The Securities and Exchange Commission is the regulator that is supposed to crack down on executives who put misleading and fraudulent numbers into their financial filings.
But Luis A. Aguilar, a commissioner at the S.E.C., said on Thursday that he was concerned that the agency’s stance in such cases might be weakening. Mr. Aguilar made his comments in a surprising dissenting statement that sharply criticized an enforcement action against two senior executives who worked for an information technology company called Affiliated Computer Services.
Mr. Aguilar, one of three Democrats on the commission, described the settlement with one of the executives, Kevin R. Kyser, the former chief financial officer, as “a wrist slap at best.”
The settlement was deficient, in Mr. Aguilar’s view, because it lacked fraud charges and did not effectively bar Mr. Kyser from being a top accounting executive at a public company.
“Beyond this particular matter, I am concerned that the commission is entering into a practice of accepting settlements without appropriately charging fraud and imposing” suspensions, Mr. Aguilar said in his statement.
Mr. Kyser and the other executive, Lynn R. Blodgett, Affiliated Computer Services’ former chief executive, did not admit or deny the findings of the S.E.C.’s investigation. Together, they have agreed to forfeit $569,327 in bonuses and other compensation, and each has to pay $52,000 in penalties.
“Lynn Blodgett is pleased to put this matter behind him without any bar to continuing to serve as an officer or director of a public company and without admitting or denying any allegations made by the S.E.C.,” Paul Coggins, a lawyer for Mr. Blodgett, said in a statement. Mr. Kyser’s lawyer did not respond to a request for comment.
The S.E.C. has five commissioners, who vote on enforcement actions and rule-making. The vote tally for the Affiliated Computer Services action was three in favor and one against. Mary Jo White, the S.E.C.’s chairwoman, was recused from the case. Ms. White’s husband, John W. White, is a partner at Cravath, Swaine & Moore, a law firm that did work for Affiliated Computer Services.
Mr. Aguilar’s dissent adds to a barrage of criticism aimed at the agency since Ms. White took over last year. Some consumer advocates have asserted that the S.E.C. has not been sufficiently tough, especially when writing new rules that stem from the Dodd-Frank financial overhaul law, which was passed in 2010. Within the agency, the commissioner Kara M. Stein has at times called for more robust actions and rules. But another commissioner, Michael S. Piwowar, has at times argued that the S.E.C. is overreaching.
The S.E.C.’s enforcement director, Andrew Ceresney, responded to Mr. Aguilar’s dissent in a statement. “Prosecuting accounting and financial fraud is a high priority for the agency,” Mr. Ceresney said. “In fact, our financial reporting cases for 2014 so far have surpassed last year’s total number of cases by 21 percent.”
Mr. Aguilar’s missive goes to the heart of one of the S.E.C.’s main jobs – pursuing accounting fraud at public companies. “It is noteworthy,” said David B. H. Martin, a partner at Covington & Burling. “What Aguilar is saying is that he thinks the case is stronger than the other commissioners did, and even perhaps the staff.”
In the case Mr. Aguilar is criticizing, Affiliated Computer Services used accounting ruses to make it revenue appear $125 million higher than it really was, allowing the company to make it look as if it had met revenue growth targets that it had previously issued to investors. Mr. Kyser knew what was going on, according to the S.E.C., and received a bonus based on the company’s inflated financial performance.
Often in such cases, a chief financial officer would be suspended from acting as a senior accountant in a public company. But Mr. Kyser did not receive such a ban as part of the enforcement action, which was announced on Thursday.
“When these accountants engage in fraudulent misconduct,” Mr. Aguilar wrote, “the commission must be willing to charge fraud and must not hesitate to suspend the accountant from appearing or practicing before the commission.”
Xerox bought Affiliated Computer Services in 2010 and Mr. Kyser worked at Xerox until resigning in May 2013, according to the S.E.C. His license to practice as a certified public accountant in Texas expired in 2008, the agency added. Mr. Blodgett also took up a position at Xerox, as president of Xerox Services, but is retiring from the company at the end of this year.
Bill McKee, a Xerox spokesman, said that Mr. Blodgett’s departure was not related to the S.E.C. action.
Mr. Aguilar also said that the S.E.C.’s enforcement orders may sometimes be “purposely vague and/or incomplete, and written in a way so as to lead the public to conclude that no fraud had occurred.” This, he added, “muzzles my voice by not allowing any statement by me (including this dissent) to include a fulsome description of facts that support the view that the commission should have brought fraud charges.”
Mr. Aguilar also cited figures showing that the S.E.C. has been bringing fewer financial disclosure cases in recent years and securing fewer executive suspensions in such cases. In 2013, he said 41 percent of financial reporting cases led to suspension, compared with 54 percent in 2010.
In his statement, however, Mr. Ceresney, the S.E.C.’s enforcement chief, said, “We make our enforcement decisions based on the evidence, and we always push for the strongest charges and remedies possible given the circumstances of the case.”