Florida Senate - 2009                                    SB 2488
       
       
       
       By Senator Deutch
       
       
       
       
       30-00746A-09                                          20092488__
    1                        A bill to be entitled                      
    2         An act relating to investment products for public
    3         employees; amending ss. 112.215, 121.055, 121.35,
    4         121.4501, 175.071, 185.06, 218.415, and 1012.875,
    5         F.S.; requiring public employee deferred compensation
    6         plans, the state employee Senior Management Service
    7         Optional Annuity Program, the State University
    8         Optional Retirement Program, the Public Employee
    9         Optional Retirement Program, firefighters' pension
   10         plans, police officers retirement trust funds, local
   11         government investment plans, and the State Community
   12         College System Optional Retirement Program to identify
   13         and divest of any scrutinized companies by a certain
   14         date; providing an effective date.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Paragraph (f) is added to subsection (4) of
   19  section 112.215, Florida Statutes, to read:
   20         112.215 Government employees; deferred compensation
   21  program.—
   22         (4)
   23         (f)As provided in s. 215.473, the governing body of each
   24  investment provider participating in an approved deferred
   25  compensation plan shall identify and publicly report any direct
   26  or indirect holdings it may have in any scrutinized company, as
   27  defined in that section, and proceed to sell, redeem, divest, or
   28  withdraw all publicly traded securities it may have in such
   29  company beginning January 1, 2010. The divestiture of any such
   30  security must be completed by March 1, 2010. The governing body
   31  and its named officers or investment advisors may not be deemed
   32  to have breached their fiduciary duty in any action taken to
   33  dispose of any such security, and the investment provider shall
   34  have satisfactorily discharged the fiduciary duties of loyalty,
   35  prudence, and sole and exclusive benefit to employees and their
   36  beneficiaries if the actions it takes are consistent with the
   37  duties imposed by s. 215.473, and the manner of the disposition,
   38  if any, is reasonable as to the means chosen. For the purposes
   39  of effecting compliance with that section, the Chief Financial
   40  Officer shall designate terror-free plans that allocate their
   41  funds among securities not subject to divestiture. No person may
   42  bring any civil, criminal, or administrative action against an
   43  investment provider or any employee, officer, director, or
   44  trustee of such provider based upon the divestiture of any
   45  security pursuant to this paragraph.
   46         Section 2. Paragraph (f) of subsection (6) of section
   47  121.055, Florida Statutes, is amended to read:
   48         121.055 Senior Management Service Class.—There is hereby
   49  established a separate class of membership within the Florida
   50  Retirement System to be known as the “Senior Management Service
   51  Class,” which shall become effective February 1, 1987.
   52         (6)
   53         (f) Administration.—
   54         1. The Senior Management Service Optional Annuity Program
   55  authorized by this section shall be administered by the
   56  department. The department shall designate one or more provider
   57  companies from which annuity contracts may be purchased under
   58  the program and shall approve the form and content of the
   59  contracts. The department shall sign a contract with each of the
   60  provider companies and shall evaluate the performance of the
   61  provider companies on a continuing basis. The department may
   62  terminate the services of a provider company for reasons stated
   63  in the contract. The department shall adopt rules establishing
   64  its responsibilities and the responsibilities of employers in
   65  administering the optional annuity program.
   66         2. Effective July 1, 1997, the State Board of
   67  Administration shall review and make recommendations to the
   68  department on the acceptability of all investment products
   69  proposed by provider companies of the optional annuity program
   70  before such products are offered through annuity contracts to
   71  the participants and may advise the department of any changes
   72  deemed necessary to ensure that the optional annuity program
   73  offers an acceptable mix of investment products. The department
   74  shall make the final determination as to whether an investment
   75  product will be approved for the program.
   76         3. The provisions of each contract applicable to a
   77  participant in the Senior Management Service Optional Annuity
   78  Program shall be contained in a written program description
   79  which includes shall include a report of pertinent financial and
   80  actuarial information on the solvency and actuarial soundness of
   81  the program and the benefits applicable to the participant. Such
   82  description shall be furnished by the company or companies to
   83  each participant in the program and to the department upon
   84  commencement of participation in the program and annually
   85  thereafter.
   86         4. The department shall ensure that each participant in the
   87  Senior Management Service Optional Annuity program is provided
   88  an accounting of the total contribution and the annual
   89  contribution made by and on behalf of such participants.
   90         5.As provided in s. 215.473, the governing body of each
   91  provider company shall identify and publicly report any direct
   92  or indirect holdings it may have in any scrutinized company, as
   93  defined in that section, and proceed to sell, redeem, divest, or
   94  withdraw all publicly traded securities it may have in such
   95  company beginning January 1, 2010. The divestiture of any such
   96  security must be completed by March 1, 2010. The governing body
   97  and its named officers or investment advisors may not be deemed
   98  to have breached their fiduciary duty in any action taken to
   99  dispose of any such security, and the approved provider shall
  100  have satisfactorily discharged the fiduciary duties of loyalty,
  101  prudence, and sole and exclusive benefit to participating
  102  employees and their beneficiaries if the actions it takes are
  103  consistent with the duties imposed by s. 215.473, and the manner
  104  of the disposition, if any, is reasonable as to the means
  105  chosen. For the purposes of effecting compliance with that
  106  section, the department shall designate terror-free plans that
  107  allocate their funds among securities not subject to
  108  divestiture. No person may bring any civil, criminal, or
  109  administrative action against a provider company or any
  110  employee, officer, director, or trustee of such provider based
  111  upon the divestiture of any security pursuant to this paragraph.
  112         Section 3. Paragraph (f) is added to subsection (6) of
  113  section 121.35, Florida Statutes, to read:
  114         121.35 Optional retirement program for the State University
  115  System.—
  116         (6) ADMINISTRATION OF PROGRAM.—
  117         (f)As provided in s. 215.473, the governing body of each
  118  provider company shall identify and publicly report any direct
  119  or indirect holdings it may have in any scrutinized company, as
  120  defined in that section, and proceed to sell, redeem, divest, or
  121  withdraw all publicly traded securities it may have in such
  122  company beginning January 1, 2010. The divestiture of any such
  123  security must be completed by March 1, 2010. The governing body
  124  and its named officers or investment advisors may not be deemed
  125  to have breached their fiduciary duty in any action taken to
  126  dispose of any such security, and the approved provider shall
  127  have satisfactorily discharged the fiduciary duties of loyalty,
  128  prudence, and sole and exclusive benefit to program participants
  129  and their beneficiaries if the actions it takes are consistent
  130  with the duties imposed by s. 215.473, and the manner of the
  131  disposition, if any, is reasonable as to the means chosen. For
  132  the purposes of effecting compliance with that section, the
  133  department shall designate terror-free plans that allocate their
  134  funds among securities not subject to divestiture. No person may
  135  bring any civil, criminal, or administrative action against a
  136  provider company or any employee, officer, director, or trustee
  137  of such provider based upon the divestiture of any security
  138  pursuant to this paragraph.
  139         Section 4. Present paragraphs (d), (e), and (f) of
  140  subsection (9) of section 121.4501, Florida Statutes, are
  141  redesignated as paragraphs (e), (f), and (g), respectively, and
  142  a new paragraph (d) is added to that subsection, to read:
  143         121.4501 Public Employee Optional Retirement Program.—
  144         (9) INVESTMENT OPTIONS OR PRODUCTS; PERFORMANCE REVIEW.—
  145         (d)As provided in s. 215.473, the governing body of each
  146  approved provider shall identify and publicly report any direct
  147  or indirect holdings it may have in any scrutinized company, as
  148  defined in that section, and proceed to sell, redeem, divest, or
  149  withdraw all publicly traded securities it may have in such
  150  company beginning January 1, 2010. The divestiture of any such
  151  security must be completed by March 1, 2010. The governing body
  152  and its named officers or investment advisors may not be deemed
  153  to have breached their fiduciary duty in any action taken to
  154  dispose of any such security, and the approved provider shall
  155  have satisfactorily discharged the fiduciary duties of loyalty,
  156  prudence, and sole and exclusive benefit to program participants
  157  and their beneficiaries if the actions it takes are consistent
  158  with the duties imposed by s. 215.473, and the manner of the
  159  disposition, if any, is reasonable as to the means chosen. For
  160  the purposes of effecting compliance with that section, the
  161  state board shall designate terror-free plans that allocate
  162  their funds among securities not subject to divestiture. No
  163  person may bring any civil, criminal, or administrative action
  164  against an approved provider or any employee, officer, director,
  165  or trustee of such provider based upon the divestiture of any
  166  security pursuant to this paragraph.
  167         Section 5. Paragraph (f) is added to subsection (1) of
  168  section 175.071, Florida Statutes, to read:
  169         175.071 General powers and duties of board of trustees.—For
  170  any municipality, special fire control district, chapter plan,
  171  local law municipality, local law special fire control district,
  172  or local law plan under this chapter:
  173         (1) The board of trustees may:
  174         (f)Notwithstanding paragraph (b) and as provided in s.
  175  215.473, identify and publicly report any direct or indirect
  176  holdings it may have in any scrutinized company, as defined in
  177  that section, and proceed to sell, redeem, divest, or withdraw
  178  all publicly traded securities it may have in such company
  179  beginning January 1, 2010. The divestiture of any such security
  180  must be completed by March 1, 2010. The board and its named
  181  officers or investment advisors may not be deemed to have
  182  breached their fiduciary duty in any action taken to dispose of
  183  any such security, and the board shall have satisfactorily
  184  discharged the fiduciary duties of loyalty, prudence, and sole
  185  and exclusive benefit to the participants of the pension fund
  186  and their beneficiaries if the actions it takes are consistent
  187  with the duties imposed by s. 215.473, and the manner of the
  188  disposition, if any, is reasonable as to the means chosen. For
  189  the purposes of effecting compliance with that section, the
  190  pension fund shall designate terror-free plans that allocate
  191  their funds among securities not subject to divestiture. No
  192  person may bring any civil, criminal, or administrative action
  193  against the board of trustees or any employee, officer,
  194  director, or advisor of such pension fund based upon the
  195  divestiture of any security pursuant to this paragraph.
  196         Section 6. Paragraph (g) is added to subsection (1) of
  197  section 185.06, Florida Statutes, to read:
  198         185.06 General powers and duties of board of trustees.—For
  199  any municipality, chapter plan, local law municipality, or local
  200  law plan under this chapter:
  201         (1) The board of trustees may:
  202         (g)Notwithstanding paragraph (b) and as provided in s.
  203  215.473, identify and publicly report any direct or indirect
  204  holdings it may have in any scrutinized company, as defined in
  205  that section, and proceed to sell, redeem, divest, or withdraw
  206  all publicly traded securities it may have in such company
  207  beginning January 1, 2010. The divestiture of any such security
  208  must be completed by March 1, 2010. The board and its named
  209  officers or investment advisors may not be deemed to have
  210  breached their fiduciary duty in any action taken to dispose of
  211  any such security, and the board shall have satisfactorily
  212  discharged the fiduciary duties of loyalty, prudence, and sole
  213  and exclusive benefit to the participants of the pension fund
  214  and their beneficiaries if the actions it takes are consistent
  215  with the duties imposed by s. 215.473, and the manner of the
  216  disposition, if any, is reasonable as to the means chosen. For
  217  the purposes of effecting compliance with that section, the
  218  pension fund shall designate terror-free plans that allocate
  219  their funds among securities not subject to divestiture. No
  220  person may bring any civil, criminal, or administrative action
  221  against the board of trustees or any employee, officer,
  222  director, or advisor of such pension fund based upon the
  223  divestiture of any security pursuant to this paragraph.
  224         Section 7. Subsection (19) of section 218.415, Florida
  225  Statutes, is amended to read:
  226         218.415 Local government investment policies.—Investment
  227  activity by a unit of local government must be consistent with a
  228  written investment plan adopted by the governing body, or in the
  229  absence of the existence of a governing body, the respective
  230  principal officer of the unit of local government and maintained
  231  by the unit of local government or, in the alternative, such
  232  activity must be conducted in accordance with subsection (17).
  233  Any such unit of local government shall have an investment
  234  policy for any public funds in excess of the amounts needed to
  235  meet current expenses as provided in subsections (1)-(16), or
  236  shall meet the alternative investment guidelines contained in
  237  subsection (17). Such policies shall be structured to place the
  238  highest priority on the safety of principal and liquidity of
  239  funds. The optimization of investment returns shall be secondary
  240  to the requirements for safety and liquidity. Each unit of local
  241  government shall adopt policies that are commensurate with the
  242  nature and size of the public funds within its custody.
  243         (19) SALE OF SECURITIES.—
  244         (a) When the invested funds are needed in whole or in part
  245  for the purposes originally intended or for more optimal
  246  investments, the unit of local government's governing body may
  247  sell such investments at the then-prevailing market price and
  248  place the proceeds into the proper account or fund of the unit
  249  of local government.
  250         (b)Notwithstanding subsections (16) and (17) and as
  251  provided in s. 215.473, the local government shall identify and
  252  publicly report any direct or indirect holdings it may have in
  253  any scrutinized company, as defined in that section, and proceed
  254  to sell, redeem, divest, or withdraw all publicly traded
  255  securities it may have in such company beginning January 1,
  256  2010. The divestiture of any such security must be completed by
  257  March 1, 2010. The governing body and its named officers or
  258  investment advisors may not be deemed to have breached their
  259  fiduciary duty in any action taken to dispose of any such
  260  security, and the local government shall have satisfactorily
  261  discharged the fiduciary duties of loyalty, prudence, and sole
  262  and exclusive benefit to the local government and the public if
  263  the actions it takes are consistent with the duties imposed by
  264  s. 215.473, and the manner of the disposition, if any, is
  265  reasonable as to the means chosen. For the purposes of effecting
  266  compliance with that section, the local government shall
  267  designate terror-free plans that allocate their funds among
  268  securities not subject to divestiture. No person may bring any
  269  civil, criminal, or administrative action against a local
  270  government or any employee, officer, director, or advisor of
  271  such government based upon the divestiture of any security
  272  pursuant to this paragraph.
  273         Section 8. Paragraph (f) is added to subsection (6) of
  274  section 1012.875, Florida Statutes, to read:
  275         1012.875 State Community College System Optional Retirement
  276  Program.—Each community college may implement an optional
  277  retirement program, if such program is established therefor
  278  pursuant to s. 1001.64(20), under which annuity or other
  279  contracts providing retirement and death benefits may be
  280  purchased by, and on behalf of, eligible employees who
  281  participate in the program, in accordance with s. 403(b) of the
  282  Internal Revenue Code. Except as otherwise provided herein, this
  283  retirement program, which shall be known as the State Community
  284  College System Optional Retirement Program, may be implemented
  285  and administered only by an individual community college or by a
  286  consortium of community colleges.
  287         (6)
  288         (f)As provided in s. 215.473, the governing body of each
  289  provider company shall identify and publicly report any direct
  290  or indirect holdings it may have in any scrutinized company, as
  291  defined in that section, and proceed to sell, redeem, divest, or
  292  withdraw all publicly traded securities it may have in such
  293  company beginning January 1, 2010. The divestiture of any such
  294  security must be completed by March 1, 2010. The governing body
  295  and its named officers or investment advisors may not be deemed
  296  to have breached their fiduciary duty in any action taken to
  297  dispose of any such security, and the approved provider shall
  298  have satisfactorily discharged the fiduciary duties of loyalty,
  299  prudence, and sole and exclusive benefit to program participants
  300  and their beneficiaries if the actions it takes are consistent
  301  with the duties imposed by s. 215.473, and the manner of the
  302  disposition, if any, is reasonable as to the means chosen. For
  303  the purposes of effecting compliance with that section, the
  304  program administrator shall designate terror-free plans that
  305  allocate their funds among securities not subject to
  306  divestiture. No person may bring any civil, criminal, or
  307  administrative action against a provider company or any
  308  employee, officer, director, or trustee of such provider based
  309  upon the divestiture of any security pursuant to this paragraph.
  310         Section 9. This act shall take effect July 1, 2009.