MSRB Makes Technical Changes to SEC Filing on Nominating Committee Proposal

On November 30, 2010 the MSRB filed with the Securities and Exchange Commission (the “SEC”) technical revisions to a proposed rule change consisting of amendments to MSRB Rule A-3, on membership on the Board, in order to establish a Nominating Committee that complies with MSRB transitional Rule A-3(i), which was adopted to comply with the Board composition requirements of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (the “Dodd-Frank Act”).[1]  The filing amends and restates a filing with the SEC on November 8, 2010, which was described in MSRB Notice 2010-48 (November 8, 2010).[2]  The text of the proposed rule change may be found below.

Questions about the rule amendments should be directed to Lawrence P. Sandor, Senior Associate General Counsel at (703) 797-6600. 

December 1, 2010

*               *               *

TEXT OF RULE AMENDMENT [3]

Rule A-3:  Membership on the Board

(a) – (b) No change

(c) Nomination and Election of Members.

(i) Members shall be nominated and elected in accordance with the procedures specified by this rule. All members of the Board shall be elected for terms of three years, so that the terms of office of one-third of the whole Board shall expire each year. The terms of office of all members of the Board shall commence on October 1 of the year in which elected and shall terminate on September 30 of the year in which their terms expire.  Members may be elected to staggered terms.  A member may not serve consecutive terms, unless special circumstances warrant that the member be nominated for a successive term or because the member served only a partial term as a result of filling a vacancy pursuant to section (e) of this rule.  A member of the Board may serve additional terms as a Board member upon nomination and election for each such additional term in accordance with the procedures specified by this rule, provided that, a member of the Board may immediately succeed himself or herself in office for only a single successive term and only upon nomination and election for such successive term in accordance with the procedures specified by this rule.  No broker-dealer representative, or bank representative, or municipal advisor representative may be succeeded in office by any person associated with the broker, dealer, or municipal securities dealer, or municipal advisor with which such member was associated at the expiration of such member’s term except in the case of a Board member who succeeds himself or herself in office.

(ii) The Board will appoint a Nominating Committee composed of nine members. The membership of the Nominating Committee shall consist of six Board members and three persons who are not members of the Board. Of the six Board members, two shall be bank representatives, two shall be broker-dealer representatives, and two shall be public representatives. Of the three non-Board members, one shall be associated with and representative of bank dealers, one shall be associated with and representative of brokers, dealers, and municipal securities dealers other than bank dealers, and one shall not be associated with any broker, dealer, or municipal securities dealer (other than by reason of being under common control with, or indirectly controlling any broker or dealer which is not a broker, dealer or municipal securities dealer that effects municipal securities transactions).  Candidates for Board membership shall be nominated by a committee (the “Nominating and Governance Committee”) consisting of six public Board members and five Board members representing entities regulated by the MSRB.  Among the six public Board members, at least one but no more than three shall be representative of institutional or retail investors in municipal securities, at least one but no more than three shall be representative of municipal entities, and at least one but no more than three shall be members of the public with knowledge of or experience in the municipal industry and not representative of investors or municipal entities.  Among the representatives of entities regulated by the MSRB, at least one but no more than two shall be associated with and representative of brokers, dealers or municipal securities dealers that are not banks or subsidiaries or departments or divisions of banks, at least one but no more than two shall be associated with and representative of municipal securities dealers that are banks or subsidiaries or departments or divisions of banks, and at least one but no more than two shall be associated with and representative of municipal advisors and shall not be associated with brokers, dealers or municipal securities dealers. The Chair of the Nominating and Governance Committee shall be a public member. In appointing persons to serve on the Nominating and Governance Committee, factors to be considered include, without limitation, diversity in the geographic location, size and type of brokers, dealers, and municipal securities dealers, and municipal advisors represented on such Committee.

(iii) The Nominating and Governance Committee shall publish a notice in a financial journal having general national circulation among members of the municipal securities industry and in a separate financial journal having general national circulation soliciting nominations applicants for the positions on the Board to be filled in such year. The notice shall require that applicant recommendations be accompanied by a statement of the position for which the person is recommended, the background and qualifications for membership on the Board of the person recommended and, if applicable, information concerning such person's association with any broker, dealer, or municipal securities dealer, municipal advisor, municipal entity, or institutional investor. The Nominating and Governance Committee shall accept recommendations pursuant to such notice for a period of at least 30 days. Any interested member of the public, whether or not associated with a broker, dealer, or municipal securities dealer, municipal advisor, municipal entity, or institutional investor, may submit recommendations to the Nominating and Governance Committee. The names of all persons recommended to the Nominating Committee shall be made available to the public upon request.

(iv) The Nominating and Governance Committee shall nominate one person for each of the Board positions to be filled and shall submit the nominees to the Board for approval. In making such nominations, the Nominating and Governance Committee shall take into consideration such factors as, without limitation, diversity in the geographic location, size and type of brokers, dealers, and municipal securities dealers, and municipal advisors represented on the Board, as well as the background, experience, and knowledge of the municipal securities markets of the public Board members.  Each nomination shall be accompanied by a statement indicating the position for which such person is nominated, the nominee’s qualifications to serve as a member of the Board, and information concerning the nominee’s association, if any, with any broker, dealer, or municipal securities dealer, municipal advisor, municipal entity, or institutional investor. The names of the nominees will shall be confidential.

(v) The Board shall accept or reject each nominee submitted by the Nominating and Governance Committee. In the event that If the Board rejects a nominee, the Nominating and Governance Committee will shall propose another nominee for Board consideration.

(vi) The public representatives on the Board will, prior to their assumption of office, be subject to approval by the Commission to assure that no one of them is associated with any broker, dealer or municipal securities dealer (other than by reason of being under common control with, or indirectly controlling, any broker or dealer which is not a broker, dealer or municipal securities dealer that effects municipal securities transactions) and that at least one of the public representatives of the Board is representative of investors in municipal securities and at least one is representative of issuers of municipal securities.

(vii) (vi) Upon completion of the procedures for nomination and election of new Board members, the Board will announce the names of the new members not later than October 1 of each year.  The names of all applicants who agreed to be considered by the Nominating and Governance Committee shall be made available on the Board’s website no later than one week after the announcement of the names of new Board members for the following fiscal year.

(vii) The Nominating and Governance Committee shall also be responsible for assisting the Board in fulfilling its oversight responsibilities regarding the effectiveness of the Board’s corporate governance system.

(d) – (i) No change

[1] File No. SR-MSRB-2010-17.  Comments on the amendments should be submitted to the SEC and should reference this file number.