The Florida Senate

¹121.4501  Public Employee Optional Retirement Program.--

(1)  The Trustees of the State Board of Administration shall establish an optional defined contribution retirement program for members of the Florida Retirement System under which retirement benefits will be provided for eligible employees who elect to participate in the program. The benefits to be provided for or on behalf of participants in such optional retirement program shall be provided through employee-directed investments, in accordance with s. 401(a) of the Internal Revenue Code and its related regulations. The employers shall contribute, as provided in this section and s. 121.571, to the Public Employee Optional Retirement Program Trust Fund toward the funding of such optional benefits.

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Approved provider" or "provider" means a private sector company that is selected and approved by the state board to offer one or more investment products or services to the Public Employee Optional Retirement Program. The term includes a bundled provider that offers participants a range of individually allocated or unallocated investment products and may offer a range of administrative and customer services, which may include accounting and administration of individual participant benefits and contributions; individual participant recordkeeping; asset purchase, control, and safekeeping; direct execution of the participant's instructions as to asset and contribution allocation; calculation of daily net asset values; direct access to participant account information; periodic reporting to participants, at least quarterly, on account balances and transactions; guidance, advice, and allocation services directly relating to its own investment options or products, but only if the bundled provider complies with the standard of care of s. 404(a)(1)(A-B) of the Employee Retirement Income Security Act of 1974 (ERISA) and if providing such guidance, advice, or allocation services does not constitute a prohibited transaction under s. 4975(c)(1) of the Internal Revenue Code or s. 406 of ERISA, notwithstanding that such prohibited transaction provisions do not apply to the optional retirement program; a broad array of distribution options; asset allocation; and retirement counseling and education. Private sector companies include investment management companies, insurance companies, depositories, and mutual fund companies.

(b)  "Department" means the Department of Management Services.

(c)  "Division" means the Division of Retirement within the Department of Management Services.

(d)  "Eligible employee" means an officer or employee, as defined in s. 121.021(11), who:

1.  Is a member of, or is eligible for membership in, the Florida Retirement System;

2.  Participates in, or is eligible to participate in, the Senior Management Service Optional Annuity Program as established under s. 121.055(6); or

3.  Is eligible to participate in, but does not participate in, the State University System Optional Retirement Program established under s. 121.35 or the State Community College System Optional Retirement Program established under s. 121.051(2)(c).

The term does not include any renewed member of the Florida Retirement System, any member participating in the Deferred Retirement Option Program established under s. 121.091(13), or any employee participating in an optional retirement program established under s. 121.051(2)(c) or s. 121.35.

(e)  "Employer" means an employer, as defined in s. 121.021(10), of an eligible employee.

(f)  "Participant" means an eligible employee who elects to participate in the Public Employee Optional Retirement Program and enrolls in such optional program as provided in subsection (4).

(g)  "Public Employee Optional Retirement Program," "optional program," or "optional retirement program" means the alternative defined contribution retirement program established under this section.

(h)  "State board" or "board" means the State Board of Administration.

(i)  "Trustees" means Trustees of the State Board of Administration.

(j)  "Vested" or "vesting" means the guarantee that a participant is eligible to receive a retirement benefit upon completion of the required years of service under the Public Employee Optional Retirement Program.

(3)  ELIGIBILITY; RETIREMENT SERVICE CREDIT.--

(a)  Participation in the Public Employee Optional Retirement Program is limited to eligible employees. Participation in the optional retirement program is in lieu of participation in the defined benefit program of the Florida Retirement System.

(b)  An eligible employee who is a member of the defined benefit retirement program of the Florida Retirement System at the time of his or her election to participate in the Public Employee Optional Retirement Program shall retain all retirement service credit earned under the defined benefit retirement program of the Florida Retirement System as credited under the system and shall be entitled to a deferred benefit upon termination, if eligible under the system. However, election to participate in the Public Employee Optional Retirement Program terminates the active membership of the employee in the defined benefit program of the Florida Retirement System, and the service of a participant in the Public Employee Optional Retirement Program shall not be creditable under the defined benefit retirement program of the Florida Retirement System for purposes of benefit accrual but shall be credited for purposes of vesting.

(c)1.  Notwithstanding paragraph (b), each eligible employee who elects to participate in the Public Employee Optional Retirement Program and establishes one or more individual participant accounts under the optional program may elect to transfer to the optional program a sum representing the present value of the employee's accumulated benefit obligation under the defined benefit retirement program of the Florida Retirement System. Upon such transfer, all service credit previously earned under the defined benefit program of the Florida Retirement System shall be nullified for purposes of entitlement to a future benefit under the defined benefit program of the Florida Retirement System. A participant is precluded from transferring the accumulated benefit obligation balance from the defined benefit program upon the expiration of the period afforded to enroll in the optional program.

2.  For purposes of this subsection, the present value of the member's accumulated benefit obligation is based upon the member's estimated creditable service and estimated average final compensation as of midnight of the day prior to the opening of the election window for the employee. The actuarial present value of the employee's accumulated benefit obligation shall be based on the following:

a.  The discount rate and other relevant actuarial assumptions used to value the Florida Retirement System Trust Fund at the time the amount to be transferred is determined, consistent with the factors provided in sub-subparagraphs b. and c.

b.  A benefit commencement age, based on the member's estimated creditable service as of midnight on May 31, 2002. The benefit commencement age shall be the younger of the following, but shall not be younger than the member's age as of midnight on May 31, 2002:

(I)  Age 62; or

(II)  The age the member would attain if the member completed 30 years of service with an employer, assuming the member worked continuously from May 31, 2002, and disregarding any vesting requirement that would otherwise apply under the defined benefit program of the Florida Retirement System.

c.  For members of the Special Risk Class and for members of the Special Risk Administrative Support Class entitled to retain special risk normal retirement date, the benefit commencement age shall be the younger of the following, but shall not be younger than the member's age as of midnight on May 31, 2002:

(I)  Age 55; or

(II)  The age the member would attain if the member completed 25 years of service with an employer, assuming the member worked continuously from May 31, 2002, and disregarding any vesting requirement that would otherwise apply under the defined benefit program of the Florida Retirement System.

d.  The calculation shall disregard vesting requirements and early retirement reduction factors that would otherwise apply under the defined benefit retirement program.

3.  For each participant who elects to transfer moneys from the defined benefit program to his or her account in the optional program, the division shall recompute the amount transferred under subparagraph 2. not later than 60 days after the actual transfer of funds based upon the participant's actual creditable service and actual final average compensation as of the initial date of participation in the optional program. If the recomputed amount differs from the amount transferred under subparagraph 2. by $10 or more, the division shall:

a.  Transfer, or cause to be transferred, from the Florida Retirement System Trust Fund to the participant's account in the optional program the excess, if any, of the recomputed amount over the previously transferred amount together with interest from the initial date of transfer to the date of transfer under this subparagraph, based upon 8 percent effective annual interest, compounded annually.

b.  Transfer, or cause to be transferred, from the participant's account to the Florida Retirement System Trust Fund the excess, if any, of the previously transferred amount over the recomputed amount, together with interest from the initial date of transfer to the date of transfer under this subparagraph, based upon 6 percent effective annual interest, compounded annually, pro rata based on the participant's allocation plan.

4.  As directed by the participant, the board shall transfer or cause to be transferred the appropriate amounts to the designated accounts. The board shall establish transfer procedures by rule, but the actual transfer shall not be later than 30 days after the effective date of the member's participation in the optional program. Transfers are not commissionable or subject to other fees and may be in the form of securities or cash as determined by the state board. Such securities shall be valued as of the date of receipt in the participant's account.

5.  If the board or the division receives notification from the United States Internal Revenue Service that this paragraph or any portion of this paragraph will cause the retirement system, or a portion thereof, to be disqualified for tax purposes under the Internal Revenue Code, then the portion that will cause the disqualification does not apply. Upon such notice, the state board and the division shall notify the presiding officers of the Legislature.

(4)  PARTICIPATION; ENROLLMENT.--

(a)1.  With respect to an eligible employee who is employed in a regularly established position on June 1, 2002, by a state employer:

a.  Any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the department and the personnel officer of the employer within 90 days after June 1, 2002, or, in the case of an active employee who is on a leave of absence on June 1, 2002, within 90 days after the conclusion of the leave of absence. This election is irrevocable, except as provided in paragraph (e). Upon making such election, the employee shall be enrolled as a participant of the Public Employee Optional Retirement Program, the employee's membership in the Florida Retirement System shall be governed by the provisions of this part, and the employee's membership in the defined benefit program of the Florida Retirement System shall terminate. The employee's enrollment in the Public Employee Optional Retirement Program shall be effective the first day of the month for which a full month's employer contribution is made to the optional program.

b.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 90 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

2.  With respect to employees who become eligible to participate in the Public Employee Optional Retirement Program by reason of employment in a regularly established position with a state employer commencing after June 1, 2002:

a.  Any such employee shall, by default, be enrolled in the defined benefit retirement program of the Florida Retirement System at the commencement of employment, and may, within 180 days after employment commences, elect to participate in the Public Employee Optional Retirement Program. The employee's election must be made in writing or by electronic means and must be filed with the personnel officer of the employer. The election to participate in the optional program is irrevocable, except as provided in paragraph (e).

b.  If the employee files such election before the initial payroll is submitted for the employee, enrollment in the Public Employee Optional Retirement Program shall be effective on the first day of employment.

c.  If the employee files such election within 180 days after employment commences, but after the initial payroll is submitted for the employee, enrollment in the optional program shall be effective on the first day of the month for which a full month's employer contribution is made to the optional program.

d.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 180 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

3.  For purposes of this paragraph, "state employer" means any agency, board, branch, commission, community college, department, institution, institution of higher education, or water management district of the state, which participates in the Florida Retirement System for the benefit of certain employees.

(b)1.  With respect to an eligible employee who is employed in a regularly established position on September 1, 2002, by a district school board employer:

a.  Any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the department and the personnel officer of the employer within 90 days after September 1, 2002, or, in the case of an active employee who is on a leave of absence on September 1, 2002, within 90 days after the conclusion of the leave of absence. This election is irrevocable, except as provided in paragraph (e). Upon making such election, the employee shall be enrolled as a participant of the Public Employee Optional Retirement Program, the employee's membership in the Florida Retirement System shall be governed by the provisions of this part, and the employee's membership in the defined benefit program of the Florida Retirement System shall terminate. The employee's enrollment in the Public Employee Optional Retirement Program shall be effective the first day of the month for which a full month's employer contribution is made to the optional program.

b.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 90 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

2.  With respect to employees who become eligible to participate in the Public Employee Optional Retirement Program by reason of employment in a regularly established position with a district school board employer commencing after September 1, 2002:

a.  Any such employee shall, by default, be enrolled in the defined benefit retirement program of the Florida Retirement System at the commencement of employment, and may, within 180 days after employment commences, elect to participate in the Public Employee Optional Retirement Program. The employee's election must be made in writing or by electronic means and must be filed with the personnel officer of the employer. The election to participate in the optional program is irrevocable, except as provided in paragraph (e).

b.  If the employee files such election before the initial payroll is submitted for the employee, enrollment in the Public Employee Optional Retirement Program shall be effective on the first day of employment.

c.  If the employee files such election within 180 days after employment commences, but after the initial payroll is submitted for the employee, enrollment in the optional program shall be effective on the first day of the month for which a full month's employer contribution is made to the optional program.

d.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 180 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

3.  For purposes of this paragraph, "district school board employer" means any district school board that participates in the Florida Retirement System for the benefit of certain employees, or a charter school or charter technical career center that participates in the Florida Retirement System as provided in s. 121.051(2)(d).

(c)1.  With respect to an eligible employee who is employed in a regularly established position on December 1, 2002, by a local employer:

a.  Any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her membership in the defined benefit program of the Florida Retirement System. The election must be made in writing or by electronic means and must be filed with the department and the personnel officer of the employer within 90 days after December 1, 2002, or, in the case of an active employee who is on a leave of absence on December 1, 2002, within 90 days after the conclusion of the leave of absence. This election is irrevocable. Upon making such election, the employee shall be enrolled as a participant of the Public Employee Optional Retirement Program, the employee's membership in the Florida Retirement System shall be governed by the provisions of this part, and the employee's membership in the defined benefit program of the Florida Retirement System shall terminate. The employee's enrollment in the Public Employee Optional Retirement Program shall be effective the first day of the month for which a full month's employer contribution is made to the optional program.

b.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 90 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

2.  With respect to employees who become eligible to participate in the Public Employee Optional Retirement Program by reason of employment in a regularly established position with a local employer commencing after December 1, 2002:

a.  Any such employee shall, by default, be enrolled in the defined benefit retirement program of the Florida Retirement System at the commencement of employment, and may, within 180 days after employment commences, elect to participate in the Public Employee Optional Retirement Program. The employee's election must be made in writing or by electronic means and must be filed with the personnel officer of the employer. The election to participate in the optional program is irrevocable, except as provided in paragraph (e).

b.  If the employee files such election before the initial payroll is submitted for the employee, enrollment in the Public Employee Optional Retirement Program shall be effective on the first day of employment.

c.  If the employee files such election within 180 days after employment commences, but after the initial payroll is submitted for the employee, enrollment in the optional program shall be effective on the first day of the month for which a full month's employer contribution is made to the optional program.

d.  Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed 180 days is deemed to have elected to retain membership in the defined benefit program of the Florida Retirement System, and the employee's option to elect to participate in the optional program is forfeited.

3.  For purposes of this paragraph, "local employer" means any employer not included in paragraph (a) or paragraph (b).

(d)  Contributions available for self-direction by a participant who has not selected one or more specific investment products shall be allocated as prescribed by the board. The third-party administrator shall notify any such participant at least quarterly that the participant should take an affirmative action to make an asset allocation among the optional program products.

(e)  After the period during which an eligible employee had the choice to elect the defined benefit program or the Public Employee Optional Retirement Program, the employee shall have one opportunity, at the employee's discretion, to choose to move from the defined benefit program to the Public Employee Optional Retirement Program or from the Public Employee Optional Retirement Program to the defined benefit program. This paragraph shall be contingent upon approval from the Internal Revenue Service for including the choice described herein within the programs offered by the Florida Retirement System.

1.  If the employee chooses to move to the Public Employee Optional Retirement Program, the applicable provisions of this section shall govern the transfer.

2.  If the employee chooses to move to the defined benefit program, the employee must transfer from his or her Public Employee Optional Retirement Program account and from other employee moneys as necessary, a sum representing the present value of that employee's accumulated benefit obligation immediately following the time of such movement, determined assuming that attained service equals the sum of service in the defined benefit program and service in the Public Employee Optional Retirement Program. Benefit commencement occurs on the first date the employee would become eligible for unreduced benefits, using the discount rate and other relevant actuarial assumptions that were used to value the Florida Retirement System defined benefit plan liabilities in the most recent actuarial valuation. For any employee who, at the time of the second election, already maintains an accrued benefit amount in the defined benefit plan, the then-present value of such accrued benefit shall be deemed part of the required transfer amount described in this subparagraph. The division shall ensure that the transfer sum is prepared using a formula and methodology certified by an enrolled actuary.

3.  Notwithstanding subparagraph 2., an employee who chooses to move to the defined benefit program and who became eligible to participate in the Public Employee Optional Retirement Program by reason of employment in a regularly established position with a state employer after June 1, 2002; a district school board employer after September 1, 2002; or a local employer after December 1, 2002, must transfer from his or her Public Employee Optional Retirement Program account and, from other employee moneys as necessary, a sum representing that employee's actuarial accrued liability.

4.  Employees' ability to transfer from the Florida Retirement System defined benefit program to the Public Employee Optional Retirement Program pursuant to paragraphs (a) through (d), and the ability for current employees to have an option to later transfer back into the defined benefit program under subparagraph 2., shall be deemed a significant system amendment. Pursuant to s. 121.031(4), any such resulting unfunded liability arising from actual original transfers from the defined benefit program to the optional program shall be amortized within 30 plan years as a separate unfunded actuarial base independent of the reserve stabilization mechanism defined in s. 121.031(3)(f). For the first 25 years, no direct amortization payment shall be calculated for this base. During this 25-year period, such separate base shall be used to offset the impact of employees exercising their second program election under this paragraph. It is the legislative intent that the actuarial funded status of the Florida Retirement System defined benefit plan is neither beneficially nor adversely impacted by such second program elections in any significant manner, after due recognition of the separate unfunded actuarial base. Following this initial 25-year period, any remaining balance of the original separate base shall be amortized over the remaining 5 years of the required 30-year amortization period.

(5)  CONTRIBUTIONS.--

(a)  Each employer shall contribute on behalf of each participant in the Public Employee Optional Retirement Program an amount based on a percentage of the employee's monthly compensation as set forth in s. 121.571. The state board, acting as plan fiduciary, shall ensure that all plan assets are held in a trust, pursuant to s. 401 of the Internal Revenue Code. The employer shall forward all contributions under this program to the third-party administrator. The fiduciary shall ensure that said contributions are allocated as follows:

1.  The portion earmarked for participant accounts shall be used to purchase interests in the appropriate investment vehicles for the accounts of each participant as specified by the participant, or in accordance with paragraph (4)(d).

2.  The portion earmarked for administrative and educational expenses shall be transferred to the board.

3.  The portion earmarked for disability benefits shall be transferred to the department.

(b)  Employers are responsible for notifying participants regarding maximum contribution levels permitted under the Internal Revenue Code. If a participant contributes to any other tax-deferred plan, he or she is responsible for ensuring that total contributions made to the optional program and to any other such plan do not exceed federally permitted maximums.

(6)  VESTING REQUIREMENTS.--

(a)1.  With respect to employer contributions paid on behalf of the participant to the Public Employee Optional Retirement Program, plus interest and earnings thereon and less investment fees and administrative charges, a participant shall be vested after completing 1 work year, as defined in s. 121.021(54), with an employer, including any service while the participant was a member of the defined benefit retirement program or an optional retirement program authorized under s. 121.051(2)(c) or s. 121.055(6).

2.  If the participant terminates employment prior to satisfying the vesting requirements, the nonvested accumulation shall be transferred from the participant's accounts to the state board for deposit in the suspense account of the Public Employee Optional Retirement Program Trust Fund of the board. If the terminated participant is reemployed as an eligible employee within 5 years, the state board shall transfer to the participant's account any amount of the moneys previously transferred from the participant's accounts to the Public Employee Optional Retirement Program Trust Fund, plus interest calculated at 3.0 percent per annum, calculated from the date of transfer to the date of reemployment.

(b)1.  A participant shall be vested in the amount transferred from the defined benefit program, plus interest and earnings thereon and less administrative charges and investment fees, upon meeting the service requirements for the participant's membership class as set forth in s. 121.021(29). The third-party administrator shall account for such amounts for each participant. The division shall notify the participant and the third-party administrator when the participant has satisfied the vesting period for Florida Retirement System purposes.

2.  If the participant terminates employment prior to satisfying the vesting requirements, the nonvested accumulation shall be transferred from the participant's accounts to the state board for deposit in the suspense account of the Public Employee Optional Retirement Program Trust Fund of the board. If the terminated participant is reemployed as an eligible employee within 5 years, the state board shall transfer to the participant's account any amount of the moneys previously transferred from the participant's accounts to the Public Employee Optional Retirement Program Trust Fund, plus interest calculated at 6.0 percent per annum, calculated from the date of transfer to the date of reemployment.

(c)  Any nonvested accumulations transferred from a participant's account to the suspense account shall be forfeited by the participant if the participant is not reemployed as an eligible employee within 5 years after termination.

(7)  BENEFITS.--Under the Public Employee Optional Retirement Program:

(a)  Benefits shall be provided in accordance with s. 401(a) of the Internal Revenue Code.

(b)  Benefits shall accrue in individual accounts that are participant-directed, portable, and funded by employer contributions and earnings thereon.

(c)  Benefits shall be payable in accordance with the following terms and conditions:

1.  To the extent vested, benefits shall be payable only to a participant, or to his or her beneficiaries as designated by the participant.

2.  Benefits shall be paid by the third-party administrator or designated approved providers in accordance with the law, the contracts, and any applicable board rule or policy.

3.  To begin receiving the benefits, the participant must be terminated from all employment with all Florida Retirement System employers, as provided in s. 121.021(39), or the participant must be deceased. If a participant elects to receive his or her benefits upon termination of employment, the participant must submit a written application to the third-party administrator indicating his or her preferred distribution date and selecting an authorized method of distribution as provided in paragraph (d). The participant may defer receipt of benefits until he or she chooses to make such application, subject to federal requirements.

4.  In the event of a participant's death, moneys accumulated by, or on behalf of, the participant, less withholding taxes remitted to the Internal Revenue Service, shall be distributed to the participant's designated beneficiary or beneficiaries, or to the participant's estate, as if the participant retired on the date of death, as provided in paragraph (e). No other death benefits shall be available for survivors of participants under the Public Employee Optional Retirement Program, except for such benefits, or coverage for such benefits, as are separately afforded by the employer, at the employer's discretion.

(d)  Upon receipt by the third-party administrator of a properly executed application for distribution of benefits, the total accumulated benefit shall be payable to the participant, as:

1.  A lump-sum distribution to the participant;

2.  A lump-sum direct rollover distribution whereby all accrued benefits, plus interest and investment earnings, are paid from the participant's account directly to the custodian of an eligible retirement plan, as defined in s. 402(c)(8)(B) of the Internal Revenue Code, on behalf of the participant; or

3.  Periodic distributions, as authorized by the state board.

(e)  Survivor benefits shall be payable as:

1.  A lump-sum distribution payable to the beneficiaries, or to the deceased participant's estate;

2.  An eligible rollover distribution on behalf of the surviving spouse of a deceased participant, whereby all accrued benefits, plus interest and investment earnings, are paid from the deceased participant's account directly to the custodian of an individual retirement account or an individual retirement annuity, as described in s. 402(c)(9) of the Internal Revenue Code, on behalf of the surviving spouse; or

3.  A partial lump-sum payment whereby a portion of the accrued benefit is paid to the deceased participant's surviving spouse or other designated beneficiaries, less withholding taxes remitted to the Internal Revenue Service, and the remaining amount is transferred directly to the custodian of an individual retirement account or an individual retirement annuity, as described in s. 402(c)(9) of the Internal Revenue Code, on behalf of the surviving spouse. The proportions must be specified by the participant or the surviving beneficiary.

This paragraph does not abrogate other applicable provisions of state or federal law providing for payment of death benefits.

(f)  The benefits payable to any person under the Public Employee Optional Retirement Program, and any contributions accumulated under such program, are not subject to assignment, execution, attachment, or any legal process, except for qualified domestic relations orders by a court of competent jurisdiction, income deduction orders as provided in s. 61.1301, and federal income tax levies.

(8)  ADMINISTRATION OF PROGRAM.--

(a)  The Public Employee Optional Retirement Program shall be administered by the state board and affected employers. The board shall adopt rules establishing the role and responsibilities of affected state, local government, and education-related employers, the state board, the department, and third-party contractors in administering the Public Employee Optional Retirement Program. The department shall adopt rules necessary to implement the optional program in coordination with the defined benefit retirement program and the disability benefits available under the optional program.

(b)1.  The state board shall select and contract with one third-party administrator to provide administrative services if those services cannot be competitively and contractually provided by the Division of Retirement within the Department of Management Services. With the approval of the state board, the third-party administrator may subcontract with other organizations or individuals to provide components of the administrative services. As a cost of administration, the board may compensate any such contractor for its services, in accordance with the terms of the contract, as is deemed necessary or proper by the board. The third-party administrator may not be an approved provider or be affiliated with an approved provider.

2.  These administrative services may include, but are not limited to, enrollment of eligible employees, collection of employer contributions, disbursement of such contributions to approved providers in accordance with the allocation directions of participants; services relating to consolidated billing; individual and collective recordkeeping and accounting; asset purchase, control, and safekeeping; and direct disbursement of funds to and from the third-party administrator, the division, the board, employers, participants, approved providers, and beneficiaries. This section does not prevent or prohibit a bundled provider from providing any administrative or customer service, including accounting and administration of individual participant benefits and contributions; individual participant recordkeeping; asset purchase, control, and safekeeping; direct execution of the participant's instructions as to asset and contribution allocation; calculation of daily net asset values; direct access to participant account information; or periodic reporting to participants, at least quarterly, on account balances and transactions, if these services are authorized by the board as part of the contract.

3.  The state board shall select and contract with one or more organizations to provide educational services. With approval of the board, the organizations may subcontract with other organizations or individuals to provide components of the educational services. As a cost of administration, the board may compensate any such contractor for its services in accordance with the terms of the contract, as is deemed necessary or proper by the board. The education organization may not be an approved provider or be affiliated with an approved provider.

4.  Educational services shall be designed by the board and department to assist employers, eligible employees, participants, and beneficiaries in order to maintain compliance with United States Department of Labor regulations under s. 404(c) of the Employee Retirement Income Security Act of 1974 and to assist employees in their choice of defined benefit or defined contribution retirement alternatives. Educational services include, but are not limited to, disseminating educational materials; providing retirement planning education; explaining the differences between the defined benefit retirement plan and the defined contribution retirement plan; and offering financial planning guidance on matters such as investment diversification, investment risks, investment costs, and asset allocation. An approved provider may also provide educational information, including retirement planning and investment allocation information concerning its products and services.

(c)1.  In evaluating and selecting a third-party administrator, the board shall establish criteria under which it shall consider the relative capabilities and qualifications of each proposed administrator. In developing such criteria, the board shall consider:

a.  The administrator's demonstrated experience in providing administrative services to public or private sector retirement systems.

b.  The administrator's demonstrated experience in providing daily valued recordkeeping to defined contribution plans.

c.  The administrator's ability and willingness to coordinate its activities with the Florida Retirement System employers, the board, and the division, and to supply to such employers, the board, and the division the information and data they require, including, but not limited to, monthly management reports, quarterly participant reports, and ad hoc reports requested by the department or board.

d.  The cost-effectiveness and levels of the administrative services provided.

e.  The administrator's ability to interact with the participants, the employers, the board, the division, and the providers; the means by which participants may access account information, direct investment of contributions, make changes to their accounts, transfer moneys between available investment vehicles, and transfer moneys between investment products; and any fees that apply to such activities.

f.  Any other factor deemed necessary by the Trustees of the State Board of Administration.

g.  The recommendations of the Public Employee Optional Retirement Program Advisory Committee established in subsection (12).

2.  In evaluating and selecting an educational provider, the board shall establish criteria under which it shall consider the relative capabilities and qualifications of each proposed educational provider. In developing such criteria, the board shall consider:

a.  Demonstrated experience in providing educational services to public or private sector retirement systems.

b.  Ability and willingness to coordinate its activities with the Florida Retirement System employers, the board, and the division, and to supply to such employers, the board, and the division the information and data they require, including, but not limited to, reports on educational contacts.

c.  The cost-effectiveness and levels of the educational services provided.

d.  Ability to provide educational services via different media, including, but not limited to, the Internet, personal contact, seminars, brochures, and newsletters.

e.  Any other factor deemed necessary by the Trustees of the State Board of Administration.

f.  The recommendations of the Public Employee Optional Retirement Program Advisory Committee established in subsection (12).

3.  The establishment of the criteria shall be solely within the discretion of the board.

(d)  The board shall develop the form and content of any contracts to be offered under the Public Employee Optional Retirement Program. In developing its contracts, the board must consider:

1.  The nature and extent of the rights and benefits to be afforded in relation to the required contributions under the program.

2.  The suitability of the rights and benefits to be afforded and the interests of employers in the recruitment and retention of eligible employees.

(e)1.  The board may contract with any consultant for professional services, including legal, consulting, accounting, and actuarial services, deemed necessary to implement and administer the optional program by the Trustees of the State Board of Administration. The board may enter into a contract with one or more vendors to provide low-cost investment advice to participants, supplemental to education provided by the third-party administrator. All fees under any such contract shall be paid by those participants who choose to use the services of the vendor.

2.  The department may contract with consultants for professional services, including legal, consulting, accounting, and actuarial services, deemed necessary to implement and administer the optional program in coordination with the defined benefit program of the Florida Retirement System. The department, in coordination with the board, may enter into a contract with the third-party administrator in order to coordinate services common to the various programs within the Florida Retirement System.

(f)  The third-party administrator shall not receive direct or indirect compensation from an approved provider, except as specifically provided for in the contract with the board.

(g)  The board shall resolve any conflict between the third-party administrator and an approved provider when such conflict threatens the implementation or administration of the program or the quality of services to employees and may resolve any other conflicts.

(9)  INVESTMENT OPTIONS OR PRODUCTS; PERFORMANCE REVIEW.--

(a)  The board shall develop policy and procedures for selecting, evaluating, and monitoring the performance of approved providers and investment products to which employees may direct retirement contributions under the program. In accordance with such policy and procedures, the board shall designate and contract for a number of investment products as determined by the board. The board shall also select one or more bundled providers each of whom may offer multiple investment options and related services when such an approach is determined by the board to afford value to the participants otherwise not available through individual investment products. Each approved bundled provider may offer investment options that provide participants with the opportunity to invest in each of the following asset classes, to be composed of individual options that represent either a single asset class or a combination thereof: money markets, United States fixed income, United States equities, and foreign stock. The board shall review and manage all educational materials, contract terms, fee schedules, and other aspects of the approved provider relationships to ensure that no provider is unduly favored or penalized by virtue of its status within the plan.

(b)  The board shall consider investment options or products it considers appropriate to give participants the opportunity to accumulate retirement benefits, subject to the following:

1.  The Public Employee Optional Retirement Program must offer a diversified mix of low-cost investment products that span the risk-return spectrum and may include a guaranteed account as well as investment products, such as individually allocated guaranteed and variable annuities, which meet the requirements of this subsection and combine the ability to accumulate investment returns with the option of receiving lifetime income consistent with the long-term retirement security of a pension plan and similar to the lifetime-income benefit provided by the Florida Retirement System.

2.  Investment options or products offered by the group of approved providers may include mutual funds, group annuity contracts, individual retirement annuities, interests in trusts, collective trusts, separate accounts, and other such financial instruments, and may include products that give participants the option of committing their contributions for an extended time period in an effort to obtain returns higher than those that could be obtained from investment products offering full liquidity.

3.  The board shall not contract with any provider that imposes a front-end, back-end, contingent, or deferred sales charge, or any other fee that limits or restricts the ability of participants to select any investment product available in the optional program. This prohibition does not apply to fees or charges that are imposed on withdrawals from products that give participants the option of committing their contributions for an extended time period in an effort to obtain returns higher than those that could be obtained from investment products offering full liquidity, provided that the product in question, net of all fees and charges, produces material benefits relative to other comparable products in the program offering full liquidity.

4.  Fees or charges for insurance features, such as mortality and expense-risk charges, must be reasonable relative to the benefits provided.

(c)  In evaluating and selecting approved providers and products, the board shall establish criteria under which it shall consider the relative capabilities and qualifications of each proposed provider company and product. In developing such criteria, the board shall consider the following to the extent such factors may be applied in connection with investment products, services, or providers:

1.  Experience in the United States providing retirement products and related financial services under defined contribution retirement plans.

2.  Financial strength and stability which shall be evidenced by the highest ratings assigned by nationally recognized rating services when comparing proposed providers that are so rated.

3.  Intrastate and interstate portability of the product offered, including early withdrawal options.

4.  Compliance with the Internal Revenue Code.

5.  The cost-effectiveness of the product provided and the levels of service supporting the product relative to its benefits and its characteristics, including, without limitation, the level of risk borne by the provider.

6.  The provider company's ability and willingness to coordinate its activities with Florida Retirement System employers, the department, and the board, and to supply to such employers, the department, and the board the information and data they require.

7.  The methods available to participants to interact with the provider company; the means by which participants may access account information, direct investment of contributions, make changes to their accounts, transfer moneys between available investment vehicles, and transfer moneys between provider companies; and any fees that apply to such activities.

8.  The provider company's policies with respect to the transfer of individual account balances, contributions, and earnings thereon, both internally among investment products offered by the provider company and externally between approved providers, as well as any fees, charges, reductions, or penalties that may be applied.

9.  An evaluation of specific investment products, taking into account each product's experience in meeting its investment return objectives net of all related fees, expenses, and charges, including, but not limited to, investment management fees, loads, distribution and marketing fees, custody fees, recordkeeping fees, education fees, annuity expenses, and consulting fees.

10.  Organizational factors, including, but not limited to, financial solvency, organizational depth, and experience in providing institutional and retail investment services.

(d)  As a condition of offering any investment option or product in the optional retirement program, the approved provider must agree to make the investment product or service available under the most beneficial terms offered to any other customer, subject to approval by the Trustees of the State Board of Administration.

(e)  The board shall regularly review the performance of each approved provider and product and related organizational factors to ensure continued compliance with established selection criteria and with board policy and procedures. Providers and products may be terminated subject to contract provisions. The board shall adopt procedures to transfer account balances from terminated products or providers to other products or providers in the optional program.

(f)1.  An approved provider shall comply with all federal and state securities and insurance laws and regulations applicable to the provider, as well as the applicable rules and guidelines of the National Association of Securities Dealers which govern the ethical marketing of investment products. In furtherance of this mandate, an approved provider must agree in its contract with the board to establish and maintain a compliance education and monitoring system to supervise the activities of all personnel who directly communicate with individual participants and recommend investment products, which system is consistent with rules of the National Association of Securities Dealers.

2.  Approved provider personnel who directly communicate with individual participants and who recommend investment products shall make an independent and unbiased determination as to whether an investment product is suitable for a particular participant.

3.  The board shall develop procedures to receive and resolve participant complaints against a provider or approved provider personnel, and, when appropriate, refer such complaints to the appropriate agency.

4.  Approved providers may not sell or in any way distribute any customer list or participant identification information generated through their offering of products or services through the optional retirement program.

(10)  EDUCATION COMPONENT.--

(a)  The board, in coordination with the department, shall provide for an education component for system members in a manner consistent with the provisions of this section. The education component must be available to eligible employees at least 90 days prior to the beginning date of the election period for the employees of the respective types of employers.

(b)  The education component must provide system members with impartial and balanced information about plan choices. The education component must involve multimedia formats. Program comparisons must, to the greatest extent possible, be based upon the retirement income that different retirement programs may provide to the participant. The board shall monitor the performance of the contract to ensure that the program is conducted in accordance with the contract, applicable law, and the rules of the board.

(c)  The board, in coordination with the department, shall provide for an initial and ongoing transfer education component to provide system members with information necessary to make informed plan choice decisions. The transfer education component must include, but is not limited to, information on:

1.  The amount of money available to a member to transfer to the defined contribution program.

2.  The features of and differences between the defined benefit program and the defined contribution program, both generally and specifically, as those differences may affect the member.

3.  The expected benefit available if the member were to retire under each of the retirement programs, based on appropriate alternative sets of assumptions.

4.  The rate of return from investments in the defined contribution program and the period of time over which such rate of return must be achieved to equal or exceed the expected monthly benefit payable to the member under the defined benefit program.

5.  The historical rates of return for the investment alternatives available in the defined contribution programs.

6.  The benefits and historical rates of return on investments available in a typical deferred compensation plan or a typical plan under s. 403(b) of the Internal Revenue Code for which the employee may be eligible.

7.  The program choices available to employees of the State University System and the comparative benefits of each available program, if applicable.

8.  Payout options available in each of the retirement programs.

(d)  An ongoing education and communication component must provide system members with information necessary to make informed decisions about choices within their program of membership and in preparation for retirement. The component must include, but is not limited to, information concerning:

1.  Rights and conditions of membership.

2.  Benefit features within the program, options, and effects of certain decisions.

3.  Coordination of contributions and benefits with a deferred compensation plan under s. 457 or a plan under s. 403(b) of the Internal Revenue Code.

4.  Significant program changes.

5.  Contribution rates and program funding status.

6.  Planning for retirement.

(e)  Descriptive materials must be prepared under the assumption that the employee is an unsophisticated investor, and all materials used in the education component must be approved by the state board prior to dissemination.

(f)  The board and the department shall also establish a communication component to provide program information to participating employers and the employers' personnel and payroll officers and to explain their respective responsibilities in conjunction with the retirement programs.

(g)  Funding for education of new employees may reflect administrative costs to the optional program and the defined benefit program.

(11)  PARTICIPANT INFORMATION REQUIREMENTS.--The board shall ensure that each participant is provided a quarterly statement that accounts for the contributions made on behalf of such participant; the interest and investment earnings thereon; and any fees, penalties, or other deductions that apply thereto. At a minimum, such statements must:

(a)  Indicate the participant's investment options.

(b)  State the market value of the account at the close of the current quarter and previous quarter.

(c)  Show account gains and losses for the period and changes in account accumulation unit values for the period.

(d)  Itemize account contributions for the quarter.

(e)  Indicate any account changes due to adjustment of contribution levels, reallocation of contributions, balance transfers, or withdrawals.

(f)  Set forth any fees, charges, penalties, and deductions that apply to the account.

(g)  Indicate the amount of the account in which the participant is fully vested and the amount of the account in which the participant is not vested.

(h)  Indicate each investment product's performance relative to an appropriate market benchmark.

The third-party administrator shall provide quarterly and annual summary reports to the board and any other reports requested by the department or the board. In any solicitation or offer of coverage under an optional retirement program, a provider company shall be governed by the contract readability provisions of s. 627.4145, notwithstanding s. 627.4145(6)(c). In addition, all descriptive materials must be prepared under the assumption that the participant is an unsophisticated investor. Provider companies must maintain an internal system of quality assurance, have proven functional systems that are date-calculation compliant, and be subject to a due-diligence inquiry that proves their capacity and fitness to undertake service responsibilities.

(12)  ADVISORY COMMITTEES TO PROVIDE ADVICE AND ASSISTANCE.--The Investment Advisory Council and the Public Employee Optional Retirement Program Advisory Committee shall assist the board in implementing and administering the Public Employee Optional Retirement Program.

(a)  The Investment Advisory Council, created pursuant to s. 215.444, shall review the board's initial recommendations regarding the criteria to be used in selecting and evaluating approved providers and investment products. The council may provide comments on the recommendations to the board within 45 days after receiving the initial recommendations. The board shall make the final determination as to whether any investment provider or product, any contractor, or any and all contract provisions shall be approved for the program.

(b)1.  The Public Employee Optional Retirement Program Advisory Committee shall be composed of seven members. The President of the Senate shall appoint two members, the Speaker of the House of Representatives shall appoint two members, the Governor shall appoint one member, the Treasurer shall appoint one member, and the Comptroller shall appoint one member. The members of the advisory committee shall elect a member as chair. The appointments shall be made by September 1, 2000, and the committee shall meet to organize by October 1, 2000. The initial appointments shall be for a term of 24 months. Each appointing authority shall fill any vacancy occurring among its appointees for the remainder of the original term.

2.  The advisory committee shall make recommendations on the selection of the third-party administrator, the education providers, and the investment products and providers. The committee's recommendations on the third-party administrator must be forwarded to the Trustees of the State Board of Administration by January 1, 2001. The recommendations on the education providers must be forwarded to the trustees by April 1, 2001.

3.  The advisory committee's recommendations and activities shall be guided by the best interests of the employees, considering the interests of employers, and the intent of the Legislature in establishing the Public Employee Optional Retirement Program.

4.  The staff of the state board and the department shall assist the advisory committee.

(13)  FEDERAL REQUIREMENTS.--

(a)  Provisions of this section shall be construed, and the Public Employee Optional Retirement Program shall be administered, so as to comply with the Internal Revenue Code, 26 U.S.C., and specifically with plan qualification requirements imposed on governmental plans under s. 401(a) of the Internal Revenue Code. The board shall have the power and authority to adopt rules reasonably necessary to establish or maintain the qualified status of the Optional Retirement Program under the Internal Revenue Code and to implement and administer the Optional Retirement Program in compliance with the Internal Revenue Code and this part; provided however, that the board shall not have the authority to adopt any rule which makes a substantive change to the Optional Retirement Program as designed by this part.

(b)  Any section or provision of this chapter which is susceptible to more than one construction must be interpreted in favor of the construction most likely to satisfy requirements imposed by s. 401(a) of the Internal Revenue Code.

(c)  Contributions payable under this section for any limitation year may not exceed the maximum amount allowable for qualified defined contribution pension plans under applicable provisions of the Internal Revenue Code. If an employee who has elected to participate in the Public Employee Optional Retirement Program participates in any other plan that is maintained by the participating employer, benefits that accrue under the Public Employee Optional Retirement Program shall be considered primary for any aggregate limitation applicable under s. 415 of the Internal Revenue Code.

(14)  INVESTMENT POLICY STATEMENT.--

(a)  Investment products and approved providers selected for the Public Employee Optional Retirement Program shall conform with the Public Employee Optional Retirement Program Investment Policy Statement, herein referred to as the "statement," as developed and approved by the Trustees of the State Board of Administration. The statement must include, among other items, the investment objectives of the Public Employee Optional Retirement Program, manager selection and monitoring guidelines, and performance measurement criteria. As required from time to time, the executive director of the state board may present recommended changes in the statement to the board for approval.

(b)  Prior to presenting the statement, or any recommended changes thereto, to the state board, the executive director of the board shall present such statement or changes to the Investment Advisory Council for review. The council shall present the results of its review to the board prior to the board's final approval of the statement or changes in the statement.

(15)  STATEMENT OF FIDUCIARY STANDARDS AND RESPONSIBILITIES.--

(a)  Investment of optional defined contribution retirement plan assets shall be made for the sole interest and exclusive purpose of providing benefits to plan participants and beneficiaries and defraying reasonable expenses of administering the plan. The program's assets are to be invested, on behalf of the program participants, with the care, skill, and diligence that a prudent person acting in a like manner would undertake. The performance of the investment duties set forth in this paragraph shall comply with the fiduciary standards set forth in the Employee Retirement Income Security Act of 1974 at 29 U.S.C. s. 1104(a)(1)(A)-(C). In case of conflict with other provisions of law authorizing investments, the investment and fiduciary standards set forth in this subsection shall prevail.

(b)  If a participant or beneficiary of the Public Employee Optional Retirement Program exercises control over the assets in his or her account, as determined by reference to regulations of the United States Department of Labor under s. 404(c) of the Employee Retirement Income Security Act of 1974 and all applicable laws governing the operation of the program, no program fiduciary shall be liable for any loss to a participant's or beneficiary's account which results from such participant's or beneficiary's exercise of control.

(16)  DISABILITY BENEFITS.--For any participant of the optional retirement program who becomes totally and permanently disabled, as defined in s. 121.091(4)(b), the participant shall be entitled to receive those moneys that have accrued in his or her participant account. It is the intent of the Legislature to design a disability benefit for participants of the optional program similar to those disability benefits afforded defined benefit program members. The department is directed to study the potential options of such coverage, including self-insurance and commercial coverage, the alternative methods of administering such benefits, and the fiscal impacts on the employees and employers, and to make recommendations to the Legislature by January 15, 2001.

(17)  SOCIAL SECURITY COVERAGE.--Social security coverage shall be provided for all officers and employees who become participants of the optional program. Any modification of the present agreement with the Social Security Administration, or referendum required under the Social Security Act, for the purpose of providing social security coverage for any member shall be requested by the state agency in compliance with the applicable provisions of the Social Security Act governing such coverage. However, retroactive social security coverage for service prior to December 1, 1970, with the employer shall not be provided for any member who was not covered under the agreement as of November 30, 1970.

(18)  RETIREE HEALTH INSURANCE SUBSIDY.--All officers and employees who are participants of the optional program shall be eligible to receive the retiree health insurance subsidy, subject to the provisions of s. 112.363.

History.--s. 3, ch. 2000-169; s. 5, ch. 2001-235; s. 2, ch. 2001-255.

¹Note.--Section 32, ch. 2000-169, provides that:

"Except as otherwise provided herein, this act shall take effect July 1, 2000, and the Public Employee Optional Retirement Program created by this act shall be contingent upon:

"1.  The State Board of Administration receiving a favorable determination letter and a favorable private letter ruling from the Internal Revenue Service by May 1, 2002. If the Internal Revenue Service refuses to act upon a request for a private letter ruling, then a favorable legal opinion from a qualified tax attorney or firm may be substituted for such private letter ruling.

"2.  The State Board of Administration having selected and contracted with the third-party administrator.

"3.  The third-party administrator having successfully established data links with the employers participating in the Florida Retirement System.

"4.  The education component of the Public Employee Optional Retirement Program having been available for at least 90 days.

"5.  A diversified portfolio of financial instruments having become available to participants of the Public Employee Optional Retirement Program."