ATTENTION Readers: This chapter is an early version of my new book just released, March, 2015. For an update of all the Chapters including this Chapter 10, go to the home page and scroll down. On the right are directions to get the full story in 11 Chapters and 17 appendices, resources, letters, books, podcasts all in the free pdf book, “Fighting Powerful Interests: Educators Challenge Tax-sheltered Annuities and WIN!” (Click here for home page).

 Chapter 10

2011-2013

Journey to California State Teachers Retirement System (CalSTRS) as our New Third-Party Administrator (TPA)

Chapter 10

2011 began as a busy and exciting year for our oversight committee. VALIC’s five-year contract was soon to expire. Our committees’ successful achievements required VALIC to disclose all fees and removed three of Mercer’s most expensive funds. We had not finished the job of reducing costs, adequately publicizing the 457b nor developed a comprehensive financial literacy plan.

This chapter reports what the committee did to correct the missteps of the first five years so we could continue to bring down long-term ­­costs. When these problems were addressed with a restructuring of the fees with a new TPA, unexpected obstacles materialized, bringing back nightmares of the secretive 403b world. Though Mr. Tischler skirted the insurance code strangulation by implementing a 457b, old habits hung around like unwelcome in-laws.

Los Angeles Unified School District’s (LAUSD) procurement department sent two Request For Proposals (RFP), one each for the 457b and 403b. Our committee recommended the 457b contain a fixed-fee structure (no more revenue sharing), and an independent TPA for the 403b (no more “common remitter”).

Next, we discussed the possibility of a single TPA open architectural platform with mutual funds for the 403b. Our committee philosophy existed to drive down costs and offer best-in-class investments, no matter what. The legal counsel of the district discussed strategies to avoid a court case. The usual suspects would claim that selecting high quality investments would violate the infamous “any willing provider” crap engraved in the state insurance code. Our committee’s attorney needed evidence how other PreK-12 districts got around 770.3.

The committee knew the district was not going to risk a lawsuit. Neither was there political will to change 770.3 when 99% of California educators remain clueless. The Internal Revenue Service’s (IRS) new regs required districts to take active responsibility for 403b plans. Those regs did not offer legal protection, preventing us to disregard our state’s insurance code. LAUSD was neither ready nor willing to take on the fight alone.

A Plot Unmasked

The insurance industry took no chances. Our committee discovered a lobbyist firm dubbed LA Unified Task Force on the LAUSD website. Individuals or groups who oppose potential district decisions must register. LAUSD invites discussions on all district issues. But first, groups must file with the district’s Ethics department.

The following revelations brought the LA Unified Task Force lobbyist presence down immediately.

• AXA Equitable’s Letter Denounced LA Unified Task Force!
• Our Financial Consultant, Barbara Healy, resigned from the boards of both professional organizations who were behind the lobbyist plot!

First, AXA Equitable. On March 21^st, 2011, the industry’s scheme to interfere with LAUSD backfired. One of the district’s 403b vendors, AXA Equitable, sent a letter to Barbara Healy, our committee consultant. She passed the letter to “interested parties,” as requested by AXA. They wanted no part of this lobbying to disrupt LAUSD’s internal “discussions or actions.” Quoting from the letter:

1. AXA is not directly or indirectly involved in any effort aimed at influencing the policies of LAUSD through the “LA Unified Task Force.”

2. We also did not participate in any funding of Mayer Brown, or any other lobbying or legal firm, intending to thwart any LAUSD policy discussions or actions regarding the Districts 403(b) or 457 programs.

LA United Task Force was created by several high profile TSA insurance companies which have sold the most annuities and acquired the most assets from 25,000 LAUSD 403b participants. This lobbyist firm did what all lobbyists do, “communicate” with the Board of Education and its policy heads about competitive bidding for the 403b TPA. Keeping 25,000 educators naive and frightened about options has been the industry’s power strategy for decades. AXA’s letter and Barbara Healy’s announcement blew this covert effort wide open.

Ten days later Barbara resigned from the boards of the American Society of Pension Professionals and Actuaries (ASPPA) and National Tax Shelter Accounts Association (NTSAA) who were behind LA United Task Force. Emboldened by AXA’s denouncement, Barbara wrote her own scathing resignation letter. It was so well-written and compelling, I include it in entirety:

This letter should be considered as my resignation from the NTSAA Leadership Council and as Vice Chair of the TGPC Credential [Tax-Exempt & Governmental Plan Consultant].  Please accept that this is not intended as a reflection of your NTSAA/ASPPA leadership; nor of the Council as a whole and certainly not of the broader goals of ASPPA.  I will retain membership in both organizations.

I have been privileged in my 30 years in the Financial Services Industry, and as a Consultant, to be associated with many Public Sector employers, their Unions, Associations and many individual employees.  I know you share my feeling as to the value our Industry can provide the consumer with much needed advice plus appropriate insurance and retirement protection.  It should also be stated our Industry provider companies are also entitled to Shareholder profits and financial advisors to fair compensation. My guiding principle is the value we bring as an organization must reflect the interests of the actual employers and employees that put their trust in us.

Employers of other Public Sector (Government, Healthcare, Higher Education, Non Profits and Private K-12) are empowered to create maximum retirement value and education for the employees and participants.  That is how it should be for employees of K-12 Districts … but is unfortunately often it is not the rule.

While we can be grateful there is a growing list of School Districts treating their District 403(b) plans in a responsible manner, the K-12 educator has been historically subjected to 403(b) plans that often are poorly constructed and monitored with significantly reduced value for the participant. Often the major real beneficiary of these poor plans is the local annuity agent and the companies that provide product. Many K-12 403(b) plans have become a refuge for some companies and agents who are able to foist products on educators that no other Public Sector organizations would sanction. 

Certain firms and agents avoid the scrutiny of an RFP and consumer disclosure while plaintively wailing about protecting of “consumer choice.”  The “choice” shibboleth is really a mask that permits pillaging of the educator finances and protecting of commissions or profit streams. They are able to expend significant dollars to protect their self-interest. 

Everyone concurs that lobbying is an appropriate method to communicate ones message and educate various publics.  However, as a Consultant to School Districts in their 403(b) process, I have personally observed what can only be described as disgraceful conduct by some in our industry … even to the extent of legal or other threats by companies and agents if a District attempted to improve the quality of their 403(b) plans. My specific concern, and catalyst for my resignation, is that NTSAA seems to have become enmeshed in accepting the rhetoric of companies and agents. The last few conference calls on 403(b) seemed totally bereft of interest in the consumer and totally focused on creating mechanisms to protect vested interests of companies and agents (OF COURSE). 

It is heartening that in one recent instance, a client District just received a letter from a major company that had been touted as a supporter of past NTSAA LAUSD Task Force.  This company was unequivocal in stating they did not support nor did they fund an action designed to negate the ability of a District to improve the consumer value of their 403(b) plan.  I believe this is a precursor to similar actions by others. With sadness, it is impossible for me to continue to serve on NTSAA Leadership Council and as Vice Chair of the TGCP Credential.  Continuation would be inconsistent with my values and what I believe to the best interest of the educator community and consumer.   

I have great memories of many of the individuals I have met through the years in various Associations.  I am hopeful that we can retain positive personal contact and, with the evolution of time, we may find ways to bond again over common consumer interests.

Our committee Chair George Tischler, followed up with his letter to the state’s Insurance Commissioner.  He asked for a review of the insurance code. He cited these same threats by the insurance companies mentioned by Barbara. Excerpts from his outstanding letter:

• Recently, our committee considered consolidating the number of 403b vendors in our plan to a more manageable number, but was warned by some insurance companies that such actions would be in violation of 770.3 and litigation would likely ensue. As such, we need your guidance and leadership to provide school districts some viable options moving forward.
• Our Committee and LAUSD have developed a very high level of concern that the 770.3 statute, and more specifically the “any willing provider” provision, has tremendous negative implications to LAUSD and our employees, and our efforts to provide effective oversight, management and governance under both state and federal laws.
• LAUSD was trying to conform to the new IRS regulations make it nearly impossible to comply with both 770.3 and the [new] IRS guidelines in an efficient and prudent manner.”(Entire letter is in Appendix).

The state insurance commissioner’s office never responded. Neglected for decades the 403b has been rife with conflicts of interest. Asking our state’s policy makers for “guidance and leadership” for its educators without legislation was identical to a beaten gladiator begging thumbs-down spectators for clemency.

Brian Graff’s Visit

These events turned against the insurance industry—they had to do something. Brian Graff asked George, our committee chair, to make a presentation about a pet venture titled “Project Transparency.” Mr. Graff was the Executive Director and Chief Executive Officer of ASPPA and the leading lobbyist for both ASPPA and its affiliate organization NTSAA. NTSAA’s entire history supports insurance agents selling TSAs to educators and was the nemesis of 403b reform.

Never had our obscure committee caused so much interest. A prominent D.C. lobbyist, who represents thousands of insurance agents, demonstrates the degree to which financial professionals and columnists outside educational institutions are more knowledgeable about the 403b mess than our colleagues. If educators’ unions, who represent thousands of educational employees took similar notice, we could secure the best-in-class plan in the country.

NTSAA was fighting all over the country to uphold insurance industry power over the 403b. They do not want anybody—districts, collective bargaining units, oversight committees, state pension plans—selecting low-cost investment options under any other criteria than maintaining “choice,” the industry-sacred mantra. They twisted the positive “consumer choice” discussion into a negative self-serving rhetoric, which Barbara denounced as a “shibboleth… permits pillaging of educators….” Study after study reported too many choices overwhelms people.

Three primary points of Mr. Graff’s presentation (Entire presentation and discussion is on YouTube):

1. The new transparency rules passed by congress didn’t apply to 403bs or 457bs. Though he claimed his organizations supported transparency in these plans.
2.  Transparency should not come from the “industry” but from committees such as ours in concert with his professional organizations.
3.  Graff repeated, “Clearly and without difficulty, (educators should) understand what they are paying for and how much they are paying.”

Let’s reflect on Mr. Graff’s three primary points:

Point #1:

Graff knows Wall Street, in cahoots with politicians and their never-ending hunger for campaign contributions, will never pass a genuine fiduciary transparency regulation. Wall Street, big banks and insurance companies oppose transparency proposals. Investor-friendly former Chairman of the Securities and Exchange Commission, Arthur Levitt, devoted his entire book on this subject: Take on the Street. He tried to “take on the street” and lost each time. The push back from Wall Street was immediate and massive. Democrats and Republicans fought against Levitt hard on transparency proposals—congress needs Wall Street’s money.

Point #2:

When Graff said “industry” he obviously was not referring to the industry he represents so he must be referring to an “industry” which opposed his interests. TIAA CREF (T/C) was the likely candidate. T/C did things Graff’s people opposed and our committee supported. T/C supported two efforts to reform our state’s 770.3. Their research institute conducted and published studies in the mainstream press showing the multivendor system was costly to educators and support the competitive bid process. T/C has been gaining market share in the PreK-12 marketplace in many states and has partnered with CalSTRS to offer one of the best 403b/457b plans in the country, Pension2. T/C is not-for-profit and has never charged commissions. We support CalSTRS and T/C’s genuine transparency with fiduciary responsibility as modeled in Pension2. Our committee was considering TIAA CREF’s Advisor Services which has a comprehensive Independent Fiduciary Advice Model. Who cares where genuine transparency originates as long as our committee can monitor 100% oversight and support a positive process all the way to each educator.

Point # 3:

a. Does anybody believe each of the four hundred ninety seven insurance agents assigned to LAUSD’s 403b will disclose all costs to teachers? Okay, Mr. Graff, do you mean each insurance agent would have to say something like this?

 “Before you sign this contract, I (insurance agent) have to disclose the 6% commission, 1.25% insurance coverage, 2.0% operating costs and a .25% trailing commission, which pays me every year after that. You cannot withdraw this money for 15 years without a surrender charge. These costs will take about a third to half of your nest egg over the next 30  years. The good news is that you never lose money when the stock market goes down. The bad news is the your money will never keep pace with inflation because you have a contract, not a genuine stock market investment that grows with the economy. My insurance company reserves the right to reduce that one-year-only inflated introductory interest rate and “adjust” it every year at the sole discretion of the company.”

 (“Adjusting” is a euphemistic expression to misinform the client the interest rate will go down).

b. How will Graff’s transparency project get delivered to educators?How will the committee know each agent would be complying with the project?We won’t.Graff’s project was a ruse. Unlike the 457b, when we demanded the VALIC reps disclose costs, our committee has no advisory power to require the hundreds of 403b agents to disclose costs, nor does LAUSD possess the expensive and expansive infrastructure to enforce and monitor any such directive.

After his presentation a discussion ensued where Mr. Graff answered questions about the lobbying effort. He admitted his constituents were alarmed LAUSD was moving to a competitive bidding RFP. He remained adamant that the status quo 403b with multiple vendors with teachers knowing what they are paying was a better plan than the architectural platform of our 457b with low-cost mutual funds. It was a civil but firm polarization. We remained adamant about Graff’s task force’s real purpose of insulting one of the most competent advisory committees in the country by lecturing usabout transparency! You have got to be kidding.

We created and demanded genuine transparency five years ago. Our committee membership was comprised of retired, classroom teachers and support staff representing the collective bargaining units with decision-making power. We represent those who deserve genuine and verifiable transparency and who will pay the costs. Our five-year record of reducing costs and demanding transparency speaks for itself.

While the Chair was introducing the next agenda item, Mr. Graff and a colleague displayed their exasperation by abruptly leaving the meeting.

LAUSD Releases 403b RFP

When LAUSD released the RFP in 2011 the hideous “any willing provider” garbage was kept in place. Graff boasted to his constituents that LAUSD backed down “for now.” His “success” will be short-lived—will ASPPA and NTSSA be on the wrong side of history?

Phil Chiricotti, president of the Center for Due Diligence thinks so when he wrote:

 “Ironically, ASPPA is championing the status quo by continuing to support the use of high-cost individual annuity products when more-competitive investment options are widely available. Given their industry stature and fiduciary support for 401(k) plans, it is contradictory to support the sale of these products to 403(b) participants by advisors who are not licensed to provide participant-level investment advice. In short, ASPPA is on the wrong side of history and the fiduciary debate.”

When professionals threatened legal action to protect their sales commissions and expensive retirement products which emphatically and deliberately keep educators from growing their retirement plans with the economy, keeping pace with inflation, something was wrong.

Winning Bids—the “Envelope Please”

Two ad hoc committees were formed to select the winning bids for each plan. The competition for the lowest bid was wonderful. CalSTRS won the bid with .37% fixed cost via a bidding war with VALIC. (TSA Consulting Group (TSACG) won the 403b. It was the lowest cost too). Our committee voted unanimously to recommend CalSTRS because of the low-cost and their education program. Our employees have a familiar face in CalSTRS with its scheduled pension workshops. It was also a not-for-profit and shared the same philosophy as our committee: no revenue sharing while offering high quality, low-cost investments. It was CalSTRS’s best interest to encourage educators to save in 403b/457b plans with their high-quality Pension2.  This will increase the number of potential retirees to save and thus reduce the pressure on pension systems.

On August 18, 2011, LAUSD Procurement announced the winners of the TPA contracts to the full committee. We were silent for a moment. It was reminiscent of the scene in the splendid HBO series about our 2^nd President “John Adams.” Minutes after the colonial congress delegates approved the Declaration of Independence, they sat eerily silent and motionless for several minutes. While our brave forefathers contemplated being hanged for treason by the powerful British, we were thrilled CalSTRS won the bid.

 George Retires

On October 11, 2011, George Tischler retired. He was a fearless policy maker and will be missed. We need professionals like George and Barbara Healy to stand up for the educators’ best interests. George’s creation of the 457b plan and our committee and Barbara going the extra mile with her resignation letter are examples of purifying a system infected by self-interest. We were lucky George was in the right place at the right time for the 403b reform community. Both knew LAUSD educators were paying too much for annuities—does anything else matter? But why do so few financial consultants understand? Upton Sinclair provides an explanation when he wrote: “It is difficult to get a man [or woman] to understand something, when his salary depends on his not understanding it.”

New Beginning for 457b

During the transition from VALIC to CalSTRS our ad hoc committee made additional fund changes. T/C, the record keeper for CalSTRS, suggested that the transition would be an ideal time to remove the rest of Mercer’s recommended high cost funds. The following Tables illustrate what we did:

Table 1

Removed                                                                    Replaced by

Davis NY Venture                  NYVTX          American Washington Mutual R6:      RWMGX

Janus Perkins                          JMCVX           Vanguard Mid-Cap Value Index:              VMVIX

American Growth Fund          RGAEX          Vanguard Growth Index Signal:              VIGSX

Dreyfus Bond Index               DBMIX           Vanguard Total Bond Index Signal:             VBTSX

Fidelity Spartan 500 Index     FUSEX            Vanguard 500 Index:                                      VIFSX

VALIC Guaranteed Interest                           TIAA-CREF Traditional Annuity RCP (Retirement Choice Plus)

2012

By February 1, 2012 the transition to our new TPAs was completed, but not without an issue. The T/C’s RCP interest rate (aka stable value) decreased from a negotiated 2.6% down to a 2.2% rate creating valid grumbling from committee members (VALIC paid 3.0%).  T/C explained their interest rate decreased because the bond market had been hit hard. VALIC was paying 3% and it dropped as soon as T/C took over. Stable Value rates do fluctuate, but a drop of 3.0 to 2.2 was too significant to ignore. T/C took the heat from the members trying to explain what happened and resorted to defending the product’s long-term performance, stability and competitiveness at low-cost. A majority of 457b participants were in this fund (interest rate recovered to 3.2% by the end of 2013). Never-the-less, their first impression with us was tarnished.

2013

Final Fund Changes

The committee got rid of the last of Mercer’s recommended expensive funds. As shown in Table 2, we removed the T. Rowe Price target retirement funds and replaced them with the Blackrock low-cost, indexed slate of target funds and two Vanguard balanced funds.

Table 2

Removed                                            Replaced by

1. T. Rowe Price Ret 2010                     Vanguard Wellesley Income Admiral
2. T. Rowe Price Ret 2020                     Blackrock Lifepath Index 2020
3. T. Rowe Price Ret 2030                     Blackrock Lifepath Index 2030
4. T. Rowe Price Ret 2040                     Blackrock Lifepath Index 2040

                              Removed                                            Replaced by

1. American Fds (AF) EuroPacific Growth Fund R4   AF Europacific Growth Fund R6
2. AF Fundamental Investors R4                                AF Fundamental Investors R6

(Note: Retained the same fund but at lower cost with no revenue sharing (R4 to R6, see Share Class designations in Chapter 9).

New Funds

1. Blackrock Lifepath Index 2050
2. Vanguard Wellington Admiral*
3. Vanguard Wellesley

*Vanguard Wellington was now available, the fund I requested in 1993.

When the CFO approved these changes, we had a slate of funds we dreamed about for twenty years.

Controlling 403b Solicitation on District Property

The committee’s primary 403b achievement was updating the district policy to control and restrict agents’ physical access to school campuses. Since UTLA ended the “union-approved” vendor in 2008, the district would have to take responsibility.

The Insurance Code allowed districts to impose reasonable rules and regulations upon the use of school buildings or grounds by solicitors of contracts for tax-sheltered annuities. Furthermore, districts may also restrict employees’ rights to entertain such solicitation during duty hours. This was great news—the committee took this on immediately. We updated the policy to make it clear the district was back in charge of its campuses. No 403b solicitation of any kind (no flyers/notices in mailboxes, no posters, no presentations) was allowed on school sites or district offices.

The reason was simple—teachers need to use their free time, before and after school, preparing for lessons. The public education system was under a lot of pressure to improve student achievement. Its teachers will not be interrupted by a volley of annuity agents barraging into classrooms during recess break or extending after school staff meetings into TSA presentations. Let’s not forget—students demand a safe environment from strangers too.

While we were having success with this new policy, some agents are ignoring it. One of our committee members was a literature teacher and was interrupted during recess when an agent walked into his classroom. He asked for the agent’s card, escorted him to the front office and called school police for violating district policy. Chapter Chairs are reporting incidents to their unions and the committee. With each violation, the principal and the chapter chair were notified about the new policy. We have been successful in getting most of the principals, office managers and chapter chairs on board.

The 457b reps are allowed on campuses because it’s the district’s plan under the watchful oversight of our committee and our standards. Our TPA (and the committee consultant) were vetted by competitive bidding and were low cost providing genuine investments—stocks and bonds. Out of the 27 403b options, only three vendors meet these standards: CalSTRS Pension2, TIAA CREF and USAA mutual funds (USAA has no-load mutual funds).

457b LAUSD Total Assets

By the end of 2013 and after eight years, the assets of the 457b plan have grown to $61,383,934 with 3,748 enrolled LAUSD employees. For a huge district with hundreds of millions of potential assets, it’s been slow growth for five reasons:

1. The plan started with ZERO assets.

2. The district has done little over the past 8 years to publicize the 457b.

3. Both VALIC and CalSTRS have not allocated sufficient number of reps.

4. The 497 registered annuity sales personnel will not inform educators about the 457b. Thus, by the sheer overwhelming numbers of agents alone with the Insurance Code protecting their self-interests will out-sell the 457b hands down.

5. Much of the $500,000 allocated for administration by VALIC for the 457b plan was not spent.

The 457b assets have grown about $12 million per year, increasing too slowly, in my opinion. At this writing, CalSTRS has not demonstrated a commitment that they are doing everything they can to grow our 457b plan.

LAUSD 403b Total Assets

The 403b assets and the employee numbers were staggering—$2,099,135,804.89 (over $2 B) with 54,160 current, retired and former LAUSD employees. These numbers were from thousands and thousands of educator-agent relationships over decades. New annuity sales and ongoing contributions total about $100 to $115 million annually.

TSAs have always been aggressively foisted on our teachers 24/7. Much of this money pays for useless insurance, commissions and high annual operating costs. The asset differences between these two plans highlights one significant factor—high cost 403bs are successfully sold while low cost plans cannot compete with the “boots-on-the-ground” aggressive sales tactics.

In order for the 457b plan to compete more reps need to be assigned by the TPA. Districts and unions need to take up the slack left behind by the army of TSA’s agents for publicizing and helping employees save for retirement.

 Summary

Financial author and consultant to workplace retirement plans, Matthew Gnabasik wrote: “A plan sponsor who demands full-fee transparency and understands the implications of revenue sharing is in a powerful position to ratchet down the long-term costs of their company’s retirement plan on behalf of plan participants.” Our committee lowered costs by requiring a fixed TPA fee, getting rid of Mercer’s recommended funds, protecting teachers’ valuable planning time from interrupting TSA agents and discussing the competitive bidding for the 403b.

The last effort was poignant. Financial professionals all across the country listened in on our committee discussions which were so keen they made whales’ listening skills deaf by comparison. We were targeted as a direct threat to the 403b status quo by a D.C. based powerful lobbyist. But their hope to interfere with our competitive bid discussions was literally brought to its knees by two brave forces, AXA and our committee’s financial consultant. The insurance industry had to present something, so they conjured up a counterfeit “transparency” project. What an insulting joke.

LAUSD released their 403b RFP with the “any willing provider” enforced language left intact. In spite of attempts to stop the intrusion to our local control efforts, the industry beat the consumers once again by forcing our state Insurance Commissioner’s plan down our throats. Where else in our free market system does a product, its sales force and the company must be offered with harsh, compulsory laws? And be sued if not offered?

On the 457b side there was good news. Our CFO agreed with our recommendation of CalSTRS as our new TPA replacing VALIC. As CalSTRS’s partner and record keeper, TIAA CREF, our committee collaborated with a team which would grow our 457b plan and perhaps slowly starve the 403b into extinction. This slow extinction was working. The number of active 403b participants has declined while the number 457b participants have increased.

SST, Barbara Healy and George Tischler have been in the reform front for years. They did not have to train our committee to seek 403b reform—some members experienced firsthand the 403b rip-offs. That’s why we chose SST Benefits and CalSTRS.  Barbara Healey and Scotty Dauenhauer were genuine fiduciary consultants for SST and CalSTRS respectively. We have been on the same page all along. Our committee fought for fee transparency and got rid of revenue sharing way back in the Dark Ages of 2006 when Dodd/Frank were still in proposal diapers.

Finally, I am vindicated after getting the “Not Available” notice from LAUSD when I asked for Vanguard Wellington in 1993. Our committee recommended several Vanguard funds, including Wellington, all accepted by our CFO. Our 457b was one of the lowest cost plans in the country because of our persistence and ruthless goal of looking out for our participants’ best’s interests.

 

 

 

 

 

 

 

Chapter 5