{ The story line:

• Oct. 26, 2012 Commodore Perry Appeal Set for Nov. 7
• Oct. 25, 2012 CPFCU Prez, Attorney Say Appeals Process Dodges Real Issue
• Oct. 25, 2012 Appeals Panel Can Toss Commodore Perry Exam Findings
• Oct. 24, 2012 Ohio CU Left Wondering How to Prep for Appeal
• Oct. 11, 2012 NCUA Stands by Examiner in Harassment Appeal
• Oct. 9, 2012 NCUA Buys Time in Commodore Perry Appeal
• Oct. 4, 2012 Commodore Perry FCU Says Documentation Proves Claims
• Oct. 3, 2012 Ohio CU Says NCUA Examiner Harassed, Retaliated }

Bruce Jolly of the Oakton, Va., law firm of Reed & Jolly PLLC, said as he understands the appeals process, the NCUA correctly stated CPFCU's burden of proof. He said according to the Administrative Procedures Act, the credit union must convince the Supervisory Review Committee that Yolles abused his discretion when he denied the appeal.

“The whole controversy around the examiner's approach and attitude, it literally isn't on the table,” Jolly said. “But, that's exactly the way the exam appeal process is set up.”

Jolly said the question facing the SRC isn't whether or not Yolles reviewed the credit union's evidence, or if he would have changed his mind had he reviewed it. Instead, the committee will decide whether or not Yolles had enough evidence to arrive at his decision, and whether or not he abused the appeals process when he denied CPFCU's appeal.

“They certainly have the right to argue that (Yolles) couldn't have made the right decision because they have all this evidence he didn't review,” he said.

CPFCU claims its examiner retaliated by reporting inaccurate exam findings that unfairly lowered the credit union's CAMEL score because management complained to the NCUA that the examiner sexually harassed and bullied CPFCU employees.

The complaint was immediately forwarded per NCUA rules to the regulator's Office of Inspector General, and the OIG's office immediately investigated the complaint, interviewing the examiner before CPFCU's exam was complete.

The OIG backed up the examiner, saying Oct. 4 it did not find evidence of retaliation.

Jolly said he's never heard of an examiner engaging in the type of harassing behavior the credit union claims, but added that he has no reason to believe it couldn't have happened.

“Whether it's a bank, thrift or credit union, examiners have the upper hand in those meetings, and it's an important time for competent legal representation because it changes the dynamic,” he said.

Regardless of the outcome, Jolly said by taking its appeal to the SRC, “the credit union has helped shine a light on an entire set of processes that a credit union encounters when it confronts what it considers to be a bad exam.”

The SRC's three committee members include Chairman Joy Lee, former director of supervision and currently the senior FFIEC advisor to Chairman Debbie Matz, trial attorney Gerard Poliquin and a program officer Judy Graham. They are scheduled to hear CPFCU's appeal the week of Nov. 5, pending agreement by both parties on an exact date and time.