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SB-783 Public employee pension funds: divestment proposals: review.(2017-2018)

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Date Published: 06/15/2018 04:00 AM
SB783:v97#DOCUMENT

Amended  IN  Assembly  June 14, 2018
Amended  IN  Assembly  May 17, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 783


Introduced by Senator Pan

February 17, 2017


An act to add Section 7514.8 to the Government Code, relating to pension fund divestments, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


SB 783, as amended, Pan. Public employee pension funds: divestment proposals: review.
The California Constitution grants the retirement board of a public employee retirement system plenary authority and fiduciary responsibility for investment of moneys and administration of the retirement fund and system. The California Constitution qualifies this grant of powers by reserving to the Legislature the authority to prohibit investments if it is in the public interest and the prohibition satisfies standards of fiduciary care and loyalty required of a retirement board. Existing law prohibits the boards of administration of the Public Employees’ Retirement System and State Teachers’ Retirement System from making investments in certain countries and in thermal coal companies, as specified, subject to the boards’ plenary authority and fiduciary responsibility for investment of moneys and administration of their respective systems.
This bill would create the Commission on Pension Investment, Divestment, and Engagement in the Controller’s office and prescribe its composition. request the University of California to establish the Pension Divestment Review Program to assess divestment proposals. The bill would require the commission program to assess, upon the request of specified parties, a divestment proposal and to prepare a written analysis with relevant data on the effects of the proposal on employee pension funds and public policy, as prescribed. The bill would define a divestment proposal as a bill or constitutional amendment, introduced or amended in the Legislature, that would require the Public Employees’ Retirement Fund or the Teachers’ Retirement Fund to divest assets or restrict the fund from investing based on specific criteria or by reference to an external benchmark. The bill would require the commission program to use the services of a certified actuary or other person with relevant knowledge and expertise to determine the financial impact of a proposal proposal, as specified, and would authorize the commission to collaborate with the University of California in this process, as specified. experts in the public pension fund investment profession.
The bill would authorize the chairperson Chairperson of the Assembly Committee on Public Employees, Retirement, and Social Security, the chairperson Chairperson of the Senate Committee on Public Employment and Retirement, the Speaker of the Assembly, or the President pro Tempore of the Senate to request assessment of a divestment proposal and would require the requesting party to forward the proposal to the commission. program. Not later than 60 days after receiving a request, the bill would require the commission program to provide its analysis to the appropriate policy and fiscal committees of the Legislature. The bill would require the commission’s program’s analysis to be made publicly available. The bill would create the Divestment Proposal Research Fund, Pension Divestment Review Program the moneys in which, upon appropriation by the Legislature, would be available to support the work of the commission. program. The bill would appropriate $2,000,000 from the General Fund for support of the commission program for the 2018–19 fiscal year. The bill would require the commission program to submit a report to the Governor and the Legislature on or before January 1, 2020, regarding the implementation of these provisions.
Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The intent of the Legislature in enacting this act is all of the following:
(a) To promote the stability and security of public employee pension funds while addressing the public’s interest in ensuring that public funds do not support enterprises that fund or underwrite activities inimical to the health and welfare of Californians or to the principles of liberal democracy that form the core of California’s societal values.
(b) To provide a logical process in determining how best to balance the Legislature’s constitutional right in extraordinary circumstances to reasonably restrict certain investments made by public employee pension funds with the constitutional mandate that public pension boards, acting as fiduciaries to their plan members and beneficiaries, maintain exclusive and plenary authority to invest pension plan assets.
(c) To establish a dispassionate, analytical method using clear criteria for evaluating each legislative proposal to divest or restrict pension fund investments for the proposal’s effectiveness, both in terms of cost and in achieving the proposal’s intended policy objective, in order that the Governor and the Legislature receive current, accurate data and information when considering the proposal.
(d) That the Commission on Pension Investment, Divestment, and Engagement established Pension Divestment Review Program authorized by this act create a written analysis, including supporting expert data, of the policy efficacy and cost-effectiveness of each legislative proposal for the divestment or restriction of pension fund investments that shall be available to the public.

SEC. 2.

 The Legislature finds and declares the following:
(a) An ever increasing number of proposals seek to require or pressure public employee pension funds to divest from or restrict specified investments.
(b) While motivated by important public policy purposes, divestment proposals are often in conflict with the fundamental public policy purpose of a public employee pension fund, which is to maximize returns to fund investments in order to ensure that moneys are available to pay the deferred compensation earned by public employees over the course of their service to California and, thereby, reduce the overall cost to the taxpayer of providing the employees’ vested rights to a secure pension.
(c) Divestment proposals can often result in increased costs and reduced returns to a public employee pension fund that then cause increases in employer contribution rates, possible increases in employee contribution rates, and possible pressure to increase employee compensation.
(d) Divestment proposals may not effectively achieve their intended policy goals when investments are liquid and assets are traded on global markets. If one investor divests from an asset, another may simply purchase those assets, perhaps at a discount, and with no expectation that the asset or investment modifies the offending activity that prompted the divestment initiative.
(e) Divestment proposals are a costly and often ineffective method of conveying California’s concerns about public policy. In contrast, pension fund engagement strategies by which pension fund trustees or their representatives exercise the fund’s ownership qualities over its investments and conduct meetings with asset managers, including executive managers and boards of public corporations and private companies, are effective tools to influence policy while remaining consistent with the fiduciary duties inherent in administering a public employee pension fund. reduce economic and political risk to the fund.
(f) In When determining the appropriate balance between exercising the Legislature’s constitutional authority to restrict certain pension fund investments and a public employee pension board’s constitutional authority to invest pension assets, the Legislature may opt to give greater weight may be given to targeted, well-crafted divestment proposals when public employee pension funds are substantially overfunded. However, when the funds face significant unfunded actuarial liabilities, the Legislature should give greater weight must be given to maximizing investment return. return in order to ensure the public policy purpose of funding public employee retirement benefits.
(g) Therefore, a pension divestment proposal should only be adopted considered if:
(1) The proposal’s policy objective is a critical priority of the Legislature and the Governor.
(2) Other alternatives for achieving the policy goals of the proposal, such as engagement strategies or regulatory action, have failed.
(3) The Legislature and the Governor are fully aware of the costs of imposing the divestment proposal.
(4) The proposal does not cause the public employee pension board trustees to violate their fiduciary duties.

SEC. 3.

 Section 7514.8 is added to the Government Code, to read:

7514.8.
 (a) For the purpose of this section:

(1)“Commission” means the Commission on Pension Investment, Divestment, and Engagement.

(2)

(1) “Divestment proposal” means a bill or constitutional amendment, introduced or amended in the Legislature, that would require a public employee pension fund to divest assets or restrict the fund from investing based on specific criteria or by reference to an external benchmark.

(3)

(2) “Public employee pension fund” means the Public Employees’ Retirement Fund described in Section 20062 of this code or the Teachers’ Retirement Fund described in Section 22167 of the Education Code.
(3) “The Pension Divestment Review Program” or “program” means a program established by the University of California, at the request of the Legislature, to assess divestment proposals.

(b)There is hereby created in the Controller’s office the Commission on Pension Investment, Divestment, and Engagement. The commission shall be composed of the following commissioners:

(1)An investment portfolio manager. The manager shall be chosen, in even numbered years, by the chief investment officer of the Public Employees’ Retirement System and, in odd numbered years, by the chief investment officer of the State Teachers’ Retirement System.

(2)The Director of Finance.

(3)The Legislative Analyst.

(4)An actuary chosen by the California Actuarial Advisory Panel created pursuant to Section 7507.2.

(5)A person chosen by the chairperson of the Assembly Committee on Public Employees, Retirement, and Social Security and the chairperson of the Senate Committee on Public Employment and Retirement.

(b) The Legislature hereby requests the University of California to establish the Pension Divestment Review Program to assess divestment proposals. If the University of California establishes the program, the program shall comply with this section.
(c) In response to a request made pursuant When requested by the Legislature pursuant to subdivision (e), the commission shall program shall assess any a divestment proposal and prepare a written analysis with relevant data on the following with respect to that proposal:
(1) Public The following employee pension fund effects, including, but not limited to, all of the following: effects:
(A) The effect on the expected return on investment to the fund’s portfolio, including the probability of ongoing gains or losses resulting from the divestment mandate or investment prohibition.
(B) The impact on the funded status of the pension fund.
(C) The consequence to employer and employee contribution rates.
(D) The administrative costs on the pension system to analyze, report, and implement the divestment proposal.
(E) Whether the divestment proposal would have de minimis impact on the fund’s portfolio.
(F) Whether the divestment proposal would, taken cumulatively with other divestment proposals, have significant impact on the fund’s portfolio.
(2) Public The following policy effects, including, but not limited to, all of the following: effects:
(A) The probability that the divestment proposal will achieve its goal as described in the proposal and as advocated by its proponents in letters of support or testimony before legislative committees.
(B) The priority established by the Legislature or the Governor for implementing the divestment proposal.
(C) Whether other forms of policy measures have been attempted to achieve the policy goals as defined in the proposal and as advocated by its proponents in letters of support or testimony before legislative committees and the results of these other measures.
(D) The ability of other investors to undermine the divestment proposal by supplanting the public employee pension fund’s divestment or curtailment of investment.
(E) The probability that, if successfully implemented, the divestment proposal would garner substantial support from a significant number of other large institutional investors, as measured by their decisions to also divest.
(F) The size and substance of the support of, or opposition to, the divestment proposal by members and beneficiaries of the public employee retirement fund.
(d) In assessing and preparing a written analysis of the financial impact of a divestment proposal, the commission shall use program shall do all of the following:
(1) Use the services of a certified actuary or other person with relevant knowledge and expertise to determine the financial impact. Additionally, the commission may collaborate impact, as recommended by the California Actuarial Advisory Panel.
(2) Collaborate with the University of California, to the extent the University of California is willing to undertake such collaboration, to make use of the experts in the public pension fund investment profession.
(3) Use the university’s resources that specialize in providing objective financial and policy analysis of complicated legislative mandates to the Legislature, including the California Health Benefit Review Program. policy and economic issues.
(e) A request to the commission program to assess a divestment proposal may be made by the chairperson Chairperson of the Assembly Committee on Public Employees, Retirement, and Social Security, the chairperson of the Senate Committee on Public Employment and Retirement, the Speaker of the Assembly, or the President pro Tempore of the Senate. The requesting party shall forward the proposal to the commission. program.
(f) Not later than 60 days after receiving a request, the commission program shall provide its analysis to the appropriate policy and fiscal committees of the Legislature. The commission’s program’s analysis shall be made publicly available.
(g) The Divestment Proposal Research Pension Divestment Review Program Fund is hereby established in the State Treasury. The moneys in the fund, upon appropriation by the Legislature, shall be available to support the commission program in implementing this section.
(h) There is hereby appropriated from the General Fund two million dollars ($2,000,000) to the Divestment Proposal Research Pension Divestment Review Program Fund for the 2018–19 fiscal year for the purposes of this section. It is the intent of the Legislature that future appropriations for purposes of this section shall be part of the annual Budget Act.
(i) (1) The commission program shall submit a report to the Governor and the Legislature on or before January 1, 2020, regarding the implementation of this section.
(2) The report required by this subdivision shall be provided in conformance with Section 9795.
(j) Nothing in this section, nor in any assessment or analysis by the commission, program, shall require a pension fund to take any action that unless the respective pension fund’s board finds inconsistent that the action is consistent with its fiduciary responsibilities, as described in Section 17 of Article XVI of the California Constitution.