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Chapter 37. Deferred Compensation Plans of California Education Code >> Division 1. >> Title 1. >> Part 13. >> Chapter 37.
(a) The board may develop one or more deferred compensation
plans under Section 457 of the Internal Revenue Code that an employer
may choose to establish and offer to its employees who are members
or participants of the plan under this part or Part 14 (commencing
with Section 26000) or any employee of a local public agency or
political subdivision of this state that employs persons to perform
creditable service subject to coverage by the plan under this part.
(b) If an employer adopts a deferred compensation plan described in subdivision (a):
(1) The employer shall enter into a written contractual arrangement with the system under which the system, or a third-party administrator acting on behalf of the system, shall provide investment, recordkeeping, and administrative services for the deferred compensation plan.
(2) The deferred compensation plan shall continue to constitute a separate plan established and maintained by the adopting employer.
(3) The system shall be treated as acting on behalf of the employer in administering the deferred compensation plan.
(4) The terms and administration of the deferred compensation plan shall be in accordance with the applicable provisions of Section 457 of the Internal Revenue Code.
(5) In administering the deferred compensation plan on behalf of the employer, the board shall have the same investment authority and discretion and be subject to the same fiduciary standards pursuant to Chapter 4 (commencing with Section 22250), with respect to amounts deferred under the deferred compensation plan as applied by the system with respect to the Teachers' Retirement Fund.
(c) If an employer establishes and maintains a deferred compensation plan described in subdivision (a), the deferred compensation plan shall be offered to all of its employees who are eligible to participate pursuant to this section.
(d) An employee participating in a deferred compensation plan established by an employer under this section shall enter into a written agreement with the employer for the deferral of compensation prior to the performance of the services to which that compensation relates.
(e) If an employer chooses to establish and maintain a deferred compensation plan described in subdivision (a) that is to be administered by the system, the employer shall take all necessary or appropriate action to implement this section in cooperation with the system.
(b) If an employer adopts a deferred compensation plan described in subdivision (a):
(1) The employer shall enter into a written contractual arrangement with the system under which the system, or a third-party administrator acting on behalf of the system, shall provide investment, recordkeeping, and administrative services for the deferred compensation plan.
(2) The deferred compensation plan shall continue to constitute a separate plan established and maintained by the adopting employer.
(3) The system shall be treated as acting on behalf of the employer in administering the deferred compensation plan.
(4) The terms and administration of the deferred compensation plan shall be in accordance with the applicable provisions of Section 457 of the Internal Revenue Code.
(5) In administering the deferred compensation plan on behalf of the employer, the board shall have the same investment authority and discretion and be subject to the same fiduciary standards pursuant to Chapter 4 (commencing with Section 22250), with respect to amounts deferred under the deferred compensation plan as applied by the system with respect to the Teachers' Retirement Fund.
(c) If an employer establishes and maintains a deferred compensation plan described in subdivision (a), the deferred compensation plan shall be offered to all of its employees who are eligible to participate pursuant to this section.
(d) An employee participating in a deferred compensation plan established by an employer under this section shall enter into a written agreement with the employer for the deferral of compensation prior to the performance of the services to which that compensation relates.
(e) If an employer chooses to establish and maintain a deferred compensation plan described in subdivision (a) that is to be administered by the system, the employer shall take all necessary or appropriate action to implement this section in cooperation with the system.
(a) (1) The Teachers' Deferred Compensation Fund is hereby
established to serve as the repository of funds received by the
system pursuant to this chapter, Chapter 36 (commencing with Section
24950) or Chapter 39 (commencing with Section 25100).
(2) Except as described in paragraph (7), premium and fee revenues received by the system pursuant to Chapter 36 (commencing with Section 24950), except Section 24950.5, shall be deposited into the 403(b) Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that chapter, excluding Section 24950.5.
(3) Premium and fee revenues received by the system pursuant to Section 24950.5 of Chapter 36 shall be deposited into the Roth IRA Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that section.
(4) Premium and fee revenues received by the system pursuant to this chapter shall be deposited into the Deferred Compensation Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of this chapter.
(5) Compensation deferrals received by the system pursuant to this chapter shall be deposited into the Deferred Compensation Investment Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of this chapter.
(6) Fee revenues received by the system pursuant to Chapter 39 (commencing with Section 25100) shall be deposited into the 403(b) Vendor Registry Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that chapter.
(7) Fee revenues received by the system pursuant to Sections 24953 and 24977, and any assets in the Teachers' Retirement Program Development Fund pursuant to Section 22307.5 as of January 1, 2008, shall be deposited into the Deferred Compensation Administrative and Compliance Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of Sections 24953 and 24977.
(8) Notwithstanding Section 13340 of the Government Code, all moneys in the Teachers' Deferred Compensation Fund shall be continuously appropriated without regard to fiscal year to carry out the purposes of this chapter, Chapter 36 (commencing with Section 24950), and Chapter 39 (commencing with Section 25100).
(b) With respect to deferred compensation plans administered pursuant to this chapter, and notwithstanding any other provision of law, the system may retain a bank or trust company, or a credit union, to serve as custodian of the moneys of the Teachers' Deferred Compensation Fund and to provide for safekeeping, recordkeeping, delivery, securities valuation, or investment performance reporting services, or services in connection with investment of the Teachers' Deferred Compensation Fund.
(c) With respect to deferred compensation plans administered pursuant to this chapter, the Teachers' Deferred Compensation Fund shall consist of the following sources and receipts, and disbursements shall be accounted for as set forth below:
(1) Premiums determined by the system and paid by participating employers and employees for the cost of administering the deferred compensation plan.
(2) Asset management fees as determined by the system assessed against investment earnings of investment option or of other investment funds. These fees shall be disclosed to employees participating in the deferred compensation plan.
(3) Compensation deferrals to be paid in monthly installments by employers sponsoring deferred compensation plans described in Section 24975 for investment by the system. The moneys shall be deposited in the investment corpus account within the Teachers' Deferred Compensation Fund and invested in accordance with the investment options selected by the participating employee.
(4) Disbursements to participating employees shall be paid from a disbursement account within the Teachers' Deferred Compensation Fund in accordance with applicable federal law pertaining to deferred compensation plans.
(5) Income, of whatever nature, earned on the Teachers' Deferred Compensation Fund shall be credited to the appropriate account. The accounts of participating employees of the employer shall be individually posted to reflect amounts of compensation deferred and investment gains and losses. A periodic statement shall be given to each participating employee.
(6) The system shall have exclusive control of the administration and investment of the Teachers' Deferred Compensation Fund.
(7) All of the system's costs of administering the deferred compensation plans pursuant to this chapter shall be recovered from the employees who participate in the plans or assets of the Teachers' Deferred Compensation Fund in a manner acceptable to the board.
(2) Except as described in paragraph (7), premium and fee revenues received by the system pursuant to Chapter 36 (commencing with Section 24950), except Section 24950.5, shall be deposited into the 403(b) Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that chapter, excluding Section 24950.5.
(3) Premium and fee revenues received by the system pursuant to Section 24950.5 of Chapter 36 shall be deposited into the Roth IRA Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that section.
(4) Premium and fee revenues received by the system pursuant to this chapter shall be deposited into the Deferred Compensation Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of this chapter.
(5) Compensation deferrals received by the system pursuant to this chapter shall be deposited into the Deferred Compensation Investment Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of this chapter.
(6) Fee revenues received by the system pursuant to Chapter 39 (commencing with Section 25100) shall be deposited into the 403(b) Vendor Registry Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of that chapter.
(7) Fee revenues received by the system pursuant to Sections 24953 and 24977, and any assets in the Teachers' Retirement Program Development Fund pursuant to Section 22307.5 as of January 1, 2008, shall be deposited into the Deferred Compensation Administrative and Compliance Services Operating Account within the Teachers' Deferred Compensation Fund, and shall only be used to carry out the purposes of Sections 24953 and 24977.
(8) Notwithstanding Section 13340 of the Government Code, all moneys in the Teachers' Deferred Compensation Fund shall be continuously appropriated without regard to fiscal year to carry out the purposes of this chapter, Chapter 36 (commencing with Section 24950), and Chapter 39 (commencing with Section 25100).
(b) With respect to deferred compensation plans administered pursuant to this chapter, and notwithstanding any other provision of law, the system may retain a bank or trust company, or a credit union, to serve as custodian of the moneys of the Teachers' Deferred Compensation Fund and to provide for safekeeping, recordkeeping, delivery, securities valuation, or investment performance reporting services, or services in connection with investment of the Teachers' Deferred Compensation Fund.
(c) With respect to deferred compensation plans administered pursuant to this chapter, the Teachers' Deferred Compensation Fund shall consist of the following sources and receipts, and disbursements shall be accounted for as set forth below:
(1) Premiums determined by the system and paid by participating employers and employees for the cost of administering the deferred compensation plan.
(2) Asset management fees as determined by the system assessed against investment earnings of investment option or of other investment funds. These fees shall be disclosed to employees participating in the deferred compensation plan.
(3) Compensation deferrals to be paid in monthly installments by employers sponsoring deferred compensation plans described in Section 24975 for investment by the system. The moneys shall be deposited in the investment corpus account within the Teachers' Deferred Compensation Fund and invested in accordance with the investment options selected by the participating employee.
(4) Disbursements to participating employees shall be paid from a disbursement account within the Teachers' Deferred Compensation Fund in accordance with applicable federal law pertaining to deferred compensation plans.
(5) Income, of whatever nature, earned on the Teachers' Deferred Compensation Fund shall be credited to the appropriate account. The accounts of participating employees of the employer shall be individually posted to reflect amounts of compensation deferred and investment gains and losses. A periodic statement shall be given to each participating employee.
(6) The system shall have exclusive control of the administration and investment of the Teachers' Deferred Compensation Fund.
(7) All of the system's costs of administering the deferred compensation plans pursuant to this chapter shall be recovered from the employees who participate in the plans or assets of the Teachers' Deferred Compensation Fund in a manner acceptable to the board.
(a) An employer that employs persons to perform creditable
service subject to coverage by the plan under this part that offers a
deferred compensation plan as described in Section 457 of the
Internal Revenue Code may enter into a written contract with the
system for services regarding that deferred compensation plan
provided by the employer. That contract may include any of the
following services:
(1) Services to ensure compliance with Section 457 of the Internal Revenue Code regarding the deferred compensation plan including, but not limited to, services that permit the system to do any of the following:
(A) Administer and maintain written plan documents governing the employer's plan.
(B) Review and authorize requests for unforeseeable emergency withdrawals, transfer requests, loan requests and other disbursements permitted under Section 457 of the Internal Revenue Code.
(C) Review and determine domestic relations orders as qualified domestic relations orders as described in Section 414(p) of the Internal Revenue Code.
(D) Provide notice to eligible employees that is consistent with Title 26 of the Code of Federal Regulations that those employees may participate in the deferred compensation plan.
(E) Administer and maintain specimen salary reduction agreements for the employer and employees of that employer to initiate payroll deferrals.
(F) Monitor, from information provided either directly from the employee, as part of the common remitting services provided pursuant to paragraph (2), through information provided by the employer, or through information provided by vendors authorized by the employer to provide investment products, the maximum contributions allowed by employees participating in the deferred compensation plan as described in Sections 414(v) and 457 of the Internal Revenue Code.
(G) Calculate and maintain vesting information for contributions made by the employer to the deferred compensation plan.
(H) Identify and notify employees that are required to take a minimum distribution of the funds in that employee's deferred compensation plan as described in Section 401(a)(9) of the Internal Revenue Code.
(I) Coordinate responses to the Internal Revenue Service if there is an Internal Revenue Service audit of the deferred compensation plan.
(2) Services to administer the deferred compensation plan that include, but are not limited to, all of the following:
(A) Common remitting services.
(B) General educational information to employees about the deferred compensation plan that includes, but is not limited to, the enrollment process, program eligibility, and investment options.
(C) Internal reports for the employer to ensure compliance with Section 457 of the Internal Revenue Code and Title 26 of the Code of Federal Regulations.
(D) Consulting services related to the design, operation, and administration of the plan.
(E) Internal audits, on behalf of an employer, of a provider's plan compliance procedures with respect to the provider's custodial account offered under the employer's plan. These audits shall not be conducted more than once per year for any provider's plan unless documented evidence indicates a problem in complying with Section 457 of the Internal Revenue Code.
(b) The system may contract with a third-party administrator for the administrative and compliance services to employers described in subdivision (a). For purposes of this subdivision, a "third-party administrator" shall mean a person or entity other than the system that provides administrative or compliance services as described in subdivision (a). If the system contracts with a third-party administrator, the system shall do all of the following:
(1) Determine that hiring a third-party administrator is in the best interest of the participants to the deferred compensation plan, their beneficiaries, and the employer that provides that deferred compensation plan.
(2) Require the third-party administrator to provide proof of liability insurance and a fidelity bond in an amount determined by the system to be sufficient to protect the assets of participants and beneficiaries in the deferred compensation plan.
(3) Require evidence, if the third-party administrator is related to or affiliated with a provider of investment products pursuant to Section 457 of the Internal Revenue Code, that data generated from the services provided by the third-party administrator are maintained in a manner that prevents the provider of investment products from accessing that data.
(c) Nothing in this section requires an employer to contract with the system for the administrative or compliance services described in subdivision (a). A written contract for the administrative or compliance services described in subdivision (a) shall be on behalf of and at the request of the employer.
(d) Any personal information obtained by the system in providing services pursuant to this section shall be used by the system only to provide those services for the employer in accordance with the contract entered into with the employer pursuant to subdivision (b).
(e) The cost of providing administrative or compliance services pursuant to this section shall be deemed to be a cost incurred by the employer and subject to subdivision (b) of Section 44041 or subdivision (b) of Section 87040.
(f) In any conflict between this section and Section 44041.5 or 87040.5, including with respect to the provision of services provided pursuant to a contract between an employer and the system, the provisions of this section shall prevail.
(g) The system shall disclose to an employer seeking the services described in this section any fees, commissions, cost offsets, reimbursements, or marketing or promotional items received by the system or a third-party administrator from any plan provider selected as a vendor of a deferred compensation plan by the employer. If the system or a third-party administrator is affiliated with or has a contractual relationship with a provider of deferred compensation plans, the system or third-party administrator shall disclose the existence of that relationship to each employer and each individual participant in the deferred compensation plan.
(1) Services to ensure compliance with Section 457 of the Internal Revenue Code regarding the deferred compensation plan including, but not limited to, services that permit the system to do any of the following:
(A) Administer and maintain written plan documents governing the employer's plan.
(B) Review and authorize requests for unforeseeable emergency withdrawals, transfer requests, loan requests and other disbursements permitted under Section 457 of the Internal Revenue Code.
(C) Review and determine domestic relations orders as qualified domestic relations orders as described in Section 414(p) of the Internal Revenue Code.
(D) Provide notice to eligible employees that is consistent with Title 26 of the Code of Federal Regulations that those employees may participate in the deferred compensation plan.
(E) Administer and maintain specimen salary reduction agreements for the employer and employees of that employer to initiate payroll deferrals.
(F) Monitor, from information provided either directly from the employee, as part of the common remitting services provided pursuant to paragraph (2), through information provided by the employer, or through information provided by vendors authorized by the employer to provide investment products, the maximum contributions allowed by employees participating in the deferred compensation plan as described in Sections 414(v) and 457 of the Internal Revenue Code.
(G) Calculate and maintain vesting information for contributions made by the employer to the deferred compensation plan.
(H) Identify and notify employees that are required to take a minimum distribution of the funds in that employee's deferred compensation plan as described in Section 401(a)(9) of the Internal Revenue Code.
(I) Coordinate responses to the Internal Revenue Service if there is an Internal Revenue Service audit of the deferred compensation plan.
(2) Services to administer the deferred compensation plan that include, but are not limited to, all of the following:
(A) Common remitting services.
(B) General educational information to employees about the deferred compensation plan that includes, but is not limited to, the enrollment process, program eligibility, and investment options.
(C) Internal reports for the employer to ensure compliance with Section 457 of the Internal Revenue Code and Title 26 of the Code of Federal Regulations.
(D) Consulting services related to the design, operation, and administration of the plan.
(E) Internal audits, on behalf of an employer, of a provider's plan compliance procedures with respect to the provider's custodial account offered under the employer's plan. These audits shall not be conducted more than once per year for any provider's plan unless documented evidence indicates a problem in complying with Section 457 of the Internal Revenue Code.
(b) The system may contract with a third-party administrator for the administrative and compliance services to employers described in subdivision (a). For purposes of this subdivision, a "third-party administrator" shall mean a person or entity other than the system that provides administrative or compliance services as described in subdivision (a). If the system contracts with a third-party administrator, the system shall do all of the following:
(1) Determine that hiring a third-party administrator is in the best interest of the participants to the deferred compensation plan, their beneficiaries, and the employer that provides that deferred compensation plan.
(2) Require the third-party administrator to provide proof of liability insurance and a fidelity bond in an amount determined by the system to be sufficient to protect the assets of participants and beneficiaries in the deferred compensation plan.
(3) Require evidence, if the third-party administrator is related to or affiliated with a provider of investment products pursuant to Section 457 of the Internal Revenue Code, that data generated from the services provided by the third-party administrator are maintained in a manner that prevents the provider of investment products from accessing that data.
(c) Nothing in this section requires an employer to contract with the system for the administrative or compliance services described in subdivision (a). A written contract for the administrative or compliance services described in subdivision (a) shall be on behalf of and at the request of the employer.
(d) Any personal information obtained by the system in providing services pursuant to this section shall be used by the system only to provide those services for the employer in accordance with the contract entered into with the employer pursuant to subdivision (b).
(e) The cost of providing administrative or compliance services pursuant to this section shall be deemed to be a cost incurred by the employer and subject to subdivision (b) of Section 44041 or subdivision (b) of Section 87040.
(f) In any conflict between this section and Section 44041.5 or 87040.5, including with respect to the provision of services provided pursuant to a contract between an employer and the system, the provisions of this section shall prevail.
(g) The system shall disclose to an employer seeking the services described in this section any fees, commissions, cost offsets, reimbursements, or marketing or promotional items received by the system or a third-party administrator from any plan provider selected as a vendor of a deferred compensation plan by the employer. If the system or a third-party administrator is affiliated with or has a contractual relationship with a provider of deferred compensation plans, the system or third-party administrator shall disclose the existence of that relationship to each employer and each individual participant in the deferred compensation plan.
