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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