A “Miner” Change to the Government 457(b) May Make a Major Difference To Teachers

The one constant in the defined contribution world is change. For once, Congress may have made a change that could unintentionally alter the course of teacher supplemental retirement plans.

Up until the end of 2019, there was one big difference between the 403(b) and the 457(b) that tended to favor contributing to a 403(b) over a 457(b). Thanks to a law passed at the end of 2019, that major difference is now gone and contributing to a 457(b) before a 403(b) could make more sense. In fact, it could completely change the defined contribution plan landscape for public school employees going forward.

A 457(b) is a little known plan that is similar to the 403(b) and generally the primary defined contribution option offered to state and municipal employees. The 457(b) has been available to teachers as well, but has largely been ignored in favor of the 403(b). Both plans have similar contribution limits and the ability to contribute on a pre-tax and Roth basis. The one major difference was that money contributed to a 457(b) is never subject to a 10% federal penalty if withdrawn prior to age 59 1/2 (with a few exceptions including the fact you must separate from service). A minor, but meaningful difference was that 457(b) money cannot be accessed prior to a teacher separating from service completely (meaning not just retirement, but also for subbing). 403(b) plans grant access to money without penalty at 59 1/2 regardless of employment status. This is a big advantage for teachers who plan on working past age 60. This access to money difference is what is changing and it’s due to a struggling coal miner pension fund.

The United Mine Workers of America health and pension funds, like more than 1,400 similar one-industry plans, were underfunded. Then along came The American Miners Act of 2019. This new law will help stabilize the private multi-employer pension, but it could also inadvertently nudge teachers away from the 403(b) and towards the 457(b). Let me explain…

Congress requires expenditures for new laws to be “paid for” and one way of raising money for the coal miners pension fund was to accelerate taxes on 457(b) money. Included in the new act, is a provision that allows in-service 457(b) withdrawals at age 59 1/2 leveling the playing field with the 403(b) on access. 

Currently, the favored defined contribution plan for teachers is the 403(b). But because the K-12 403(b) is not subject to ERISA fiduciary oversight, most plans feature high-cost products sold by high-commission sales agents. The New York Times and The Wall Street Journal have documented these issues. My pod partner and owner of 403bwise.org, Dan Otter, touched on the ERISA issue in a recent blog post.

By design, the 457(b) requires more fiduciary oversight which has generally led to better, lower cost investment options. It now might make more sense for teachers to contribute to the 457(b) before contributing to a 403(b). Teachers are allowed to contribute the maximum permittable to both plans. I still love the 403(b) and will continue to advocate for better 403(b) plans, but it might be time for employers (and employees) to begin favoring the 457(b) over the 403(b).

The biggest advantage of the 403(b):         Ability for ER contributions*

The biggest disadvantage of 403(b): Embedded multi-vendor system, no fiduciary

The biggest advantage of the 457(b):         No 10% penalty, ever

The biggest disadvantage of 457(b): Odd Salary Reduction rule (month prior)

The agent in the lobby or lunch room isn’t going to tell you about the 457(b) because they normally don’t get paid to do so. They might even actively try to get you to invest in the 403(b) over the 457(b).

There is one caveat, not all 457(b)s are worthy. You still need to do due diligence. In California there are two great state based 457(b) plans, CalSTRS Pension2 and CalPERS 457. Yet most school districts fail to offer either, opting instead to offer substantially lower quality 457(b) plans that pay revenue to their compliance administrator, insurance agents or both. Just like with the K-12 403(b), teachers may have to lobby their school district to get a better plan. 

*Technically 457(b) can have employer contributions, but they count toward the employee contribution limit. This can be overcome by adding a 401(a) plan.

Miners Act of 2019

With help and edited by Dan Otter of www.403bwise.org

Attention California School Districts: You ARE Fiduciaries For Your 457(b) Plans

This isn't the first time I've written about this topic and it won't be the last...unfortunately. If you are a board member or a district administrator for a California public school, it's highly likely you are ignoring a significant responsibility and this leaves you open to lawsuits.

Despite what you've been told (in all likelihood by your compliance administrator) you ARE a fiduciary in regards to the 457(b) plan you offer your employees. You don't have to take my word for it, one of the nation's top ERISA attorneys made the case...back in 2006. Yes, you were warned over a decade ago.


It's been over a decade since Fred Reish co-authored  a white paper titled "Fiduciary Duties and Obligations in Administering 457(b) Plans under California Law" and almost nothing has changed in California public schools, in fact, in many instances it has gotten worse. The paper is embedded below.

I'm often tasked by new public education clients to perform due diligence on their available 457(b) options with their employer and in most cases i'm horrified by what I find, it's a wasteland. It's also very likely a violation of California law.

Before I go further, I urge you to goto www.457bwise.com to learn more about the unique defined contribution plan available in public schools, commonly referred to as a 457(b) or a Deferred Compensation plan.

I recently began reviewing the plan options at one of the largest school districts in the state and what I found was horrifying. It was a who's who of terrible investment options, none of which were vetted by the school district. Perhaps if the school district understood their responsibility, they'd do a better job. That's what this post is about.

In August 2006, the above mentioned white paper was released to "thunderous applause and its effect was immediate and far reaching, completely altering the landscape of school district retirement plans for decades to come" said no one. In reality, the paper had a small impact among a few consultants (myself included) and a few school districts, otherwise it went completely unnoticed.

I'm not going to summarize the paper for you, you can read it in the embed or download it yourself, but here is the major take away:

Under the Internal Revenue Code, 457(b) plans can be sponsored by governmental entities and by tax-exempt entities.2 ERISA provides a statutory exemption for government plans, including governmental 457(b) plans, from its fiduciary and prohibited transaction provisions.3 As a result, state law governs the fiduciary requirements for the operation and investment of 457(b) plans sponsored by governmental entities.

While ERISA does not regulate the conduct of fiduciaries of government plans, it is the most detailed, comprehensive, and developed body of law concerning the management of retirement plans. As a result, courts often look to ERISA authorities for guidance on fiduciary issues. Further, the California Constitution and Government Code place duties and obligations on fiduciaries (e.g., retirement boards) that are virtually identical, in both concept and wording, to those in ERISA. Thus, to the extent the state law is not well-developed or particularly informative, this White Paper discusses guidance under ERISA.

Subsections (a), (b) and (c) of Article XVI, §17 of the California Constitution contain the provisions governing the fiduciary duties for the administration of public pension and retirement systems.4 One obvious question is whether 457(b) plans are subject to these provisions. This is answered in Section 53609 of the Government Code, which provides that deferred compensation plans are “public pension or retirement funds” for purposes of Article XVI, §17 of the California Constitution. In particular, Section 53609 provides:

“Notwithstanding the provisions of this chapter or any other provisions of this code, funds held by a local agency pursuant to a written agreement between the agency and employees of the agency to defer a portion of the compensation otherwise receivable by the agency's employees and pursuant to a plan for such deferral as adopted by the governing body of the agency, may be invested in the types of investments set forth in Sections 53601 and 53602 of this code, and may additionally be invested in corporate stocks, bonds, and securities, mutual funds, savings and loan accounts, credit union accounts, life insurance policies, annuities, mortgages, deeds of trust, or other security interests in real or personal property. Nothing herein shall be construed to permit any type of investment prohibited by the Constitution. Deferred compensation funds are public pension or retirement funds for the purposes of Section 17 of Article XVI of the Constitution.” [Emphasis added.]

Thus, if a plan includes deferred compensation funds, section 53609 would apply the requirements of Article XVI, §17 to the fiduciaries of the plan. Since 457(b) plans are deferred compensation plans for state and local governments, 457(b) plans satisfy the definition of public pension and retirement funds for purposes of the California Constitution. This means that the retirement boards, and their members, who are responsible for 457(b) plans (for ease of reference, we refer to retirement boards, committees or other responsible fiduciaries of 457(b) plans as the “board”) are fiduciaries subject to the duties and obligations under Article XVI, §17. 

There you have it, don't take my word for it, take Fred Reish's word. I realize the above might sound like another language, but the bottomline is that you ARE a fiduciary, whether you like it or not and you better start acting like one before an employee realizes that they are being ripped off (and trust me, they are being ripped off big time).

Please read the paper and learn what your duties are and then go and improve your plan. If you are looking for an example of how to run your plan, look no further than the Los Angeles Unified School District, you can view their plan and website here. If you are looking for an entity that you can trust to run your 457(b) in a fiduciary manner, the California State Teachers Retirement System can accomplish this for you here (full disclosure, I do consulting work for CalSTRS).

It's time to take this responsibility seriously for two reasons: one, it's the law and two (more importantly), it's the moral and ethical thing to do.

Feel free to e-mail me with any questions.

Scott Dauenhauer, CFP, MPAS, AIF

Are you 403(b) Wise? 403bwise.org is the place on the internet to learn, advocate and build community.

Reish White Paper by Scott Dauenhauer, CFP, MSFP, AIF on Scribd

403(b) Hack: Why You Might Want To Leave A Few Dollars In Your 403(b), Even If You're Retired And Don't Want It

When public school employees retire they should think twice before rolling their 403(b) money (or 457(b)) over to an IRA. I'm not talking about the hordes of insurance agents and brokers who are trying to sell you poorly structured products so they can take fancy trips, that's of course a good reason not to rollover, but there is another, potentially powerful reason why you should keep at least some money in a 403(b)/457(b) as long as you are retired.


When the financial crisis hit in 2008, interest rates were pretty high on mostly safe products, but that quickly changed as rates plummeted to nearly zero. Insurance companies who offered 3 and 4% guarantees were caught off guard and quickly shut down product lines and restricted new money. As the years went on, it became more difficult to find a product with a good rate and a high degree of safety. But there were still some products that didn't restrict new money and other companies that came out with new 403(b) products that had higher rates than similar IRA products, in some cases substantially higher. In other words, some 403(b) products offered higher rates than IRA products or had lower fees.

A client of mine had money in an IRA and we wanted to put some of it in a fixed account type product, but rates were terrible. The best we could find was 1.35%. I knew of a 403(b) with no surrender fees and a fixed account that was paying a net rate of 3.5% from a highly rated insurance company (yes, no commissions, no surrender fees, no surrender period), but my client was retired and if you're retired and you don't have an existing 403(b) you cannot open a new one. Then my client showed me an old policy that he had forgotten about. It was a 403(b) with a school district he had worked in years before (like 25 years earlier). It dawned on me, he was still a member of that school district's plan, the fact that he was retired had no bearing, he was still a participant because the vendor was still active and his policy meant he was part of the plan.

Since my client was a participant in the plan and that plan had the 403(b) option that paid the 3.5% rate, I opened a new 403(b) (remember, he is allowed to open it because he is still a participant in the plan due to him still holding that old 403(b)) and moved IRA money into it and started earning that higher rate.

My client earned in excess of 2% more than he could have gotten in an IRA because we didn't settle. We didn't require all his money be kept at one place for ease of accounting, it was a little more work on my part, but it was the right thing to do and made my client significantly more money. It's what a fiduciary does.

The moral here is that even if you find a great IRA to roll your money into, don't roll everything over. Leave some money in your 403(b) or your 457(b) just in case an option later comes along that can't be found anywhere else. Think of it almost as an insurance policy. Yes, it's a pain (another statement, another login an another RMD), but that pain just might pay off in the end like it did for my client.

Scott Dauenhauer, CFP, MPAS, AIF

Are you 403(b) Wise? 403bwise.org is the place on the internet to learn, advocate and build community.

Yet Another Hidden Annuity Compensation Conflict

The conflicts in annuity compensation seem endless. This is why I generally tell people to avoid them. I've got another conflict to add to the growing list, deferred compensation.

Insurance companies want loyalty and they design their compensation systems to reward it. I recently came across F and G Annuity and Life's deferred compensation scheme and thought it was a good demonstration of hidden conflicts in the recommendation that might be coming from your annuity agent.

Agents that aren't captive (meaning they can sell any insurance companies products) sometimes end up as independent, but captive. Confused? Let me explain.

Imagine you have two products you can sell. One rewards you with bigger commissions, amazing trips and other perks, but only if you sell enough products from that company during a specific time frame. If the agent anticipates making $2 million a year in premium sales, the perks available to that agent by selecting only one company to distribute can be significant versus if that agent sold products from two (or more) insurance companies. It's possible that the agent could miss qualifying for big perks at both companies even though they sell more in premium than agents who did receive the perks (but kept all their business in one place).

Back to F and G Annuity and Life.

F and G Life has a deferred compensation program for agents who use distribute their products, it's called the Power Producer Program. This program rewards loyalty. It rewards the agents who concentrate their sales with F and G and it presents a significant conflict of interest when the agent is choosing which product to sell to a customer. Should they sell the product that doesn't qualify them for contributions into a deferred compensation program (for the agents retirement) or one that does?

This is a conflict that the NAIC should eliminate (among many, many others). There should not be an incentive to sell one product type over another.

Here is the outline of the Power Producer Program as explained in an F and G brochure:

Each year we set a Power Producer qualification level. Producers earn credits throughout the calendar year and can combine both their annuity and life sales. The 2019 qualification level to earn one credit is 1.75 million points. $1 of FIA premium is equal to 1 point and $1 of life premium, up to target, is equal to 15 points. The Power Producer credit is determined each year, but each credit is typically worth between $3,000-5,000.

The deposit amounts are cumulative and below is an example. By qualifying for just one credit a year, from 2013-2018, F&G would have contributed $80,000 on your behalf to a non-qualified deferred compensation plan.

The current qualification period is January 1 - December 31, 2019. 

Insurance is an important part of your financial plan and insurance regulation in the United States has failed the consumer. While I don't expect you'll receive an honest answer, always ask how your agent will be compensated and if selling the product they want you to buy qualifies them for trips, commissions, other perks and deferred compensation.

Here is an image from the brochure and a link to it.

Are you 403(b) Wise? 403bwise.org is the place on the internet to learn, advocate and build community.

F & G Life Power Producer Program