FINRA Seeks Your Vote -be careful

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http://www.rrbdlaw.com/brokeandbroker/index.php?a=blog&i d=21
 
FINRA Board of Governors Nominations: Singer's Acid Test
Written: August 4, 2007
On August 3,2007 the new Financial Industry Regulatory Authority (FINRA) announced its seven nominees for its first Board:three from the Small Firm pool, one from the Mid-Size, and three from the Large Firm. Individuals seeking to contest FINRA's slate must file petitions within 45 days (needing 3% of member signatures for each category or 10% if running as part of a multi-category slate). In reviewing the list of FINRA's official nominees, I sadly see a predisposition to regurgitate familiar faces (and firms) through a system desperately in need of innovation and reform. Despite a vibrant dissident/reform community that won dramatic contested elections during last year's District,NAC, and Board levels, FINRA persists in pretending that such opposition does not exist. FINRA is not supposed to be a politicized regulatory organization. It is supposed to fairly represent the panorama of the securities industry, and it is supposed to draw upon the wellspring of its members expertise to both root out misconduct and to generate rationale, effective regulation. In recent years the regulator's misguided, insular policies and bunker mentality have prevented it from becoming meaningfully pre-emptive. Worse, by antagonizing its dissident/reform members, FINRA has only nurtured such opponents and motivated them to better organize and obtain ever-increasing numbers of members. If FINRA were truly sincere in mending its fences and transforming itself into a partnership with the regulated, it should have engaged in substantive, confidential discussions with the dissident/reform community BEFORE selecting its current class of nominees. By not doing such, FINRA not only delivered an unnecessary slap in the face of hundreds of firms hostile to its past policies, but it has also made it more difficult for folks such as me to support any official nominee. As such, I and others who share my opinions about unfair and biased industry regulation, are given further pause before we trust anyone nominated by a still antagonistic regulator.Last month I resigned from the Financial Industry Association (FIA). As such, I am now a classic free agent -- beholden to neither FINRA nor its most successful trade-group critic (FIA). I have been asked by both factions to consider supporting their candidates and likely candidates, but have withheld any committment until I better understand how such nominations were obtained and what the nominees stand for.I would urge all FINRA voting members not to engage in knee-jerk voting for either FINRA's or FIA's nominees. Your future is too important to simply vote a party line. You don't want political hacks sitting on the Board. First and foremost, that man or woman should want to be sitting there, and should want to undertake such service in an effort to better our industry. If the only motivation to run for the Board is to put that title on one's resume and to curry favor with FINRA, you should not cast your vote for such a nominee.Wall Street stands at the precipice and any further stumbles may be an irreversible fall into the abyss. This is not the time for amateur hour. We need men and women at FINRA's helm -- and individuals who have worked on the Street and understand that their role is not to smile and always say "yes." Similarly, their role is not to always grimace and say "no." Now, more than ever, we need dialog, innovation, and a consensus.Here are the questions I intend to ask any nominee seeking my support, and I would urge you to put such folks to a similar test:1. FINRA's August 3, 2007 Election Notice states " As of the close of business on August 2, 2007, FINRA had 4,655 Small Firm voting members, 224 Mid-Size Firm voting members and 193 Large Firm voting members." QUESTIONS: Do you think that it is fair for 4,655 firms to have no more say in FINRA's affairs than 193 firms (both are limited to three nominees)? If you are elected, will you support a petition to return FINRA to its former one-firm-one-vote status? If not, why do you think the present status is fair?2. FINRA's policies in processing new member applications and in processing requests for modification of existing membership agreements (notably to acquire additional branches or to add staffing) continue to come under attack as taking too long. QUESTIONS: Will you support efforts to demand more aggressive timeframes for completion of such applications? What, if any, suggestions do you have to reform that process? How long do you think the approvals should take (barring any unusual circumstances)?3. FINRA members have increasingly complained about unreasonable regulatory policies/practices during examinations and investigations. Pointedly, members and registered persons complain about arbitrary staff decisions involving the scheduling of on-the-record interviews (he time,duration and place), and in the deadlines and scope of document production. Although such issues are codified when they arise during hearings, the FINRA code is virtually silent on resolving such disputes during investigations/examinations and essentially leaves full discretion to the adversarial Staff.QUESTIONS: Will you support efforts to codify fair and reasonable policies and procedures to be used during examinations and investigations? Will you support the creation of an independent magistrate (not a Staff member) to rule on such disputes? What ideas do you have to reform this area?4. As demonstrated in numerous decisions on appeal within FINRA and subsequently to the SEC and federal courts, the Staff's initial demands for settlement of violations often exceeds the fines/suspensions imposed at the hearing level or on appeal. Many respondents complain that the Staff routinely high-balls settlement demands in a tactical attempt to pressure unfair resolutions. In the civil courts there are checks-and-balances to ensure that settlement demands are reasonable, but no such option exists at FINRA.QUESTIONS: Would you support reforming FINRA's enforcement protocol by requiring the Staff to announce at the beginning of all hearings its final offer of settlement; and implementing a series of rules that would provide incentives for such offers to be fair and reasonable? Would you support a rule that would allow a full set-off for incurred reasonable legal fees up to the amount that a hearing panel imposes a fine below that proposed by the Staff in its final offer (e.g., the Staff asked for $20,000 fine and the panel imposed a $5,000 fine -- the respondent would be given a $15,000 "rebate" to be applied against payment of the fine and all forum fees)? Would you support a rule that would allow a prevailing respondent to seek compensation for all reasonable fees a costs from FINRA in the event that a panel determines that there was no reasonable basis for the filing of charges?5. Many members complain about the costs of preparing extensive Written Supervisory Procedures (WSPs) and FINRA's dilatory practices in approving such materials -- and then subsequently charging a member firm with failing to maintain adequate WSPS despite the fact that they had been previously approved. For many years there have been calls from the industry to require FINRA to adopt pre-fabricated WSP paragraphs that are typically boilerplate in nature and adequate for many members and many businesslines, and to permit such paragraphs to be included in an effort to streamline the review. There is no suggestion that FINRA adopt a one-size-fits-all WSP as we recognize the need to tailor WSPs to each firm. Nonetheless,it is cynical for FINRA to persist in denying that much of the industry's WSPs cannot be subjected to a pre-approved language process.QUESTIONS: Will you support a reform to the WSP process? Do you have any suggestions as to how to achieve such a goal?6. Finally, FINRA seems to have fallen into a mind-set (largely during the Glauber administration at NASD)in which it sought to isolate dissidents/reformers within the NASD community them from meaningful participation with the regulator, and further attempt to balkanize our industry by playing trade groups off against each other. QUESTIONS: Do you believe that firms should be encouraged to voice their opposition to FINRA proposed rules and existing policies in a courteous and constructive manner? Do you support broadening FINRA's mandate by inviting all industry factions to the table? What specific ideas do you have to heal the wounds within our community?

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roostertale's picture
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QUESTIONS: Do you think that it is fair for 4,655 firms to have no more say in FINRA's affairs than 193 firms (both are limited to three nominees)? If you are elected, will you support a petition to return FINRA to its former one-firm-one-vote status? If not, why do you think the present status is fair?
Why wouldn't you weight the "market cap" of large firms to smaller b/d's? Just curious. It's nice to see that larger firms are well represented on the interim board:
http://www.finra.org/AboutFINRA/CorporateInformation/FINRALe adership/FINRABoardofGovernors/index.htm
 

Anonymous's picture
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Joe:
I have published on BrokeAndBroker.com the reasons for my departure.  It boils down to a few basic issues.
1.   I believe that FIA positively altered the landscape of self regulation, but it did so as a "coalition" and not as a formal, trade group with a public, verifiable list of members who pay dues. There is nothing wrong with continuing as a coalition, but the firms that I am affiliated with in the dissident movement have been pressing for FIA to formalize things.  We believe that the indie/regional BD community needs a trade group.
2.  It appears that FIA has or is taking steps towards becoming a more formal group, but we can't get any verification as to who is the CEO, who is the Chairman of the Board, and who is on the Board (and how they were nominated).  Hopefully, such transparency will be forthcoming and it is my understanding that it will.
3.  A reputable trade group has an obligation to police itself so that individuals do not speak on its behalf without the prior consent of the Board.  At times it remains unclear as to whether FIA espouses all the positions that are publicly attributed to it by its various spokespersons.  Everyone has the right to speak and say their piece, but it should be clear when someone is officially speaking for a trade group of for themself.  FIA needs to institute better policies in this regard.
4.  Blogs are often wonderful things -- but they are all too often repositories for sick minds.  Postings on an organization's site may not be the work of the organization, but if any posting that is slanderous, obscene, or harassing in nature is permitted to remain on an organization's site beyond the reasonable period in which such repugnant matter should have been detected and removed, then it demeans that organization.  For FIA to take the stage as a credible player, it must insist that its public persona (as often reflected by its blog) measures up.  This has not always been the case.
5. Finally, FIA seeks to be one of several trade groups.  Its chief competitors are FSI and NAIBD. Both of those competitors did not, in my opinion, stand up to the NASD and NYSE in the past and seemed to have espoused a party line that it was better to work "with" the SROs than to confront them.  Perhaps with the emergence of FINRA, we in the indie/regional community might see some modification from FSI and NAIBD of what I consider a too cozy relationship.  On the other hand, FIA has unabashedly championed the rights of the dissident/reform movement, and done so with courage and sincerity.  While such efforts have, at times, been handled in a somewhat uncouth manner, the simple fact remains that FIA was under attack from both the SROs and the other trade groups.  If FIA developed a bunker mentality in response to such antagonism, the blame must also be shared by its adversaries who failed to seek a more constructive dialog.  Nonetheless, having sustained significant upset victories in recent elections, FIA is now at a crossroads and must choose a path.  I wanted FIA to become a formal, dues-paying trade group with full transparency in its nominating and election policies.  I wanted to ensure the flow of new blood into the organization and to curtail some of its previous unpopular tactics.  Having failed to accomplish those goals, I thought it best to sever ties rather than continue to be a lone voice in the wilderness.
My hope is that FIA will soon right its course and that its Board will once again reach out to me and the firms I work with in the Dissident movement.  Regardless of any future reconciliation, I will likely support many if not most of FIA's nominees in contested elections.  Similarly, I will maintain an open door concerning overtures from any existing trade group or from folks seeking to form new ones. 
Hopefully that answers your question.

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Rooster:
First off, please note that the item you responded to is phrased only as a question and there is no suggestion by me that the situation is correct or not.  To the contrary, the questions I appended ask both whether al nominee would support a petition to repeal the present vote allocation OR an explanation as to why the nominee believes the allocation is fair.
The items and questions I have posted are representative of the issues that the Dissident community feels are among the most compelling ones facing our industry.  I have posted them to encourage discussion and debate.
My personal opinion is that the one-firm-one-vote protocol was fairer.  If FINRA believes that voting should be weighted based upon the number of RRs per firm (which is essentially the justification), then I find it cynical that FINRA does not permit RRs to vote on any rule proposal or for any elective office.  I truly do not see how you can separate those two aspects.  Additionally, FINRA's allocation continues to justify the view that RRs are the "property" of a BD, when I believe that RRs should be viewed as independent professionals.  Frankly, I don't understand why it matters how many accounts or how many RRs are at any given member firm.  If it's a member organization, then each member should have one vote.
In dispute of that position, I acknowledge that we have a House of Representatives in which larger states have more votes.  However, we also have a Senate in which each state has two votes regardless of size. 
My difficulty with the change is that it was done so as part of a bulk package enmeshed in a yes or no vote for SRO consolidation.  A fairer and more appropriate position would have been for the change in voting status to have been deferred for at least one-year from the date of the approved consolidation, and then the proposition submitted to the industry for debate and subsequent vote.  If the change had been approved at that stage, I would disagree with the outcome but support the change as having been fairly and democratically achieved.  The current change was obtained in a manner that does not speak well of FINRA and suggests back-room dealing and brass-knuckles politics -- not what you want from an independent regulator.
Sometimes it's just not about the destination, but more about the trip.

troll's picture
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That there are 4,655 small firms and fewer larger ones is irrelevant.
The fewer larger firms employ far more registered reps than the 4,655 small firms.
The wishes of a firm the size of Merrill TRUMP the wishes of Acme Broker Dealer and Dry Cleaners--or even 4,655 of them.
There is nothing inherently wrong with having rules--even though the "dissident" set does not like them.
Recent whining about having to have written procedures for supervision is illustrative.  Why in the world should a firm of any size be excused from having such procedures?
Whining that it costs a lot of money to have them is specious--it's called the cost of doing business.  If you don't have enough money to play by the rules the solution is simple--don't play.

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I tend to agree with DA on the written rules procedures. Did Brookstreet have a compliance department? If so, where in the hell were they for all of these years?
Ditto on Oppenheimer. It's not like those problems in Boston were a big surprise to anyone.
On "representation" the little guys versus the big boys reminds me of small states versus large ones. Each state gets 2 US Senators but the number of House Reps is solely dependent upon population.
Let's keep this a little more professional without the name calling and personal attacks going forward, please.

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It's a "cost of doing business" until it becomes a "barrier to entry."
"The Financial Industry Regulatory Authority (FINRA), is the largest non-governmental regulator for all securities firms doing business in the United States. All told, FINRA oversees nearly 5,100 brokerage firms, about 173,000 branch offices and more than 665,000 registered securities representatives."
Now, would you like to tell the group why "[t]he wishes of a firm the size of Merrill TRUMP the wishes of ..." and how the math works such that "[t]he fewer larger firms employ far more registered reps than the 4,655 small firms."? After all, if the largest firm, Merrill has less than 20,000 RRs if the top 15 each had 20,000, it would still only equal 300,000 which is obviously less than half the number of RRs.
Further, there is a question of whom they are supposed to represent, the interests of firms or the interests of the RRs.

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YMH
What are you agreeing with DA about?  There is no suggestion -- not even a remote one -- that we abolish written supervisory procedures.  Please re-read the posted item and do not allow yourself to be manipulated into opposing positions that have never been stated.
The issue is simple and generally supported by both large and small firms.  We MUST HAVE written supervisory procedures.  However, too many WSPs today are not written by any human being but are merely cut and pasted from another firm's manual or drafted from forms on lawyers/consultants' word processing files.  The regulators do not want that and have repeatedly said as much.
However, it has become a problem for many smaller firms to draft extensive WSPs when they first start their business because the SRO Staffs will arbitrarily okay one paragraph (say for firm A) but then some other staffer will reject that same language (and let's agree that the language is appropriate for the business line) for another firm.  Those of us who are involved in the new member/expansion process have seen this inconsistency all too often.  Moreover, there are many aspects of every BD that are amenable to the use of a standard paragraph -- for example, how and where you must display your SIPC notice or how a daily order review should be conducted.
The bottom line is that NASD impaneled a committee years ago to wrestle with the issue of exploding WSPs and how to better reform the process, and then essentially disregarded the recommendations and did virtually nothing.  One common suggestion is for an industry panel to draft paragraphs whose use would be acceptable for a wide range of firms, and then to permit such firms to VERBATIM incorporate such paragraphs into their WSP and to submit an affidavit as to their inclusion.  That would cut down on the Staff's time to review each new WSP and would cut donw on the firm's cost (and subsequent liability) for preparing same.
Essentially, that's all the proposition stands for.  Can we find a way to cut down on the cost and paperwork attendant to preparing WSPs.  There is nothing seeking to eliminate them.  And yes, they are far too expensive.  So that you can better understand the issue, do you truly think that someone will sit down and re-write every rule and regulation for FINRA now that it combines NYSE and NASD?  Of course not.  The SRO will cut and paste much of what the predecessors used and will then tailor whatever else is needed.  The BD community is simply suggesting that the same commonsense approach would apply to new firms and expanding firms.  You don't need to reinvent the wheel for every paragraph in a WSP.

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I am agreeing with him that "some" of the little guys kvetch too much for obvious reasons. As you well know, NO ONE manipulates me into agreeing with ANYTHING, Bill.
"Some" of the little guys have NO COMPLIANCE department. They complain about compliance being too costly. If it's too costly, then perhaps they should try another line of work.
People who can't afford liability insurance should not drive cars. They should walk or rely upon cabs/public transportation.
 

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And folks who can't afford surgery when they lack adequate medical coverage should just drop dead and not bother the rest of us.
Soldiers sent to war without adequate armor shouldn't complain when they are shot and killed.
We clearly see the issue from two very different angles.  I see too much regulation as part of an effort to socially engineer smaller businesses out of existence -- whether that be zoning variance given to Walmart, an unwieldy tax code forced upon we small fry, or excessive regulation foisted upon smaller BDs.  I abhor big government and its bureaucracies.
We don't agree and never will.  What many small firms complain about is that they are suffocating under an endless flow of new regulations that don't seem to apply to them or constitute overkill.  But I guess you have the right solution -- let's simply do away with anyone who complains and leave Wall Street to 193 or so firms.  And of course those big boys would never, ever do anything wrong.  Of course not.  They are paragons of virtue and we would all be better off with a Starbucks and Merrill on every corner and one Walmart taking over our downtown.  Who the hell needs mom and pop.

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We agree on some things like universal health care. We do not agree that everyone has the "right to drive without liability insurance."
The big boys are by no means paragons of virtue but they tend not to hire brokers with rap sheets longer than a football field for good reason. "Some" of the smaller broker-dealers apparently haven't been shown how to use NASD Broker Check.
On customizing written rules how long would/does it take to modify acceptable boilerplate language to placate FINRA inspectors? 10 hours? 20 hours?
For the record, I do not agree with and/or sanction "DevilAdvocate's" personal slams against "known" posters.

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And of course those big boys would never, ever do anything wrong.  Of course not.  They are paragons of virtue and we would all be better off with a Starbucks and Merrill on every corner and one Walmart taking over our downtown.  Who the hell needs mom and pop.
I don't understand the big picture, I'm just a small franchise owner affiliated with a big broker dealer. It seems small RIAs have become mom and pop, and they are subject to much less regulation and enjoy a much lower fixed cost structure than where I find myself and my large broker dealer after a decade in business.
Maybe these developments favor big business broker dealers, but aren't they fighting for their survival against forces like Fidelity RIA, The Mutual Fund Store, mom and pop RIA, elimination of 12b1 fees, and media that hates commissions and professional advisors, and all others that would cherry pick the profitability out of our diverse marketing mix of profitable and not so profitable accounts - a b/d industry with strong regulation and a unified voice can ensure the survival of full service brokers, insurance reps, and their big and small clients - if the cost of survival is higher entry barriers for the small b/d, so be it.
Maybe I'm way off, I have a pretty full plate with just running my dinky little shop so this is just based on observation and perception.

Anonymous's picture
Anonymous

YMH:
Your critique is well taken but how about answering this basic question.
If wirehouses are such paragons of virtue and only hire the best and the brightest, then why are virtually all the recent negative headlines (market timing, research abuses, subprime, etc.) arising from wirehouses.  I think the penny stock/boilerrooms were largely creatures of the 1980s/1990s, and while some of that garbage is still around and up to no good, the bulk of today's problems are arising at larger firms.
As to you other point about smaller firms hiring folks with industry rap sheets, that strikes me as just a bit too facetious.  Here's the point: If these recidivists should NOT be working in our business, then why doesn't the regulators bar them rather than allow them to return after a suspension?  At what point do you place some blame on namby-pamby regulators who simply want to collect fines and aren't really willing to put in the work to bounce the garbage out on a permanent basis?
As I have historically stated, the failure of the regulators and the regulators to enter into a workable partnership has caused our industry and the investing public more problems than anything else.  We have far too many divisions within our industry and between the industry and the regulators.  The solution is a constructive dialog without preconditions on who gets to sit at the table and who gets to talk.  We just haven't enjoyed that relationship for at least a generation. 

ymh_ymh_ymh's picture
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Point well taken and for your information I had a pre-open sidebar chat with a regional director of one of my favorite SEC offices about one such recidivist broker who I would have banned from the biz long ago (jumper type who likes to hose elderly clients).
I firmly support a "banned from the biz for life" sanction on cockroaches. That way smaller broker-dealers won't have to bother pull up their U-4's on Broker Check and won't get schmoozed into hiring them if they fail to check those U-4's to start with.
Perfect solution!

Anonymous's picture
Anonymous

Roostertale:
First off, I'd like to apologize if you inferred from my comments (which was not my intent) that RRs at wirehouses are sleazy.  Secondly, since you posted what seem like sincere comments, I'd like to thoughtfully respond.
I began my career in Smith Barney's Legal Dept and have tremendous affection for that firm and my former colleagues. Two of my former law partners are now in-house at that organization, and I consider them to be among some of the finest most honorable folks I know.
The issue you raise -- which to some extent is the mirror image of mine -- is what we both agree about.  Wall Street is an absurd hodgepodge of regulators and regulations.  The end result is that competing regulators (look at the morass in the annuity market among insurance and securities regulators) and ill-conceived regulations have destablized what was once a far more cohesive and collegial industry.
Ultimately, I have an abiding faith in the integrity of most RRs, RIAs, and others in our finanical industry.  However, without question, there are far too many miscreants who cause incredible harm to the public and tarnish our reputation.  We need more effective regulation to protect all of us -- and our regulators have just failed to deliver the level of service that is needed.
If we in the industry -- be it banking, insurance, and securities -- could just sit down as businesspersons and work together to level the playing field and instill truly professional virtues within our industry, that would be a tremendous step forward.  Unfortunately, politicians and career regulators (often with little if any actual industry work experience) have hijacked the rulemaking for the financial services industry and have saddled all of us with uneven, unfair, and unworkable rules and regulations.  When self-regulation worked (and at one time it was a wonderful experiment), it did so because it was a vibrant PARTNERSHIP of regulator and regulated.  Self-regulation is now a failure because that partnership has been replaced with fiats that come down from on high and fail to consider the legitimate needs of the panoramic industry upon which such restrictions are imposed.
I welcome an opportunity to work with wirehouses and RIAs.  You folks are not the enemy.  The enemy is the complacency within our industry that keeps us all in our respective foxholes.  Sadly, there is no leadership on the horizon and I see no one able to wave a white flag, call a truce, and try to get everyone back on the same side.
We are not each other's enemy.  The bureaucracy is!

troll's picture
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Bill, you spelled "businessmen" wrong.

roostertale's picture
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We are not each other's enemy.  The bureaucracy is!
rrbd: it is clear you care about the industry, and have identified the real problem.
I have continuously advocated for reps to unite and stop squabbbling about the various platforms and products that the market demands and the home office suits manufacture: it always comes down to the ethics of the individual rep, at least, as professionals, this is what we can control.
The leadership question is interesting. There are a number of souls on this forum who could qualify as leaders. The forum itself seems to be evolving in consciousness, with regard to the big issue we both see.
In a virtual world, even leadership can be anonymous - in a strange twist of irony, some characters here have been moderated to anonymity, a development which once again proves that what is happening here is dynamic and interesting.
In an age of too much information - and too many communication venues - this forum is important. Ideas are powerful, and can take on a life of their own.
Thanks for investing your time here, your contributions, insights, perspectives. There is nothing else to do but push forward. One step at a time.

Anonymous's picture
Anonymous

Rooster:
Yes, this forum is important.  However, it is poorly run and we are all overwhelmed by too many folks who seem to be typing their posts with one hand.  If the Terms of Service on this forum were maintained, then we could focus on some constructive dialog and maybe even generate some workable approaches and solutions.
Alas, trying to accomplish anything here is like snorkeling in a cesspool.
Still, maybe you and I can start to build something.  Let's stay in touch.  You are welcome to contact me through my email or phone number, or through the PM feature on this site.
Maybe after Labor Day we can set up a better-policed thread and try to agree on the issues that need to be addressed, seek out ideas to address them, and draft proposals for consideration.  Wow!!! Wouldn't it be nice if we could reach a consensus on this board, of all places, and do something meaningful?
Enjoy your summer and it's a pleasure to make your online acquaintance.
Sincerely,
Bill Singer

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Maybe after Labor Day we can set up a better-policed thread and try to agree on the issues that need to be addressed, seek out ideas to address them, and draft proposals for consideration.  Wow!!! Wouldn't it be nice if we could reach a consensus on this board, of all places, and do something meaningful?
Taking a few weeks off and returning here with a structured thread is a great idea. It will be worth the effort. Enjoy the rest of the summer, the beach, the golf course, or whatever, and bring this leadership topic back into focus after Labor Day.

roostertale's picture
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Sounds like a motel room may be a better place to enhance this relationship that you two have.
At least I defended your right to free speech, not that you apparently need or want any one's help, or to generally have rapport with some of your professional colleagues.
Consider taking a little vacation, go get a hot dog on Coney Island, or watch the hemp plants grow on the Sag Canal, check out the children at the Mohawk public pool, or whatever it is you enjoy doing away from here, for a while.
And thanks for your role in defining zero here.

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