121.4501 Public Employee Optional Retirement Program.

Statutes > Florida Statutes > TITLE X > Chapter 121 FLORIDA RETIREMENT SYSTEM > PART II PUBLIC EMPLOYEE OPTIONAL RETIREMENT PROGRAM(ss. 121.4501-121.5911) > 121.4501 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, ss. 121.571, and 121.71 to the Public Employee Optional Retirement Program Trust Fund toward the funding of such optional benefits.

(2) DEFINITIONS. As used in this part, 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 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 the provider’s 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) “Average monthly compensation” means one-twelfth of average final compensation as defined in s. 121.021.

(d) “Defined benefit program” means the defined benefit program of the Florida Retirement System administered under part I of this chapter.

(e) “Division” means the Division of Retirement within the department.

(f) “Electronic means” means by telephone, if the required information is received on a recorded line, or through Internet access, if the required information is captured online.

(g) “Eligible employee” means an officer or employee, as defined in s. 121.021, who:

1. Is a member of, or is eligible for membership in, the Florida Retirement System, including any renewed member of the Florida Retirement System initially enrolled before July 1, 2010; or

2. Participates in, or is eligible to participate in, the Senior Management Service Optional Annuity Program as established under s. 121.055(6), the State Community College System Optional Retirement Program as established under s. 121.051(2)(c), or the State University System Optional Retirement Program established under s. 121.35.

The term does not include any member participating in the Deferred Retirement Option Program established under s. 121.091(13), a retiree of a state-administered retirement system initially reemployed on or after July 1, 2010, or a mandatory participant of the State University System Optional Retirement Program established under s. 121.35.

(h) “Employer” means an employer, as defined in s. 121.021, of an eligible employee.

(i) “Optional retirement program” or “optional program” means the Public Employee Optional Retirement Program established under this part.

(j) “Participant” means an eligible employee who enrolls in the optional program as provided in subsection (4) or a terminated Deferred Retirement Option Program participant as described in subsection (21).

(k) “Retiree” means a former participant of the optional retirement program who has terminated employment and has taken a distribution as provided in s. 121.591, except for a mandatory distribution of a de minimis account authorized by the state board.

(l) “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 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 under the defined benefit program, subject to recomputation under subparagraph 3. For state employees enrolling under subparagraph (4)(a)1., initial estimates will be based upon creditable service and average final compensation as of midnight on June 30, 2002; for district school board employees enrolling under subparagraph (4)(b)1., initial estimates will be based upon creditable service and average final compensation as of midnight on September 30, 2002; and for local government employees enrolling under subparagraph (4)(c)1., initial estimates will be based upon creditable service and average final compensation as of midnight on December 31, 2002. The dates respectively specified above shall be construed as the “estimate date” for these employees. 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 the estimate date. The benefit commencement age shall be the younger of the following, but shall not be younger than the member’s age as of the estimate date:

(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 the estimate date, 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 the estimate date:

(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 the estimate date, 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 effective annual interest equal to the assumed return on the actuarial investment which was used in the most recent actuarial valuation of the system, 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 unless the major financial markets for securities available for a transfer are seriously disrupted by an unforeseen event which also causes the suspension of trading on any national securities exchange in the country where the securities were issued. In that event, such 30-day period of time may be extended by a resolution of the trustees. 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 third-party administrator by August 31, 2002, or, in the case of an active employee who is on a leave of absence on April 1, 2002, by the last business day of the 5th month following the month the leave of absence concludes. 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 time period 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 April 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, by the last business day of the 5th month following the employee’s month of hire, 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 third-party administrator. The election to participate in the optional program is irrevocable, except as provided in paragraph (e).

b. If the employee files such election within the prescribed time period, enrollment in the optional program shall be effective on the first day of employment. The employer retirement contributions paid through the month of the employee plan change shall be transferred to the optional program, and, effective the first day of the next month, the employer shall pay the applicable contributions based on the employee membership class in the optional program.

c. Any such employee who fails to elect to participate in the Public Employee Optional Retirement Program within the prescribed time period 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. With respect to employees who become eligible to participate in the Public Employee Optional Retirement Program pursuant to s. 121.051(2)(c)3. or s. 121.35(3)(i), any such employee may elect to participate in the Public Employee Optional Retirement Program in lieu of retaining his or her participation in the State Community College System Optional Retirement Program or the State University System Optional Retirement Program. The election must be made in writing or by electronic means and must be filed with the third-party administrator. 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 participation in the State Community College System Optional Retirement Program or the State University System Optional Retirement Program 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.

4. 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 third-party administrator by November 30, or, in the case of an active employee who is on a leave of absence on July 1, 2002, by the last business day of the 5th month following the month the leave of absence concludes. 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.

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 third-party administrator by February 28, 2003, or, in the case of an active employee who is on a leave of absence on October 1, 2002, by the last business day of the 5th month following the month the leave of absence concludes. 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.

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 optional retirement program, or the month following the receipt of the eligible employee’s plan election, if sooner, the employee shall have one opportunity, at the employee’s discretion, to choose to move from the defined benefit program to the optional retirement program or from the optional retirement program to the defined benefit program. Eligible employees may elect to move between Florida Retirement System programs only if they are earning service credit in an employer-employee relationship consistent with s. 121.021(17)(b), excluding leaves of absence without pay. Effective July 1, 2005, such elections are effective on the first day of the month following the receipt of the election by the third-party administrator and are not subject to the requirements regarding an employer-employee relationship or receipt of contributions for the eligible employee in the effective month, except when the election is received by the third-party administrator. This paragraph is 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 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 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 optional retirement program. Benefit commencement occurs on the first date the employee is eligible for unreduced benefits, using the discount rate and other relevant actuarial assumptions that were used to value the 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 program, the then-present value of the accrued benefit shall be deemed part of the required transfer amount. 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 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 optional retirement program account, and from other employee moneys as necessary, a sum representing the employee’s actuarial accrued liability.

4. An employee’s ability to transfer from the defined benefit program to the optional retirement program pursuant to paragraphs (a)-(d), and the ability of a current employee 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 resulting unfunded liability arising from actual original transfers from the defined benefit program to the optional program must 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, a direct amortization payment may not be calculated for this base. During this 25-year period, the separate base shall be used to offset the impact of employees exercising their second program election under this paragraph. It is the intent of the Legislature that the actuarial funded status of the defined benefit program not be affected by such second program elections in any significant manner, after due recognition of the separate unfunded actuarial base. Following the 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. If the employee chooses to transfer from the optional retirement program to the defined benefit program and retains an excess account balance in the optional program after satisfying the buy-in requirements under this paragraph, the excess may not be distributed until the member retires from the defined benefit program. The excess account balance may be rolled over to the defined benefit program and used to purchase service credit or upgrade creditable service in that program.

(5) CONTRIBUTIONS.

(a) Each employer shall contribute on behalf of each participant in the Public Employee Optional Retirement Program, as provided in part III of this chapter. 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 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.

(c) The Public Employee Optional Retirement Program may accept for deposit into participant accounts contributions in the form of rollovers or direct trustee-to-trustee transfers by or on behalf of participants, reasonably determined by the board to be eligible for rollover or transfer to the optional retirement program pursuant to the Internal Revenue Code, if such contributions are made in accordance with rules as may be adopted by the board. Such contributions shall be accounted for in accordance with any applicable Internal Revenue Code requirements and rules of the board.

(6) VESTING REQUIREMENTS.

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

2. If the participant terminates employment before satisfying the vesting requirements, the nonvested accumulation must be transferred from the participant’s accounts to the state board for deposit and investment by the state board in the suspense account created within the Public Employee Optional Retirement Program Trust Fund. 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 previously transferred from the participant’s accounts to the suspense account, plus actual earnings on such amount while in the suspense account.

(b)1. With respect to amounts transferred from the defined benefit program to the investment program, plus interest and earnings, and less investment fees and administrative charges, a participant shall be vested in the amount transferred 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 before satisfying the vesting requirements, the nonvested accumulation must be transferred from the participant’s accounts to the state board for deposit and investment by the state board in the suspense account created within the Public Employee Optional Retirement Program Trust Fund. 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 previously transferred from the participant’s accounts to the suspense account, plus the actual earnings on such amount while in the suspense account.

(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.

(8) ADMINISTRATION OF PROGRAM.

(a) The optional retirement program shall be administered by the state board and affected employers. The board may require oaths, by affidavit or otherwise, and acknowledgments from persons in connection with the administration of its statutory duties and responsibilities for this program. An oath, by affidavit or otherwise, may not be required of an employee participant at the time of enrollment. Acknowledgment of an employee’s election to participate in the program shall be no greater than necessary to confirm the employee’s election. The state board shall adopt rules to carry out its statutory duties with respect to administering the optional retirement program, including establishing the roles and responsibilities of affected state, local government, and education-related employers, the state board, the department, and third-party contractors. The department shall adopt rules necessary to administer the optional program in coordination with the defined benefit 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.

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.

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 state board shall receive and resolve participant complaints against the program, the third-party administrator, or any program vendor or provider; shall resolve any conflict between the third-party administrator and an approved provider if such conflict threatens the implementation or administration of the program or the quality of services to employees; and may resolve any other conflicts. The third-party administrator shall retain all participant records for at least 5 years for use in resolving any participant conflicts. The state board, the third-party administrator, or a provider is not required to produce documentation or an audio recording to justify action taken with regard to a participant if the action occurred 5 or more years before the complaint is submitted to the state board. It is presumed that all action taken 5 or more years before the complaint is submitted was taken at the request of the participant and with the participant’s full knowledge and consent. To overcome this presumption, the participant must present documentary evidence or an audio recording demonstrating otherwise.

(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) By March 1, 2010, the board shall identify and offer at least one terror-free investment product that allocates its funds among securities not subject to divestiture as provided in s. 215.473 if the investment product is deemed by the board to be consistent with prudent investor standards. No person may bring a civil, criminal, or administrative action against an approved provider; the state board; or any employee, officer, director, or trustee of such provider based upon the divestiture of any security or the offering of a terror-free investment product as specified in this paragraph.

(e) 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.

(f) 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.

(g)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.

(h) Pursuant to paragraph (8)(a), all Florida Retirement System employers have an obligation to regularly communicate the existence of the two Florida Retirement System plans and the plan choice in the natural course of administering their personnel functions, using the educational materials supplied by the state board and the Department of Management Services.

(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.

(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 COUNCIL TO PROVIDE ADVICE AND ASSISTANCE. The Investment Advisory Council shall assist the board in implementing and administering the Public Employee Optional Retirement Program. 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.

(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.

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Florida Codes and Statutes

121.4501 Public Employee Optional Retirement Program.