Rocky Mountain News
Posh entertainment paid for by money management firm targeted in probe
By John Accola, News Staff Writer
April 14, 2001
As an offensive lineman on the practice squad of the Denver Broncos, Dean Kirkland didn't find much glory on the gridiron.
But in his second career as a traveling salesman for a Portland money management firm, the 295-pounder was an unstoppable giant with star appeal.
"I was their rainmaker," said Kirkland, 33.
The scion of a blue-blood labor family, the boyish-faced Kirkland hobnobbed his way into union-management circles on word-of-mouth referrals, handshakes and a ready smile that matched the flash of his AFC championship ring.
What he offered to the labor bosses seemed too good to refuse: free hunting and fishing trips to Alaska and Africa. Lavish dinners and nights on the town. Broncos tickets. Best of all, a chance for union trust funds to earn big returns on "low-risk" investments through his employer, Capital Consultants LLC.
It was all there for the taking, and some Colorado union trustees took with gusto.
But now it appears it was the union funds that were taken. Capital Consultants is in receivership and the target of lawsuits and a federal criminal investigation.
Colorado-based retirement and benefit plans stand to lose more than $80 million, mostly in employer-contributed funds that make up union workers' fringe benefit packages.
Now respected Colorado labor leaders are on the defensive, asked to explain why they played ball with Kirkland, and why they fumbled.
"The attorneys are telling everyone not to talk, but some of us have put 30 years of our wages in this," said Brian Miller, a Denver union electrician. "This thing was rotten from the word go."
`If I Had a Son, Dean Is Who I'd Want'
Pitching investments for Capital Consultants was a great gig for Kirkland, an avid outdoorsman.
"Part of my agreement with Capital was that I could hunt and fish when I wanted to," he said.
So he did -- a dozen or more times to Alaska alone -- all on Capital Consultants' expense account, which covered his clients as well.
Some of those moments were captured on home video.
A videotape from August 1996 shows Kirkland saluting from the bow of his chartered vessel at the Port of Sitka, one of southwest Alaska's premier fishing grounds.
At his side is a frequent traveling buddy -- Bob Legino, then business manager for Denver's electricians union and a trustee of the $450 million Eighth District Electrical Pension Fund in Aurora. Standing by is another union trustee, Duane Tidwell from the International Brotherhood of Electrical Workers, Local 68 in Denver.
"Nice fish, nice fish," Kirkland congratulates his companions as country music plays on the fishing boat's stereo. "Go, Bob, go!"
In three days, the excursion netted 280 pounds of silver salmon -- filleted, bagged and quick-frozen for the journey home.
On another trip, Legino and Kirkland flew to the remote Alaskan Peninsula to hunt for moose and caribou. By week's end, their four-member party had bagged two moose and two caribou. The bush pilot from Anchorage charged extra to take it all back – 25 boxes of meat, weighing 70 pounds apiece.
At least eight trustees on the boards of Colorado-based plans treated themselves to hunting or fishing jaunts paid for by Capital Consultants.
The ex-wife of one also recalls how Kirkland "wined and dined" trustees and spouses at some of Denver's finest restaurants.
Carol Lontine, who at the time was married to John L. Lontine, a pension trustee for the Denver sheet metal workers union, said Kirkland even reimbursed the couple for their Broncos season tickets in 1998 and 1999. The amount: $2,200.
"I was told it was a kudo, a favor for business," she said.
Ron Green, a member of Local 68 wasn't a trustee but still was invited along to fish for salmon and halibut in Sitka.
"There was money being sloshed around," he said, "and some of it sloshed on me." Said
Federal laws governing pension and benefit funds prohibit trustees from accepting cash and expensive gifts from money managers handling their funds. Investment houses also are barred from using gratuities to influence a trustee's business decisions.
But Kirkland says he never provided gifts, only entertainment –"one of the perks of being a trustee." Mixing business with pleasure to foster fast and trusting relationships, he said, is standard business practice:
"Capital Consultants didn't re-create the wheel on business entertainment nor did Dean Kirkland. It's been going on forever."
The Eighth District was Capital Consultants' biggest Colorado client, and Kirkland's trips with Legino sometimes included his union-management buddies: Tidwell, Blaine Newman, Ben Antunes and Robert Mayhew, all trustees for the Eighth District. All declined to comment through their offices or attorneys.
Sheet Metal Workers Union Local 9 in Denver was another big Capital Consultants client. The union entrusted more than a third of its $96 million pension plan with the firm.
In July 1998, Kirkland invited on one of his Sitka outings Lontine, pension fund chairman Dale A. Swartz and Mike E. Salazar, the union's treasurer who had served as a trustee the previous year. They would not comment either.
But Legino was Kirkland's most frequent traveling companion and biggest cheerleader while serving as investment committee chairman of the $450 million Eighth District Electrical Pension.
Now retired, he treasures the times Kirkland took him to hunt and fish in Alaska, Montana and South Africa.
"Kirkland was one of the nicest guys you ever met. If I had a son," said the father of six grown daughters, "Dean is who I'd want. Morally, everything about him."
Legino said he had no qualms about joining Kirkland on five trips. The offer to hunt big game in Africa, he said, was the opportunity of a lifetime.
"Every hunter's life-long ambition is to go to Africa," said Legino. "So when Dean asked me and said Capital had a deal worked out, why wouldn't I go?"
Mathew Kissane, general counsel to the Eighth District, said the trustees didn't necessarily get a "free ride." At least some, if not all, paid their own airfare, and there were shared expenses, he said. He declined to elaborate and has instructed the trustees not to talk to the media.
"Taking those trips perhaps wasn't the most prudent thing to do," he said. "As a trustee, you should be like Caesar's wife – above reproach. . . . It may have been stupid, but there is no evidence to date of any improper or criminal behavior."
Kirkland declined to provide estimates of the cost of the trips. He said he couldn't recall a single instance where a union official didn't at least pay his own airfare.
"We had a policy of never paying people's expenses `to and fro,' " he said.
But with Capital footing bills for lodging, game fees, professional guides, skippers and boat charters, he acknowledged he had a "generous" entertainment budget.
Indeed, on the September 1997 moose and caribou hunt, the tab came to $22,000, according to the hunting guide who led the party, which included Kirkland's father and uncle.
"Dean paid the bills," recalled Mel Gillis, owner of Alaska Trophy Hunting & Fishing, the Anchorage outfitter. "I knew Dean was a money market manager-type and Legino was a business agent for electricians. It's amazing how much business is done over the table there at camp."
Legino bristles at any suggestion the trips were improper.
"I took pictures and passed them around at the trustee meetings," Legino said. "No one said you can't do that."
But that was before Capital Consultants' spectacular collapse last September and the launch of a federal grand jury investigation into the business affairs of Kirkland's mentor, Jeffrey L. Grayson, the firm's 58-year-old founder and chairman.
On Sept. 21, Capital Consultants employees watched in shock as federal regulators took control of the firm and suspended its operations. Amid a deepening financial scandal, the company's last-ditch efforts to remain solvent had seemingly evaporated -- along with more than $230 million in customer assets, mostly union pension funds.
Two Denver union accounts that Kirkland brought to Capital the Sheet Metal Workers Local 9 and the IBEW Local 68 -- stand to lose as much as $32 million.
But Legino's Eighth District Electrical Pension Fund representing 8,500 workers in five Rocky Mountain states - has the most at risk. In recent filings with the Department of Labor, the Eighth District has written off almost all of its $51 million investment, putting the current market value of those assets at only $4 million.
The 33-year-old firm, which managed $1 billion in client assets, is under receivership for liquidation. Some client investments are safe and accounted for. But the value of an investment-loan program -- into which Capital funneled more than $400 million – is in shambles.
The case is shaping up to be "one of the largest frauds perpetrated by an investment adviser," said Kelly Bowers, an attorney with the Securities and Exchange Commission.
Trust plans in at least a dozen states did business with Capital, from the International Longshoreman's union in Washington to the Utah Carpenters & Cement Masons Pension Fund.
Nationwide, Labor Department authorities say, 100,000 union members, retirees and their families had a portion of their pension and benefit funds invested.
As of last month, more than 30 union trust funds in nine states had filed suit, accusing Capital, its law firm, outside accountants and others of negligence and fraud. More than 70 law firms are listed on the receiver's mailing list.
Colorado plaintiffs include the Eighth District, the Sheet Metal Workers International in Colorado Springs and Denver, the Operating Engineers Health & Welfare Fund of Colorado, the Colorado Building and Construction Trades Council and the Colorado Painters Health and Benefit Fund.
"We're all sick about it," said Wayne Dikeman, the Denver business manager of the Operating Engineers Local 9, a Capital Consultants client that is calculating its losses at $900,000. "It's a bad thing. But I guess it could be worse. We had more than $5 million invested with that outfit."
Roughly half of Capital's $1 billion in client assets was put into publicly traded stocks and bonds. But Kirkland's big push was Capital's "collateralized notes program," in which high-interest loans were made to borrowers who couldn't readily qualify for conventional loans.
The short-term notes typically were backed by hard-to-liquidate collateral, such as equity stakes in real estate and small businesses. Capital claimed the loans were overcollateralized to protect investors' principal, and borrowers were heavily screened for creditworthiness. Some of the company's literature described the program as nearly fail-safe, using terms like "low risk" and as safe as "government securities or money market funds."
That was preposterous, said Thomas Lennon, the court appointed receiver in charge of Capital's liquidation. In a written report to the court last October, Lennon said Capital Consultants had close to $400 million invested in private loans but "undertook no serious, thorough, nor valid credit underwriting due diligence with respect to its borrowers."
He described most of the portfolio holdings as "junk debt."
Daniel Feinberg, an Oakland, Calif., attorney who specializes in pension fund issues, said Capital's notes program -- even if it had adhered to its safety guidelines -- was too risky for union trusts.
"The trustees swallowed a whopper of a lie," Feinberg said. "This was simply a money pit."
With a federal organized crime strike force on the case, the
situation could get much worse for Jeffrey Grayson, a tenacious financier and high-profile philanthropist who has a building named in his honor at the University of Oregon.
Assistant U.S. Attorney Lance Caldwell in Portland said his office has strong evidence Grayson's firm engaged in a pattern of criminally deceptive accounting practices for several years. Federal agents also are investigating allegations that Capital provided trustees with gratuities and cash in violation of state and federal laws.
"There's a grand jury investigation that continues, and it's fair to say it relates to Capital Consultants and union organizations," Caldwell said. "Obviously, Jeffrey Grayson is a subject of the investigation."
Although Grayson has not been charged with a crime, his son Barclay has confessed to felony mail fraud and agreed to testify against his father. The junior Grayson, 31, Capital Consultants' president since 1999, pleaded guilty last month to sending false quarterly reports to union trust plans in Minnesota and North Dakota.
Also, former union chief John D. Abbott has admitted to taking $194,000 in payoffs from Jeffrey Grayson in exchange for helping to steer funds to Capital Consultants.
Some of the cash payoffs were handed out of a basket attached to Grayson's scooter-like wheelchair, said prosecutor Caldwell. Grayson has multiple sclerosis.
Abbott, who pleaded guilty Feb. 26 to counts of filing a false income tax return and accepting an illegal gratuity, served as business manager of the Oregon, Southern Idaho and Wyoming District Council of Laborers until 1998.
Through his lawyers, Jeffrey Grayson denies bribing anyone. Both father and son have declined to speak to the media.
In separate lawsuits, the Securities and Exchange Commission and Department of Labor accuse Capital Consultants of what was, in effect, a $231 million Ponzi scheme.
The suits allege the scheme began in late 1998 after a $160 million loan to Portland entrepreneur Andrew Wiederhorn lost 96 percent of its value. The loss hit Capital's private commercial loan portfolio, in which union trust assets were mostly invested.
Government lawyers say Capital then threw good money after bad, using $71 million from new investors to pay interest owed to earlier investors.
Some of the intricate financial maneuvers Jeffrey Grayson conducted with Wiederhorn were detailed in the Portland Oregonian in a series of articles beginning in early 1999.
The adverse publicity fed suspicion that Capital Consultants was a house of cards. But in public, Grayson, one of Portland's most prominent business leaders, seemed unruffled.
He had started Capital Consultants when he was 26, several years after dropping out of law school.
When he lost the use of his legs, he remained a frequent speaker at estate planning seminars and continued to get around town, outfitting his cars with hand controls.
Grayson gave generously to charity. In one of the state's most successful fund-raisers, he co-chaired a campaign in the 1990s that brought in $255 million to the University of Oregon.
"Jeff was very effective at building up a lot of community support," said Portand financier John DesCamp, who went to law school with Grayson and later partnered in some business deals. "He had a great financial mind and was very astute about people."
Kirkland thrived under Grayson's tutelage.
The Vancouver, Wash., native was on the football team at the University of Washington when he began working there in 1990 as a summer intern.
His major was English, but Kirkland had the perfect labor pedigree. His dad, Gary, is a union boss and trustee for the Office and Professional Employees International Local 11 in Portland, a Capital Consultants client.
Earl Kirkland, Dean's grandfather, had headed the Columbia-Pacific Building and Construction Trades Council. The union's retirement center in southeast Portland is named after him -- Kirkland Union Manors.
In 1991, his senior year, Dean Kirkland co-captained the Huskies in the Rose Bowl and was drafted in the 11th round by the Buffalo Bills. It was great timing. The Bills squeaked by the Denver Broncos for the American Football Conference championship on Jan. 12, 1992.
Although the Bills lost the Super Bowl and Kirkland didn't make the team's 53-man active roster, he received an AFC championship ring, which he wore proudly while continuing to intern at Capital Consultants during the off-season.
In 1992, Kirkland was signed by the Tampa Bay Buccaneers, but an injury kept him on the sidelines of the team's practice squad.
In March 1993, he came to the Denver Broncos as a free agent, hoping to find a spot on the team's offensive line. But he failed to make the final cut and hit the waiver wire that August.
With his pro-football days over, Kirkland joined Capital Consultants full time -- as vice president of client services on union pension and benefit accounts.
Grayson was so impressed with Kirkland's early success that he moved him upstairs to Capital's third-floor executive penthouse, providing him with a spacious office just down the hall from Grayson's own plush suite.
`Give Me the Benefit of the Doubt'
Ambitious and outgoing, Kirkland didn't think twice about taking a red-eye flight out East and meeting with union officials for breakfast.
"He was a client contact guy and he pressed the flesh," said Tim Parsons, a Denver attorney who advises several union plans, including the Operating Engineers.
Along with his zest to sell, Kirkland's imposing physical presence, ex-Bronco credentials and family name helped to open doors.
"He was recruited by Capital because he was a good-looking hunk of a football player, and Jeff Grayson knew that would play well in the union community," said DesCamp.
The work paid handsomely, too. Capital's receiver said Kirkland's annual income, with salary and commission, was in the $500,000 range.
Kirkland, who acknowledges raising "hundreds of millions" for Capital, said he was betrayed "like everyone else."
Only weeks before regulators intervened last September, Grayson flew with Kirkland to Denver in Grayson's private jet to meet with worried trustees and to reassure clients.
"He used my trust and friendships with honest people and told me everything was OK right up until the end," Kirkland said. "Give me the benefit of the doubt. I wasn't in the office more than once or twice a month."
But Kirkland was warned that trouble was brewing.
Kurt Needles of Dell & Needles, a Denver accounting firm with several pension fund accounts, saw the storm clouds approaching as early as 1997.
Needles isn't an investment adviser, but his preliminary review of Capital's collateralized notes program made him uneasy. He questioned its high fees, as well as legal run-ins Capital already had had with federal regulators.
The money management firm charged a 3 percent annual fee, easily three times the norm. Considering the program had a short track record -- about five years -- Needles found the fees extraordinary. Capital's marketing materials were claiming annual returns of just over 11 percent. But those claims didn't account for management fees.
He also questioned Capital's "low-risk" description of the program. If Capital's commercial borrowers were such good credit risks, why would they be willing to pay interest rates as high as 21 percent?
"It was too good to be true," Needles said.
Jim Hutchinson of the investment consulting group Strategic Capital Advisors credits Needles with putting Colorado's union leaders on the alert.
"Kurt is one of the few accountants who screamed bloody murder about this," Hutchinson said.
Needles had several verbal "run-ins" with Kirkland, beginning in August 1997.
"He called me three times threatening me with lawsuits and had his lawyers write me," Needles said. "He was upset I wasn't supporting their program, that I was running around sucker punching him."
`Bob Said It Was a Good Deal'
Steve Pierce, business agent of the 800-member Denver Plumbers Union Local 3, remembers Kirkland as a "very polished salesman."
Kirkland's first marketing pitch to the plumbers came in 1996, but it was Bob Legino who made the first call.
"The electricians were already invested in it," Pierce said, "and Bob said it was a good deal and we ought to look into it."
But the plumbers turned Kirkland down after consulting with the union's auditor.
"It doesn't matter how slick these sales guys are," said Pierce. "You have to check them out."
Some of Legino's fellow electricians were skeptical, too.
Jim Riney was president of the electricians' Local 68 in 1995 when Kirkland showed up unannounced at the union's north Denver headquarters and introduced himself as an "investment officer who used to play for the Broncos."
To Riney, also an Eighth District trustee, Kirkland seemed evasive, even dismissive of the few trustees who wanted more information about the loan portfolio.
"To try to get an answer was like peeling an onion, layer after layer," Riney said. "You could never get on solid ground with Capital."
In hindsight, he said, the most obvious "red flag" was the junkets that Kirkland dangled in front of "just about anyone who wanted them."
"To me, that didn't pass the smell test," Riney said.
He was invited to fish in Alaska -- but not by Kirkland. "Bob Legino asked me. He said Capital would be picking up all the expenses. I'd have to pay the airfare."
Riney declined. "It was an easy answer. How could I? I was in a position of trust."
When Legino retired as Local 68's business agent in 1998, Riney tried to succeed him. He lost the election to Tidwell, who automatically assumed a seat on the Eighth District board. At Tidwell's insistence, Riney was removed from the board and Legino was allowed to remain a trustee.
But the following year, at least three other trustees on the 20-member pension board expressed misgivings about their plan's growing investment in Capital's loan portfolio.
Klaas DeBoer, Matthew Frazer and Clifford Howard, in a letter dated Jan. 28, 1999, to the Eighth District's counsel Thomas E. Jagger, said they were worried that Capital Consultants could be violating the plan's investment guidelines.
The trustees also asked about "extensive travel arrangements" Capital may have provided to several trustees and whether the free trips were a violation of pension fund laws and the board's ethics policy.
Suit Cites `Gifts, Trips and Gratuities'
However the affair sorts out, the losses aren't expected to jeopardize the monthly pension checks of retirees. Only a portion of their retirement money was invested with Capital; funds are required to diversify their assets to withstand financial setbacks such as market downturns.
That hasn't stopped the unions rank-and-file from crying foul.
Andrew McPherson, a 55-year-old electrician in Golden, was outraged enough to become a named plaintiff in a class action lawsuit accusing 29 former and current Eighth District trustees of recklessly investing the plan's retirement money.
The suit, initiated by Seattle attorney Richard J. Birmingham, was filed in Portland federal court last fall on behalf of all Eighth District plan participants. The complaint says "gifts, trips and gratuities" Capital provided trustees violated federal pension fund laws and influenced the trustees' judgment.
McPherson has received mixed reaction from union members. "I've been congratulated and patted on the back, and then there have been some scowls," he said.
Attorney Chrys Martin, whose Portland law firm represents the Eighth District, rejects the suit's claims.
"This was a complex scheme thought out by a number of sophisticated business people," she said. "The trustees aren't financial experts, and even their attorneys and investment advisers didn't figure it out.
"The trustees are only liable if they breached their fiduciary duties, and we don't think they did."
Dan Mundt, a Minnesota attorney who specializes in advising multiemployer pension plans, said some plans probably did get bad advice. But he says it was a clear breach of fiduciary duty for any trustee to ride along on Capital's junkets.
"I'm shocked that there are people who honestly think they can do anything like this," Mundt said. "It's totally out of line."
The Employee Retirement Income Security Act of 1974, known as ERISA, states that trustees, when making investment-related decisions, have a fiduciary duty to act prudently and solely in the interest of the trust fund's participants.
The law states that trustees are not allowed to "receive any consideration for his own personal account from any party," Mundt noted.
At Local 68, a lot of the finger-pointing has been directed at the labor leaders who chummed around with Kirkland.
Legino has taken the brunt of the personal criticism. "There's this insinuation that something was underhanded, but the only thing that influenced our decisions as trustees were the returns," he said. "They were rolling in."
In the late 1960s, he was one of the Eighth District's founding board members.
But last November, Legino -- who spent a collective 23 years as a pension fund trustee -- received a letter saying he had been "removed."
No reason was given. Legino said there are a group of "young Turks" on the board who long resented his power. He suspects they were behind his ouster.
"I guarded that carrot patch like a coon dog," said Legino. "After all the years of faithful service it comes to this."
He is now retired from union affairs altogether and lives in seclusion on his 80-acre ranch in Carr, near the Wyoming border. He says he has nothing to hide, and he blames others for the debacle.
The Labor Department, he complained, didn't provide trustees with information after news reports appeared about a federal probe of Capital.
"Nobody called our fund," Legino said. "Who are we, a bunch of cowboys in Denver to know truth from rumor?"
Grayson, too, he said, "should have told us things were going south.
"Just being in that wheelchair, he played on our sympathy. Maybe it was part of the ruse. He'd look you right in the eye, tell you he had it all worked out. He used us all."
Legino also blames Segal Advisors, the national firm hired to review the Eighth District portfolios.
"I think they had 22 or 24 quarterly reports right in a row," Legino said. "All of them said these were investments making money. It was Segal's job to evaluate our investments."
Robert D. Krinksy, chairman of Segal Co., parent of the New York-based investment consulting firm, said the affiliate recommended last summer that its clients stop investing and withdraw their principal.
The warning, however, came too late for many. As early as February 1999, plans that tried to leave the loan program were told it could take a year or longer to cash out completely.
"We were fooled as well," Krinsky said. "They seemed to be doing a very good job covering up the problem. And we are not the FBI or forensic accountants. That is not our talent. We have to take what the financial institutions give us on face value. . . . We didn't know anything different."
Kirkland says he's moving on with his life.
Although listed as a defendant in at least one pension lawsuit, he says he hasn't been called by the grand jury or met with government investigators.
While acknowledging that he was a key operative in Capital's money raising, Kirkland said accusations, even in the vaguest terms, that he hoodwinked investors are out of line.
"The trustees who said I should have known more, well, I wish I had," Kirkland said. "But I'm not an underwriter, and I'm not an accountant or research analyst. And everyone of those trustees knew that.
"Bottom line, this isn't about Dean Kirkland or the trustees."
Last fall, Kirkland set up his own investment shop with five former Capital Consultants employees. His Portland firm Granite Investment Advisors -- occupies a suite of offices on the first floor of a brick luxury office tower rising from banks of the Willamette River.
He stopped defending Jeffrey Grayson months ago.
"His splatter hurt a lot of innocent people," said Kirkland. "We all feel duped here."
About $2 million of his own extended family's money was invested in Capital's riskiest portfolio, he said.
Kirkland said he's learned plenty of lessons.
"I won't be led by the nose again by somebody who tells me everything is OK up until the last day . . . and I'm making sure I'm in the office more."
At the new investment company he heads, business is slow.
Kirkland has been largely unsuccessful in persuading union clients and his old Capital accounts to sign on.
Part of that is the market downturn. Mostly it has to do with the Portland area's biggest financial scandal in recent history.
"We'll know in a year if we can make it," said chief investment officer Roger Thomas, who previously steered Capital's public investment division. "Dean's not afraid to make a cold call, and he's very good at getting his foot in the door."
Contact John Accola at (303) 892-2666 or accolaj@RockyMountainNews.com.