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Cypen & Cypen
MAY 17, 2007

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


The February 2007 issue of International Foundation of Employee Benefits Plans’ Benefits & Compensation Digest has an article entitled “Fiduciary Responsibility for Government Plan Sponsors.” Although governmental plan fiduciaries are generally exempt from the Employee Retirement Income Security Act of 1974, they must look to state law for the scope of their fiduciary responsibility. (However, ERISA can be used by governmental plan fiduciaries as a guide toward a sound well-maintained plan.) Fiduciary responsibility for government plans is nothing new. Heightened fiduciary scrutiny for all retirement plans resulting from issues such as mutual fund trading scandals, misrepresentation of earnings by a handful of executives, class action lawsuits alleging fiduciary misfeasance and pension reform legislation is drawing attention to fiduciary responsibility for government plans. Government plan fiduciaries need to be aware of their responsibilities as fiduciaries in order to minimize their exposure to risk and reduce their potential responsibility. Failure proactively to understand an act upon fiduciary responsibility is a recipe for disaster. On the other hand, trustees can easily manage their fiduciary responsibility by following the right process. ERISA defines a fiduciary as a person who exercises discretionary authority or control over management of the plan or disposition of the plan assets, renders investment advice to the plan for compensation (or has authority to do so) or possesses any discretionary authority over administration of the plan. In government plans, fiduciary responsibility rests with:

  • Governing body of the plan. An example of a governing body with fiduciary responsibility is a board of trustees. However, it may also include other employees of the government who possess discretionary authority over administration of the plan or who exercise discretionary or control over management of the plan or disposition of plan assets.
  • Plan administrator. A designated person, such as an executive director, administrator or third-party administrator, who exercises discretionary authority in administration of the plan, are examples. The key to determining plan administrator is to base it on function and conduct and not simply on title.
  • Investment advisors. Individuals who exercise control over disposition of plan assets are included. An investment advisor can be a fiduciary designated by another fiduciary as an expert to run the selection process (in addition to just monitoring investments).
  • Vendors/providers/TPAs. The fiduciary status of any of these organizations depends on whether there is a delegated duty of monitoring, evaluating or advising on investment options.
  • Outside professionals. Professionals such as attorneys, actuaries, advisors and consultants could be designated as fiduciaries because they often provide service and recommendations to plan decision makers. Their status should be determined up front and reflected in a contract.
  • Anyone named in the plan document as a fiduciary is one, even if he does not exercise discretion.

[Note: Section 112.656(2), Florida Statutes, provides that a plan administrator, and any officer, trustee and custodian, and any counsel, accountant and actuary of the retirement system or plan who is employed on a full-time basis, shall be included as fiduciaries of the system or plan. To our knowledge, that section has never been judicially interpreted.]

General fiduciary duties are derived from the common law of trusts. First, fiduciaries have a duty to ensure that all investments remain prudent investments in the plan. Assets once placed in the plan no longer belong to the employer, but are owned by the trust for exclusive benefit of the participants and their beneficiaries. Second, a fiduciary must ensure that assets are diversified appropriately to minimize risk of large losses. Investment advisors should monitor, evaluate and advise trustees on investment decisions. Third, fiduciaries must demonstrate loyalty to plan participants and beneficiaries. The exclusive benefit rule requires that a fiduciary act solely in the interest of plan participants and beneficiaries for the exclusive purpose of providing benefits and that plan expenses are reasonable. Finally, fiduciaries must ensure compliance with plan provisions. Now that you know who could be considered a fiduciary and the associated responsibilities, how do you apply these concepts to operation of your plan? Here are eleven best practices to help reduce your fiduciary risk and liability:

  1. Review current state of your plan. Take a fresh look at your current arrangement with your service providers. Monitor your service providers to ensure they are meeting your performance standards. Look closely at your current providers’ fees to be sure they are reasonable and commensurate with the services rendered and that all expenses are valid. Review qualifications of professionals who will be handling your plan account.
  2. Look at alternative plans. Can you take advantage of an alternative plan with greater scale that might provide better investments or lower costs (for example, a larger investment pool in which you might consider participating)?
  3. Identify your plan fiduciaries. Review your plan documents and activities to produce a list of plan fiduciaries. Make sure all fiduciaries and persons who handle plan assets maintain fidelity bonds.
  4. Conduct periodic plan audits and evaluate plan design. Conduct ongoing audits of your plan to identify and correct any deficiencies. Determine if the plan is being administered appropriately and within provisions of the plan document.
  5. Review participant communication and education experiences. Communications should provide an unbiased education to help plan participants make well-informed decisions in order to save up for retirement. Also, don't forget to communicate with retirees.
  6. Update the investment policy statement. If a formal written investment policy statement does not exist today, be sure to create one. (Note: Section 112.661, Florida Statutes, enacted in 2000, requires investment of assets of any local retirement system or plan to be consistent with a written investment policy adopted by the board.)
  7. Evaluate fund performance regularly. Consider selecting appropriate qualified members to an investment review committee.
  8. Maintain documents and records. Keep documentation of plan governance process, including review of investments, contracts and service agreements, compliance reviews, plan audits and participant communications.
  9. Investment advice or managed accounts. Some plans contract with an advisor to be a fiduciary and provide specific investment advice; others have a nonfiduciary provider of general financial and investment education, interactive investment materials and information based on asset allocation models. Either way, selecting an investment provider is a fiduciary action and must be carried out in the same manner as hiring any plan service provider.
  10. Prohibited transactions. Fiduciaries must not engage in self-dealing and must avoid conflicts of interest. (Note: Chapter 112, Part III, Florida Statutes, contains an extensive code of ethics for public officers and employees.)
  11. Breaches of fiduciary duty. Plan fiduciaries may be personally liable if found to have breached a fiduciary duty.

The author is past president of National Association of Government Defined Contribution Administrators and also worked with the Employees Retirement System of Texas.


The Illinois Retirement Security Initiative, a project of the Center for Tax and Budget Accountability, has issued its report entitled “The Illinois Public Pension Funding Crisis: Is Moving from the Current Defined Benefit System to a Defined Contribution System an Option That Makes Sense?” There is a debate raging in Illinois today over the state’s public employee pension system. In large part, the debate has its genesis in the fiscal constraints imposed on the state’s budget by Illinois’s $40.7 Billion unfunded pension liability. At more than five times the national average, Illinois has the largest unfunded pension liability in the nation. Paradoxically, while the debate has its origins in concern over Illinois’s outsized unfunded liability, most of the discussion is focused on the type of retirement benefit system the state offers its employees -- a defined benefit system -- rather than on developing a rational plan for paying the unfunded liability. This distraction is both costly and counterproductive. Since the current schedule for repaying the unfunded liability is not feasible, given the state’s existing fiscal system, every year the state fails to implement a realistic solution to its unfunded liability further imperils the state’s fiscal health and ability to deliver essential services upon which millions rely. This unfortunate state of affairs exists primarily due to misconceptions about both the actual cause of the unfunded liability and the perceived advantage of changing the type of pension system the state offers from primarily a defined benefit program to a defined contribution system. This change would be significant, since defined benefit and defined contribution systems are materially different approaches to retirement security, with very different benefits and risks for workers and costs for taxpayers. Whether based on misinformation or not, there has been so much attention focused on changing the type of pension system Illinois offers public employees that the concept deserves a thorough analysis. After all, the state owes taxpayers a public employee retirement system that helps attract and retain a quality workforce at reasonable costs and ultimately must pay its unfunded liability in a rational fashion, which does not mortgage the future. In an effort to move the public debate on these contentious issues forward in a positive manner, the paper addresses the most common misconceptions that are clouding the issue and reviews the relative strengths and weaknesses of defined benefit versus defined contribution systems from the perspective of both the public sector and taxpayers. Some of the main findings are

  • Illinois's current average state and local government employment retirement benefit is $17,112 per year. This annual payment is not overly generous, considering it is just 3.7 percent more than the national average of $16,488.
  • Illinois's current normal costs across its five public employee retirement systems are within national averages.
  • Investment returns earned on assets in the state's five retirement systems fall within national averages.
  • Defined contribution systems have significantly higher annual administrative costs than fully funded defined benefit systems. For instance, although not constitutionally permissible, if Illinois moved to a defined contribution system for all current participants in the five Illinois state pension systems, that change would cost taxpayers from $275 Million to $610 Million per year in additional administrative costs.
  • If contribution rates remained the same, defined contribution systems can be expected to generate significantly lower retirement benefits.
  • Because of Illinois constitutional restraints, switching to a defined contribution system does not and cannot reduce the state's current $40.7 Billion unfunded liability. The sole way to cover this liability is to design a rational program that does not back load costs like current law.
  • Defined contribution systems have the advantage of creating fiscal discipline that is absent from a defined benefit system. Due to their construction, defined contribution systems would force the state to make the required employer contribution into the employee’s account on a per pay period basis, rather than offering promises of future benefits, as under the current defined benefit system.
  • From an employee's perspective, a defined contribution system would have two advantages over a defined benefit system: (i) benefits would be portable from job to job and (ii) an employee could access his or her defined contribution account for emergencies pre-retirement (subject to certain tax penalties).
  • The three main disadvantages of a defined contribution system from an employee's perspective are (i) reduced and uncertain retirement benefits, (ii) lesser investment returns and (iii) market risks.
  • On balance, when funded in a fiscally responsible manner, a defined benefit system permits the public sector to provide its workers with better retirement benefits at lower overall cost to taxpayers than a defined contribution system.

The conclusion:

The data are clear: switching to a defined contribution system will not reduce Illinois’s $40.7 Billion pension debt, and in all likelihood would result in a pension system that has higher administrative costs for taxpayers to pay, with significantly lower and less secure retirement benefits for public employees. Fully funding the state's current defined benefit program, however, would not only provide a greater retirement benefit to workers, but would also reduce long-term costs for taxpayers, as increased investment returns drive down the amount of normal cost that has to be paid from taxpayer dollars.

Moreover, no true long-term savings to the state's budget can be anticipated from a decision to reduce significantly the benefits paid to public employees. Ultimately, the state has the responsibility to ensure seniors can sustain themselves in retirement. It would be questionable public policy, indeed, to reduce public employee retirement benefits, while incurring taxpayer funded expenses to supplement income, housing, energy and other needs of retired workers, who receive insufficient pension income on which to live.

When fully funded, defined benefit plans offer the most advantages for both taxpayers and employees of the state of Illinois alike.

And, we believe, this analysis would hold true throughout the country.


The effect of last year’s Pension Protection Act on large companies’ sponsorship of defined benefit plans remains unclear, according to Watson Wyatt experts and a new analysis of FORTUNE 100 companies. PRNewswire reports that 58 companies in the FORTUNE 100 sponsor defined benefit plans, down from 90 in 1985. However, the pace of change slowed somewhat last year, and the number of companies offering so-called hybrid pensions held almost constant, after declines earlier in the decade. Hybrid plans offer security of traditional pensions, along with 401(k)-style features, such as account balances, which appeal to workers. New rules under PPA affirm legality of such plans.


The results of a survey from Opinion Research Corporation should do away with any notion of self-directed Social Security accounts (or, for that matter, virtually all self-directed retirement accounts). Reported by PRNewswire, the survey found that only one out of one hundred American investors knows or puts into practice eight basic “investing secrets,” and slightly more than one-third get half or more of the fundamentals right. The first-time-ever survey covered more than 1,000 U.S. investors, and reveals what they know about eight basic principles and practices of sound investing: (1) how compound interest works; (2) meaning of diversification; (3) having a comprehensive financial plan; (4) avoiding over-reliance on Social Security in retirement; (5) understanding that a sudden windfall (for example, an inheritance) is not the surest path for a young person building a retirement nest egg; (6) understanding that stocks deliver better returns over time than such alternatives as savings accounts and certificates of deposit; (7) how to avoid investment scams; and (8) checking out financial planners and brokers before entrusting your money to them. The following are some detailed survey findings:

  • Only 1 percent of American investors appear to understand or put to use all eight of the above investing basics. (Four percent of investors got none of the secrets right.)
  • Roughly half of investors admit that they have never worked up a comprehensive financial plan with a financial professional.
  • More than two out five investors say that they would be likely to invest in at least one of three investment schemes presented as typical "can't lose" investment swindles.
  • Fewer than two in five U.S. investors understand that a penny doubled in value every day for a month is worth more at the end of that period than a million dollars.
  • About two out of five investors understand that diversification is balancing both risk and return in pursuit of financial returns.
  • Only a third of investors who use or have used a financial planner or stockbroker checked out the background of that person.
  • Slightly more than half of investors understand that stocks had the best returns over the last 20 years. (Nearly a quarter incorrectly think that savings accounts and certificates of deposit returned the most, and 10 percent said bonds.)
  • Almost two out of five investors are relying on Social Security for the biggest part of their retirement picture.
  • Over a third of investors incorrectly think a 25-year-old American is most likely to come up with a half-million dollar or one-million dollar nest egg for retirement via inheritance (21 percent), winning the lottery (10 percent) or a major insurance settlement (4 percent). Fewer than three in five investors know that investing in the stock market over time is the best path to a comfortable retirement.

If you were not shaking before you read this piece, start now.


The Florida Supreme Court recently considered whether an erroneous jury instruction concerning the crime of battery constituted fundamental error. Defendant was charged with battery on a law enforcement officer. Battery can be committed either by intentionally touching or striking another or by causing bodily harm to another. The information charged defendant only with intentionally touching or striking a law enforcement officer, and at trial the state presented evidence only on that form of battery. The trial court, however, instructed the jury on both forms. On appeal, the district court held that the instruction constituted fundamental error, but certified to the Florida Supreme Court the following question as one of great public importance: “Does a trial court commit fundamental error when it instructs a jury regarding both ‘bodily harm’ battery on a law enforcement officer and ‘intentional touching’ battery on a law enforcement officer when the information charged only one form of the crime and no evidence was presented nor argument made regarding the alternative form?” The Supreme Court answered “no” to the certified question, and therefore quashed the district court’s decision. Jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred. Because defendant did not object to the disputed instruction, the claim of error based on the instruction may only be reviewed on appeal if it constitutes fundamental error. The trial court’s inclusion of the bodily harm element in the jury instructions did not rise to the level of fundamental error. State of Florida v. Weaver, 32 Fla. L. Weekly S216 (Fla., May 10, 2007).


The Fair Labor Standards Act requires that covered, nonexempt employees in the United States be paid at least the federal minimum wage for each hour worked and receive overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek. FLSA overtime pay is due on the regular payday for the period in which the overtime was worked. The overtime pay requirement may not be waived by agreement between employer and employee. The overtime pay requirement cannot be met through use of compensatory time off (comp time), except under special circumstances applicable only to state and local government employees. FLSA contains a number of exemptions from its minimum wage and overtime pay requirements. An employee who is exempt from overtime pay requirements is not entitled to receive the FLSA overtime pay. Therefore, readers should review a list of common exemptions before using the FLSA Overtime Calculator Advisor. Nothing in FLSA or the Department of Labor’s Regulations prevents an employer from paying an employee at or above the minimum wage or at a higher overtime rate of pay. In addition, a number of states have enacted minium wage and overtime pay laws, some of which provide greater worker protections than those provided by FLSA. (As of January, 2007, the minimum wage in Florida is $6.67.) In situations in which an employee is covered by both federal and state wage laws, the employee is entitled to the greater benefit or more generous rights provided under the different parts of each law. The new Overtime Calculator Advisor helps compute overtime due based on information submitted. It can be accessed at


In the past, we have done some good-natured jabbing at our actuary friends (see C&C Newsletter for July 3, 2003, Item 6; C&C Newsletter for March 22, 2004, Item 1; C&C Newsletter for August 26, 2004, Item 7; C&C Newsletter for May 19, 2005, Item 2 and C&C Newsletter for February 16, 2006, Item 4). Now, according to publisher Vault, Inc., once primarily found in the insurance industry, actuaries are now found throughout corporate America, helping executives make intelligent and informed financial decisions. In addition to helping insurers mitigate chances of losses, actuaries help weigh risk in pension funds, stock and bond portfolios, and even hedge funds. Actuaries also work in areas beyond the financial industry, helping to determine and alleviate risks for product launches, product facility expansions and much more. The Vault Guide shows how to begin an actuarial career -- one of the most creative options for a statistician, economist or mathematician -- and how to advance that career. The Guide gives you an inside look at landing interviews, interview questions, typical days in the life of an actuary and the inside scoop on top actuarial employers. The most recent edition of the Jobs Rated Almanac, which rates jobs by salary, intellectual stimulation, opportunity for advancement, hours and job-rated stress, had actuary in second place behind biologist. In fact, the vast majority of job surveys has actuarial careers at or near the top. One of the biggest attractions is salaries -- few career choices for mathematics majors will yield a larger pay than actuarial work. According to the Society of Actuaries, an associate-level actuary earns more than the average MBA graduate. Salaries do vary widely from industry to industry, or even company to company. SOA estimates most Fellows earn between $150,000 and $250,000 annually. Yet a Fellow working for a major financial services firm could earn $500,000 or more each year in base pay plus salary, while the same Fellow working for a public pension fund or government can expect only $125,000. Granted, the Fellow in financial services will have much longer hours and a lot more job-related stress, but it is there for the taking. Gentlemen, start your slide rules.

According to the Houston Chronicle, short of layoffs, Houston will not meet its full obligation to the municipal pension fund in the next fiscal year, said the Mayor, citing rising public safety and health care costs that are expected to strain resources. In his next budget, the Mayor is expected to propose paying only two-thirds of the statutorily-required pension contribution, an arrangement that would still need approval from a skeptical pension board. The Mayor inherited a $1.9 Billion unfunded liability in the pension fund when he took office in 2004. His administration has managed to cut that liability through a series of moves that included raising employee contributions and cutting teacher benefits. The Mayor hopes to reduce the liability further by proposing a hybrid approach that will allow employees to opt out of contributing a portion of their pay in exchange for a reduced retirement benefit.


The Conversation on Coverage was launched in July of 2001, when 75 retirement experts of varying perspectives came together at a two-day conference to address the pressing question: How do we expand pensions and savings for the millions of Americans, particularly low- and moderate wage-earners, who do not have income outside of Social Security to support them in retirement? With coverage rates stalled at approximately 50% for the last quarter-century, there was broad recognition that something needed to be done to address this critical issue. The event built a strong case of camaraderie among participants and produced numerous promising initial concepts to increase coverage. Spurred by success of the first event, the Pension Rights Center, which convened this initiative, launched the second stage of the Conversation on Coverage in 2003. The Conversation established three Working Groups, with more than 45 experts of diverse backgrounds, who met intensively over an 18-month period to develop the first iterations of specific approaches to increase coverage. The Conversation on Coverage released these interim recommendations on July 22, 2004, at the National Policy Forum at the National Press Club. In May 2005, the Conversation launched the Third Stage of its deliberations to refine the interim recommendations. The Working Groups were reconvened, with some new members, and they devoted collectively hundreds of hours in day-long meetings and telephone conferences to address an array of unresolved substantive issues and develop their detailed final recommendations. These ambitious efforts led to development of four common ground proposals that are aimed at expanding guaranteed pensions, increasing retirement savings by individuals and expanding coverage among small businesses. They all include elements that the Groups thought would be attractive to employers, financial institutions and employees. These proposals, completed in early 2007, are summarized below and described in detail in the three Working Group reports that follow:


Working Group I’s primary mission was to expand coverage by encouraging new forms of defined benefit plans or plans that have salient defined benefit features. To achieve this mission, the Group developed two plans: (1) The Guaranteed Account Plan, a new hybrid plan that features individual accounts funded by employers with minimum guaranteed returns on employees' balances and (2) The Plain Old Pension Plan, a new and simplified version of a basic traditional defined benefit pension plan that is easy for employers to create, fund and administer.

Working Group II’s mission was to develop new incentives and proposals to encourage more individual workers in the private sector to save - - not only those who do not have an employer plan but also those who may not be eligible for their employer's plan or who may not have chosen to participate. The Group focused on expanding coverage for low- and moderate-income workers who are least likely to have access to a plan. The Group had a short-term track to recommend incremental steps to encourage more individuals to participate in existing 401(k) plans and a long-term track to develop a proposal for a new clearinghouse to administer lifetime portable accounts. The Group's primary achievement was the development of a proposal for a new plan, the Retirement Investment Account, which establishes a new national clearinghouse structure to administer portable life-time individual accounts. The proposed structure is designed to provide an easy and efficient way for workers who are not covered by a plan to save for retirement and enable them to keep their account whenever they change jobs or lack employer plan coverage.

Working Group Ill's mission was to create new approaches to increase pension coverage among small businesses where coverage rates are lowest. To achieve this mission, the Group developed a new plan, the Model T, a simplified multiple employer payroll deduction plan offered by financial institutions to small businesses.

The final report runs over 100 pages, and is entitled “Common Ground Proposals to Expand Retirement Savings for American Workers -- Outcomes from an Unprecedented Six-Year Public Policy Initiative.” The report is available at


According to Internal Revenue Service, the maximum contribution that can be made to a Health Savings Account in 2008 will increase, and the maximum out-of-pocket expenses that employee can be required to pay will also rise. As announced by IRS, in 2008 the maximum contribution that can be made for employees with single coverage will be $2,900, up from $2,850 this year, and the maximum contribution for employees with family coverage will rise to $5,800, up from $5,650 . In addition, the maximum out-of-pocket expense, including deductibles, that employees with single coverage can be required to pay will rise to $5,600 next year, up from $5,500 in 2007, and to $11,200 for employees with family coverage. The new limits reflect increases in cost of living. About 4.5 million people, as of January 2007, are covered by HSAs, including just over 2 million employees and dependents working at companies with more than fifty employees. Rev. Proc. 2007-36.


Thurman sued Pfizer, alleging that Pfizer had misrepresented the monthly pension to which he would be entitled after five years of employment with the company. Thurman claimed that these misrepresentations induced him to leave his prior job in order to work for Pfizer. Thurman initially sued in state court for rescission and to recover either expectation damages or reliance damages. After Pfizer removed the case to federal court, the district court dismissed the case, holding that Thurman’s suit was preempted by the Employee Retirement Income Security Act, which does not provide the type of relief Thurman requested. On appeal, the Sixth Circuit held that the lower court correctly ruled that Thurman’s state-law claims were preempted to the extent that he requested expectation damages, which would require a calculation of plan benefits. However, the appellate court held that the district court erred in its ruling with respect to Thurman’s request for rescission of his participation in the plan and reliance damages in the form of benefits he relinquished by leaving his prior job. Those aspects of his state-law claims were not related to the plan and thus were not preempted. Employers who misrepresent certain benefits provided by ERISA-governed plans to prospective employees cannot later use preemption as an end-run around liability for fraudulent or innocent misrepresentations. If adhering to promises regarding ERISA-governed plans proves too cumbersome for employers, then during the recruitment process, those employers must simply be more careful before informing potential employees of the ERISA-governed benefits to which they might be entitled. This duty is created by state law, with which there is little basis for federal law to interfere. (Thurman was orally informed that he would be eligible for full retirement at age 62 and would receive a monthly pension allowance of approximately $3,100 per month. In fact, his monthly pension compensation was only $816.) Thurman v. Pfizer, Inc., Case No. 06-1571 (U.S. 6th Cir., May 8, 2007).

“There’s no trick to being a humorist when you have the whole government working for you.” Will Rogers

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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