A SWAT team bursts into the home of the “Fonecom” CEO. The cops shoot his dog and throw the corporate exec into shackles. Tron, by contrast, gets a polite call from a police detective asking what they can do about a pesky drug-trafficking charge. “We don’t want to make a big deal out of this,” the detective assures Tron. “You’re a cocaine dealer, but you’ve done a lot of good for the community.” At sentencing, the CEO gets life in jail while Tron appears before a committee, pleads the “fif” and gets two months at “Club Fed.”
Utah’s own version of Law & Order—from increasingly tough sex-offender laws to sweeping anti-meth initiatives—has always been about the good guys locking up the bad guys. But when it comes to the Utah Division of Securities (UDS)—the watchdog agency over investment programs and fraud that might grow out of them—some legislators allege the equivalent of police brutality. To hear these lawmakers tell it, the division is running roughshod over the rights of decent and trustworthy entrepreneurs—several of them businessmen who happen to be the lawmakers’ friends and close business associates.
Representatives Jim Bird, R-West Jordan, and Carl Wimmer, R-Herriman, called for a legislative audit of the division, the results of which were released in early July. The audit criticized former UDS Director Wayne Klein (left) for being too involved in cases and alleged that investigators “intimidated” suspected offenders, conducted “secret investigations” and emphasized punishment over compliance.
The uproar raised by targeted securities agents months before the audit’s release forced Klein out of office in March 2008. The division now faces an extreme makeover in the next legislative session. Bird wants to change the way the division brings charges and Wimmer hopes to completely dissolve the agency. From the sidelines, former lead watchdog Klein wonders why the audit blasted the division simply for doing its job.
Auditors specifically mentioned three anonymous cases that Wimmer and Bird brought to their attention. The two lawmakers are deeply familiar with each case. One investigation subject was a former supervisor over Bird, who also happens to be a securities salesman. Another case subject has been confirmed by both Wimmer and the subject himself: Utah County radio talk-show host “Free Capitalist” Rick Koerber claims Wimmer as a former student of his investment school. Koerber is currently under investigation for allegedly defrauding investors through his numerous businesses.
Make it hurt
After a recent state legislative audit subcommittee discussing the investigation of UDS ended, Bird was pumping hands triumphantly all around the Capitol meeting room. He had reason to celebrate. For two years, Bird had been sitting in similar committee rooms pitching a bill to overhaul the UDS. At a House Business and Labor Committee meeting last year, Bird read a quote from then-UDS Director Klein, where Klein was to have said that the division’s fines would be determined by what would “make it hurt.” Bird was outraged. “The idea of, ‘What are we going to do to make this individual pay?’ to me is wrong, has been wrong and will continue to be wrong,” Bird said at the time.
Bird feels the audit validates his rage. “The whole [division] is a huge mess, and it needs to be fixed,” he says, citing references in the audit that UDS lacked guiding rules. During their investigation, auditors found the most recent book of division policies and procedures was a discarded 1993 manual. Bird believes the dearth of guidelines allowed Klein to run wild with the division.
Bird brought “Case No. 1” of the audit to a House committee last session. It dealt with Gary Teran, president of First Western Advisors, a longstanding Utah brokerage firm. Teran claims Securities ambushed his business in 2007.
“For two years, our company was under [UDS] investigation without our knowledge,” Teran testified last year. Teran says he first heard of the investigation when a reporter called for comment on fraud charges leveled against him in a UDS press release. The division alleged First Western misled investors into mutual fund options that gave fat commissions to Teran and his agents when there were better options available for investors that weren’t disclosed to them.
“They were trying to take my license away completely without notice,” Teran said. After 27 years in the business, Teran said he would fight the division to the end. On March 30, 2007—shortly after issuing its announcement—UDS dropped charges against Teran and apologized publicly for any damage the publicity caused.
“These guys weren’t upfront when they sent out the press release,” Bird says. “Well, when push came to shove, what did we find out? That [First Western was innocent], and the division issued a very rare apology. That’s a bitter pill to swallow.”
The Teran case was a black eye for UDS. In retrospect, Klein says, “I wish it had been handled differently.” But his regrets wouldn’t please his critics; Klein only wishes his agency had brought the case earlier.
“[Teran] talks about how wrong it was for First Western to be investigated,” Klein says “Yet, they all consented to orders to change their practices and offer refunds.”
While critics alleged Securities ran a “secret investigation” that flaunted all due process by not interviewing victims or suspects, Klein says UDS operated off evidence the federal Securities and Exchange Commission had collected in its own investigation of First Western.
That evidence included sworn testimony from an investor who told the SEC that Teran never disclosed different share options available for the $1.5 million he was placing with First Western. The investor wasn’t informed that Class A shares would have been a better deal over Class B shares, documents state. Teran netted $11,900 more in commissions by failing to inform the investor of the Class A option, according to documents. Teran disagrees with the SEC’s math on B shares versus A shares and says there wasn’t any clear industry standard to show he had done wrong.
Teran and three of his brokers did eventually settle with UDS without admitting any guilt. In turn, the division dropped charges and First Western agreed to offer investors their money back. Almost one year later, Klein would be forced out as UDS director over the ensuing furor, even though the Teran case had been with the agency prior to Klein’s employment.
Klein says that during his transition to the division the SEC’s evidence was lost in the shuffle for nearly a year and a half. When UDS pushed to revoke Teran’s license, the agency’s own hearing officer dropped the charges because investigators had failed to file the suit within a required 120 days of renewing Teran’s license. The option to fine and censure First Western was still available until the settlement, Klein says. Klein changed UDS policy after the Teran case to require investigators conduct their own interviews—even if they had evidence from another agency.
Teran emphasizes that some evidence went back to 1998. “They should have limitations on how long they let these things go before they bring an action.”
Klein was still sure of his evidence—confident enough to publish charges on UDS’s Website. “Our credibility in the government is that we don’t make allegations that we’re not sure we’re right on,” he says.
For all the allegations characterizing Klein as a rogue securities cop playing fast and loose with the rules, the 52-year-old lawyer looks more like a tax attorney nearing retirement. From his new downtown law office at Lewis B. Freeman & Partners, Klein now does consulting on securities law. Still exasperated, Klein shakes his head when discussing the audit—especially the criticism of focusing on “punishment” instead of compliance.
“If you’re a cop and you catch a bank robber and the thief says, ‘OK, you got me, here’s the money back,’ do you not arrest him?” Klein asks.
“The way to encourage compliance is not by babysitting [offenders] and telling them what they need to do,” Klein says. “The motivation is that [if you’re not compliant], we are going to fine or punish you.” Deterrence is but one of many factors involved in determining fines, Klein says, reading from an instruction manual he wrote and has used for the last eight years in training investigators from across the country.
With more than 25 years in securities enforcement, including leading a 1993 fraud investigation in Idaho that helped bring $2 billion in restitution to victims, Klein knows securities regulation is a complicated subject. He concedes auditors had a difficult task in examining the division but worries their analysis is an after-the-fact criticism. “My concern is that if auditors are saying you need to have policies covering every possible scenario, it’s going to hamper the work of the division because [investigators] will be relegated to checking boxes.” Investigators, he says, will worry more about jumping through administrative hoops than following leads.
“You’re not going to be able to anticipate all the policies you might need, either. People will be afraid to go out and pursue some new lead because you don’t have policies and procedures to follow.”
Klein agrees the audit did identify some problems, including personality conflicts within the division and slow reaction to cases such as Teran’s. Klein admits he also was wrong to have the division hold onto a fee check, as the audit points out. By holding the check received at the end of fiscal 2007, Klein says he had hoped to keep the money for the UDS education fund. Utah law requires such remuneration go to the state’s general fund after the division’s fund reaches a certain cap in one fiscal year. Klein says he didn’t realize that holding the check violated statute and when he did, he turned it immediately over to the state fund.
The audit also faulted Klein for doing double duty by overseeing investigations and then acting as the administrative hearing officer on the same cases.
“They [auditors] may think it’s a bad idea, and if so, change the process, but that’s the way the system was set up.”
Klein notes that defendants could always request a hearing officer from outside the state Department of Commerce (the parent agency over UDS). But he believes violators were more interested in playing the “O.J. defense”—the system is corrupt, so why take part in it? “I think this was simply an excuse for people who didn’t want to be held accountable, who didn’t [want] to go to a hearing on their case,” Klein says.
The audit identifies one case where this argument spiraled into a legal battle, which for the defendant would be a David vs. Goliath struggle against big government. For UDS, it would be a painful lesson on the consequences of taking on a friend of a state legislator.
Doing a “Monica”
“I’m the infamous case No. 2,” says Dick Mack. In the audit, Mack’s story is presented as a target of UDS litigation for the past five years. He successfully defended himself against the division’s charges on three separate occasions. Mack’s case is still pending with the Utah Supreme Court and since UDS has seemed to have locked on to Mack like a pit bull, the audit identified the division’s tactics as “vindictive.”
Mack first came under state scrutiny in 2002. He was included in a civil suit against an agent who was a subordinate when Mack was a branch supervisor for Walnut Street Securities. The agent, Roy Hafen, had been selling unlicensed securities for a business venture purporting to produce electronic advertising services installed in gas pumps at stations, according to court documents. A state district judge would exempt Mack from the civil suit, determining he couldn’t have profited from the scheme since he didn’t know it was happening.
“They [Securities investigators] tried to hammer me and, basically, I told them they were full of shit,” Mack says, six years later. “I wasn’t going to be intimidated. If anything they’d said was true, I’d have been on my hands and knees doing a ‘Monica [Lewinsky]’ trying to cut the best deal possible.”
UDS’s second suit dropped the allegation of collusion with Hafen and instead charged Mack with negligent supervision of his subordinate. UDS sought to revoke Mack’s license, arguing he ignored red flags such as a document stating Hafen’s other company was seeking a $20 million loan from an offshore bank on the Caribbean island of Antigua.
“That’s not true,” Mack says. “They [just] throw the kitchen sink at you and hope something sticks and then cut a deal.”
City Weekly obtained a copy of the form in question through an open-records request. It shows Hafen’s separate business did, indeed, seek a $20 million loan from a private bank in “Ategia” [sic]. Hafen’s signature is on the document— just above Mack’s.
When Mack got the administrative charges, he believed he wouldn’t stand a chance before Klein as the hearing officer. “That’s just their hanging court,” Mack says. He decided on a different strategy. He filed suit against UDS, arguing that by a variant of the “double jeopardy” rule, he couldn’t be tried twice for the same charge.
A 5th District Court judge sided with Mack. UDS appealed the case, but Mack won again. The division appealed to the state Supreme Court, where the case is pending. “Nobody’s ever fought them before,” Mack says adding, “Ninety-five percent of the people [UDS] deal with are guilty of something. The problem is they have no way out for somebody who isn’t guilty of something.”
Klein denies any vendetta against Mack for having told Securities to “piss up a rope.” The litigation continues because the district court decision could, Klein argues, set a precedent that would limit how UDS brings future charges against suspected scam artists.
“The question has become much bigger than Mr. Mack,” Klein says. Because the lower courts agreed with Mack, they created the possibility UDS might be able to bring only one type of a charge—be it administrative (like revoking a license), civil or criminal—in future cases. “So,” Klein says, “If somebody steals money from his clients, can we bring criminal charges and revoke his license or can we only do one or the other?”
Mack believes the blow he’s struck is a victory for all securities agents, who, he says, have been bullied by UDS previously, including the independent representatives who have worked for him in the past. Rep. Jim Bird, for example, was an independent contractor for Walnut Securities under Mack’s supervision during the original investigation. At this time, Bird was not yet an elected representative.
Mack and Bird maintain there’s never been any ethical conflict in their pursuit of UDS because the two men never had an employer/employee relationship. Bird was a 1099 independent contractor for Mack, not a traditional, W2 employee. This meant Mack didn’t sign checks for Bird and couldn’t fire him. But as a supervisor, Mack was responsible for Bird complying with securities laws. If he wasn’t compliant, the broker/dealer could have fired Bird.
Bird isn’t currently under Mack’s supervision. They’re now both independent agents working under contract for the same broker/dealer, Sammons Securities. Mack says he supervised Bird years before he became a legislator and that the outcome of Mack’s case wouldn’t benefit Bird financially.
“He’s not trying to feather his own nest,” Mack says. “Jim Bird is a hero in this deal and every security rep in the state needs to thank him because we finally got some justice.”
But even before the audit’s release, the rumors of UDS mismanagement Bird voiced may have helped secure some justice for Mack.
Last March, Ducks Unlimited, a national duck-hunters lobby group, was hosting its annual silent auction fund-raiser. The beer flowed and bikini-clad waitresses served drinks. That night, Mack says, he introduced himself to Utah Attorney General Mark Shurtleff. Mack says Shurtleff had heard his name mentioned but wasn’t familiar with his case. Mack says he told Shurtleff he was in a “scrap” with UDS and predicted the audit would be “very adverse” to the division.
Mack claims Shurtleff assured him when the audit was over, the attorney general’s office would “look into it” and do something to “make it right with you if the audit shows they’ve been unjustly pursuing you.’” Mack contends the meeting was harmless and believes the audit has vindicated him, despite auditors specifically stating they would not address the legal merits of any cases the audit mentioned.
In an interview with City Weekly, Shurtleff remembers the meeting differently. He says he only assured Mack that if there was anything in the audit relevant to him, he could meet with Shurtleff to discuss it. No promises were made, Shurtleff says.
The Blame Game
One critic who was instrumental in helping fuel the legislative audit is Chuck Newton (below), president of the Utah Financial Planners Association. Newton believes Commerce Department director Francine Giani, who oversees UDS, should be ousted. Giani, who declined comment for this story, has held various posts under three consecutive governors. Not surprisingly, she is frequently criticized in business circles for siding too often with consumers.
“Francine has been around a long time so why hasn’t she been fired?” asks Newton, rhetorically. “Is it because she’s a woman? Or is it because the governor is just a wussy more interested in his career on the national scene than the people of Utah?”
Newton is deeply critical of UDS because of its plodding investigation of convicted con artist Val Southwick, the Ogden businessman whose Vescor company headed an elaborate Ponzi scheme that bilked more than 800 investors of $140 million.
“They sat on that case for two or three years,” Newton says. “They don’t like to go after unlicensed people.” Newton points out that Nevada attorney Craig Orrock had warned Utah investigators Southwick was running a Ponzi scheme in 2004 and nothing came of it.
This warning, however, was brought to the Commerce department two directors before Giani or Klein came on board. Even before Giani had officially taken her position, she helped create a Vescor task force in July 2005. Klein later on took over the group and pushed for more resources to conduct the first full-blown investigation into Southwick in 2006. The probe eventually led to fraud charges against Southwick February 2008. He was convicted and sentenced to federal prison on June 9 on nine counts of fraud, each carrying up to 15 years.
“Giani might say that this happened before her time,” Newton says. “But that’s not so with these cases [specified in the legislative audit].” Critics contend that under Giani’s tenure, UDS targeted licensed securities agents rather than going after more difficult cases involving unlicensed securities sales. Yet the audit’s third case actually mentions one individual affiliated with the subject of case No. 3 who pleaded no contest to fraud charges resulting from the sale of unlicensed securities totalling $11 million.
The focus of the audit’s third case is Rick Koerber, a Utah County radio talk-show host and business owner who touts “ancient principles of prosperity” as the key to wealth. Koerber has long alleged being in the cross hairs of UDS investigators, especially Wayne Klein. On an Aug. 31, 2007, episode of his Free Capitalist AM radio show, Koerber claimed UDS was investigating him, brazenly insulting investigators by charging they had the “IQ of a rat” and challenging them: “I’m not asking any favors from listeners or government employees—I’ve got nothing to hide.”
Koerber is also being sued by an elderly couple in Colorado who named him as a “control person” at the head of a Ponzi scheme that allegedly conned them out of $170,000 from their home’s equity, credit card advances and meager retirement savings. (For more on Koerber, see “House of Cards,” March 6, City Weekly.)
In interviews with City Weekly in February, Koerber acknowledged sharing office space with former colleague Paul Bouchard who, sources indicate, was listed in the audit as the person who pleaded no contest to the sale of $11 million in unlicensed securities. Koerber says he had no idea Bouchard was committing fraud. Bouchard pleaded no contest to two second-degree felonies, including fraud, on Dec. 4, 2007.
Koerber concedes he is the subject of Case No. 3 in the audit, but is disappointed that auditors limited their examination of his case due to the ongoing fraud investigation. Koerber says his evidence confirms the audit’s criticism of heavy-handed UDS tactics. Before the audit began, Koerber was on the offensive, taking his evidence to key political players.
Koerber used his own political contacts to attack UDS. Counting on Rep. Carl Wimmer, R-Herriman, whom Koerber says was a former student of his American Founder’s University, Koerber was able to gain an audience with House Speaker Greg Curtis to push for expediting the legislative audit, which at the time had yet to be approved. Curtis spokesman Chris Bleak acknowledges the meeting occurred but denies it resulted in fast-tracking the audit.
Wimmer says he’s not ashamed of his friendship with Koerber and was happy to arrange meetings for him with house leadership and even with the attorney general’s office. Koerber presented his own evidence he had been collecting, alleging to have audio recordings proving UDS investigators had tried to coerce former Koerber employees into lying to build a case against him. Chief Deputy Attorney General Kirk Torgensen remembers meeting with Koerber and seeing transcripts of his evidence last spring. “I remember the transcripts he gave us,” Torgensen says. “And I remember they didn’t show what he said they would.” Koerber’s reaction: “Really? I hadn’t heard that. That’s disappointing.”
According to former Koerber employee Rachelle Taylor—the worker whom Koerber refers to when he says investigators tried to manufacture complaints against him—this story was a complete fabrication. “[UDS] never, ever tried to get us to lie,” Taylor says. Koerber denies this. “She can characterize it however she wants,” Koerber says. Rachelle and her husband Kyle couldn’t speak much of their dealings with Koerber because of the ongoing investigation—except to vent their frustrations. “He’s just playing the blame game,” Kyle Taylor says.
The ring of Gyges
In a debate over human nature, a student of the Greek philosopher Socrates told the story of Gyges, a man who discovered a corpse hidden in a cave. The corpse had a ring that when worn by Gyges made him invisible. Cloaked from sight, Gyges found he couldn’t resist the temptation to become evil, knowing no one could see him.
The concept that injustice mushrooms when hidden is the accusation both sides make in the debate over the future management of the Utah Division of Securities. Critics hold the audit as proof that when unchecked, UDS acted like oppressive secret police. Conversely, division supporters worry that over-regulating the regulators will impair their ability to look out for the interests of legitimate investors. There is enough rampant fraud in Utah, they say, to justify aggressive oversight of the securities industry.
“I’ve done securities work for a long time, and it’s satisfying work,” Klein says. “I help little old ladies get their money back. I put bad guys in jail, and I help the good deals go through,” he says. Yet Klein remains perplexed over the criticism that he directed the division too much, even though “director” was his job title.
“One of the problems I was trying to deal with when I came [to UDS] was I knew there were cases that weren’t being brought that should have been. If the director’s not going to be the one to say, ‘We need to do this,’ who is?”