BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1052


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1052 (Cooley)


          As Amended  August 17, 2015


          Majority vote


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          |ASSEMBLY:  | 77-0 | (May 7, 2015) |SENATE: |38-0  | (August 27,     |
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          Original Committee Reference:  P.E., R., & S.S.


          SUMMARY:  Allows the California Public Employees' Retirement  
          System (CalPERS) and the California State Teachers' Retirement  
          System (CalSTRS) to enter into contracts for investment related  
          services under the terms and conditions established by their  
          respective boards and consistent with their fiduciary duties  
          rather than under the state contracting requirements.   
          Specifically, this bill:  


          1)Provides that, notwithstanding any other law pertaining to  
            state contracting, CalSTRS and CalPERS, in exercising their  
            constitutional discretion to invest fund assets, may contract  
            for services under terms and conditions and utilizing the  
            processes the boards deem necessary and consistent with their  
            fiduciary duties.


          2)Requires the processes utilized by CalSTRS and CalPERS to be  








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            competitive except when allowed under existing law through  
            specific exemptions in the Public Contract Code (e.g., for an  
            emergency contract), as specified.


          3)Provides an exemption for CalSTRS to the requirement that the  
            contract process be competitive when there is an existing  
            contractual relationship with an investment manager that had  
            previously qualified as an emerging investment manager, as  
            defined by the board.  The bill requires that CalSTRS monitor  
            and assess contractors under this exemption in accordance with  
            all other provisions governing investment managers generally  
            and consistent with the board's fiduciary duties.


          4)Authorizes the CalPERS board to enter into agreements,  
            contracts, or other arrangements for the providing of trade  
            order management services under the terms and conditions the  
            board deems necessary and consistent with its fiduciary  
            duties.  In selecting an individual or outside firm for trade  
            order management services, the processes utilized by the board  
            shall be competitive, as specified.


          The Senate amendments:


          1)Require the contract process utilized by CalPERS and CalSTRS  
            to be competitive, as specified.


          2)Create an exemption for CalSTRS from the requirement that the  
            contract process be competitive for emerging investment  
            managers, as specified.


          3)Specifically authorize the CalPERS board to contract for trade  
            order management services under the terms and conditions  
            deemed necessary by the board, as specified.


          4)Make other technical and clarifying changes.








                                                                    AB 1052


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          EXISTING LAW:  


          1)Provides, as established by The California Pension Protection  
            Act of 1992 (Proposition 162) which amended State Constitution  
            Article XVI, Section 17, that the retirement board of a public  
            pension or retirement system has plenary authority and  
            fiduciary responsibility for investment of monies and  
            administration of the system.


          2)Requires, based on provisions in the California Constitution,  
            that services provided by state agencies generally be  
            performed by state civil service employees.


          3)Restricts under state law, but does not prohibit, private  
            contracting by public agencies.  Public agencies are  
            authorized to engage in private contracting in various  
            instances, as specified.


          FISCAL EFFECT:  Unknown.  This bill is keyed non-fiscal by the  
          Legislative Counsel. 


          COMMENTS:  Most of California's state agencies, including  
          CalSTRS and CalPERS, must abide by state contracting  
          requirements.  In recognition of the unique nature of the  
          services required of certain government agencies, often out of  
          the need for expediency, the Legislature has granted specific  
          exemptions from state competitive bidding requirements.  For  
          example, the California Housing Finance Agency and the  
          California Health Benefit Exchange Board have been granted  
          blanket exemptions.  In addition, CalPERS is exempt from  
          competitive bidding requirements when contracting with health  
          plans and long-term care insurance plans.  General exemptions  
          also apply for any state agency when obtaining expert witnesses,  
          or for contracts for legal defense, legal advice or legal  
          services or the development, maintenance, administration or use  








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          of licensing or proficiency testing examinations.


          According to CalSTRS, "The overall purpose of the competitive  
          bidding requirements set forth in the Public Contract Code is to  
          stimulate competition conducive to sound fiscal practices;  
          protect the public from the misuse of public funds; and guard  
          against favoritism, fraud and corruption.  As fiduciaries, the  
          CalSTRS and CalPERS boards are bound by standards set forth in  
          the California State Constitution and federal law to invest plan  
          assets in a manner that is solely in the interest of members and  
          beneficiaries.  These strict standards require fiduciaries to  
          discharge duties with care, skill, prudence and diligence at a  
          level that goes beyond the goals of competitive bidding  
          requirements.


          "In addition to competitive bidding, state law requires that  
          contractors certify compliance with a myriad of  
          California-specific statutes and regulations, some of which  
          require certification prior to even being considered.  Many of  
          these certifications are entirely inapplicable to the highly  
          specialized nature of investment management.  As a result, firms  
          that desire to compete for a contract must allocate the  
          necessary time and resources to decipher contract laws when  
          their expertise is and should be more centered on the management  
          of investments.


          "As a consequence, oftentimes smaller emerging manager firms  
          that do not employ the extensive marketing staff of larger firms  
          cannot afford to allocate critical investment staff capacity to  
          compete for these contracts.  These disincentives to compete  
          reduce the universe of potential manager firms with which to  
          contract.  This can prevent CalSTRS and CalPERS from being able  
          to invest timely in certain hard-to-reach sectors of the  
          marketplace, thus resulting in opportunity costs to the funds."


          The author states, "Consistent with existing authority set forth  
          in the California State Constitution, AB 1052 authorizes the  
          CalSTRS and CalPERS boards to set the terms and conditions for  








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          procuring investment management services, thus eliminating the  
          opportunity costs that result in a diminished universe of  
          potential investment manager firms and from delays in the timely  
          funding of asset allocation strategies.  This authorization will  
          enhance the boards' ability to secure the best value for members  
          and beneficiaries and successfully fulfill their fiduciary  
          obligations."


          Analysis Prepared by:                                             
                          Karon Green / P.E.,R., & S.S. / (916) 319-3957    
                                                                    FN:  
          0001355