Federal Reserve Board Policy on Bank Examiner Borrowing ( 1982 )

Federal Reserve Board Policy on Bank Examiner Borrowing
The Federal Reserve Board may change its adm inistrative policy relating to borrow ing by bank
exam iners, to allow bank exam iners to borrow or hold credit cards from lending institutions
affiliated with banks o r bank holding com panies which they are authorized to exam ine. The change
proposed would not result in a violation of 18 U .S .C . §§ 212 and 213.
August 25, 1982
MEMORANDUM OPINION FOR THE SECRETARY OF THE BOARD,
FEDERAL RESERVE BOARD
This responds to your request for our views on a proposed change in Federal
Reserve Board policy pertaining to bank examiner borrowing. The proposed
change would permit bank examiners employed by the Board to borrow or hold
credit cards from lending institutions affiliated with banks or bank holding
companies which they are authorized to examine. Your question is whether such a
policy change can be accomplished consistent with the conflict of interest laws
relating to bank examiner borrowing. We conclude that it can.
At issue is the scope of the prohibition contained in 18 U.S.C. §§ 212 and 213.
Section 212 prohibits an officer, director, or employee of a bank which is a
member of the Federal Reserve System or insured by the Federal Deposit
Insurance Corporation (FDIC) from making a loan to an examiner who “exam­
ines or has authority to examine” the bank. Section 213 complements § 212 by
prohibiting a bank examiner from accepting a loan from “any bank, corporation,
association or organization examined by him or from any person connected
herewith . . . .”'
1 Sections 212 and 213 provide in relevant part as follows.
§ 212. Offer c f loan or gratuity to bank examiner
Whoever, being an officer, director or employee of a bank which is a member of the Federal
Reserve System or the deposits of which are insured by the Federal Deposit Insurance Corporation,
or of any National Agricultural Credit Corporation, or of any land bank. Federal land bank
association or other institution subject to examination by a farm credit examiner, or of any small
business investment company, makes or grants any loan or gratuity, to any examiner or assistant
examiner who examines or has authority to examine such bank, corporation, or institution, shall be
fined . . or imprisoned . . or both . .
§ 213. Acceptance c f loan or gratuity by bank examiner
Whoever, being an examiner or assistant examiner of member banks of the Federal Reserve
System or banks the deposits of which are insured by the Federal Deposit Insurance Corporation, or a
farm credit examiner or examiner of National Agricultural Credit Corporations, or an examiner of
small business investment companies, accepts a loan or gratuity from any bank, corporation,
association or organization examined by him or from any person connected herewith, shall be fined
. . or imprisoned . . or both . . .
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The rule against examiner borrowing contained in §§ 212 and 213 was first
promulgated as § 22 of the Federal Reserve Act of 1913, 38 Stat. 272, and was
intended to “proscribe certain financial transactions which could lead to a bank
examiner carrying out his duties with less than total, unbiased objectivity.”
United States v. Bristol, 473 F.2d 439, 442 (5th Cir. 1973). See also H.R. Rep.
No. 69, 63d Cong., 1st Sess. (1913). As a conflict of interest rule, it has been
interpreted by the major federal agencies responsible for bank examination to
prohibit a ll credit transactions between banks and the federal officials who have
authority to examine their affairs, whether or not they are corrupt.2 There is no
provision in the statute or its legislative history which evinces an intent to exempt
any particular kind of credit relationship, and the rule against examiner borrow­
ing in §§ 212 and 213 has been applied to prohibit credit effected through credit
cards, as well as direct loans.
Prior to 1979, bank examiners employed by the Federal Reserve Board were
forbidden by Board policy to borrow or obtain credit from any bank which the
Board was authorized by law to examine, including all member banks and their
affiliates. See 12 U .S.C . §§ 248(a), 325, 338, and 483. In that year, however,
recognizing the severe restrictions this policy placed on its examiners’ ability to
obtain ordinary credit, the Board limited the authority of its examination person­
nel to state member banks, bank holding companies, and their non-bank affili­
ates. Primary federal authority for examining national banks and state non­
member banks affiliated with member banks was ceded to the Comptroller of the
Currency and the FDIC, respectively, and Federal Reserve examiners were left
with no authority to audit such banks until and unless it was specifically granted
on an a d hoc basis by the Board. As a result, since 1979 Federal Reserve
examiners have been permitted to borrow and hold credit cards from national and
state nonmember banks.3
Under the Federal Reserve Board’s 1979 policy on borrowing, bank examiners
employed by the Board could obtain credit from national banks and state
nonmember banks even if those banks were “affiliated” with state member banks
and holding companies which Federal Reserve examiners were authorized to
audit.4 However, in this event, the examiner was not permitted to participate in the
2 See, e.g , 12 C.F.R. § 336.735-1 l(b)(5)(i) (1981) (FDIC examiners may not accept any extension of credit
from insured banks they examine); Administrative Circular 53 (Revised) supplementing 31 C.F.R. § 0 735
(Comptroller o f the Currency examiners may not accept loan or extension of credit of any kind from national banks);
Federal Reserve Board Ethics Manual, Fart D (examiners of Federal Reserve Board may not borrow from or hold
credit cards issued by banks they are authorized to examine)
3 This change in Federal Reserve Board policy was approved as an interpretation of 18 U.S C. §§ 212 and 213 by
the Criminal Division o f this Department See letter of Feb. 7 ,1 9 7 9 to Mr. J. Charles Partee, M ember of the Board of
Governors o f the Federal Reserve. Several years earlier, the FDIC had taken similar steps to limit the authonty of its
examination personnel to enable them to borrow from national banks and state member banks, also with the
Criminal Division's approval. See letter of June 27, 1973 to Mr. Frank Wille, Chairman, FDIC. Because bank
examiners employed by the Comptroller of the Currency have statutory authority to examine only national banks and
their affiliates, see 1 2 U .S C. § 4 8 t,th ey have never been subject to the same constraints on their ability to obtain
credit as have the examiners o f the Federal Reserve and FDIC
4 As defined in applicable statutory provisions, a bank “affiliate” includes any corporation, business trust, or
association (1) of which a bank owns or controls a majority of the voting shares; (2) of which control is held, directly
or indirectly, by the shareholders of the bank; (3) a majority of whose directors are also directors of the bank; or (4)
which owns o r controls, directly o r indirectly, a majority o f the shares of capital stock of the bank. See 12 U.S C.
§ 221a(b). See also 12 U .S .C §§ 371c and 1828(j) An “affiliate” of a bank thus includes the holding company of
which the bank is a subsidiary, and any other subsidiary of that holding company
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examination of the affiliated bank or holding company. With this restriction, the
Board sought to ensure that none of its examiners would be involved in a credit
relationship with an affiliate of an institution he was actually responsible for
examining.5 The change which the Board now proposes to make in its policy
would remove this restriction to permit one of its examiners to audit a state
member bank or holding company notwithstanding any current credit rela­
tionship he may have with an affiliate of that bank or holding company.
In 1980, advising with respect to a substantially similar change proposed by
the FDIC, this Office took the position that § 213 does not prevent a bank
examiner from accepting a loan from an institution affiliated with a bank which
he examines, so long as the loan is not approved by a “person connected with” the
latter institution.6 Our review of the legislative history of § 213 indicated that
Congress intended to do no more than bar a bank examiner from accepting a loan
from a bank, or an individual connected with a bank he was responsible for
examining; its prohibition was not intended to extend to loans from affiliated
institutions however tenuous their relationship with the bank subject to examina­
tion. We have reexamined that position, and we believe it to be the correct
interpretation of § 213. Accordingly, we do not believe that § 213 poses an
obstacle to the policy change now proposed by the Federal Reserve, which would
bring its policy on examiner borrowing into line with that of the FDIC.7 And,
while our earlier opinion focused on § 213, we reach the same conclusion with
respect to the complementary provisions of § 212. Section 212 prohibits loans by
“an officer, director or employee of a bank” to an examiner who “has authority to
examine such bank.” The gravamen of the offense covered by § 212, like that
covered by § 213, is the approval of credit for a bank examiner by a person
connected with the same bank which the examiner has authority to audit. If bank
officials of the lending institution are not also “officers, directors, or employees”
of the bank or holding company subject to the examiner’s audit authority, there is
no opportunity for the conflict of interest sought to be avoided by §§ 212 and 213
to arise.8
Ro b e r t B . S h a n k s
Deputy Assistant Attorney General
Office o f Legal Counsel
5 Attempting to achieve the same end by a different route, the analogous FDIC policy approved by the Criminal
Division in 1973 provided that FDIC examiners could not borrow from an affiliate of a bank within the ambit of their
examination authority
6 See July 10,1980, M emorandum for the Executive Secretary, FDIC, “Proposed Amendments to Regulations of
Federal Deposit Insurance Corporation (FDIC) Relating to Bank Loans to Exam iners/'
7 See also Administrative Circular 53 (Revised), supplementing 31 C.F.R. § 0.735, which articulates a substan­
tially similar credit policy for examiners employed by the Comptroller of the Currency
8 We do not suggest that §§ 2 1 2 and 213 would permit an examiner to borrow or accept credit from an affiliate in a
case where the relationship between the institution being examined and the affiliated lending institution is such as to
suggest common control, or where the two entities have a common majority of officers or directors. In such a case, a
loan from an affiliate might be tantamount to a loan from the bank being examined, thus giving rise to the very
conflict of interest which § § 2 1 2 and 213 were intended to prevent. We understand from discussions with members
of your staff that the structure o f the banking industry is such as lo make this eventuality highly unlikely Cf. United
States v. Bristol, supra, in which the court held that a bank officer’s loan to an examiner violated § § 2 1 2 and 213
even though it was funneled through an entity which the examiner had no authonty to examine.
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