Governmental Plans
Texas and Maine Approaches to Fossil Fuel Divestment a Cautionary Tale for Investment Managers
State and local governmental plans, which are excluded from ERISA, are subject to idiosyncratic legal requirements, including specific investment restrictions. These plans are also not immune to the political winds blowing in that state. Nowhere is this more apparent than recent developments out of the States of Texas and Maine with respect to fossil fuel divestment. Investment managers of any governmental plan, especially those that take environmental, social and governance (ESG) factors into account, should pay close attention to these developments. Private equity and other fund managers, for the reasons stated below, should also take note.
Texas
On June 14, 2021, Texas Governor Greg Abbott signed into law SB 13. This new law, which goes into effect on September 1, 2021, generally prohibits state governmental entities, including the Employees Retirement System of Texas and the Teacher Retirement System of Texas, from directly or indirectly holding the securities of a publicly-traded financial services, banking or investment company that “boycotts” companies that (i) explore, produce, utilize, transport, sell or manufacture fossil fuel-based energy and (ii) do not “commit or pledge to meet environmental standards beyond applicable federal and state law….” The concept of “boycott” is not limited to divestment; rather, it picks up activity that is designed to inflict economic harm on the energy company. The exercise of certain shareholder rights could possibly amount to a “boycott” of a company.
The law also generally prohibits governmental entities from contracting with a service provider unless the contract provides a written verification from the service provider that it does not boycott energy companies and will not boycott energy companies during the term of the contract. This applies to contracts entered into on or after September 1, 2021.
Fiduciaries of these Texas governmental plans remain subject to countervailing fiduciary duties under Texas law, including the Texas Constitution. The new law crucially allows for breathing space between these core fiduciary duties and the state’s interest in protecting significant portions of its economy.
The law provides that these governmental entities are not required to divest from any holdings in “actively or passively managed investment funds or private equity funds.” However, the governmental entities are required to submit letters to the managers of these funds requesting that they remove from the portfolio financial companies that the state comptroller has designated as boycotting energy companies. The Texas governmental entities will alternatively request that the managers “create a similar actively or passively managed fund with indirect holdings devoid of listed financial companies.” Investment managers should be on the lookout for these letters starting this coming Fall.
Maine
Meanwhile, in Maine, the House of Representatives recently passed a bill that calls for the divestment of fossil fuel companies by the Maine Public Employees Retirement System (Maine PERS) and other permanent state funds by 2026. As with Texas, the law is sensitive to the overriding fiduciary duties that apply to the management of these assets. An official for Maine PERS recently testified that, “[p]ermanently striking broad portions of the financial market is incompatible with earning optimal returns for member retirements, will not change corporate behavior, and may not advance the social goals sought because investments are rarely one dimensional.”
Takeaways
Governmental plans invested in separate accounts or commingled funds managed by an investment manager have always posed risks to that manager, as these plans are subject to their own fiduciary duties and investment restrictions. Though the state laws applicable to governmental plans may contain ERISA-like language, we caution investment managers from relying on ERISA or DOL guidance as a failsafe way to manage governmental plan assets. As evidenced from the disparate approaches the States of Texas and Maine have taken, investment managers should pay close attention to the specific rules applicable to these plans to avoid running afoul of state law. With the calls for fossil fuel divestment growing louder in some quarters, and as other ESG issues come to the fore, careful due diligence on the part of investment managers is essential.
Please contact George Michael Gerstein to discuss these matters or other due diligence issues related to governmental plans.
ESG and fiduciary duty risk at center stage for governmental plans
Governmental plans largely operate at the behest of their respective state legislature. It is, therefore, unsurprising that state governmental plans will take disparate approaches to ESG. Interestingly, various plans have pushed back against new legislation that requires a certain action be taken, as the case with Maine. Further complicating the analysis are state constitutional provisions that impose broad fiduciary duties, similar to those in ERISA.
Reuters 
It’s true, ESG is a ‘compliance minefield’
Sometimes, our friends in the press come up with a headline that simply cannot be topped. Yesterday, Ignites published an article called, “Going Green: Shops Work to Navigate ESG Compliance Minefield.” The article opens appropriately, noting that while ESG funds “may be all the rage with investors […] shops that fail to think carefully about their investment methodologies and related disclosures could end up in the SEC’s hot seat.” Indeed, though, the SEC is certainly not the only regulator to keep a close eye on ESG products and mandates. In the United States, the Department of Labor also has ESG on its radar. ESG is also a hot topic for numerous regulators and legislatures globally. What are some of they important compliance challenges?
- Are fund descriptions, registration statements and disclosures accurate? If ESG factors are considered as part of the fund’s strategy, do such documents reflect that reality correctly?
- If the firm has publicly committed to engage in certain conduct (e.g., shareholder engagement, etc.) by reason of membership in a particular group or alliance (e.g., UN PRI, Climate Action 100+, etc.), is the firm following through on its promises?
- Are global legal developments considered, recognizing that Europe, North America and Asia are at different stages of ESG statutory and regulatory promulgation?
- Have proxy voting policies been considered in light of SEC and DOL guidance?
- Does the investment management agreement explicitly require (or prohibit) the investment manager to vote proxies or exercise other shareholder rights on behalf of an ERISA plan?
- Are the investment manager and asset owner on the same page in terms of which ESG strategy will be pursued?
- Does the investment policy statement or investment guidelines specify which E, S or G factor is part of the investment mandate?
- Has the investment manager considered potential conflicts of interest of proxy adviser firms?
- If the client is a governmental plan, has the investment manager diligenced the applicable state statutes and constitutional provisions to confirm that implementation of the mandate complies with applicable law?
- Is disclosure in due diligence questionnaires accurate and factually supportable?
Bipastisan bill introduced to block TSP investment in China
Good example of where governmental plans can present unique issues relative to ERISA plans. Prohibitions against select jurisdictions found in various statutes/regs applicable to governmental plans. There could be ultra vires transaction if fiduciary unaware. @pensionsnews https://t.co/0YF3aXFrIP
— Fiduciary Governance Group (@FidGovGroup) November 6, 2019
What is the FX Global Code?
Foreign exchange (FX) is one of the most obscure asset classes for ERISA and governmental plans (as well as other institutional investors). The FX Global Code is an important development. The FX Global Code is a set of good practice principles for both buy-side and sell-side participants. It is also voluntary in nature. So, why should plan fiduciaries be aware of it? First, plan fiduciaries that invest in international securities will most likely hedge their exposure to that local currency. So while FX is rarely used as a source of alpha for plans, it is often used defensively. Second, FX is the largest market but probably the least understood. It’s long been obscure, I think. So what are some of the key principles?
(A) a clear understanding of whether a market participant acts as a principal or agent in executing a transaction;
(B) a need to handle orders with fairness and transparency, which includes making clear whether the prices quoted are firm or indicative, time stamping policy, etc.;
(C) pre-hedging as a principal only and in a manner that does not disadvantage the customer;
(D) understanding how reference prices are established;
(E) whether a markup is fair and reasonable (e.g., how much is the spread?); and
(F) having an effective compliance framework governing FX activities, including processes designed to identify and eliminate abusive or manipulative practices, escalation procedures once issues are identified, etc.
Not all of the principles in the Code apply equally to participants, but they do reflect a consensus (for the most part). A plan investment committee may wish to ask its investment managers whether it’s a signatory to the FX Global Code and how they intend to comply with it, and whether those managers will engage dealers on applicable principles.
CalPERS/CalSTRS enter into settlement over alleged bad investments
Los Angeles Times