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 55authorized by this sectionshall 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 contractapplicable to a77participant in the Senior Management Service Optional Annuity78Programshall be contained in a written program description 79 which includesshall includea 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 87Senior Management Service Optional Annuityprogram 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.