IMHO: Crisis of Confidence

I’m old enough to have been a driver (albeit a young one) the last time we had a “real″ gas crisis.

You remember – the one where the issue was not being able to buy gas, not just being able to afford to buy gas?

I can still remember the national sense of frustration when a bunch of crackpots in Iran held 52 Americans hostage for 444 days; the concerns when the USSR, using language startlingly similar to that employed during the recent invasion of Georgia, strolled into Afghanistan—and, yes, I can still remember what a “real’ recession felt like (the one where we actually had a 5% drop in GDP).

I also remember the “response’ of our leaders in Washington at the time. Now, it’s easy to sit on the sidelines and judge those who actually have to make the tough decisions, but I think it’s fair to say that a common sentiment was that we were “getting what we deserved.’ America had too long strutted the world stage imposing its values on others, some said—this was just the ghosts of Vietnam and Watergate coming home to roost. We were told that we were suffering from a crisis of confidence, a “national malaise.’ It was, some said, simply time we, as a nation, learned to make do with less.

Fortunately, IMHO, not everyone accepted that assessment as a foregone conclusion. The turnaround wasn’t overnight, and it wasn’t easy. But it began with a leader who saw America’s best days still ahead, who was willing to call to mind that “shining city on the hill.’ Frankly, it began when people began to believe they could solve the problems confronting them, rather than being victims of circumstance.

Now, I wouldn’t for a moment suggest that the current economy isn’t struggling. Like you, I feel the anger every time I pull up to the pump—that I get excited at the prospect of paying (slightly) less than $4/gallon is troubling, in and of itself. Like yours, no doubt, my 401(k) portfolio has seen (much) better days, and I have every reason to expect that I’ll be paying twice as much to heat my home this winter as I did a year ago.

Unfortunately, it seems that there is today a growing chorus of “it’s all our own fault’ and a willingness, if not an eagerness—at least on the part of some—to once again effectively throw in the towel. Not just on the economy, mind you, or gas prices, but on the employer-sponsored retirement system.

Encouraging Words

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It was encouraging, therefore, to see this week’s report from Fidelity that suggested that deferrals were up, albeit slightly, even while balances were down over the past year. It was even more encouraging that participants who had been deferring into the same plan year over year saw a more significant increase (see “Fidelity Says Participants Saving More’), while statistics on participant loans (down slightly) and hardship withdrawals (up slightly) suggest that participants are, in large part, not only staying the course, but upping their ante.

Our industry has long cautioned against the consequences of not preparing adequately for retirement, but those June 30 participant statements were almost certainly a shock to participants who had been acting on those admonitions. Certainly there were some (perhaps many) who, as the averages in the Fidelity study suggest, saw their entire quarter’s contributions apparently “disappear’ into the ether, swept under by the market’s maelstrom. That will, no doubt, fan concerns about how “safe’ your 401(k) (or 403(b) or 457) plan is.

Without question, changes will be required. The three-legged stool, to the extent it ever existed (see “Saving While You Still Work“) , is a thing of the past for most workers. We may well have to rethink our notion of retirement—though I’m not sure that notion will wind up being much different than the one our parents are already living. And yes, I think the federal government may well be part of the solution—but I don’t think most Americans want government to be THE solution.

The Fidelity survey offers hope—a reassurance that we can make (and are making) a difference; that we don’t necessarily have to lower our expectations of people. We could always do more—and perhaps better—of course. We need to keep exploring the reasons people hesitate to save, or don’t save enough. We need to continue to find solutions, like target-date funds, that make it easy to do the right things when it comes to retirement savings. We need to be willing to be open and honest not only about the goals and risks of these programs, but about their costs. We need to continue to encourage employers of all sizes to remain committed to these programs (see “IMHO: Why Knots“).

And, yes, we need to do all of that with an appreciation of the importance of our mission—and confidence in the abilities of ourselves and our profession to succeed.

GAO Finds Fiduciary Roles Fuzzy

The GAO says plan service providers—including advisers—should better disclose fiduciary and fee agreements.

In a new report, the Government Accountability Office (GAO) reiterated its previous recommendation that Congress amend the Employee Retirement Income Security Act (ERISA) to require 401(k) service providers disclose compensation arrangements and give the Department of Labor (DoL) authority to recover losses against service providers even if they are not considered fiduciaries.

From a survey of subscribers and 2007 PLANSPONSOR Defined Contribution Survey respondents conducted by PLANSPONSOR, which asked sponsors how they select plan features and oversee operations, review industry research, conduct interviews, and review related documents, the GAO found that sponsors face challenges in fulfilling their fiduciary obligations when roles are not clearly defined or when sponsors lack important information about arrangements between service providers. For one, fiduciary roles that are not clearly defined can lead to gaps in plan oversight.

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As an example, GAO said the survey found that several industry professionals noted situations when sponsors assumed they had delegated fiduciary investment advice for the selection and monitoring of investment funds to a service provider, but the service provider did not acknowledge that fiduciary role. Most responding sponsors (349 out of 440) said that a committee of the sponsor was the primary decisionmaker for areas like the investment menu or investment goals, but many indicated they also use the services of an outside investment adviser (308).

The GAO noted that plan sponsors also have a fiduciary obligation when they select and monitor outside service providers. The office said it found that undisclosed business arrangements or conflicts of interest may have resulted in financial harm to some plans.

According to the report, the DoL takes various actions to monitor sponsors’ fiduciary oversight of 401(k) plans and has made some progress on its regulatory initiatives. It investigates reports of questionable 401(k) plan practices, collects information from plan sponsors, and conducts outreach to educate plan sponsors about their responsibilities.

The GAO also noted that the DoL is also pursuing several regulatory initiatives to improve disclosures provided to participants, plan sponsors and fiduciaries, government agencies, and the public, such as the recently issued proposed regulations to specify the information that service providers must disclose to plan sponsors (see EBSA Issues New Participant Disclosure Regulations).

However, the GAO said the DoL’s efforts could be further helped if Congress followed through with the office’s previous recommendations for amending ERISA.

Fiduciary Failures

Some pension professionals told the GAO that investment monitoring efforts generally were of good quality, but certain fund characteristics such as risk, or particular plan sizes such as some small plans, were not always monitored adequately.

The survey found that 339 of 440 sponsors have an Investment Policy Statement (IPS), and 208 of 339 respondents said the sponsor’s committee was the primary decisionmaker for establishing a written IPS. However, the GAO noted that despite the advantages of an IPS, it may present difficulties for certain sponsors, such as greater risks of fiduciary breaches and potential liability if the sponsor does not follow it.

In the survey, 362 of 448 sponsors said they benchmark the investment performance of their 401(k) plans. Of those who do benchmarking, 297 respondents said they benchmark each option to the performance of a peer group as one way of monitoring performance.

However, some pension professionals indicated they are concerned that sponsors may rely on the investment provider or recordkeeper to monitor the funds or that sponsors may defer to the provider about the menu, and thus about fund performance and fees.

If a sponsor relies on the provider for fund monitoring, an objective analysis of the funds may not occur, which could result in a prohibited transaction under certain circumstances. In addition, service providers may shape the menu of investments by limiting the menu largely or entirely to the provider’s own proprietary funds, which tend to have greater profit margins or may not always perform as well as funds offered by other investment providers.

Advisers assisting sponsors may also have incentive to not act in the best interest of participants and affect decisions about the investment menu.

To improve fiduciary oversight in these areas, the GAO noted that the DoL has proposed a rule to require pension plan service contracts to disclose additional information, including the extent to which service providers will become fiduciaries for the functions they will perform (see EBSA Releases Proposed Revisions to Provider Fee Disclosures). “If finalized, compliance with this rule could eliminate some of the confusion surrounding the sharing of fiduciary duties between sponsors and their service providers and help sponsors provide better oversight of plan services,” the GAO said.

The GAO report is available here. The Survey of Plan Sponsor Practices is available here.

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