by Carolyn Welch Clifford
The consolidation of downstate police and fire pension fund investment assets continues in earnest. Recently, the Firefighter Pension Investment Fund of Illinois (“FPIF”) started the first wave of transfers from firefighters’ pension funds on October 1, 2021, despite pending litigation. Meanwhile, the Illinois Police Officer Pension Investment Fund (“IPOPIF”) continued to hire professional consultants and advisors but has yet to announce a plan or timeframe for Article 3 investment asset transfer. Here’s what else is new:
Notices of Assumption of Fiduciary Control of Pension Assets by FPIF
Late June 2021 proved to be pivotal month for consolidation. On June 25, 2021, FPIF launched its “Notices of Assumption of Fiduciary Control of Pension Assets of FPIF” to all Article 4 funds. The notices included action items to be completed by Article 4 funds ahead of their assigned “Transfer Date.” All 296 funds were initially assigned to one of four “tranches” based on their fiscal years, which began October 1, with additional tranches of asset transfers to occur on November 1, December 1, and January 4. Subsequently, FPIF created a fifth tranche, based on the uncertainty the pending litigation created for some Article 4 funds reluctant to comply with transfer tasks ahead of a court’s ruling on the consolidation law. The fifth tranche will also accommodate funds with logistic issues of board quorums or outdated signature cards, or lack of professional assistance to navigate the multiple steps needed to comply with asset transition.
In late June 2021, the defendants in the consolidation lawsuit, Arlington Heights Police Pension Fund et al. v. Pritzker et al., No. 21-CH-55, filed motions to dismiss. The plaintiffs filed a competing dispositive motion.
Before those motions were heard on the merits, however, the plaintiffs filed a motion seeking an early injunction that would pause all further action relating to consolidation until a full ruling could be made on the constitutionality of the law. On September 10, 2021, Judge Villa heard argument on the matter and declined to issue such an order. Pivotal to the judge’s decision was a lack of showing of irreparable harm to justify an injunction at this stage, as the funds set to be consolidated in October 2021 were moved to a tranche in February 2022.
Five days later, Judge Villa heard further oral argument on the parties’ pending motions. Ultimately, the court granted certain aspects of the Defendants’ motions to dismiss (including dismissing the pension funds themselves as parties), but denied the remainder. The parties are now working to tee up another motion that will allow the court to decide whether the consolidation law is constitutional. In the meantime, the plaintiffs have also asked the court to determine that the lawsuit may be properly maintained as a class action on behalf of more than 25,000 Article 3 and 18,000 Article 4 members. If the court rules in favor of a class action, Article 3 and 4 active and beneficiary members will be given an opportunity to opt out of the class.
FPIF Begins Rollout of Passport Portal and Global Cash Movement Portals
As Article 4 funds have adopted and submitted the initial resolutions and directive letters to their investment professionals and custodians, FPIF and its custodial bank, Northern Trust, have been establishing the online infrastructure which will serve as the mechanisms for Article 4 funds to view the status of their accounts with FPIF and transfers cash to and from FPIF.
The first steps in the FPIF transition process have asked Article 4 funds to:
- Appoint two Authorized Agents to serve as points of contact and liaisons between FPIF and the local funds. In most cases the Authorized Agents are the Board president and secretary, but in other situations, the municipal finance director or other fiduciary has been appointed to serve in this role.
- Adopt a “Transferal Task Resolution” and send out a “Transferal Notice Letter” to any fiduciary with control over the Article 4 fund’s assets, advising of funds’ assigned tranche and transfer date and empowering the Authorized Agents to execute any documents necessary to effectuate the transition of assets.
- Complete the Online FPIF Member Questionnaire for Northern Trust, providing information regarding five individuals who will receive monthly statements on the funds’ FPIF accounts and have access to view the information online (the “Passport Portal”).
- Transmit a “Letter of Direction” to the funds’ custodian.
- Transmit the “Certified Investment Asset List” and the “Non-Transferable Asset List” to the funds’ investment professionals and custodian to notify the fiduciaries that trading on accounts must now ceased.
Most Article 4 funds in the first two tranches have now received the “Global Cash Movement New Setup Authorization Form” from FPIF and Northern Trust. The “Global Cash Movement Portal” is the secure online portal that will be used to request cash from FPIF and to deliver contributions to FPIF. Before submitting this form, it is important that boards meet to discuss who will be responsible for “requesting” the movement of money and “approving” the movement of money, and then document this decision in a resolution approved by the board.
After the board has made its determinations about account representatives, the board should complete the form with each account representative’s cell phone number (for two-factor authentication) and an indication of which authority each representative will have.
The asset transfer process can be confusing and board members should not hesitate to seek clarification from FPIF staff members about any step of the process. We also encourage boards to work closely with their investment managers, outside accountants, and attorneys to make sure the documentation is prepared appropriately and that decisions are carefully made at every step. More than one set of eyes and good communication at every step is important to ensure this process goes smoothly.