewing the county’s lawsuit Thursday afternoon, Wiechert said: “We are obviously in accord that Merrill Lynch was our financial adviser. Whether or not these transactions violated debt limitations based on complex interpretations of state law is something that has to be evaluated.”
Citron, who held the elected post for 24 years, is the subject of criminal investigations by local and federal prosecutors.
Although the Board of Supervisors in 1985 authorized Citron to engage in reverse repurchase agreements, Mercer said, it did not allow him to do so in violation of other state laws. The board’s authorization allowed Citron to invest “solely to supplement” the county’s income. But in making a bet against rising interest rates, the treasurer had no guarantee that he would be making money for the county, Mercer said.
“I am not in any position to say whether the Board of Supervisors did or did not violate the law,” Mercer said. “The board probably failed to supervise the treasurer, and so did the county administrative officer.”
Merrill Lynch’s Wiggins countered that Citron fully disclosed the nature of his reverse repurchase agreements, and, in his annual reports, repeatedly reported that the pool was highly leveraged.
“Mr. Citron made it very clear in press interviews going back a number of years that he was the architect of this investment strategy. Merrill Lynch did not create the strategy,” Wiggins said. “To suggest that this was somehow a Merrill Lynch-created dynamic is absurd on its face.”
Wiggins also said that Merrill Lynch handled only about 15% of the reverse repurchase agreements in the portfolio and that a dozen other firms were also involved in the leverage strategy. He said everyone who received Citron’s annual reports--the County Board of Supervisors as well as officials at the 186 local agencies that were invested in the pool--”is liable as well.”
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“Where was the general counsel to the county?” Wiggins asked. “Where were the auditors of the county?”
Wiggins said Merrill officials believe the investment strategies were legal.
“Remember: Citron went to the state Legislature and got the law changed to enable counties to engage in reverse repurchase agreements; he readily took credit for that,” Wiggins said. “If it was illegal, it was Citron’s strategy. He created it, he took credit for it, and he reported it to the county supervisors. If this was a violation, then everyone in an official position in the county was party to the violation.”
Also Thursday, the Board of Supervisors agreed to pay for legal expenses for several top county employees--including Citron--unless they are charged with crimes.
Citron is a subject of several probes, including an criminal investigation by the district attorney. On Thursday, aides to county supervisors were served with subpoenas to appear next week before a county Grand Jury.
Kathleen Freed, an aide to Stanton, and Dean Olsen, who works for Steiner, said they were summoned to appear. An aide to Vasquez also was subpoenaed, according to sources close to investigation.
Platte and Lait reported from Orange County, and Rosenblatt reported from Washington. Times staff writers Chris Woodyard, Julie Marquis, Jodi Wilgoren, Lee Romney, Rene Lynch, Susan Marquez Owen and correspondent Shelby Grad in Orange County contributed to this report.
ANGRY REACTION: Labor leaders worry about proposed county cuts. A12
TOUGH ROAD: Experts say the county is unlikely to recover losses. A13
