Nevin E. Adams, JD
Most of the debate about the fiduciary regulation has been focused on the cost of bad advice. But there’s another side to the issue.
Years ago, as a plan fiduciary of another firm’s 401(k) plan, I pressed to hire an independent investment advisor, one who, early on, had positioned himself as an ERISA fiduciary. I had always felt comfortable with the decisions the plan committee had made, but as our little company grew to be less little, I was increasingly aware of the personal liability associated with my role, and the small amount of time I was able to dedicate to the task alongside my “day job.”
However, one of the things I hadn’t given much thought to was how much it would cost. And, honestly, when I got the quote — we were a small plan, after all, and there was a minimum fee associated with the advisor/firm I had selected — well, I wasn’t sure my boss, the CEO, would approve it.
In fact, most of the attempts to affix a value to having an advisor tend to focus on investment returns or cost savings. Both are valid, objective measures that can have a real, substantive impact on retirement security.
But I’d have to say that I felt that some of the best value we got from that advisor brought to our plan were things I hadn’t even been thinking about, including the following five elements.
The Discipline to Meet
Internally driven committee meetings are frequently a casualty of whatever crisis emerges on any particular day. As human beings we are wont either to assume that nothing will happen unless we are present, or that because others will be there, our voice isn’t required.
Having a committee and not having committee meetings is potentially worse than not having a committee at all. In the latter case, at least ostensibly you know who is supposed to be making the decisions. But if there is a group charged with overseeing the activities of the plan, and that group doesn’t meet, then one might well assume that the plan is not being properly managed, or that the plan’s activities and providers are not prudently managed and monitored, as the law requires.
However, the presence of an outside advisor helps bring a seriousness to the gathering and the agenda.
The Discipline to Educate
Individuals are chosen to be on these committees for a variety of reasons, some better (and some much better) than others. But the first thing our advisor did at that first committee meeting was to acquaint the members with what was expected of them. That included the requirement to act solely in the interests of plan participants and beneficiaries, the importance of process (and documenting that process), and the implications of the prudent expert rule. It also included reminders that by being on this committee they were a fiduciary under ERISA, that that brought with it personal liability (and, in our case, how the company had chosen to insure them), and that each of us was responsible for the actions of other plan fiduciaries.
Sure, I could have delivered all those messages – but it meant a lot more coming from that external, expert resource.
The Discipline to Establish an Investment Policy Statement
While I have known attorneys who have counseled against having a written investment policy statement (IPS), I can’t recall a plan advisor of my acquaintance who wouldn’t insist on it (I may now hear from some, of course). ERISA doesn’t require one — and some lawyers see it as a smoking gun (if you don’t follow its terms), but in that it establishes investment guidelines for the plan, plan fiduciaries, and plan advisors in particular, will generally find it easier to conduct the plan’s investment business in accordance with a set of established, prudent standards if those standards are in writing. Much better to do so objectively in the cold, clear light of day, rather than in the throes of tumultuous market (or plan) conditions.
In sum, you want an IPS in place before you need an IPS in place — and any advisor worth their salt will demand that as a starting point.
The Discipline to Remove Funds
As human beings we are largely predisposed to leaving things the way they are, rather than making abrupt and dramatic change. Whether this “inertia” comes from a fear of the unknown, a certain laziness about the extra work that might be required, or a sense that advocating change suggests an admission that there was something “wrong” before, it seems fair to say that plan fiduciaries are, in the absence of a compelling reason for change, inclined to rationalize staying put.
As a consequence, you see new fund options added, while old and unsatisfactory funds linger on the plan menu, a general reluctance to undertake an evaluation of long-standing providers in the absence of severe service issues, and an overall inertia when it comes to adopting potentially disruptive plan features like automatic enrollment or deferral acceleration.
Whether or not the plan has an official IPS, plan fiduciaries are expected to conduct a review of the plan’s investment options as though they do. Sooner or later, that review will turn up a fund (or two) that no longer meets the criteria established for the plan. Oh, and make no mistake — there will be someone with money in that fund, maybe even a senior executive.
Rational thought reminds us that leaving an inappropriate fund on the plan menu — and allowing participants to invest in it — is a bad thing. But human beings, including those who serve on plan committees, have a hard time walking away from a “bad” investment.
The Discipline to Document
I’ve heard it said that when it comes to ERISA, “prudence is process — but only if you can prove it.” To that end, a written record of the activities of the plan committee(s) is an essential ingredient in validating not only the results, but also the thought process behind those deliberations.
But as anyone who has ever participated in a group meeting of any kind knows, it’s hard to fully participate while taking notes. And sometimes those notes don’t make sense by the time you get around to writing them up. An advisor can help with that – and that matters because those minutes can provide committee members (both past and future) with a sense of the environment at the time decisions were made, the alternatives presented, and the rationale offered for each, as well as what those decisions were. They also can be an invaluable tool in reassessing those decisions at the appropriate time.
The current emphasis on fees and plan costs, while important, brings to mind a quote by Oscar Wilde, who once famously described a cynic as someone “who knows the price of everything and the value of nothing.”
As you can tell, my boss not only approved hiring the external advisor, he did so without argument. He even embraced the notion of the company paying for that service, rather than the plan. We received a ton of value from that relationship over the years (it’s still in place there, even though I’ve moved on).
At the outset, I don’t think even I appreciated the value we would receive — but I sure slept better at night as a result.