February 20, 2002; Kinder Implicated in Conflict of Interest by Former Enron Unit Chief

In the article below, the NY Times reports that according to the former President of Enron Global Power, Rich Kinder, president of Enron at the time, pressured the former executive to favor Enron over the public shareholders that owned 48% of Enron Global Power.

The implications are very serious as we believe that the public unitholders of Kinder Morgan Energy Partners are being disadvantaged by the general partner Kinder Morgan, Inc., about 21% owned by Rich Kinder.

Kurt H. Wulff, CFA



February 20, 2002

An Enron Unit Chief Warned, and Was Rebuffed

By JOHN SCHWARTZ

HOUSTON, Feb. 16 — When James Alexander tried seven years ago to warn Enron (news/quote)'s chief executive, Kenneth L. Lay, that the company was on a perilous path, he anticipated fireworks and quick action.

Meeting with Mr. Lay, he described perceived conflicts of interest between Enron and the affiliated company he worked for, Enron Global Power and Pipelines, which had been formed in part to keep high-debt assets like power plants off Enron's balance sheet.

Mr. Alexander recounted assertions of accounting irregularity that were swirling within Enron and stories of deal makers enriching themselves to the company's detriment — concerns that, while not precisely those that eventually brought Enron down, now seem acutely parallel.

"I expected his response would be, `My God, Jim, we've got to do something about this,' " said Mr. Alexander, who at the time was president of Global Power. Instead, he recalled, Mr. Lay unemotionally said he would have Enron's president look into the matter, and then quickly asked that his next appointment be ushered in.

Other former executives of Enron Global Power say that Mr. Alexander was overanxious — that conflicts were disclosed and that strong oversight by outside board members, including Brent Scowcroft, the retired general and presidential adviser, protected investors' interests.

But they agree that Global Power's brief life — it was spun off by Enron in 1994 and reacquired in 1997 — was an early example of Enron's aggressive financial techniques. The company, they said, was a precursor to the deal making that, without adequate checks and balances, set Enron on its path to collapse.

"We were the dead canary in the coal mine," Mr. Alexander said.

Enron set up Global Power as a separate, publicly traded company that would buy its portfolio of power plants and pipelines in developing countries. Mr. Alexander, a financial consultant who worked with Enron to create the company, was initially the chief financial officer.

Accounting principles generally prohibit a company from basing its profits on sales to a subsidiary. But Mr. Alexander's (news/quote) team worked closely with Enron's accounting firm, Arthur Andersen, and its main law firm, Vinson & Elkins, to create a corporate structure that allowed Enron to own 52 percent of the stock of Enron Global Power and Pipelines while maintaining that the unit was independent enough to characterize the sales as profit-making transactions.

"That was the needle we had to thread," Mr. Alexander said. "How do you have a major interest without having control?"

The partnerships that Enron created in the late 1990's, which also shifted assets off its books, posed the same challenge. In those cases, Enron assured itself of control by putting its own executives in charge. In at least one instance, Enron's board waived the company's code of ethics to allow the chief financial officer, Andrew S. Fastow, to manage a partnership that made numerous deals with the company.

Global Power operated with tighter strictures. A three-member committee of outside board members was expected to pass judgment on its deals with Enron. And the committee members had solid credentials: General Scowcroft had served as national security adviser in the administrations of Gerald R. Ford and the senior George Bush; George S. Slocum was the former chief executive of Transco Energy, and Thomas C. Theobald, was a former vice chairman of Citibank and chief executive of Continental Bank (news/quote) in Chicago.

Still, from the outset, Global Power investors were warned that the company's dealings with Enron would be at less than arm's length.

"Enron will control the Company and will have extensive ongoing relationships with the company," the prospectus for Global Power's initial stock offering read. "Certain conflicts of interest exist and may arise in the future as a result of these relationships."

Mr. Alexander said he was comfortable that the arrangement could be understood by a reasonably intelligent investor. But he still considered it his responsibility that the company, which most employees referred to by its stock symbol — EPP — protect its non-Enron shareholders in any deals it struck.

And that made for friction. He recalled an unpleasant flight to Buenos Aires on Enron's corporate jet early in 1995, when he was trying to explain his position to Richard D. Kinder, then Enron's president.

"I started to say, `Rich, from the point of view of EPP, we. . . ." But Mr. Alexander said that he was never able to finish the sentence and that Mr. Kinder began shouting at him. "He said, `Me! My!' That's the problem with this company — everybody's saying `Me! My!' " Mr. Alexander recalled. This went on for more than an hour, he said, adding, "This was my first taste that this was not going to be an easy ride."

Through a spokesman, Mr. Kinder, who left Enron in 1996 and is now chairman of Kinder Morgan (news/quote), an energy company in Houston, declined to comment on the discussion.

On other occasions, Mr. Alexander said he found himself fighting over deals with the top executives of Global Power as if they were Enron executives. "You'd better take your EPP hat off," he said one executive told a colleague, "and put on your Enron hat."

Similar conflicts arose in Enron's dealings with its partnerships, according to records released last week by Congressional investigators.

Last March, the records show, Jeffrey McMahon, then Enron's treasurer, complained to the company's chief executive, Jeffrey K. Skilling, that Mr. Fastow "wears two hats" as both Enron's chief financial officer and the man who controlled some of the partnerships in question.

In notes he scribbled before meeting with Mr. Skilling, his boss, Mr. McMahon added that he felt pressured to act against the interests of Enron shareholders.

Mr. Alexander took his concerns directly to Mr. Lay in a face-to-face meeting early in 1995.

In addition to his perception of conflicts between the interests of Global Power and Enron, Mr. Alexander said he told Mr. Lay what he had heard about deal makers in a unit that built power projects around the world setting the value of those projects in ways that increased their compensation. He also told him about an accounting mechanism that was said to improperly keep the costs of failed bids off Enron's books.

Mr. Lay, he said, greeted his claims dispassionately: "He said, `Gee, Jim, I guess I'll have to call Rich on this,' " referring to Mr. Kinder. The meeting was over in less than 15 minutes.

Kelly Kimberley, a spokeswoman for Mr. Lay, who has resigned all his posts at Enron, said that his "practice was to see that concerns brought forward were properly investigated or addressed." She added, "We're not going to discuss on a case-by- case basis claims by employees." A spokesman for Enron, John Ambler, said that nothing improper took place in any dealings between Enron and Global Power.

To Mr. Alexander, the only tangible result of the visit was that within weeks, Enron started siphoning away members of his staff, placing them under Mr. Skilling.

Mr. Alexander and two other top Global Power executives soon resigned, including the controller, Jeffrey H. Siegel. Mr. Siegel, now a consultant in the energy industry, said in an interview that the breaking point for him was a decision to remove Global Power's accounting staff from his authority.

"I am not going to sign any S.E.C. documents unless I have control over the numbers," he explained, referring to filings with the Securities and Exchange Commission.

Other current and former Enron officials disagree with Mr. Alexander's interpretation of events at Global Power.

Mr. Theobald, the retired banker who served on the Global Power board's oversight committee, said "we took our job seriously" and "demanded total transparency and total arm's length dealing."

After all, he said, "General Scowcroft, George Slocum and I weren't a bunch of fools." The relationship between the companies was complex, he added, but "I was not aware of any real attempt to abuse the obvious conflict built into the fact that they owned more than 50 percent of the stock."

Mr. Scowcroft's office said that he was traveling and could not be reached for comment.

Rodney L. Gray, who as chairman and chief executive of Global Power was Mr. Alexander's boss, said that negotiations with Enron were often acrimonious and that Global Power gained good value in its deals.

He said that over the company's life, Global Power's stock rose to $35 a share from $24. Moving staff members out of Global Power, Mr. Gray added, was a cost-saving move that rankled Mr. Alexander and Mr. Siegel because it kept them from building a "kingdom."

Over all, Mr. Gray said, Mr. Alexander was "paranoid" about conflicts of interest that never actually emerged. Still, he added, Mr. Alexander served a valuable function, because "his paranoia was great to listen to" as a signal of possible problems.

"We couldn't ever find anything to be concerned about," he said, "but we looked." That, he said, is why he does not find it surprising that Mr. Lay did not swing into action after the meeting with Mr. Alexander.

Even so, Mr. Gray said that in hindsight, Global Power played a critical role in Enron's evolution, as a legitimate precursor to the illegitimate partnerships that would eventually contribute to Enron's collapse.

As Mr. Skilling continued his rise through Enron, Mr. Gray said, he kept looking for ways to improve the payoff on assets like power plants, while clearing away cumbersome oversight.

"Jeff hated EPP," he said, because "there was a gatekeeper." The partnerships that followed, he added, were easier to control and harder to understand from the outside.

"As they went forward in time," he said, "these structures had less and less gatekeepers, and I think that, ultimately, led them into the ditch."

Mr. Skilling made no secret of his preference for Enron's trading businesses over its hard assets. In Congressional testimony, he said he was unaware of any improprieties in Enron's finances.

After leaving Enron, Mr. Alexander joined a start-up firm in the energy industry. Then in 2000, he said, he suffered a two-day migraine headache and decided to simplify his life. Today, at age 50, he is a student at Yale Divinity School.


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