Speech by SEC Staff:
Conflicts of Interest in Pension Consulting: An Update on the SEC’s Examinations
Director, Office of Compliance Inspections and Examinations
U.S. Securities and Exchange Commission
14th Annual Public Fund Boards Forum
San Francisco, California
December 5, 2005
As a matter of policy, the SEC disclaims responsibility for any private statement by an employee. The speaker’s views are her own, and do not necessarily reflect those of the Commission, the Commissioners, or other members of the staff.
Good morning, I’m so pleased to be here. At the SEC, our primary mission is to protect investors and maintain the integrity of the securities markets. As more and more first-time investors turn to the markets to help secure their futures, pay for homes, send children to college, and pay for their retirement, these goals are more compelling than ever. Of course, many Americans are indirect investors in our markets as participants in employer pension plans.
Today, I wanted to talk with you about our work at the SEC concerning “pension consultants”-- a topic of interest to many of you as you may rely on the expertise and guidance of a pension consultant in helping you to manage your pension plan’s investments. Pension consultants help pension plans and their trustees navigate amongst the many money managers available, help them to identify and select among investment styles and options, and help to monitor their money managers on an ongoing basis. I hope that the information I provide to you today will help you as you evaluate whether to use a pension consultant, or evaluate your current pension consulting relationship.
I. Background: Pension Consulting
The business of pension consulting is growing. According to a study I saw earlier this year, almost 83% of large public/government plans utilize a consultant.1 And, as of October 31, 2005, there were more than 1,800 SEC-registered investment advisers who indicate that they provide pension consulting services! These firms vary widely. Some are small one-person operations, while others are large organizations employing hundreds of staff. Some may be independent, “pure-play” firms that only provide pension consulting, and others may have started as pension consultants, but then added additional business operations such as brokerage and money management. Finally, some firms may have begun life as another type of business, like a broker-dealer, and then added pension consulting to their menu of services.
Whatever their size or type, here’s an important fact that applies to all of the pension consulting firms that are registered as investment advisers with the SEC they all owe their advisory clients a fiduciary duty. What does this mean? Simply put, it means that, if you are a client, the adviser must act in your best interests. The adviser must provide disinterested advice, and must disclose material facts to you.2 The Supreme Court has said that an adviser owes its clients a duty of “utmost good faith, and full and fair disclosure of all material facts” as well as an affirmative obligation “to employ reasonable care to avoid misleading clients.”3
With respect to disclosure, investment advisers are expected to inform you of any material conflicts of interest, and also to make disclosure that is specific to you as the client. As clients or prospective clients of a pension consultant, you should have information about the pension consultant’s conflicts of interest in order to assess the objectivity of the advice that is or may be provided by the pension consultant.
II. The SEC Staff’s Report and “Tips” for Plan Representatives
With that background, let me tell you about our recent examinations. About two years ago, the SEC initiated a review of pension consultants. Questions had long been raised in the press and elsewhere about the independence of the advice that pension consultants provide, in light of the fact that many pension consulting firms provide services both to pension plans who are their advisory clients and to money managers. Questions had been raised about whether this duality in many pension consultants’ customer base could cloud the objectivity of a pension consultant’s recommendations to advisory clients. Questions had also been raised regarding the extent to which pension consultants disclosed these conflicts of interest to their clients.
To explore these questions, SEC examiners conducted focused examinations of 24 pension consultants of varying types and sizes. We released a summary of what we found in these examinations last May, and the report (“Staff Report Concerning Examinations of Select Pension Consultants,” May 16, 2005) is on the SEC’s website at http://www.sec.gov/news/studies/pensionexamstudy.pdf. I won’t detail all of its findings here this morning, but I will summarize several:
- We found that more than half of the pension consultants or their affiliates (13) provided products and services to both pension plan advisory clients and to money managers and mutual funds on an ongoing basis, and others (6) had limited or one-time relationships with money managers.
- A majority of the pension consultants (14, or 58%) also had affiliated broker-dealers or relationships with unaffiliated broker-dealers, allowing the pension consultant to obtain payment for its services with brokerage “commission recapture” programs. These arrangements raised many issues, including the extent to which plan assets may not receive “best execution” because their trades are directed to the broker that provides these rebates. We were also concerned that, by paying for the consultant’s fees with the plan’s brokerage, plans could overpay for the pension consultant’s services because the directed brokerage arrangements may not be capped to terminate when fees due a pension consultant have been paid in full. Also, we were concerned that these arrangements may provide an incentive for a pension consultant to recommend an active trading strategy, because the pension consultant or its affiliated broker may receive more money in commission payments. Finally, these relationships with broker-dealers could also provide a mechanism for money managers to compensate pension consultants, perhaps as a way to curry favor with the pension consultant.
- We also found that many pension consultants have affiliates that also provide services to pension plan clients. For example, not all pension consultants disclosed that its employees (who were registered representatives of a broker-dealer) may receive compensation based on the volume of securities transactions executed by the client. In addition, we also found that pension consultants were recommending that their clients utilize an affiliate of the pension consultant to provide various services.
- We also looked at disclosure of these various conflicts of interest, and found that several pension consultants provided no disclosure of these other services, and most provided limited disclosure. Most of the disclosure that we saw did not clearly indicate that providing products/services to money managers may create a conflict of interest for the consultant, or it was not specific enough for a reasonable person to discern the potential harm of the conflict of interest.
- A surprising finding was that many pension consultants did not consider themselves to be fiduciaries to their clients. It appears that they may not have been aware of their fiduciary obligations under the Advisers Act.
- Finally, we found that many pension consultants did not maintain compliance policies and procedures that were tailored to the nature of their business. Specifically, many consultants did not maintain procedures concerning how they prevent or manage conflicts of interest in their activities or governing disclosure of conflicts to clients.
Overall, the Report emphasized the need for pension consultants to do more to identify conflicts of interest in their advisory relationships and to take additional steps to eliminate or mitigate, manage and disclose those conflicts. We recommended that consultants enhance their compliance efforts to include those policies and procedures that would ensure that the adviser is fulfilling its fiduciary obligations to its advisory clients.
Just as importantly, we also concluded that pension consultant clients plan trustees could take steps to be better informed about possible conflicts of interest when deciding whether to hire or retain a consultant. It’s not easy to ask the hard questions. Our investor education staff at the SEC tell me that their #1 advice to investors is – ask the tough questions! To assist you, as clients of pension consultants, the SEC, together with the Department of Labor, developed a set of questions that plan fiduciaries could ask in order to evaluate the objectivity of the recommendations provided, or to be provided, by a pension consultant. This guidance is called “Selecting and Monitoring Pension Consultants: Tips for Plan Fiduciaries.” Again, I won’t detail all of these questions, as they are available on the SEC and on the DOL websites at: http://www.sec.gov/investor/pubs/sponsortips.htm and http://www.dol.gov/ebsa/fiduciaryeducation.html. Some of the key questions include:
- Do you or a related company have relationships with money managers that you recommend, consider for recommendation, or otherwise mention to the plan for our consideration? If so, describe those relationships.
- Do you or a related company receive any payments from money managers you recommend, consider for recommendation, or otherwise mention to the plan for our consideration? If so, what is the extent of these payments in relation to your other income (revenue)?
- Do you have any policies or procedures to address conflicts of interest or to prevent these payments or relationships from being considered when you provide advice to your clients?
- If you allow plans to pay your consulting fees using the plan’s brokerage commissions, do you monitor the amount of commissions paid and alert plans when consulting fees have been paid in full? If not, how can a plan make sure it does not over-pay its consulting fees?
- If you allow plans to pay your consulting fees using the plan’s brokerage commissions, what steps do you take to ensure that the plan receives best execution for its securities trades?
- Do you have any arrangements with broker-dealers under which you or a related company will benefit if money managers place trades for their clients with such broker-dealers?
- If you are hired, will you acknowledge in writing that you have a fiduciary obligation as an investment adviser to the plan while providing the consulting services we are seeking?
- What percentage of your plan clients utilize money managers, investment funds, brokerage services or other service providers from whom you receive fees?
I understand that these questions may be difficult to ask – they are quite blunt. But I also know that plan representatives are asking them. Let me tell you about a recent experience last summer, I got a call from a plan trustee who had read about conflicts of interest in the pension consulting business and was concerned about the advice that his plan was receiving from a consultant. I faxed him these “Tips” – and some weeks later he called me back to say that his entire board had used the document not only to frame an RFP, but also to frame discussion items for an existing pension consultant. He told me that the board made some tough calls based on the information they received. If you are a trustee to a plan that utilizes a pension consultant, or if you are evaluating a new consultant, I urge you to be informed consumers on behalf of the plans you serve – and I think that you too will find this document to be quite helpful.
Since we issued our examination Report and the “Tips for Plan Fiduciaries” in May, we’ve sought to determine how pension consultants were reacting to the recommendations in the Report we wanted to see what steps they had taken to address the conflicts of interest and the disclosure issues we had raised. We asked a number of the firms we had examined what steps they were taking in response to the Report.
In general, we found that most pension consulting firms we examined have taken positive steps to reevaluate, revise, and implement changes to their policies and procedures. Some caveats we could not look exhaustively at all pension consultants (in fact we looked at a very small number of firms relative to those in business today), we did not test their procedures, and what we are seeing now we consider to be early signs of change. That is, we expect that all pension consultants will continue to address conflicts of interest and disclosure issues on an ongoing basis – and we hope that their clients – you – will demand uncompromised and independent investment advice. In addition, as investment advisers, pension consultants must comply with the new “Compliance Rule” that requires them to have ongoing compliance programs, ongoing monitoring of their effectiveness, and a designated Chief Compliance Officer.4
Here’s what many pension consultants said that they were doing in light of our three recommendations, which were:
- To insulate the consultant’s advisory activities from its other business activities to eliminate or mitigate conflicts of interest;
- To disclose all conflicts of interest to prospective and existing clients to fulfill fiduciary duties; and
- To implement policies and procedures to prevent conflicts of interest or disclose material conflicts of interest, especially concerning brokerage, gifts, donations, contributions and other financial benefits.
A. Insulating Advisory Activities
With respect to the first recommendation that pension consultants consider policies and procedures to insulate their advisory activities from other activities we noted in our Report that policies and procedures in this area would govern the process used to identify, recommend, and monitor money managers or mutual funds for an advisory client in ways that would prevent consideration of a money manager’s or mutual fund’s other business relationships with the consultant or its affiliates from entering into the recommendation. In other words – procedures to ensure unbiased advice.
In considering this recommendation, many pension consultants looked at the nature of their various activities, and considered policies that would insulate their pension consulting activities from other activities of the firm, including for example, creating separate reporting lines and firewalls between employees that perform these separate functions, and considering employee compensation and incentives. Here are examples of how some pension consulting firms have chosen to insulate the advisory business from other, potential conflicting, lines of business:
- A number of firms have implemented structural changes, created firewalls or separated business units through different means. For example:
- A firm amended its Code of Ethics to implement firewall procedures designed to prevent the sharing of client information across divisions and with affiliates. The firewalls prevent the manager research analysts from having access to data showing the consultant’s business with money managers. Advisory clients may request financial information related to these business relationships from a designated person in a different department of the firm.
- A firm made organizational changes in order to separate its consulting and asset management divisions. While previously one person had headed both units, the firm decided that the units should be run by two different people, and has now instituted that change.
- One consultant sold its interest in an affiliate that provided analytical services to money managers, and another discontinued providing performance measurement services to money managers.
- Several consultants ceased their affiliation with broker-dealers and others closed their broker-dealer subsidiaries.
- Another consultant has a firewall between employees of the adviser and other affiliates, which permits only one officer of the adviser to communicate with affiliated companies. Advisory employees are also physically separated from staff in other functional areas.
- A firm implemented computer-based firewalls that limit access to information to employees only within the particular division or business and unit. The firm also tests the firewall controls and provides for the monthly review of access to the networks.
- A firm operates its consulting and advisory businesses as separate profit centers. Analysts who research and recommend money managers are not aware of the firm’s other business relationships with money managers, and their compensation is based on the quality of their research.
- One firm established dedicated compliance and risk management teams in each of its main business groups. In addition, one firm contracted with a third party service provider to assist it in developing a risk management function to review all areas of the firm’s business and identify conflicts of interest to permit those conflicts to be eliminated, mitigated or disclosed.
B. Disclosing Conflicts
With respect to the second recommendation that pension consultants ensure that all disclosures are provided, particularly with respect to conflicts of interest most consultants have updated their policies and procedures to improve their disclosure of material conflicts of interest to pension plan clients and potential clients. For example:
- All consultants use Part II of Form ADV or a separate brochure to disclose conflicts of interest, and most strengthened their disclosures.
- In addition to Form ADV, several consultants also provide clients with a separate conflict of interest document that includes discussions about the consultant’s business relationships with money managers and how the consultant manages potential conflicts.
- A consultant provides specific disclosure to individual clients about conflicts it has with particular money managers it recommends to its clients.
- A consultant adopted new procedures under which advisory clients can request specific financial information related to the consultant’s business relationships with individual managers.
- Some consultants advised that they have distributed their own responses to the SEC Staff Report and the DOL/SEC “Tips” to individual clients.
C. Implementing Policies and Procedures
In this area, pension consultants considered their policies and procedures to prevent conflicts of interest with respect to brokerage commissions, gifts, gratuities, entertainment, contributions, donations and other emoluments provided to clients or received by money managers. Once again, I am encouraged that many pension consultants appear to have moved quickly to implement changes to their policies and procedures. Here are some examples:
- As noted above, some consultants have ended their affiliations with broker-dealers.
- One firm amended its Code of Ethics to better address gifts, entertainment, events and charitable contributions. The policy is detailed and provides guidelines and restrictions as to which employees are allowed to give and receive gifts.
- Another firm’s Code of Ethics provides that no supervised person may give or receive any gift, service, or other thing of more than $100 from anyone doing business with the consultant.
- Other consultants strengthened their policies by setting forth the maximum value of gifts that an employee could receive and, to ensure compliance, they imposed or better defined the requirements for employees to report the gift. These maximum amounts range from $30 up to $300.
On a less encouraging note, it did not appear to us that all pension consultants had implemented policies governing the payment of their fees with directed brokerage. And, more than a handful of consultants failed to offer to provide a copy of the firm’s Code of Ethics to clients in Part II of Form ADV, as required. Plan trustees may find that reviewing a pension consultant’s Code of Ethics may help in answering some of the questions outlined in the SEC/DOL “Tips for Plan Fiduciaries.”
* * * * *
Overall, in my view, we’re seeing indications of positive responses from pension consultants when it comes to identifying, disclosing, or curtailing conflicts of interest in the advice that they provide to pension plan clients. Indeed, many pension consultants recognize that their credibility with their clients depends on making honest assessments of any conflicts of interest, taking steps to address and mitigate conflicts, and making clear disclosures to their clients. As their clients and potential clients, you play a key role here I hope that you will ensure that you receive clear disclosure of these issues to understand conflicts of interest when you are selecting and evaluating a pension consultant.
I thank you for your attention this morning, and for the opportunity to outline our work at the SEC on this issue.
1 Nelson/Thomson Financial 2005 Pension Fund Consultant Survey.
2 See, In the Matter of Arleen W. Hughes, Exchange Act Release No. 4048 (February 18, 1948) (adviser has “an affirmative obligation to disclose all material facts to her clients in a manner which is clear enough so that a client is fully apprised of the facts and is in a position to give his informed consent. And this disclosure, if it is to be meaningful and effective, must be timely. It must be provided before the completion of the transaction so that the client will know all the facts at the time that he is asked to give his consent.”). See also, In the Matter of Feeley and Wilcox Asset Management Corp., Advisers Act Release No. 2143 (July 10, 2003) (“A loyal investment adviser must give disinterested advice. But … an adviser who has a pecuniary interest in a client’s transaction other than the agreed fee cannot give disinterested advice. The adviser must disclose that interest to clients or be liable under the antifraud provisions … of the Advisers Act”).
3 S.E.C. v. Capital Gains Research Bureau, Inc., 375 U.S. 180, at 191-192 (1963). The Investment Advisers Act of 1940 “reflects a congressional recognition of the delicate fiduciary nature of an investment advisory relationship, as well as a congressional intent to eliminate, or at to least expose, all conflicts of interest which might incline an investment adviser consciously or unconsciously to render advice which was not disinterested.” Id. (quoting Louis Loss, Securities Regulation (2d ed.1961)). The Court noted the Commission’s concern, whenever advice to a client might result in financial benefit to the adviser – other than the adviser’s fee – that advice may in some way be tinged with that pecuniary interest, whether consciously or subconsciously motivated.
4 Rule 206(4)-7 under the Investment Advisers Act.