It’s been said that the DOL and Courts take the position that “if it wasn’t documented, it didn’t happen.” In the case of ERISA, the best defense for retirement committees is always a strong offense which means taking a proactive approach to implementing a comprehensive fiduciary governance process. One of the cornerstone practices to demonstrate that the retirement committee has made prudent decisions as required by ERISA is to take official minutes at each meeting.
Here are three key benefits of meeting minutes:
- Your committee has a structured format for documenting your decision-making process in a concise and well-organized way.
- Your committee has a method to review and audit historical decisions and outcomes over time, which is beneficial for existing and new committee members.
- Your committee possesses an official record that can support the facts surrounding your decision-making process in a court of law.
While meeting minutes are a valuable tool to document your fiduciary process, it’s also important to draft minutes in a way that is beneficial and not detrimental, especially in a court of law. Drinker Biddle, one of the country’s leading ERISA firms, outlined the following list of “Do’s and Do Not’s” as part of its “Benefits & Breakfast Roundtable Series” in 2017:
DO succinctly document the factors considered and key reasons for each decision
DO emphasize your adherence to other policies and procedures
DO incorporate reports and expert advice relied upon
DO maintain formality as to actual votes taken
DO draft and finalize your minutes soon after the meeting, utilizing a consistent format
DO NOT include excessive detail about “who said what” or elaborate about internal discussions or dissents
DO NOT focus on past problems or “fears”
DO NOT leave issues “open” without any resolution
DO NOT use derisive or alarmist language
DO NOT commingle discussions about fiduciary matters with non-fiduciary or company matters
Consistently taking minutes at every meeting is one of those things that is simple but not easy. Although not intentional, retirement committees often fail to take minutes for any one of following reasons:
- The company actually doesn’t have a formal retirement committee and so no meetings take place
- There is “technically” a retirement committee, but it meets on an inconsistent basis and when it does meet there is no clearly defined structure or format
- The retirement committee doesn’t realize it should be taking minutes, and none of its service providers have recommended it (which generally means they are not working with specialists or the right partners)
- No one on the retirement committee or with one of the service providers has been assigned the responsibility
The bad news is that a failure to take minutes is evidence of a poorly constructed fiduciary governance process and can lead to bad outcomes in the event of ERISA litigation which is on the rise. However, like most things in life, it’s something that can be easily fixed with the right combination of focus and discipline.
At Greenspring Advisors, we create the initial draft of meeting minutes for our clients as part of our client service process, which are then reviewed and approved by the committee. If your advisor isn’t doing the same thing for your retirement committee, you should ask them why. And if you’d like to learn more about how we help companies create and follow a comprehensive fiduciary governance process, let us know.
Information contained herein has been obtained from sources considered reliable, but its accuracy and completeness are not guaranteed. It is not intended as the primary basis for financial planning or investment decisions and should not be construed as advice meeting the particular investment needs of any investor. This material has been prepared for information purposes only and is not a solicitation or an offer to buy any security or instrument or to participate in any trading strategy. Past performance is no guarantee of future results.