In addition to properly identifying your retirement plan fiduciaries, and substituting a knowledgeable administrative committee in place of your governing board or council, California local agencies also need to consider whether the meetings of their administrative committee are subject to the Ralph M. Brown Act – California’s open meeting law.
We work with a number of California public agencies and their retirement plans, and have had to consider this issue on numerous occasions. As many of our clients and their advisors know, the purpose of the Act is to ensure that the meetings of California local governments are open and public. For these reasons, the coverage of the Act is interpreted very broadly and exemptions from coverage of the Act are few and far between. If certain meetings are subject to the Act, they must comply with the notice, agenda, and public participation requirements of the Act, or face serious sanctions – including criminal enforcement and possible invalidation. When application of the Act is not clear, most attorneys assume that it applies to be safe.
If the consequences of violating the Act are potentially so serious, why not simply comply – as many of our clients do – if you are in doubt as to the application of the law?
There are at least two good reasons why you would want to avoid application of the Act. First, the duties and responsibilities of most retirement plan administrative committees are administrative and operational in nature – that is why they are called “plan administrators.” Looking at issues that must be dealt with by plan administrators (i.e., determining eligibility, handling claims for benefits, working with and supervising recordkeepers and consultants, interpreting plan provisions, communicating with plan participants, overseeing plan investments and/or plan investment menus, etc.), one can appreciate the ever-changing range of issues that could come up before the committee and the need for the flexibility to deal with spur-of-the-moment issues. Second, most of the administrative committees that we work with and help to structure are comprised of senior management (e.g., finance director, human resources director, city manager, etc.). As such, they function as staff and deal with plan administration issues in the same way as they would deal with payroll issues, IT issues, or insurance issues. These are employees of the agency, not elected members of the governing body or a body appointed to advise that governing body. If your plan administrative committee currently complies with the Brown Act, but you feel that the Act’s rules and requirements may unnecessarily hinder the functioning and effectiveness of your plan administrator, you should talk with legal counsel about how you can structure or restructure your committee to exempt it from the Act. We believe that there are a number of ways to accomplish this in most cases.
Jeff Chang is a partner at Best Best & Krieger LLP. He has four decades of experience skillfully evaluating benefit and retirement plan compliance to achieve maximum outcomes for public agency clients throughout California. He can be reached at jeff.chang@bbklaw.com or (916) 329-3685.
