An unprecedented effort to force all public pension systems in California to disclose how much money is paid to deal-brokering middlemen known as “placement agents” and to make public any gifts or contributions that agents make to the funds’ board members awaits action by the governor. Lawmakers in both houses approved the new rules without dissent in the final hours of the legislative session.
“We have already seen enormous damage done to people’s confidence in our public pension systems because
of the actions of a few unscrupulous placement agents,” Assemblyman Ed Hernandez, D-West Covina, the author of the disclosure legislation,
wrote earlier. “Any placement agent acting in good faith should have
no problem complying.”
The disclosures, sought by state Treasurer Bill Lockyer
and state Controller John Chiang, are intended to head
off the kinds of alleged wrongdoing that occurred in
New York, where so-called “pay to play” allegations have prompted investigations by the state
attorney general and the U.S. Securities and Exchange
Commission.
“The lack of transparency and ethical standards governing
influence peddlers was an invitation for corruption.
AB 1584 ensures that public pension funds do not become pay-to-play ATMs for the unscrupulous,” Chiang said.
New York Attorney General Andrew Cuomo launched a probe
into activities at the $122 billion New York City pension fund at the request
of the city comptroller, who had urged the elimination
of the placement agents. The agents typically serve
as a link between those who seek investment capital
and the pension fund, which has assets to invest. They
also lobbied the funds – a practice that has since been banned. In New York,
one person pleaded guilty to a misdemeanor count of
securities fraud and agreed to cooperate with investigators.
The fraud allegedly occurred while the placement agent
worked in a Los Angeles investment management firm,
authorities said, bringing new attention to the issue
in California.
In May, two members of a Los Angeles public pension
board, Elliott Broidy and the former president of the
California Public Employees’ Retirement System, Sean Harrigan, resigned a month
after the federal SEC asked to look at their income,
the Los Angeles Times reported. The board oversees
a $10.7 billion fund for retired police officers and firefighters.
“While I have done nothing wrong, I recognize that this
entire matter has become a huge distraction for all
parties involved in the business of operating an $11 billion public pension system,” Harrigan said in a statement. Harrigan and Broidy
had been asked to disclose their communications with
firms under scrutiny in the New York investigation.
Apart from the placement agents’ fees, Hernandez’s AB 1584 requires an array of disclosures and restrictions,
and all would need to be adopted by next June.
For example, pension fund officers or high-level investment staff members who leave the system
must wait at least two years before acting as agents
before the boards. The rule, which already exists at
the State Teachers Retirement System and CalPERS, applies
to those who were in their positions for less than
five years before leaving. The Hernandez bill would
take the “revolving door” restriction at STRS and CalPERS and apply it to all
public pension funds.
Placement agents who violate the disclosure rules would
be banned from soliciting new investments from the
system, although the restriction could be eased or
waived entirely by a majority vote of the board in
public. In addition, the fund could not enter into
any agreement with an external investment manager who
does not provide in writing consent to adhere to the
disclosure rules.
Placement agents would be required to disclose all
campaign contributions and gifts made to any board
member during the two-year period prior to the time the agent solicits investments,
and to disclose any contributions and gifts made later
while the agent receives compensation in connection
with an investment.
This year, CalPERS adopted a policy requiring those
people or firms that hire placement agents to “disclose fees and other information about the placement
agents they hire to seek CalPERS business.” The public pension fund is often approached by people
seeking capital for their businesses.
“This policy will help us ensure that our decisions
are made solely on the merits of proposed investments
with full transparency and disclosure,” said Rob Feckner, CalPERS Board President. “We want to know who’s being hired, how much they’re being paid, what they’re paid for, and who pays them.”
According to CalPERS, the rules also require that placement
agents must register as broker-dealers with the U.S. Securities and Exchange Commission(SEC) or the Financial Industry Regulatory Authority. The
disclosures must include “agents” identities, resumes of key people, description of
compensation and services, copies of agreements, and
if the agent is registered with the SEC or as a lobbyist
in any state or national government.”
The new guidelines affect partners and external managers
who retain placement agents to arrange meetings, prepare
presentation materials, identify potential limited
partners and otherwise facilitate communication with
CalPERS regarding potential investment of its assets.
CalPERS, which has assets of $198.5 billion, said it commits capital to external managers
and funds but isn’t involved in the fees that they pay agents who may
represent their business to the pension fund.
STRS adopted its own disclosure rules earlier.
