Guilty or Not, Lay Was an Irresponsible CEO
By Allan Sloan
Tuesday, July 13, 2004; Page E03
Okay, fans. We finally got the photo op that so many people have wanted to see for so long: Ken Lay doing the perp walk, almost three years after Enron's collapse touched off the current corporate scandalfest.
But can you remember the specifics of the 11 counts against him? I doubt it. I'm guessing you OD'd after reading the first few paragraphs of the stories in the papers, or from watching cable TV discussions of the finer points of the Justice Department and Securities and Exchange Commission suits, including how Enron accounted for a water company it owned. Don't tell anyone, but even I started to zone out -- and I'm a business junkie who's been dealing with Enron since it was famous rather than infamous.
Much of the discussion has focused on whether Lay will go to the slammer. That answer is months -- if not years -- away and will likely turn on technicalities. A better question, given Lay's new PR offensive, is: Did he do anything wrong?
The Justice Department's criminal case is very narrow. It focuses primarily on Lay's alleged actions from August through December 2001. August 2001 is when Lay, who had stepped down as chief executive in February, took back the CEO job when Jeffrey Skilling surprised Wall Street by quitting, sending tremors through the company. December 2001 is when Enron went Chapter 11.
Let's remember two things. First, the government's case against Lay -- which includes four hypertechnical (but possibly slam-dunk) charges of dealing untruthfully with banks that lent him money -- is narrow because it's not designed to tie all of Enron's failures and dishonesties around his neck. It's designed to get him convicted.
Second, it's so easy to get lost among the trees here that we have to remember to look at the forest. To wit: Even if you buy Lay's explanation for Enron's collapse -- which I don't -- Lay did plenty of things that were just plain wrong.
Lay says he was deceived by unscrupulous subordinates, primarily former chief financial officer (and current government snitch) Andrew Fastow. "I did not know what he was doing," Lay said at a news conference Thursday.
Lay and his lawyer, Michael Ramsey, have repeatedly portrayed Lay as a victim. But if Lay were as clueless as he claims, he should turn over his entire net worth -- which he estimated last week at $20 million after legal expenses and fines -- to Enron's employees, creditors and shareholders. That's because Lay knocked down tons of money -- a five-year total of at least $325 million in salary, bonuses, stock-option gains and stock sales to the company -- for a job he couldn't have been doing properly if he really had no idea what was going on.
My sources for that incredible total payout -- $195 million of option profits, $94 million of stock sales, the rest salary, bonus and special payments -- are Enron SEC filings and an analysis from Thomson Financial.
And wait, there's more. Although Enron's cash grew tight in 2001, Lay took tens of millions of dollars out of the company to avoid personal financial ruin. He did this by repeatedly using a line of credit Enron had given him. The maximum loan was $4 million -- but he kept borrowing and then repaying by selling Enron shares back to the company. In all, he sold $70 million of shares to the company on 20 days to repay these loans.
But as an Enron director and (from August 2001 on) its CEO, Lay had legal and moral fiduciary obligations to place the interests of the company's shareholders (and later its creditors) ahead of his own interests. At the very least, he should have stopped borrowing from Enron when the company ran into cash problems -- but he didn't. He even sold the company $2,275,660 of stock on Oct. 26, 2001, the day Enron signaled its dire straits by drawing down its entire $3 billion line of credit. The company sure could have used that money for something other than bailing out the boss.
Finally -- and worst -- on Sept. 26, 2001, Lay was touting Enron's stock to employees in an online chat, saying that he'd been buying in previous months. Public records showed that to be true, to the tune of around $4 million. But Lay had also sold $24 million of stock to Enron in the previous two months. He didn't mention that.
Under SEC rules at the time, Lay had to disclose his public sales or purchases within 10 days -- but could wait until February 2002 to disclose his transactions with Enron.
Lay should have told his employees about those sales and explained that he was selling for personal reasons but nevertheless believed in the company. Instead, he misled his employees -- and the financial markets -- by omission. To me, that's the single most egregious thing he did. The government charges that this violated the law -- which is for a jury to decide. But anyone can see that this violated employees' trust. And that it's just wrong.
I tried to get Lay's side of all this, but neither he nor his lawyer would talk to me. So we're left with Lay's remarks and the public record, which don't make our boy look particularly good. It's really simple. At best, Ken Lay was incompetent. At worst, he was a crook. Neither of which is a particularly admirable trait in a CEO.
Sloan is Newsweek's Wall Street editor. His e-mail address is email@example.com.
© 2004 The Washington Post Company