SEC To Remain Open While Closed During Its Inapplicable Shutdown

September 30, 2013

Ravens and writing desks. That's the point of this column. There is absurdity in life. There is a lack of clarity in our day-to-day affairs. And then, there is government with its own infuriating brand of doublespeak and bureaucratic nonsense. I mean, c'mon, where else would one find such circular logic as in a Securities And Exchange Commission September 27, 2013 public notice titled: "Plan of Operations During an SEC Shutdown" whose opening lines are this:

THE SEC WILL REMAIN OPEN AND OPERATIONAL IN THE EVENT THE FEDERAL GOVERNMENT UNDERGOES A LAPSE IN APPROPRIATIONS ON OCTOBER 1, 2013. ANY CHANGES TO THE SEC'S OPERATIONAL STATUS AFTER OCTOBER 1 WILL BE ANNOUNCED ON www.sec.gov.

Closed But Open

Okay, so lemme see if I get this.  The SEC has posted an online document pertaining to its plan of operations during its shutdown but the opening lines of that very same document assert that the "SEC WILL REMAIN OPEN AND OPERATIONAL. . ."  Well, okay, at least for such time as to allow someone to post on sec.gov that it's closed.

Geez, that's one real big slab of helpful advice . . . but about what, exactly?  

The SEC is clearly stating in BOLDFACE that it will not be closed during the overall federal government's defunded shutdown. Which is frankly diametrically opposed to the title of the document announcing this open-for-business status.  And if the SEC is not shuttering its doors during the closure, then why has it posted a plan of operations for its shutdown?

The Lapse

As if the opening salvo of the SEC's disclosure wasn't murky enough, consider this preamble paragraph:

[I]f there is a lapse in appropriations, the SEC will be able to continue only certain types of functions that qualify as exceptions to the Antideficiency Act restrictions, including those needed for a brief time to ensure the orderly shutdown of functions that will not continue during the lapse. The functions that qualify as exceptions include those related to emergencies involving the safety of human life or the protection of property, including law enforcement functions; those for which there is an express authority to continue during an appropriations lapse; and those for which authority to continue during an appropriations lapse arises by necessary implication. Accordingly, if there is a lapse in appropriations, the SEC must initiate the orderly shutdown of agency activities not considered essential to these functions.

To recap.  The SEC has a plan for its shutdown. But the SEC will remain open and operational. But if there is a lapse in appropriations, the SEC will operate only subject to certain exceptions related to"emergencies involving the safety of human life or the protection of property, including law enforcement functions. . ." Consequently, as far as the SEC remaining open and operational "if there is a lapse in appropriations, the SEC must initiate the orderly shutdown. . ."

Watching The Watchers 

Howsabout some raw numbers to better put the misty mirage of misinformation into focus?

Number of employees expected to be on-board before implementation of the plan to shutdown the SEC, which apparently believes it will remain open and operational notwithstanding: 4,149
Number of employees to be retained because they are engaged in law enforcement activities: 147 full-time employees, or about 4% of the number of employees cited above.
Number of employees to be retained to protect life or property: 105  or about 4% of the number of employees cited above

I dunno about you but just doing the math, it seems that we got 147 out of 4,149 folks supposedly coming to work at the SEC with another 105 likely to be sitting around protecting those 147 folks and the SEC's valuable property. Yeah, that sounds like business as usual in big government. Let me offer this additional guidance from the SEC notice:

Shutdown Activities for Staff Subject to Furlough
Non-excepted employees should perform only those tasks necessary to shut down and safeguard property..
A checklist of procedures to be followed on the first business day following a lapse in appropriations will be provided to all staff. Among other things, staff will be instructed to:
1. Cancel and/or postpone meetings, hearings, and other previously arranged business and notify appropriate parties of the cancellations/postponements;
2. Safeguard records and property and ensure the protection of any classified or sensitive information;
3. Update excepted personnel on matters to be transferred or otherwise handed off as appropriate during the period of the shutdown;
4. Input information into the QuickTime application on hours worked and leave taken before the lapse in appropriations;
5. Leave computers powered on; and
6. Place out-of-office messages on their computers and telephone voice mails.

Layaway Plan

Now this is gonna be fun.  Just what the hell is supposed to happen to all those voluntary appearances, mandatory appearances, testimonies under oath, motions, hearings, and appeals scheduled for October and the near future?  If you are a respondent/defendant/witness scheduled to do something during the upcoming SEC shutdown-that's-not-a-shutdown, when are you supposed to make and/or cancel travel reservations, babysitters, and the like? Further, assuming that we eventually get the whole shebang cranked back up by mid-November, isn't it going to be fun trying to reschedule during the then looming Thanksgiving, Christmas, and New Year's holidays?

Murphy's Law

Oh, and one last thing, how nice that the office computers will be "ON" and the furloughed employees will have out-of-office messages turned on.  Of course, should someone in the defense bar or a whistleblower or whatever try to contact those same employees, then what? Moreover, as we all know, bad goes to worse and Murphy's Law will come into play.  There will probably be some power surge or something that will temporarily take all the SEC's computers and phones offline but no one with authorization to bring the systems up will be employed at the time and the only person likely capable of doing the re-boot properly is some part-time consultant who will refuse to do jack without getting paid cash upfront -- unless, of course, we can bribe one of those 105 folks protecting the SEC's property to look the other way while some senior exec breaks open the petty cash box in SEC Chair Mary Jo White's office.

The Hatter opened his eyes very wide on hearing this; but all he SAID was, `Why is a raven like a writing-desk?'
`Come, we shall have some fun now!' thought Alice. `I'm glad they've begun asking riddles.--I believe I can guess that,' she added aloud.
`Do you mean that you think you can find out the answer to it?' said the March Hare.
`Exactly so,' said Alice.
`Then you should say what you mean,' the March Hare went on.
`I do,' Alice hastily replied; `at least--at least I mean what I say--that's the same thing, you know.'
`Not the same thing a bit!' said the Hatter. `You might just as well say that "I see what I eat" is the same thing as "I eat what I see"!'
`You might just as well say,' added the March Hare, `that "I like what I get" is the same thing as "I get what I like"!'
`You might just as well say,' added the Dormouse, who seemed to be talking in his sleep, `that "I breathe when I sleep" is the same thing as "I sleep when I breathe"!'
`It IS the same thing with you,' said the Hatter, and here the conversation dropped, and the party sat silent for a minute, while Alice thought over all she could remember about ravens and writing-desks, which wasn't much.

"Alice's Adventures in Wonderland" Chapter V, A Mad Tea Party, Lewis Carroll


READ the full-text of the SEC's contingency plan for the shutdown that purportedly won't impact the SEC other than over 90% of its staff.