October 1, 2019

More on “The History of the SEC Staff’s Disclaimer When Speaking Publicly”

Recently, I blogged about when a SEC Staffer kicks off their public remarks with a disclaimer that their remarks are their own and not those of the Commission. I mused that the origins of this disclaimer seem to have been forgotten. I then heard from a number of members with remembrances and their own research on this topic.

For example, White & Case’s Maia Gez pointed to a 1989 executive order (#12674) signed by President Bush that led to the “Standards of Ethical Conduct for Employees of the Executive Branch,” which became effective in 1993, which has these two applicable provisions:

(b) Reference to official position. An employee who is engaged in teaching, speaking or writing as outside employment or as an outside activity shall not use or permit the use of his official title or position to identify him in connection with his teaching, speaking or writing activity or to promote any book, seminar, course, program or similar undertaking, except that:

(2) An employee may use, or permit the use of, his title or position in connection with an article published in a scientific or professional journal, provided that the title or position is accompanied by a reasonably prominent disclaimer satisfactory to the agency stating that the views expressed in the article do not necessarily represent the views of the agency or the United States; and

And former SEC General Counsel Dan Goelzer dug back even further – noting that the disclaimer appears in “Rule 4 (Outside Employment and Activities)” of the SEC’s “Regulation Concerning Conduct of Members and Employees and Former Members and Employees of the Commission.” Rule 4(d)(2)(ii)(A) contains the current version of the disclaimer:

Therefore, such publication or speech shall include at an appropriate place or in a footnote or otherwise, the following disclaimer of responsibility: “The Securities and Exchange Commission disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This [article, outline, speech, chapter] expresses the author’s views and does not necessarily reflect those of the Commission, the [other] Commissioners, or [other] members of the staff.”

Dan isn’t quite sure when the disclaimer originated, but he does know it was prior to 1980. In 1980, the SEC made various revisions to that conduct regulation – and while a number of changes to Rule 4 are described in that ’80 release, the disclaimer is not one of them. Therefore, we think that the disclaimer was in the pre-1980 version of Rule 4 as well. To bolster the point, Dan sent over two pre-1980 speeches – by Al Sommer (a SEC Commissioner at the time) and Alan Mostoff (then the IM Director) – that include the disclaimer. So it goes way, way, back…

How to Submit Comments on the SEC’s Rulemaking

Among the hundreds of “checklists” posted on our site is this one about how to submit comments on a SEC’s rulemaking. Now the SEC has posted this 90-second video about how easy it is to submit comments on a rule proposal. It has over 350 views within a few months…

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Broc Romanek