A week from today the nation will celebrate Independence Day—though of course independence didn’t actually occur on July 4.
Let’s face it, the Declaration of Independence[i]
was little more than that—a declaration. One that had yet to be backed
by anything beyond the artfully crafted and narrow consensus of a
handful of delegates appointed by a wide variety of means and
mechanisms, with correspondingly disparate levels of responsibility and
accountability for their alignment with the principles outlined in that
document.
As practically meaningless as that declaration might have been, we
commemorate and celebrate those actions because, eventually, events
transpired that made those aspirations a reality. But it came only after
years of hard-fought fighting, and while we don’t often talk about
this, it ultimately divided the nation between those who wanted to be
free from what they viewed as tyranny—and those who viewed those actions
and aspirations as nothing less than treason.
That said, the deliberations that produced that declaration are in
many ways emblematic for how groups—including retirement plan
committees—move forward—though it’s important to keep these things in
mind:
Inertia is a powerful force.
By the time the Second Continental Congress convened, the “shot heard
round the world” had already been fired at Lexington, but many of the
representatives in Philadelphia still held out hope for some kind of
peaceful reconciliation. Little wonder that, even in the midst of
hostilities, there was a strong inclination on the part of several key
individuals to put things back the way they had been, to patch them
over, rather than to take on the world’s most accomplished military
force (not to mention putting their own lives and fortunes at risk).
Indeed, as human beings we are largely predisposed to leave things
the way they are, rather than making abrupt and dramatic change. Whether
this “inertia” comes from a fear of the unknown, a certain laziness
about the extra work that might be required, or a fear that advocating
change suggests an admission that there was something “wrong” before, it
seems fair to say that plan fiduciaries are, generally speaking, and in
the absence of a compelling reason for change, inclined to rationalize
staying put.
Little wonder that we often see new fund options added, while old and
unsatisfactory funds linger on the plan menu, a general hesitation to
undertake an evaluation of long-standing providers in the absence of
severe service problems, and a reluctance to adopt potentially
disruptive (and, admittedly, sometimes expensive) plan features like
automatic enrollment, deferral acceleration, or more recently—retirement
income.
While many of the delegates to the Constitutional Convention were
restricted by the entities that appointed them in terms of how they
could vote on the issues presented, plan fiduciaries are bound by a
higher obligation—that their decisions be made solely in the best
interests of plan participants and their beneficiaries—regardless of any
other organizational or personal obligations they may have outside
their committee role.
Consensus can be hard to achieve.
The Second Continental Congress was comprised of representatives from
what amounted to 13 different governments, with delegates selected by
processes ranging from extralegal conventions, ad hoc committees, to
elected assemblies—with varying degrees of voting authority granted to
them, to boot. Needless to say, that made reaching consensus even more
complicated than under “ordinary” circumstances.
Today the process of putting together an investment or plan committee
runs the gamut—everything from simply extrapolating roles from an
organization chart to a random assortment of individuals to a thoughtful
consideration of individuals and their qualifications to act as a plan
fiduciary. But if you want a good result, you need to have the right
individuals—and they should be aligned around a singular
purpose—decisions made with the exclusive purpose of the best interests
of plan participants and beneficiaries.
It’s important to put it in writing.
Before the delegates at the Second Continental Congress were united
in purpose, there was a sense by those favoring independence that
putting those thoughts in writing would help crystalize, as well as
formalize, that proposition. And while the Declaration of Independence
technically had no legal effect, putting that declaration—and the
sentiments expressed—in writing gave it a force and influence far beyond
its original purpose. It also provided a focus for the debate and
discussion of those delegates—and an opportunity to tweak and shape
those thoughts to be in alignment with the whole group.
There is an old ERISA adage that says, “Prudence is process.”
However, an updated version of that adage might be “prudence is
process—but only if you can prove it.” To that end, a written record of
the activities of plan committee(s) is an essential ingredient not only
in validating the results, but also the thought process behind those
deliberations (not to mention that there WAS a thought process behind
those deliberations). More significantly, those minutes can provide
committee members—both past and future—with a sense of the environment
at the time decisions were made, the alternatives presented and the
rationale offered for each, as well as what those decisions were.
Those might not serve to inspire future generations—but they can be
an invaluable tool in (re)assessing those decisions at the appropriate
time(s) in the future and making adjustments as warranted—properly
documented, of course.
You can delegate authority—but not responsibility.
When it came to drafting the declaration itself, there was an
acknowledgement that some delegates were better writers than others. But
while the primary responsibility for the draft fell to Thomas
Jefferson, he was teamed with several other key individuals to help
assure that the draft took into account the sensibilities of the entire
delegation—and even then, when presented there were additional edits.
Ultimately, however, the responsibility for the declaration fell to
all the delegates. As Ben Franklin is said to have commented just before
signing the Declaration, “We must, indeed, all hang together, or most
assuredly we shall all hang separately.”
It’s not quite that serious for ERISA plan fiduciaries. However,
there is the matter of personal liability—not only for your actions, but
for those of your fellow fiduciaries—and thus, you might be required to
restore any losses to the plan or to restore any profits gained through
improper use of plan assets. So, it’s a good idea not only to know who
your co-fiduciaries are—but to keep an eye on what they do, and are not
only permitted, but expected, to do.
Actions can speak louder than words.
As dramatic and inspiring as the words of the Declaration of
Independence surely were (and are), if they never got beyond the
document in which they appeared, it’s unlikely we’d be talking about
them today. Indeed, it’s likely that, without the actions committed to
in that Declaration, their signatures on the document would have only
ensured that they wound up on the gallows, rather than the history
books.
Anyone who has ever had a grand idea shackled to the deliberations of
a moribund committee, or who has had to kowtow to the sensibilities of a
recalcitrant compliance department, can empathize with the process that
ultimately produced the Declaration of Independence we’ll commemorate
next week.
Yes, Independence Day is a great opportunity to reflect and recall
that our actions have consequence(s)—and that while plan committee
meetings and deliberations may sometimes seem like little more than
obligatory (and tedious) reviews of arcane information, it’s worth
remembering that those decisions affect people’s lives—and, ultimately,
their financial independence.
- Nevin E. Adams, JD
[i]
Ironically, despite the celebrations on the 4th, the resolution that
declared that “these United Colonies are, and of right, ought to be,
Free and Independent States” was approved by the Continental Congress on
July 2. In fact, only President of Congress John Hancock and Charles
Thomson, secretary, signed it on the 4th (the former famously in a hand
“large enough for King George to read without his spectacles”). Most of
the 56 delegates didn’t sign it for another month. One didn’t sign until
1781.