Are You Giving Good Advice Regarding Uncashed Pension Checks?

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By Peter E. Preovolos, CEO, PenChecks Trust

The Department of Labor (DOL) and IRS have been, for lack of a better word, unclear on its guidance to pension plan sponsors and third party administrators (TPAs) when it comes to uncashed pension checks. These checks, while cut, have not been received – let alone deposited – by individual participants.  What happens instead is concerning from a fiduciary standpoint, and could be big trouble if discovered in an audit.

Uncashed checks are typically dealt with in very precarious ways. The custodian (or in rare cases, a plan sponsor trustee) may wind up holding onto the funds without depositing them back into the plan, generating interest on the float as a result. Other scenarios are that the funds are deposited erroneously into the pension plan’s forfeiture account or rolled over into an IRA account without restoring the taxes.

None of these are legally viable. Plan sponsors and their administrators have an inherent responsibility to ensure that participant distributions are received by the intended participants. It is a breach of fiduciary responsibility to allow a custodian to sit on non-negotiated assets and earn float. Sadly, all too often, such is not the case. Granted, TPAs and plan sponsors must grapple with many gaps in the current regulations. Case in point, the DOL has often stated that withheld taxes are still considered qualified plan assets, though there are no regulations that specifically support this position. Furthermore, if the funds in question came from an employee’s salary deferrals, and the institution places those funds into a forfeiture account, there is no expressed authority that can forfeit funds that are 100% vested.

Faced with such ambiguity, many service providers are simply rolling missing participant funds into a Default IRA. However, if taxes have been withheld, even more questions arise as to the legality of such a move since taxed plan distributions are no longer qualified assets.

To arbitrarily ignore or refuse to restore a participant’s full account balance (including taxes withheld) represents a serious violation of an institution’s fiduciary responsibility. Yet, I have even seen cases where institutions return funds to a plan as forfeitures even when the plan does not contain provisions for how the funds should be managed. In my opinion, this runs the risk of setting the plan up for potential disqualification or intense scrutiny by the DOL, IRS or both.

Given all of this, I offer the following positions as the most prudent to adopt when dealing with uncashed participant distributions.

If funds have gone unclaimed for more than 90 days:

  • The participant is owed interest on their money.
  • If taxes have been withheld, the issuing institution has an obligation to retrieve those taxes and credit them back to the participant account prior to returning all funds to the plan.
  • Finally, the plan should reinstate the participant’s full account (including interest from the custodian) or establish a compliant Safe-Harbor Default IRA.

The problem of how to handle unclaimed funds can be significantly mitigated when TPAs and plan sponsors accept their role as a gatekeeper and properly monitor and manage benefits that are paid. In particular, these entities need to ensure that each benefit payment made from the trust is closely followed until properly negotiated, returned to the plan, or placed into a Default IRA after withheld taxes have been restored. When TPAs and plan sponsors adopt a responsible and diligent stance on uncashed plan distributions it can protect from possible violations of the law, upholds fiduciary responsibility, and ensures retirement assets are protected in the best interest of participants.

About the author: Peter E. Preovolos is CEO of PenChecks Trust, a 20-year provider of distribution services and unique solutions to the retirement plan industry.  PenChecks Trust has been a leading innovator in developing commercial-scale, compliant solutions for missing participants and uncashed checks. PenChecks Trust helps institutions, administrators, advisors and plan sponsors save time, reduce risk and eliminate costs. Peter can be reached at peter.preovolos@penchecks.com.

 

Photo by Roland O’Daniel via Flickr CC License

Pennsylvania Pension Officials Air Concerns Over Reform Legislation, Underfunding

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The executive director of one of Pennsylvania’s largest pension systems on Tuesday voiced concerns about the specifics of a piece of pension legislation, approved by the state Senate earlier this week, that would overhaul the state’s pension system for new hires.

It’s rare for pension system officials to take a public stance on pending legislation; but there are concerns that the bill would allow the state to curtail its pension contributions by tens of millions of dollars.

More from NewsWorks:

Pennsylvania’s largest retirement system is slamming a state Senate-approved pension overhaul that would further reduce, or “collar,” state payments into its pension funds.

“Typically the retirement system does not take positions on legislative proposals,” said Glen Grell, executive director of the Public School Employees’ Retirement System on Tuesday. “But we as fiduciaries are concerned about collaring the rate, which is another word for underfunding the plan.”

The state’s two pension systems together are underfunded by more than $50 billion, a debt fueled in part by legislative actions to reduce what the state contributes to the plans.

A Senate proposal passed by the chamber on Monday would reduce the state’s payments by $170 million, a short-term boon that will cost more to pay back.

“I’m not interested in PSERS opinion quite frankly,” said GOP Senate Majority Leader Jake Corman, defending the Senate-passed payment reductions. “It’s a small collar … and adds a little budget relief to the budget so we can fund our schools better.”

Corman added that the costs of shirking the state’s pension bill are eclipsed by savings from other pieces of the pension overhaul. But those changes will affect current employees’ retirement benefits, and at least one critic expects them to be countered with a lawsuit.

State Gov. Tom Wolf has said he will sign the bill if it gets to his desk. But the legislation’s fate in the House is uncertain.

 

Photo credit: “Flag-map of Pennsylvania” by Niagara – Own work from File:Flag of Pennsylvania.svg and File:USA Pennsylvania location map.svgThis vector image was created with Inkscape. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

BT Pulling Billions From Its Own Manager?

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Leo Kolivakis is a blogger, trader and independent senior pension and investment analyst. This post was originally published at Pension Pulse.

Chris Newlands and Madison Marriage of the Financial Times report, BT pulls pension mandate from Hermes:

Telecoms group BT has pulled an £8.4bn investment mandate from Hermes, the asset manager it owns, in an attempt to reduce the costs of running its £40bn pension scheme.

BT’s decision will mean that total assets run by Hermes, the fund company BT created in 1983 to manage its pension scheme, will slide almost 30 per cent to £21.7bn.

The shift comes as BT struggles to plug the funding gap of its pension scheme. There is growing pressure on pension funds to reduce their costs of investment.

BT’s pension deficit increased from £5.8bn to £7bn in the 12 months to the end of 2014 and is the highest of any FTSE 100 company, according to consultancy LCP.

BT said in a statement: “We have made the decision to move the mandate . . . as this best meets the needs of the scheme and will be more cost effective going forward.”

The telecoms company will run the £8.4bn inflation-linked government bond mandate passively using a strategy that tracks the benchmark, rather than the more expensive active management strategy used by Hermes to beat the market.

John Ralfe, an independent pension consultant, said: “Index-linked gilts are by definition entirely inert. Therefore the idea that you pay anybody for managing them — even a passive manager — doesn’t make any sense.

“BT shareholders paying two people to sit around actively managing a gilt portfolio [is] just money down the drain.”

Mr Ralfe said it did not make sense to pay for active management of an inflation-linked gilt strategy as these tended to be buy-and-hold investments that did not require much trading.

He believed active management was too costly, and passive investments tended to outperform active equivalents on average.

Hermes’ main actively managed gilts strategy underperformed its benchmark by 47 basis points in 2014 and has underperformed since it was launched, according to the company’s annual report. Hermes said some accounts with that strategy — including BT’s scheme — performed better.

BT said in a statement: “Hermes has delivered strong performance for this mandate and across the portfolios they manage for us.”

Although the bond mandate made up almost 30 per cent of assets at Hermes, it accounted for just 3 per cent of revenues, according to the company’s chief executive Saker Nusseibeh.

He said: “When I joined the company in 2009, 92 per cent of revenues came from BT but that is now less than half. Fifty seven per cent of our revenues come from third parties. This loss absolutely does not affect our other mandates with BT.”

Mr Nusseibeh added that Hermes, which made a statutory loss of £8.1m last year but is forecast to make a £9.2m profit this year, had “entered into discussions” with Paul Oliver and Paul Syms, who were managing the bond mandate at Hermes on behalf of BT, about their future at the company.

The BT pension fund is likely to shift other active mandates into cheaper, passive alternatives, according to Mr Ralfe.

Around half of the scheme’s £40bn of assets are allocated to external fund companies, including active investment managers Ashmore, M&G and Wellington, as well as BlackRock, the world’s largest provider of passive funds.

Mr Ralfe said: “Over the years, [the scheme’s board] has moved some assets into passive. That may well continue. There’s a hell of a lot of money to be saved [in passive].”

Marion Dakers of the Telegraph also reports, BT pension fund pulls £8.4bn from its own investment manager:

Hermes, the investment manager set up by the BT pension fund, is losing 30pc of its assets after the telecoms giant decided to take part of its portfolio in-house.

Hermes said that the decision by its owner would affect its £8.4bn government bond mandate, which will be switched from active management to a cheaper, passive strategy that simply tracks the benchmark.

Saker Nusseibeh, chief executive of Hermes, said the BT Pension Scheme’s decision was expected and should not affect the rest of the firm’s mandates with the telecoms group. “We knew that our client was unusual in having an actively-managed gilt business. The performance of it had been stunning… but I wasn’t particularly surprised.

“The effect on our financials will be de minimis,” he added, noting that the mandate represented just 3pc of Hermes’ revenues.

Hermes will continue to manage between 30pc and 40pc of BT’s pension assets in future, BT said.

BT founded Hermes in 1983 and is still the group’s largest client, with a mandate to help fund retirement obligations for 320,000 workers. The telecoms firm, which uses several investment managers to run its pension holdings, said in early 2015 that it would inject £2bn into its pension funds over the next two years and reduce its costs in a bid to scale back its £7bn deficit.

Meanwhile, Hermes has recently diversified and increased revenues from third parties from 18pc in 2011 to more than 50pc this year. Its assets under management rose 9pc to £27.5bn last year, although the firm’s statutory losses widened to £8.1m.

The investment manager has also ventured into private equity and infrastructure deals, such as a joint venture with the Canada Pension Plan to acquire Associated British Ports, and has launched several new funds.

In early August, I covered CPPIB’s big stake in British ports, a deal which included Hermes. As far as BT Pension’s decision to bring its gilts strategy internally, it’s a no-brainer and it should have been done a long time ago.

In a deflationary world, all public and private pension plans need to reduce costs everywhere and the number one place they’re going to be looking at is external managers. This typically means bringing anything you can internally to be managed at a fraction of the cost.

In my last comment where I examined how the media is overtouting the Canadian pension model, I was careful to state that while there’s some fluff and inaccurate information on what Canada’s large public pensions are doing in terms of direct private equity deals, there’s no question that they’re increasingly managing more and more internally to lower costs significantly.

In fact, keeping fees at a minimum is the first lesson of how to invest like a Canadian. The best pension plan in the world, fully-funded HOOPP, knows this all too well which is why its does everything internally. Ontario Teachers is also a fully-funded world class pension plan but it’s bigger than HOOPP and needs to allocate to external hedge funds and private equity funds. However, Teachers uses its size to negotiate fees down and it too goes direct in some asset classes (just not as much as they lead you to believe in private equity).

The key thing is to bring costs down and bring a lot of mandates in-house, especially anything which deals with indexing bonds or stocks.  If you’re looking for alpha and want to allocate to private equity funds and hedge funds, make sure you negotiate hard on fees and have proper alignment of interests which at a minimum includes a  hurdle rate and a high-water mark in place in case your premier hedge funds get clobbered with their big bets gone awry.

And what if inflation comes roaring back and all these elite funds betting on reflation turn out to be right? Well, I wouldn’t bet on it and neither are Canada’s highly leveraged pension plans. More importantly, whether or not we get inflation or deflation doesn’t change the fact that pensions need to reduce costs and lower external management fees (much more so in a deflationary environment).

But there are some pretty smart economists who do think inflation is right around the corner, I just don’t agree with them. One of them is Martin Feldstein, Harvard University economics professor, who shared his thoughts on Federal Reserve policy, the U.S. economy and markets earlier today on CNBC.

According to professor Feldstein, with core inflation now running at close to 2%, it’s only a matter of time before U.S. inflation pressures pick up and he thinks the Fed will have to increase rates significantly (Fed funds rate at 4%) to tame the growing threat of inflation. The bond market obviously disagrees with his analysis and so do I but pensions with huge deficits would welcome such a scenario.

 

Photo by TaxCredits.net

Is Private Equity Delivering?

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Institutional investors new to private equity typically seek to understand the asset class’s performance relative to broad, passive public equity indices such as the S&P 500. Private equity assets share many features with publicly-listed equities, and can behave similarly over the long run. Given these shared features, the use of public equity indices for benchmarking purposes is an accepted standard within the private equity industry, notwithstanding a number of differences between the two asset classes.

Andres Reibel
Andres Reibel, PhD, is a Vice President in Pantheon’s Technical Research Team.

One fundamental difference between private and public equity investing is that unlike the majority of public equity investment managers, private equity fund managers usually acquire controlling stakes in firms with the goal of implementing material or beneficial change, whether it’s on an operational, financial or managerial level. Therefore, the investment role assumed by a typical private equity fund manager can differ considerably from the role undertaken by a typical public equity fund manager.

Despite the differences, similarities between private equity fund managers and public equity fund managers do exist: one of these is the active portfolio management component. Private equity fund managers aim to seek the most attractive individual company investments when constructing their portfolios and are not constrained by the requirement to consider any specific reference benchmark or index. Similarly, some public equity fund managers will deviate substantially from the public equity benchmark against which their performance will generally be measured.

Nik Morandi is a Partner and Global Head of Portfolio Strategy and Research at Pantheon
Nik Morandi is a Partner and Global Head of Portfolio Strategy and Research at Pantheon

Rather than passively tracking a benchmark index, public equity managers will aim to produce outperformance by actively identifying stocks that have the potential to perform more fruitfully than public equity markets overall. Today very few public equity fund managers regard themselves as purely “passive index trackers”, but there is a range based on the level of divergence from the relevant public market index that a particular manager is prepared to bear. The more a public equity fund manager does this, and thereby diverges from an index when constructing its overall portfolio, the more it can be thought of as an “active” equity fund manager1.

Based on our selected dataset and time period, Pantheon’s research finds that private equity has outperformed both passive and active equities on a historical basis, net of management fees and carry, or a percentage of a fund’s profits that private equity managers keep for themselves. Our analysis set out to quantify historical private equity returns from 1990 to 2006 relative to public equity benchmarks, and established significant outperformance against both the passive public equity benchmark as well as an active public equity universe. At the end of this article you will find a link to the complete research including full methodologies.

Comparing U.S. Buyout Funds to the S&P 500 – Passive

One of the most cited pieces of academic research examining the comparative performance of private equity and public equities is a recent study published by Robert Harris, Tim Jenkinson and Steven Kaplan. The study focused on the long-term performance of both U.S. buyouts and U.S. venture funds, based on a comprehensive dataset provided by Burgiss2. We have focused exclusively on the U.S. buyout component of its study3.

Pantheon’s research, building on the work of previous publications such as the Harris et al. study, concluded that investors could have achieved, on average, a 30.5% cumulative outperformance over the S&P 500 (net of fees) when investing in the select buyout funds with a North American geographic focus in the time period from 1990 to 20064.

This analysis was based on the standard Pubic Market Equivalent (“PME”) methodology5 used within the private equity industry to compare private equity against public market benchmarks.

Accessing Top Quartile Buyout Funds

We also thought it would be informative to conduct our own version of the Harris et al. study. Pantheon specifically looked at how upper quartile buyout funds have performed historically relative to the S&P 500 (Harris et al. only examined average performance)6.

When we conducted this exercise (i.e. based on top quartile U.S. buyout funds only7), our dataset generated an 89% net cumulative outperformance over the S&P 500 over the life of the funds. Annualized8, Preqin’s historical dataset suggests that top quartile U.S. private equity buyouts generated an annual net outperformance of approximately 4.9% compared to the S&P 500 (net of fees)9.

Comparing U.S. Buyout Funds to the S&P 500 – Active

Investors in private equity may wish to consider such wider benchmarking applications for their private equity portfolios that goes outside passive public equity benchmarks. This is likely to be more appropriate to the extent they regard a more “active”10 public equity investment style as a closer substitute for their private equity investment program.

It is evident there is a lack of publicly available studies that have assessed the advantages of replacing part of an active public equity portfolio with a comparably active private equity strategy. Thus, Pantheon compared U.S. private equity performance to that of actively-managed U.S. mutual funds, using Bloomberg data11. We calculated PMEs12 for average and top quartile U.S. buyout funds against the average and top quartile active mutual funds from 1990 to 2006; a ‘like-for-like’ comparison of how funds in each category have historically performed relative to each other. Analysis determined a net outperformance of upper quartile U.S. buyout funds relative to the U.S. mutual fund peer group of approximately 3.7% annually. Average U.S. buyouts also outperformed mutual funds by c. 0.4% annually, or approximately 18% on a cumulative basis.

The results appear to provide further evidence in support of the historical outperformance of private equity relative to listed equities regarding the chosen dataset and time period.

Considerations

The performance comparison relative to active public equities may deliver institutional investors with an additional measuring tool when considering how to distribute capital within their equity bucket. Nevertheless, before finalizing any asset allocation decisions, it would be sensible for investors to take into account a number of other factors that were not scrutinized in this evaluation, such as the potential spread of returns and the expected liquidity profiles of different asset classes. Moreover, a particular investor’s own individual preferences and risk tolerance levels should be considered.

However, to the extent investors regard an allocation to an actively-managed public equity program as the “next best alternative” to their private equity program, the results from our research and time period chosen suggests that private equity buyouts may historically have been the better choice.

 

Nik Morandi is a Partner and Global Head of Portfolio Strategy and Research at Pantheon, and Andres Reibel, PhD is a Vice President in Pantheon’s Technical Research Team.

Please click here to view Pantheon’s full study “Is Private Equity Delivering” or visit www.pantheon.com

 ______________

Sources

1 “Active” strategies aim to beat the return from a particular market index or benchmark.

2 Burgiss is a well-known provider of information and investment tools for the private equity industry.

3 Throughout this article we have focused exclusively on U.S. buyouts and so we will not be examining the performance of U.S. venture funds.

4 Harris et al. used a private equity dataset from 1984 to 2008. We cut the dataset off at 1990 and 2006 because of the relatively small number of observations from the Burgiss and Preqin data sets prior to 1990 (1984 to 1989) and the immaturity of the 2007 and 2008 vintage funds – whilst some of these vehicles are now over seven years old, many are still in their harvesting phase and so not fully mature. If one included less mature funds then much of the performance would still be included in the net asset value (“NAV”); NAVs are subjective measures of performance and as such less reliable and/or subject to GP-specific judgments regarding valuations. Nevertheless, even based on the entire dataset utilized by Harris et al., the cumulative outperformance of U.S. buyouts relative to the S&P 500 averaged between 20% to 27% over a fund’s life and more than 3% annually. In calculating the cumulative outperformance of 30.5% we took an equally-weighted average of the PMEs within each vintage (1990-2006).

5 As in the academic research study, we focused on Kaplan and Schoar PMEs. Please note that the Preqin data sample generally has more observations in more recent vintages. However, our cumulative average PMEs (for both average U.S. buyouts as well as top quartile U.S. buyouts) are based on an equal weighting across vintages. As a result, we remove any vintage-specific bias or dependency from our results. When calculating the average outperformance of 30.5% from the Harris et al. study (based on average U.S. buyouts with vintage years between 1990 and 2006) we similarly equally-weight across vintages

6 We have excluded bottom quartile funds from our analysis as we are specifically interested in examining how the top quartile cohort would have performed. However, given the dispersion in performance between top and bottom quartile funds in private equity, we believe it is likely that bottom quartile funds would on average have underperformed relative to the S&P 500 on a PME basis over the same time period. Readers should bear this in mind when reviewing the results for the top quartile subset.

7 We again focus on 1990-2006 vintage U.S. buyout funds from the Preqin dataset.

8 We annualized based on actual cashflows from our private equity dataset and therefore the actual duration of the underlying funds (rather than an estimated life). However, to the extent an individual fund was not fully realized (particularly relevant for the more recent vintages) the annualized return was based on the length of time over which data was available.

9 Net of PE fees but gross of low cost ETF fees, which penalizes the PE performance by the annual fees one would have to pay to invest in something like a Vanguard S&P500 ETF.

10 Note that this definition is separate from “activist” public equity investors who, like private equity managers, do seek to effect meaningful operational, managerial or other organizational change within their portfolio companies.

11 The dataset consisted of 2,461 U.S. based mutual funds as provided by Bloomberg whose fund asset class was denoted as “equities”.

12 Note that one needs to subtract one from the average Kaplan and Schoar PMEs to arrive at the cumulative outperformance over the life of the funds. For example, the reader needs to subtract 1 from 1.61 and multiply by 100 to arrive at the cumulative percentage of outperformance for the upper quartile of the U.S. buyout funds over their active mutual fund peers.

 

Photo by thinkpanama via Flickr CC License

Top NJ Lawmaker Proposes Constitutional Amendment For Pension Funding

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New Jersey Senate President Stephen Sweeney on Monday introduced legislation that would lock the state’s annual pension funding requirement into the state constitution.

The state Supreme Court, in a ruling earlier this year, clarified that the state does not currently have a contractual or constitutional obligation to fund its pension systems.

The new legislation would have to be approved by voters on the November 2016 ballot.

More from NJ.com:

The 2011 law, the result of a partnership Christie and Sweeney, gave the state seven years to step up to the full payment actuaries recommend to keep the fund solvent. Released from that obligation by the courts, Christie opted for a 10-year ramp up. At $1.3 billion, this year’s payment is about a third of what actuaries recommend.

Sweeney’s proposal resets the clock again, putting a new timeline into the state constitution, with the state making the full actuarial contribution by 2022, one year sooner than Christie’s unofficial payment plan.

The state would be paying about $3 billion by 2018 — nearly as much as the state would have been required to pay this year under the now-fractured 2011 law. Each year the state would have to come up with about $600 million more than the year before, according to Treasury estimates.

[…]

If lawmakers get enough votes for a constitutional amendment, Christie would have no power to stop it from going to the ballot. It would take effect if voters approved it.

Sweeney is also calling for the amendment to force the state to make the contribution into the retirement fund in installments throughout the year. Waiting until year’s end costs the state millions of dollars in investment earnings and has, in the past, made it vulnerable to last-minute cuts.

“This constitutional amendment protects taxpayers by requiring that pension payments be made on a quarterly basis to maximize investment earnings and to protect public employees by guaranteeing the pension benefits they earned,” Sweeney said in a statement.

Christie’s pension commission, who released their report earlier this year, included a constitutional amendment in their recommendations.

 

Photo by Elektra Grey Photography

Pennsylvania Senate Approves Pension Overhaul

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The Pennsylvania Senate on Monday passed a bill that would bring big changes to the state pension system.

The bill close off the state’s defined-benefit system to new hires, and would put those employees in a hybrid, 401(k)-style system.

State Gov. Tom Wolf said he would sign the bill; but it first goes to the House, where its fate is uncertain.

From PennLive:

For school teachers hired after July 1, 2017 and state workers hired after Jan. 1 2018, the bill creates a new, two-track pension plan that combines a reduced guaranteed benefit based on years of service and final salary at retirement with a separate 401(k)-style component.

It also will change some rules pertaining to current employees, though the basic form of their pension plan would not change.

[…]

The new benefit would cut the current “defined benefit” pension formula in place for workers hired since 2011 in half, essentially guaranteeing new hires 1 percent of their final salary for each year served as opposed to the 2 percent multiplier in place now.

That would be paired with a mandatory 401(k)-style piece, into which the state would contribute the equivalent of 2.5 percent of an employees’ salary to their personal retirement account.

Between the two components, school district employees hired under the new plan would contribute 7.5 percent of their salaries to their retirement. Affected state workers would contribute 6.25 percent.

There is a carve-out for “hazardous-duty” workers, including state police, corrections officers, game wardens and park rangers, for whom the current defined-benefit plans would continue.

The bill is part of a larger budget deal that lawmakers are eager to pass. The state has been in a budget stalemate for months.

 

Photo by Governor Tom Wolf via Flickr CC License

Overtouting The Canadian Pension Model?

496px-Canada_blank_map.svgLeo Kolivakis is a blogger, trader and independent senior pension and investment analyst. This post was originally published at Pension Pulse.

Chris Taylor of Fortune reports, These Canadians Own Your Town:

Conspiracy theorists have no shortage of ideas about who runs the world, which secret cabal is meeting in private to count cash and pull strings: the Bilderberg Conference, maybe, or the Trilateral Commission, or even Yale’s Skull and Bones society.

But in investing, the answer isn’t so sinister, nor is it even a secret. In fact, on this chilly autumn day, you can find a cadre of financial lever pullers walking the halls of downtown Toronto’s Ritz-Carlton Hotel, clutching their morning cups of coffee and slipping discreetly into meeting rooms: the world’s top pension-fund managers. Collectively the investors who gathered for the International Pensions Conference—among them, fund managers from the U.S., U.K., Canada, the Netherlands, and Japan—are stewards of $2.5 trillion, a very significant chunk of the world’s assets.

Circulating through this crowd is Ron Mock, head of the Ontario Teachers’ Pension Plan. The avuncular, unassuming 62-year-old “host CEO,” his name tag reads—is moderating panels and introducing guest speakers; he also has the distinction of offering opening and closing remarks. Mock has a modest mien befitting a lifelong usher at Toronto’s Maple Leaf Gardens arena. But among fellow pension managers, Mock might as well be strutting around like Mick Jagger. After all, he sits at the helm of a pension plan whose track record and revolutionary approach to investing have set benchmarks for just about anyone who manages a major endowment or pension fund.

Mock’s Ontario Teachers’ Pension Plan, widely known as “Teachers,” manages a hefty $154 billion Canadian ($116 billion) in assets. It represents the collective savings of 129,000 retired Ontario teachers and 182,000 currently active ones. It’s one of the most successful plans as well, with double-digit average annual returns since 1990, including an 11.8% return in 2014 (about four percentage points better than Canada’s TSX index). Over the past 10 years, according to Toronto-based pension-fund analysis firm CEM Benchmarking, Teachers has placed among the top two performers in the world—out of 273 funds managing a total of $8.5 trillion.

So what the hell is going on north of the 49th parallel? These unassuming investors have a secret sauce that has been so successful, for so long, that pension experts have dubbed it “the Canadian model.” Canadian-model investing means minimizing passive stocks-and-bonds portfolios and buying sizable direct stakes—in companies, in infrastructure, in property. It also means running a pension fund as an independent business: no handing management reins to political cronies, no farming out research to expensive outside advisers. It means bringing in top pros and paying them handsomely, the better to keep them on board. And in Teachers’ case, it means higher-than-average returns paired with lower-than-average risk.

Of course, none of this is any guarantee of success. And although you presumably don’t have $100 billion or more to manage, chances are that you and the Teachers team are grappling with some of the same challenges: the financial strain that comes with growing longevity, as retirement assets stretch to cover 25 or 30 years of living expenses; the difficulty of investing for a long time horizon in an investing climate that emphasizes short-term results; and the fact that, after a six-year global bull market, too many assets are just too expensive. Indeed, Mock and his team are earnestly scouring this pension conference for new strategic ideas. “Market valuations are high, and there’s a lot of capital chasing every opportunity,” laments Jane Rowe, one of Teachers’ top managers.

Still, the Teachers crew has every reason to believe that sticking to the method will pay off. “If you execute the Canadian model correctly—and there is 20 years of data on this—
it is worth an extra 2% every year,” says Keith Ambachtsheer, founding director of Canada’s International Centre for Pension Management. “Compound that every year, and then look at your returns.”

Pension experts credit Teachers with originating this approach a quarter century ago, in 1990—before then the fund was little more than a collection of dusty provincial bonds. Since then Teachers has become the pacesetter for the industry, as more public-pension plans say, to paraphrase When Harry Met Sally, “I’ll have what they’re having.” “The Koreans are doing it, the Singaporeans are doing it, the Dutch are doing it,” says Larry Schloss, president of alternative-asset managers Angelo, Gordon & Co. and former chief investment officer of New York City’s pension plans. “All the largest sovereign funds are trying to do it. The Canadians have figured it out—and they have the returns to prove it.”

Ron Mock didn’t invent the model—he joined Teachers in 2001 and took the helm on Jan. 1, 2014—but he’s well aware of its influence. “Back in 2000 there were only a handful of players on the planet like us,” says Mock, an electrical engineer by training who used to be in charge of safety at nuclear plants (no Homer Simpson jokes, please). “Now there might be 150 of them. People watched where we went and what we did, and suddenly our approach became very popular.”

That popularity is forcing Mock and his colleagues to up their game. While Teachers used to be virtually alone among pension funds in scouring the world for innovative private deals, now it has serious competition. Trying to figure out those critical next steps: 1,100 Teachers employees, many of them housed in a nondescript office building in Toronto’s North End.

Mock is “very smart, he’s very savvy, and he hires investment people who fit that mold,” says Chris Ailman, chief investment officer for Calstrs, the $181 billion fund managing the pensions of California teachers. “His real challenge is that he inherited a dynasty that has been successful for decades, like the New York Yankees. What do you do next?”

To get a sense of how far-reaching Teachers’ strategy is, consider the myriad ways it might overlap with your daily life.

The next time you eat at an Applebee’s or a Taco Bell, for instance, you may well be interacting with Teachers, via its investment in the $1.7 billion San Francisco–based franchisor Flynn Restaurant Group. If you go to a laundromat (Alliance Laundry Systems) or take your pet to an animal hospital (PetVet Care Centers) or buy a bag of kettle-cooked potato chips (Shearer’s Snacks) or keep stuff in storage (Portable On-Demand Storage) or park your car in a pay lot (Imperial Parking) or go to the dentist (Heartland Dental Care) or buy a suit (Hugo Boss) or go the gym (24-Hour Fitness) or wear outdoor gear (Helly Hansen), you’re crossing paths with Teachers’ investments.

And that’s just within the U.S. If you’ve ever traveled through airports in Copenhagen or Brussels, or Birmingham or Bristol in England, or taken the high-speed train connecting London with the Channel Tunnel, you’ve been sending a few bucks to Ontario Teachers. If you shop in any large Canadian mall, you’re probably setting foot in part of a Teachers-owned real estate portfolio. Oh, and the Ritz-Carlton where I recently sat with Mock, Teachers co-owns that particular one, along with Ritz-Carlton itself, through Teachers’ $28 billion Cadillac Fairview real estate operations.

Of course, lots of portfolio managers can claim similar breadth. Many mutual funds, in both actively managed and index forms, have hundreds or even thousands of stock holdings. But few can claim the operational influence that Teachers has on the companies it invests in.

In a conversation in a Toronto boardroom, two of Teachers’ heaviest investment hitters walk Fortune through the fund’s process. The two are very, well, Canadian. Mike Wissell heads Teachers’ public equities investing, when he’s not taking his kids to hockey practices or cheering Blue Jays games at the SkyDome. Jane Rowe, who runs the fund’s private equity arm, has a boast-worthy track record—Teachers’ private equity holdings have averaged annual returns of 19.7% since 1991 and are now valued at $21 billion Canadian—but she’s more likely to reminisce about Newfoundland and getaways to her cottage in Ontario’s Muskoka region.

Still, as pleasant as they seem, Wissell and Rowe send a clear message that Teachers’ money is not to be messed with. If the fund buys a stake in your private firm, they explain, it would like to help call the shots. No 5% or 10% slice, thanks; more likely it will shell out for 30%, 40%, 50%, or more. Oh, and Teachers will want a board seat. Did they mention that? “It’s not unusual for us to have absolute control,” says Rowe. “That is very rare in the pension-plan world.”

If Teachers takes a stake in your company, and it doesn’t like what it sees, big changes may come and management heads may roll. When Teachers pushed McGraw-Hill to split up its business—well, it split up its business, in 2011. Teachers supported hedge fund rabble-rouser Bill Ackman in his battle with CP Rail, leading to the departure of CEO Fred Green in favor of E. Hunter Harrison in 2012. The fund also objected to what it saw as excessive compensation of top management at Sprint Nextel, contributing to the replacement of CEO Dan Hesse by Marcelo Claure.

“It is the most proactive pension fund in Canada,” says John Coffee, a law professor and corporate-governance expert at Columbia University. “It is activist—but hardly the most aggressive.” Indeed, there’s a marked difference in style between Teachers and many American activists: While the latter often take their campaigns public, making themselves part of the narrative, Teachers does its talking behind closed doors, says Ambachtsheer, the pension expert.

Teachers’ managers insist they don’t seek control for its own sake but in order to grow their business. And their successes show their impact. When the fund bought out vitamin giant GNC in 2007, it helped GNC expand into new markets and prepped the company for its IPO before selling out in 2012—having made five times its original investment. When it bought Alliance Laundry from Bain Capital in 2005, Teachers replaced the CEO and made key acquisitions—and has since scored a return of eight times its money. And when Teachers sold its 80% stake in Maple Leaf Sports and Entertainment, owner of hockey’s Toronto Maple Leafs, it got a princely $1.32 billion. Teachers had originally bought half the company, in 1994, for just $44 million—building it into a powerhouse with additions like basketball’s Toronto Raptors.

Of course, assuming big stakes also means assuming sizable risks. “You won’t meet anyone here who doesn’t have some tragic investment story,” admits Wissell. One stands out in company lore: its very first private-capital investment, White Rose Crafts and Nursery Sales, bought in 1991 for $15.75 million. Teachers foresaw grand things for the home-and-garden chain; it didn’t foresee the hit the company would take from surging competitors like Walmart Canada and Costco Wholesale. Within a year, White Rose had folded. Laments Mock: “Bankruptcy right out of the gate.”

Mock knows something about bouncing back from embarrassing adversity. After his stint at Ontario’s nuclear plants, he earned an MBA and started working for the investment dealer now known as BMO Nesbitt Burns. Eventually he became head of a hedge fund, Phoenix Research and Trading. In 2000 the fund tanked, wiping out $125 million in assets. Regulators found that a rogue trader was at fault for having amassed unapproved bond positions. Since Mock was head of the firm, though, the buck stopped with him. He was reprimanded by the Ontario Securities Commission for lack of oversight and was barred for years from becoming a public-company director or officer.

Given that car crash, it is perhaps surprising that Mock was hired the year after by Teachers. Commissioned to steer its alternative assets, he rewarded the trust he’d been given by launching initiatives like Ole, a music-rights-management company that now owns the lucrative catalogues of artists like Rush and Timbaland. He was given the keys to the fund entirely in 2014, when he became the plan’s president and CEO, with former head Jim Leech praising Mock’s appointment as “outstanding.”

“I learned a lot from that experience,” Mock says of the Phoenix flameout. “People will be people. But you have to have a governance structure in place to prevent those things from happening. As the adage goes, trust—but verify.”

In the U.S., trust in public-pension programs is in short supply, and understandably so. Teachers is a fully funded plan, with enough cash on hand to meet 104% of its payment obligations. In comparison, the funding ratio for state and local pension plans in the U.S. is a worrisome 74%, according to Boston College’s Center for Retirement Research.

Much of the U.S. shortfall reflects shortsighted decisions by governments to underfund their pensions, often in unfounded hope that sky-high investment returns would make up the difference. But critics say U.S. funds’ performance also suffers from meddling in investment decisions by political appointees, from restrictions on the kinds of investment strategies they can pursue—and, often, from exorbitant fees charged by advisers.

When Teachers started stacking wins, other plans started following its lead, with the Canada Pension Plan ($264.6 billion Canadian), the Ontario Municipal Employees Retirement System ($72 billion Canadian), and the Caisse de Dépôt et Placement du Québec ($225.9 billion Canadian) adopting similar philosophies. The Canadian model crossed the border as well. The Teacher Retirement System of Texas ($132.8 billion), Calstrs ($191.4 billion), and the Florida State Board of Administration ($170 billion) have all been singled out for their maple-flavored approach.

But U.S. managers say they’d like to go even further in Teachers’ direction. Hampered by traditional U.S. pension-fund rules, they feel as though they’re in a fistfight with one hand tied behind their backs. Among the problems, they say, is relatively modest manager compensation. “The Canadian model pays their in-house team much closer to market compensation than their American counterparts,” says Schloss, the former New York City official. “When I was CIO for NYC pension funds, I made $224,000. Meanwhile, a first-year associate at J.P. Morgan right out of business school made $300,000.” In contrast, Mock made a cool $3.62 million Canadian in 2014, followed closely by executive vice president of investments Neil Petroff, who earned $3.56 million Canadian, according to Teachers’ annual report.

While some U.S. pensions stand out for Canadian-style independence, the model has proved a challenging transplant. “I fear that it will take a crisis, like the Titanic hitting the iceberg, before we do anything about it,” says Calstrs’s Ailman. “Until then we all just keep banging our head against the wall trying to make our current system work.”

While publicly run American funds look on longingly, other funds have no such limitations—and that’s where Teachers’ managers are finding the stiffest competition. Mammoth university endowments like those of Harvard and Yale, and sovereign government funds from Abu Dhabi to Norway are all open to alternative assets and private ventures—and much more active in those spaces than they were when Teachers got started. And all of them share Teachers’ ability to write $500 million checks.

That’s where Teachers hopes its 20-year headstart comes in handy. It already has tentacles all over the world, with outposts in Hong Kong and London expanding to enable more boots on the ground. In its hunt for cash flow, the fund is increasingly deploying those boots in infrastructure deals. Toll roads, airport services, high-speed trains? Count Teachers in. As Mock quips, “If you’re selling an airport, I can get 15 people on a plane tomorrow.”

The sector is decidedly unsexy, but it now makes up $12.6 billion of its portfolio. Infrastructure hits a sweet spot for managers who need to pay for teacher pensions 50, 60, or 70 years out. Like the utility or railroad properties in Monopoly, they may not be marquee venues—but they are consistent, underrated revenue streams. Not long after Fortune met with Teachers’ leaders, the fund announced a deal to buy a one-third stake in the Chicago Skyway, a toll road that accommodates some 17 million passenger cars a year. For $512 million upfront, Teachers will get a share of tens of millions annually in toll income through the year 2104. The rationale is right out of Teachers’ basic playbook: It’s a “critical asset” that “will provide inflation-protected returns to match our liabilities,” says Andrew Claerhout, Teachers’ senior vice president of infrastructure.

The Skyway deal stands out for another reason: It’s one of the few big buys Teachers has made recently. After years of rising prices, in assets from North American real estate to the Dow Jones industrial average, today’s valuations make the fund’s managers nervous. While Teachers declined to comment on which asset classes look intriguing, every interviewee brought up the flood of global capital chasing limited opportunities. You get the sense they are waiting for the fever to break and for prices to come back down to earth.

In the meantime they are doing bottom-up research, unwilling to overpay. “Our bosses always tell us we don’t have to do anything,” says Wissell. “It’s okay to wait for the softballs.” Finding softballs is hard work: That’s why Jane Rowe just got back from Greenland, and Wissell from Brazil, as they scoured the globe for revenue streams. But no matter how far Teachers’ managers travel, you can’t take the Canada out of them. “We are very proud of the Canadian model,” says Wissell. “But we don’t scream it to the highest rafters. It’s just not our way.”

This is a good article on Ontario Teachers’ Pension Plan but it’s a bit of a puff piece and I’m going to take it down a notch in my comment.

First, the best large pension plan in Canada and the world over the last ten years is the Healthcare of Ontario Pension Plan (HOOPP), not Ontario Teachers’.  The latter comes in a close second but let’s call a spade a spade here and stop spreading the myth that “Ontario Teachers is the best”. It’s an excellent plan, a world leader but there are plenty of other great global pensions.

This is especially true now that you have intense competition from CPPIB, PSP Investments, the Caisse, bcIMC, and a pack of other large global pensions and sovereign wealth funds. Yes, Teachers was first mover but that doesn’t mean much in the world we live in but articles like this help in terms of PR and getting the recognition when Teachers approaches partners on prospective deals.

Second, like everyone else, Ontario Teachers has made plenty of mistakes along the way in all asset classes. In other words, its senior managers are mavericks in a lot of areas but they suffered many pitfalls along the way. They’re just better at covering up their huge mistakes, learning from them and moving on.

I mention this because Ron Mock has had his share of harsh hedge fund lessons before and during his time at Teachers. The thing with Ron, however, is he owns his mistakes, learns from them and moves on. Also, he’s always thinking about the next 18 months ahead and thinking hard about his strategy to meet Teachers’ obligations in an increasingly competitive world.

What else do I know about Ron Mock? Unlike others, he doesn’t get swept away by performance figures and he’s always asking tough questions on hedge funds, private equity, real estate and infrastructure. He’s also not the type of guy who toots his own horn or basks in glory. The motto “complacency kills” is deeply embedded in Ron’s DNA and he has little time for mediocrity within or outside Teachers.

Ron is also lucky to have a great senior team backing him up. Whether it’s Jane Rowe, Mike Wissell, Lee Sienna or Wayne Kozun, you’ve got some very smart people at Teachers who really know their stuff. The loss of Neil Petroff who retired earlier this year as CIO of this venerable plan is huge but Ron told me “there’s been progress” in finding a suitable replacement (the person who assumes this role has big shoes to fill).

In private equity, it’s true that Teachers was the first to do direct deals and unlike traditional PE funds, it has a much longer investment horizon. But it’s also true that fund investments and co-investments make up the bulk of Teachers’ private equity investments and I would take all this fluff on direct PE deals with a shaker, not a grain of salt.

There are many myths on Canadian pension funds acting as global trendsetters which are being propagated by the media and the biggest myth is that they do a lot of direct PE deals. This is total rubbish. Canada’s large pensions do a lot of direct real estate and infrastructure investments, not as much as you’d think in terms of private equity where competing with the Blackstones, KKRs, and TPGs of this world is next to impossible, even if you pay your senior pension fund managers outrageously well.

Still, Canada’s large pensions are doing a lot more internal management than their U.S. counterparts and outperforming them in terms of long-term value added over their benchmarks. Why? They have better governance, are able to compensate their senior managers a lot better and some large Canadian pensions, including Teachers and HOOPP, are also able to use considerable leverage intelligently to juice their returns.

When I look at Canada’s large pensions, I don’t get overly impressed. I’m brutally honest when I praise them and when I criticize them. So, when I tell you Ontario Teachers has the best hedge fund program or the Caisse has the best real estate group, I know what I’m talking about. Like I said, it takes a lot to impress me and I’ve been covering pensions for almost eight years on this blog so there’s nothing I’m going to read in the media which is going to make me fall off my chair.

This is why I’m very careful with articles that overtout Canada’s large public pensions. To be sure, they’re delivering outstanding results over the long-run at a much lower cost but the media’s love affair with them is misrepresenting the truth or giving you false impressions that Canada’s large pensions are competing with large dominant global private equity funds (they are but it’s peanuts in terms of their PE portfolios which is made up mostly of fund investments).

What else? While U.S. public pensions can learn a lot from Canada’s large public pensions the latter can learn a lot from their U.S. counterparts when it comes to transparency and communication. This includes making their board meetings publicly available on their websites and just being more transparent on their investments and benchmarks that govern them.

The Canadian pension model has been a success. There’s no denying this but there’s plenty of work ahead to improve the governance at these large Canadian pensions and anyone who claims otherwise is either a fool or part of the entrenched establishment which doesn’t want to rock the boat in any way because it might impact their huge compensation model.

 

Photo credit: “Canada blank map” by Lokal_Profil image cut to remove USA by Paul Robinson – Vector map BlankMap-USA-states-Canada-provinces.svg.Modified by Lokal_Profil. Licensed under CC BY-SA 2.5 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Canada_blank_map.svg#mediaviewer/File:Canada_blank_map.svg

CalPERS to Ramp Up Climate Change Engagement Efforts

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A top CalPERS official disclosed on Friday that the pension fund plans to step up its engagement with companies on climate change, according to a report from Reuters.

This comes after a study, conducted by CalPERS, examining the carbon footprint of its portfolio. That study, according to CalPERS, revealed that a handful of companies are responsible for a significant portion of the portfolio’s carbon footprint.

More details from Reuters:

“This study means that we can be laser-focused on where we take our engagement,” CalPERS’ Investment Director of Global Governance Anne Simpson said on the sidelines of the Paris climate conference.

“We want the underlying companies in our portfolio to be aligned with the transition to a low-carbon economy.”

CalPERS has already pushed environmental and social governance measures at energy companies in which it invests, including Exxon Mobil, but Simpson said the pension fund also would begin targeting other carbon-intensive industries.

She said the study revealed that fewer than 100 companies in the fund’s enormous portfolio were responsible for half of its carbon dioxide emissions, including in the sectors of construction and materials, basic resources, travel and leisure, chemicals, and food and beverages.

“I think what we will do next is share this analysis with the funds that we work with and see the potential for a globally coordinated engagement plan, and not just in the oil and gas industry,” Simpson said. “Focusing on big oil and old coal will not get us there.”

CalPERS manages a $300 billion portfolio.

 

Photo by  rocor via Flickr CC License

Circuit Court Throws Wrench in Chicago Retiree Cuts

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Last year, Chicago Mayor Rahm Emanuel ordered a three-year phase-out of a subsidy the city gives retirees to help pay for healthcare.

But a circuit court judge over the weekend ruled that certain retirees’ healthcare coverage is protected by the Illinois Constitution’s pension protection clause.

From the Chicago Sun-Times:

A Cook County court judge has thrown a curveball that threatens to prevent Mayor Rahm Emanuel from saving $108.7 million a year by completing a three-year phase-out of the city’s 55-percent subsidy for retiree health care.

In a 15-page ruling handed down this week, Circuit Judge Neil Cohen rejected the city’s motion to dismiss a lawsuit filed by 30,000 retirees and kept the individual pension funds on the hook as well.

More importantly, Cohen ruled that the lifetime health care coverage of 20,000 people who started working for the city prior to Aug. 23, 1989, is protected by the Illinois Constitution’s pension protection clause. It states that those benefits “shall not be diminished or impaired.”

[…]

The judge dismissed the lifetime benefits claim made by retirees who started working for the city after Aug. 23, 1989. He argued that they began working under a statute that provided benefits only for limited periods of time and that those agreements have expired.

The ruling is considered a victory for retirees hired before August 1989, even if the case still has a ways to go.

 

Photo by Joe Gratz via Flickr CC License

CalPERS Board at Odds With Maverick Member

From CalPERS Public Records Act summary report August 2015
From CalPERS Public Records Act summary report August 2015

Reporter Ed Mendel covered the California Capitol in Sacramento for nearly three decades, most recently for the San Diego Union-Tribune. More stories are at Calpensions.com.

As one of 13 CalPERS board members, J.J. Jelincic presumably has some authority. But last June and July, he filed Public Records Act requests to force CalPERS to give him weekly reports from its federal lobbyists, much like any member of the public.

CalPERS tripled its federal lobbying force last year from one all-purpose firm, the Lussier Group, to three separate lobbying representatives for retirement policy, investment and market regulation, and health care issues.

Jelincic wanted to see what CalPERS was getting for its increased spending. So he asked for the weekly reports from the lobbyists, as specified in their contracts. But the rest of the board had decided monthly reports, also specified in the contracts, are enough, and Jelincic’s informal request was denied.

The unusual Public Records Act requests by a board member helped trigger a CalPERS governance committee discussion last month of “board member behavior” that was clearly aimed at Jelincic. (See video of meeting here.)

In addition to filing the Public Records Act requests, Jelincic was criticized by other board members for “disparaging” staff in public and taking more than his fair share of time at board meetings by asking questions.

“We need to have some kind of policy where there are some strong consequences to avoid that kind of thing from happening,” said board member Henry Jones, referring to the public records request and disparagement of staff.

Jelincic
Jelincic is in the rare, if not unprecedented, position of being a CalPERS employee and board member. He has been a member of the investment office since 1986 and a member of the board since 2010 after his election by CalPERS members.

During his first year on the board, Jelincic was allowed to remain on the job. He was placed on leave around April 2011 and still collects his salary, $118,000 last year according to the Sacramento Bee state worker salary database.

Because of his dual positions, three opinions from the state attorney general say he should not participate in some board discussions and decisions, particularly if they are about top executives who might affect his supervision or pay if he returns to his job.

“How can you be a fiduciary if you can’t be involved in the people running the system?” Jelincic said last week of his fiduciary duty as a trustee to manage the retirement assets of CalPERS members.

Three attorneys asked to look at the opinions agreed they are wrong, Jelincic said, and the three attorneys also agreed on a rough road for righting the wrong: “If you want to spend $60,000 and four years, we can make them go away.”

One of the well-publicized disparaging remarks about CalPERS staff came last year after the board, excluding Jelincic, selected Ted Eliopoulos to be chief investment officer, replacing the late Joe Dear.

Jelincic told Pensions and Investments that he worked under Eliopoulos in the CalPERS real estate investment unit from 2007 to 2012, and “he doesn’t have the temperament or the management skills” to be chief investment officer.

As some have noted, Jelincic was censured by the CalPERS board in September 2011 for the sexual harassment of co-workers, verbally and with suggestive looks, after first being warned about complaints in 2009 by Eliopoulos and another official.

At the investment committee in August, Jelincic clashed with the chairman, Jones, while questioning staff at length about not knowing the profit share or “carried interest” paid private equity firms, which drew some criticism earlier in the national media.

Jelincic later complained in writing that staff had been inaccurate, evasive and condescending. While not agreeing that “decorum” had been breached, Jones scheduled a meeting with top staff. Jelincic walked out when not allowed to tape it.

After four years of data-system development, CalPERS last month issued one of the first reports of total private equity fees paid by a major pension fund. But some of the luster was dimmed by the criticism for not tracking the fees earlier.

A general issue that emerged at the governance committee last month is whether a board member, who disagrees with a decision of the board majority, should make their disagreement public or pursue change internally.

Klausner
Robert Klausner, CalPERS fiduciary counsel, told the board that “external” action by a member can undermine a decision or policy adopted by a majority of the board.

“To go through the Public Records Act, or ask somebody else to do it, I think it undermines again the effectiveness of the mission of the board as a whole,” Klausner said, “and I don’t think that’s consistent with good fiduciary practice.”

Klausner’s remarks were sharply criticized by Susan Webber, writing as Yves Smith at her “Naked Capitalism” website. She also wrote a critique of Klausner’s work with a Jacksonville pension system and noted his lack of a California law license.

Last week, Klausner said his firm has two attorneys licensed in California. He said his role is “best practices,” not legal advice. He offered a detailed rebuttal of Webber’s critique, saying the issue was between Jacksonville and the pension fund, not with him.

At the governance committee, board member Richard Costigan said: “The concern I have with PRAs is what the “P” stands for. It’s public. I’m surprised we are having this discussion.”

On the other hand, Costigan said, the requests can be used to “paper people to death” and slow down an organization. He said in this case he was struggling with how the information requested by Jelincic should be released.

Board member Priya Mathur said her understanding is that what Jelincic now receives are summaries of email and other informal communications between lobbyists and staff, creating more work for the staff.

Klausner said the public release of half-developed thoughts might impede fully-developed thoughts. But some may want to know the components, he said, suggesting staff, the general counsel, and board members could work on a release policy.

Jelincic reminded his colleagues that the lobbyist contracts call for monthly and weekly reports. He said he knows there are interim emails, phone calls and other contacts between the staff and lobbyists.

“Those, quite frankly, are never identified as public records,” Jelincic said. “I would never ask for them.”

In a way, Jelincic is following in the footsteps of another CalPERS employee who became a board member. William “Scotty” Rosenberg, a CalPERS retirement advisor, retired in 1991 but did not become a CalPERS board member until 1993.

A Plan Sponsor article in July 1997 said Rosenberg “likes making waves, even if his fellow board members consider him a rabble-rouser.”

Presumably not to spend less time with Jelincic, the staff was asked to propose options this month for scheduling fewer CalPERS board meetings, a move to reduce preparation time for members and staff. The board currently holds monthly three-day meetings.


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