Orwellian NTSA Testimony From 2013

In 2013 the state of Pennsylvania was considering some changes to their retirement system which evidently called for a 401(a) plan for employer contributions. The NTSA wasn't happy about this because the money wouldn't be run through their vendors and agents, meaning no fees and commissions. The NTSA decided to lobby the legislator to get them to make changes so that they could get their cut. The testimony was rife with Orwellian doublespeak(1).

Link to full testimony.

Very early on, NTSA spokesperson Chris DeGrassi attempts to equate advisors and salespeople without ever establishing who he represents (mostly salespeople) and why the difference is important. DeGrassi says:

"Foremost among design considerations, the 403(b) plan must allow public school employees to work with a local advisor of their choice and to have the ability to choose the investment options they want"

Disregarding the ridiculous notion that working with a local advisor should be the foremost design consideration, DeGrassi emphasizes that public school employees should get to choose which advisors to work with, only he doesn't define the term advisor. 

In the NTSA world, anyone in the financial services industry is referred to as an advisor, even people who are not licensed to give advice (a large part of the NTSAs constituency). There is a big difference between someone who gives advice and someone who sells a product. A person who gives advice is subject to a fiduciary duty while people who sell products only need to ensure the product they sell is "suitable", a very big difference in duty to the end client. 

The NTSA is not advocating for fiduciary advice, in my opinion they use the term "local advisor" to gain credibility, gently misleading the public that they support a fiduciary duty. In fact, a significant part of their base is not subject to a fiduciary duty and they actively fight against such duty. I'm all for allowing public school employees to choose their own advisor, but that advisor should actually be licensed to give advice and be subject to a fiduciary duty. I challenge the NTSA to more clarity on this issue.

DeGrassi goes on in his testimony to completely disregard the current work that has been done by behavioral finance professors. He says:

"Some will argue that the best way to design a defined contribution plan is a centralized plan with a limited number of choices. NTSAA has the data to demonstrate that for the public education employees, that's the worst idea."

It's not just "some", but the vast majority of retirement plan experts that believe a single vendor system is a better way to design a retirement plan. Not only do you gain economies of scale, you also greatly simplify everything for the employee and can implement new techniques that have been proven by behavioral finance to increase participation (auto-enroll, auto-escalate). I'm not clear what data the NTSA has that would contradict the vast research that has been done by academics like Richard Thaler, Daniel Kahneman and Shlomo Bernartzi. In fact, behavioral finance is missing in action in DeGrassi's testimony. 

Further evidence that the NTSA is disregarding proven behavioral finance notions is the following statement:

"The role of the advisor in convincing someone to start saving is just as important as the advice on where to invest the savings. And, you know what, that advisor needs to get paid. In most cases, the advisor is paid from investment fees, which - yes - will be consequently higher than investment fees on products without a personal advisor."

You'll notice that DeGrassi ignores the ideas of auto-enroll, auto-escalate and qualified default investment alternatives, all important design features that have been shown to work wonders in increasing participation and creating better retirement outcomes. He fails to mention that most of the time their is no "advisor" getting paid, it's a salesperson selling products and the compensation is far to often commissions, not fees as he states. DeGrassi provides no evidence for his statement that "in most cases, the advisor is paid from investment fees", in reality the vast majority of compensation is paid as a commission, not a fee and it's earned by a salesperson, not an advisor.

You'll notice that plan design is not the only straw man DeGrassi builds, the next quote is highly misleading in my opinion:

"You will hear from some that the most important thing is to have the lowest-cost retirement options. The facts suggest otherwise. Research from the ASPPA Pension Education and Research Foundation shows that in the State of Iowa school district participation dropped by up to 50% when they went from multiple 403(b) plan options to lower-cost options without personal advisors."

While I'm sure there are some people that think the only thing that matters is fees, this does not represent a majority opinion. Unless we are talking about investment options (where most research does show that if you select solely on fees you have a higher likelihood of outperforming), most retirement design experts and consultants only advocate for lowest-cost when we talk about investment options and share classes, not in regards to plan administration. It costs money to run a plan and costs should be kept as low as possible while still meeting the needs of the plan and participants. 

As for the ASPPA research referred to, I've thoroughly debunked it here, here, and here.

DeGrassi then attacks Vanguard using a strange and misleading analogy:

"You wouldn't want to go to a mall that only had a thrift store."

Putting aside the fact that if you went to a mall and there was only a single thrift store, you wouldn't be at a mall, the inference is that buying low-cost investment options is the equivalent of buying second hand and likely inferior investments. In fact, there is significant evidence to the contrary, lower-cost investment routinely outperform higher cost investment options. In investing you don't get what you pay for. The higher the cost of an investment option, the higher the likelihood it will underperform (don't take my word for it, ask Morningstar). DeGrassi is comparing Vanguard to the Goodwill when in fact from a performance perspective, Vanguard is more similar to Tesla, but without the high costs. The analogy is so ridiculous that it's insulting to the people he is presenting too. What's wrong with a thrift store anyway?

Next, DeGrassi attempts to show that the NTSA is gung ho for disclosure:

"That is why we partnered with the NEA to create a model disclosure form for 403(b) plan services and fees so that public school employees can easily make apples to apples comparisons of their retirement savings options."

I've looked at their "model disclosure" and it is not simple and does not allow for a comparison (how can you compare a fixed annuity to mutual fund in a simple manner?) As for partnering with the NEA, this isn't exactly something to brag about as the NEA sells a high cost product. However, in an ironic twist, the NEA signed on to support and endorse the Department of Labor's Conflict of Interest rule (a fiduciary standard). The NTSA was less than supportive of the DOL's rule.

Now it starts to get bizarre. For two pages the NTSA has argued that there should not be competitive bidding for the investment options, everyone should have as many choices as possible. They support conflicted, commission based advice with no mention of any fiduciary standards, but then they state:

"Therefore we urge you to amend HB1352 to require that the proposed 403(b) plan be administered by a third party administrator that is selected through a competitive proposal process"

And,

"We also recommend that the TPA be completely independent from any organization that provides investment products to the 403(b) plan. This will ensure that there are no conflicts of interest between the organization that administers the 403(b) plan and the one that offers investment products to the plan's participants and beneficiaries." 

"The cost of the TPA is paid for by the 403(b) plan vendors" (....uh, that's a conflict.)

Is it not ironic that the NTSA advocates for no conflicts of interest with the third party administrator (TPA) but doesn't even mention conflicts for the "advisors" that are so important to the design? This is a bridge to far. It should be noted the contradiction in their recommendation. They advocate for a TPA that has no conflicts of interests, but then want that TPA to be paid by the 403(b) product vendors (falsely referred to as "investment products") that they will regulate, isn't that a conflict?

DeGrassi then ends with a truly Orwellian newspeak sentence:

"Ultimately, I am sure we would agree that the goal should be to provide Pennsylvania Public school employees with a retirement plan that is serviced by people looking out for the best interests of the participants and beneficiaries...and, not their own best interests."

The NTSA is not advocating for advisors who have a fiduciary duty at all times, but that's what they want you to believe with this sentence. Many of the vendors have no fiduciary duty and will not take on a fiduciary duty.

This type of testimony from an industry lobbying group should be balanced by retirement experts or not allowed in the first place without better disclosure. Pretending to be advocating for participants best interest while not requiring actual advisors who are fiduciaries fits the definition of doublethink.

I don't fault the NTSA for lobbying on behalf of their membership, that's their job, but when they soak their testimony in language that in my opinion is designed to mislead, I must take exception.

Scott Dauenhauer, CFP, MPAS, AIF

(1) yes, I'm aware that doublespeak was not a word Orwell used. It's a combination of doublethink and newspeak and means "saying on thing and meaning another, usually its opposite" (www.orwelltoday.com)
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Opinion: Why I'm Skeptical On The NTSA's Fiduciary Press Release

Right about the time that the New York Times was beginning to release their stories on the significant issues in the land of 403(b), a trade organization (the NTSA - The National Tax-Deferred Savings Association) that represents 403(b) vendors, insurance agents, brokers and some Investment Advisors told Plansponsor magazine that they would change their policy as it pertains to "Fiduciary". The Plansponsor article is short on details but begins:

The National Tax-deferred Savings Association (NTSA) has formally affirmed its support for a fiduciary standard for all not-for-profit organizations, and the extension of the Labor Department’s fiduciary rule to governmental 403(b) plans and participants.

I've not seen a copy of the actual policy and can't find it on their website, in fact, if it wasn't for the Plansponsor article I wouldn't know about this, I literally can't find any mention of it on the NTSA website (NTSA - help me out). I'm reaching out to the Director, Chris DeGrassi to clarify, get a response and to invite him onto the Teach and Retire Rich podcast to explain the new policy. I've reached out twice before and have not rated even an e-mail response.

What strikes me about the policy change is that it doesn't seem to actually impose any fiduciary standard on the NTSA's members now or at any time in the future, only a vague support of a policy that they already know won't be extended to government organizations. This feels like slight of hand to me. The NTSA publicly states they support the extension of a policy that they know has no chance of happening while not actually implementing any Fiduciary standards within their own organization (again, if I'm wrong on this, I'd invite Mr. DeGrassi to correct me and provide the documentation, I couldn't find any).

Some people within the organization have told me that the NTSA is changing to embrace Fiduciary, but I have a hard time believing that based on who their sponsors are. But don't take my word for it, here are some excerpts from one of their members who by law must act as Fiduciaries at least in some situations, Lincoln Investments (who just bought Legend Group, the company mentioned by the NY Times articles):

From the Lincoln Investments Disclosure Booklet (emphasis mine):

Overall compensation to your Advisor, as a result of your investments with us, may be in the form of commissions, concessions, advisory fees, distribution fees, persistency fees, and contest prizes, such, as cash bonuses, trips and gifts. As a registered representative, your Advisor typically will share in the compensation from the product sponsors that is received by us in the form of commissions or concessions as may be described in a prospectus, for the sale of such securities as mutual funds and variable annuities to you. We also receive from some product sponsors an ongoing distribution or servicing fee (also known as 12b-1 fees) of 1% or less for as long as your money remains invested in their product(s) that may be shared with your Advisor. As an Advisory Representative, your Advisor shares in the advisory fees paid by you for our advisory services; and he/she may also share in the ongoing 12b-1 fee of 1% or less that may be received from the product sponsor(s) in which you are invested. As a general insurance agent, your Advisor shares in the compensation received by us for the sale of insurance products to you, such as, life, health, disability, long term care, and fixed annuity products. 

The majority of Lincoln Investment's revenue comes from the commissions, concessions and distribution fees associated with the sale of mutual funds, variable annuities, stocks, bonds and insurance to our clients. 

Your Advisory Representative may have more than one relationship with you – one as an Advisory Representative over an advisory account and one as a Registered Representative/Agent over a non-advisory account where he or she may receive a sales commission for the sale of securities or insurance products which shall be in addition to any advisory fees earned on your advisory assets. In these situations, our Advisory Representative may have greater financial incentives to offer you both investment and /or insurance sales as well as advisory services. 

It's difficult to think that given the above, Lincoln could be considered a Fiduciary. But this points out what many don't know about the term, Fiduciary. Fiduciary can have many meanings and there is currently a battle to define and redefine the term into something that is less restrictive, we can't allow this to happen. The above is disturbing and should be all the evidence you need to reject working with the company, but what follows is the best evidence that the throwing around of the term Fiduciary is simply a marketing gimmick:

Lincoln Investment offers sales contests that may provide additional incentives to your Advisor to offer one product or service over another. Lincoln Investment offers sales contests based on such criteria as gross compensation to the Advisor, net sales of Lincoln Investment and Capital Analysts managed advisory programs, net sales of Advisor managed programs, and net sales of third party managed advisory programs. These contests may provide your Advisor with an incentive to offer you fee-based advisory services over commission-based brokerage services. Top achievers in these contests may receive Lincoln Investment-sponsored trips, cash prizes, bonus commissions, extra club points, monetary donations in their name to a charity of their choice or other nominal prizes. No contest is offered which will award the Advisor based upon a specific investment product or on a specific product sponsor. Lincoln Investment will not accept any business that is not deemed suitable for the investor. Lincoln Investment’s Advisors may also be licensed and appointed with various insurance companies to offer insurance products to you. Although Lincoln Investment does not offer specific product sales incentives for securities products, issuers of non-securities insurance products, such as fixed annuity issuers, may offer sales incentives to our Advisors in the form of cash bonuses and trips if certain sales thresholds are met. You should ask your Advisor about these incentives at the time of sale. 

There is no scenario where the above is ok, these are not statements made by true fiduciaries. It gets even worse though. If a product provider wants access to Lincoln reps, they have to pony up. I encourage you to read the above linked document under "Additional Compensation", you'll find items that will blow your fiduciary mind. Bottom line, it's pay to play at this organization in my opinion and according to the evidence in this document.

Lincoln states the following:

Overall, in 2015, additional compensation revenue received by Lincoln Investment from Sales and Marketing Support, Administration Services, and Due Diligence Seminar expense reimbursement fees represented .0404% of total investor assets or $4.04 of additional compensation to Lincoln Investment for every $10,000 in an investor’s account. 

I've been a Fiduciary since 2001 and this is not fiduciary behavior. Disclosure is not enough. These are easily eliminated conflicts of interest, yet they continue to exist.

My point is not really about Lincoln, it's about the NTSA saying one thing but apparently allowing another. DeGrassi stated in the Plansponsor article that:

"America’s teachers need and deserve access to the best, and most transparent financial advice as they work to prepare for their future, and NTSA’s members have long been an integral part of that planning."

I'll agree with him on the first part, but to say that the NTSA has been an integral part of pushing for better fiduciary rules is in no way an accurate statement. I've been fighting for a fiduciary standard for everyone for years and specifically in 403(b), the NTSA has opposed me for as long as I can remember. There might be some great advisors (true fiduciaries at Lincoln Investments) and if so, they should be joining me in this fight to rid their firm of these hideous conflicts.

I certainly hope they are turning over a new leaf, but if so, the above items in the disclosure document shouldn't be allowed. If the NTSA truly wants to lead on Fiduciary, then set out clear policies for members and vendors. Almost all of the above would not be allowed under the DOL rule - certainly not sales contests.

Once again, if anything I said in this post is inaccurate, I invite Mr. DeGrassi to correct me and provide the evidence to support, I would gladly retract any statement not supported by evidence. My opinion remains though that the NTSA is only giving lip service to Fiduciary, not fighting to make it happen.

Mr. DeGrassi will you come on the Teach and Retire Rich Podcast?

Scott Dauenhauer, CFP, MPAS, AIF

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NTSA Supports Extension of Fiduciary Standard to Governmental 403(b) Plans

Chris DeGrassi of NTSA

Well this is out of left field. I think Tara Siegel Bernard's New York Times articles are having an affect. Less than a week after two scathing articles about the non-ERISA 403(b) market were released, a major trade organization for 403(b) sales agents has come out in support of extending the Department of Labor's Conflict of Interest rule to government 403(b) plans.

The full release is below and can also be read here.

What is left unsaid is who in the organization supports this, many of the members of the organization were against the rule and some are currently part of trade groups that are suing to have it overturned. Further, the release didn't say that the members would be encourage to follow the DOL rule regardless of whether it was implemented for government or not.