Bill S.2377

SENATE DOCKET, NO. 2529 FILED ON: 4/13/2010

SENATE . . . . . . . . . . . . . . No. 2377

The Commonwealth of Massachusetts

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In the Year Two Thousand Ten

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An Act relative to pension governance reform.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Clause Twenty-sixth of section 7 of chapter 4 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following subclause:

(t) statements filed under section 20C of chapter 32.

SECTION 2. The second paragraph of section 50 of chapter 7 of the General Laws, as so appearing, is hereby amended by striking out clause (f).

SECTION 3. Section 1 of chapter 30B of the General Laws, as so appearing, is hereby amended by adding inserting after the word “services”, in line 54, the following words:- ; provided, however, that the procurements shall take place in accordance with section 23B of chapter 32.

SECTION 4. Section 20 of chapter 32 of the General Laws, as so appearing, is hereby amended by adding the following subdivision:-

(4 7/8 E) No employee, contractor, vendor or person receiving remuneration, financial benefit or consideration of any kind, other than a retirement benefit or the statutory stipend for serving on the retirement board, from a retirement board or from a person doing business with a retirement board shall be eligible to serve on a retirement board; provided, however, that an employee of a retirement board may serve on a retirement board other than the retirement board by which the person is employed; and provided further, subdivision this paragraph shall apply only to individuals who first become members of a retirement board on or after January 1, 2010.

SECTION 5. Subdivision (6) of section 20 of said chapter 32, as so appearing, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:-

(a) The elected and appointed members of a city, town, county, regional, district or authority retirement board upon acceptance of the appropriate legislative body shall receive a stipend; provided, however, that the stipend shall not be less than $3,000 per year nor exceed $7,500 per year; provided further, that the stipend shall be paid from funds under the control of the board as shall be determined by the public employee retirement administration commission; and, provided further, that the ex-officio member of a city, town, county, district or authority retirement board upon the acceptance of the appropriate legislative body shall receive a stipend of not more than $7,500 per year in the aggregate for services rendered in the active administration of the retirement system.

SECTION 6. Said section 20 of said chapter 32, as so appearing, is hereby amended by adding the following subdivision:-

(7) During each full term of service retirement board members shall be required to undertake 18 hours of training; provided, however, that not less than 3 hours take place each year and not more than 9 hours take place in any single year.

Such training shall consist of 9 hours sponsored by the public employee retirement commission, herein after referred to as the commission, which shall include, at a minimum, the topics of fiduciary responsibility, ethical conduct and conflict of interest, and 9 hours of training on topics prescribed by the commission provided by the Massachusetts Association of Contributory Retirement Systems or other local, state, regional and national organizations recognized by the commission as having expertise in retirement issues of importance to retirement board members or other entities, as the commission may from time to time determine.

The commission shall arrange for at least 18 sessions during each year for members to complete this requirement. In addition, the commission shall schedule additional sessions or otherwise make accommodations to insure that members are afforded the maximum opportunity to complete this requirement.

The commission shall annually provide retirement boards with a statement of completion of education form on or before December 31. The board shall provide the forms to their members. The form shall set forth the training as required by this subdivision the member has undertaken during that year. Board members shall submit the completed form to the commission by January 31 of the year following. The commission shall annually provide the member with a summary of the member’s status regarding the completion of this requirement by February 1.

Failure to successfully complete the requirements of this subdivision shall prohibit a board member from serving beyond the conclusion of the term in which the failure took place. If the non-complying member is an ex-officio member or a second member of a board the appointing authority for the second member shall appoint a different individual to serve on the board; provided, however, that if the replacement of an ex-officio member the individual be experienced in the field of finance or auditing; and provided further, that in a regional retirement system non-complying members shall be replaced in the same manner as is set forth for the selection of the members.

Each retirement board shall notify all board members and prospective board members of the requirement to complete education requirements at the time of receiving information about seeking election to a retirement board or prior to being appointed to a retirement board.

The commission shall annually notify board members of the requirement to complete continuing education.

SECTION 7. Said chapter 32 is hereby amended by inserting after section 20B the following section:-

Section 20C. (a) Every member of a retirement board shall file a statement of financial interests for the preceding calendar year with the commission: (i) within 30 days of becoming a member of a retirement board; (ii) by May 1 of each year thereafter that the person is a member of a retirement board; and (iii) by May first of the year after the person ceases to be a member of a retirement board;

(b) The commission shall, upon receipt of a statement of financial interests under this section, issue to the person filing the statement a receipt verifying the fact that a statement of financial interests has been filed and a receipted copy of the statement.

(c) No member of a retirement board shall be allowed to continue in the member’s duties unless the member has filed a statement of financial interests with the commission as required by this section.

(d) The statement of financial interests filed under this section shall be on a form prescribed by the commission and shall be signed under penalty of perjury by the reporting person.

(e) A reporting person shall disclose, to the best of the person’s knowledge, the following information for the preceding calendar year, or as of the last day of the year with respect to the information required by clauses (2), (3) and (6); provided, however, that the person shall also disclose the same information with respect to the person’s immediate family; and provided further, that no amount need be given for the information about the reporting person's immediate family:

(1) the name and address of, the nature of association with, the share of equity in, if applicable, of each business with which the person is associated;

(2) the identity of all securities and other investments with a fair market value of greater than $1,000 which were beneficially-owned, not otherwise reportable hereunder;

(3) the name and address of each creditor to whom more than $1,000 was owed; provided, however, that obligations arising out of retail installment transactions, educational loans, medical and dental expenses, debts incurred in the ordinary course of business and any obligation to make alimony or support payments, shall not be reported; and provided further, that such information need not be reported if the creditor is a relative of the reporting person within the third degree of consanguinity or affinity;

(4) the name and address of the source and the cash value of any reimbursement for expenses aggregating more than $100 in the calendar year if the recipient is a member of a retirement board and the source of the reimbursement is a person having a direct interest in a matter before the retirement board of which the recipient is a member;

(5) the name and address of the donor and the fair market value, if determinable, of any gifts aggregating more than $100 in the calendar year, if the recipient is a member of a retirement board and the source of the gift is a person having a direct interest in a matter before the retirement board of which the recipient is a member;

(6) the name and address of the source and the fair market value, of any honoraria aggregating more than $100 if the recipient is a member of a retirement board and the source of such honoraria is a person having a direct interest in a matter before a retirement board;

(7) the name and address of any creditor who has forgiven an indebtedness of over $1,000 and the amount forgiven if the creditor is a person having a direct interest in a matter before a retirement board; provided, however, that no such information need be reported if the creditor is a relative within the third degree of consanguinity or affinity of the reporting person, or the spouse of such a relative; and ,

(8) the name and address of any business from which the reporting person is taking a leave of absence;

Nothing in this section shall be construed to require the disclosure of information, which is privileged by law.

Failure of a reporting person to file a statement of financial interests within 30 days of receipt of the notice in writing from the commission which states in detail the deficiency and the penalties for failure to file a statement of financial interests or the filing of an incomplete statement of financial interests after receipt of a notice shall result in the removal of the reporting person from the board and the reporting person shall not be permitted to serve on a retirement board established under this chapter; provided, however, that, if the reporting person has filed an incomplete statement of financial interests the removal shall be stayed upon the filing of an appeal under subdivision (4) of section 16. If the non-complying member is an ex-officio member the member’s appointing authority shall appoint a different individual to serve on the board or if the member is directly elected by the people a different individual shall be appointed to serve on the board by the mayor, county commissioners or board of selectman as the case may be.

SECTION 8. Paragraph (a) of subsection 1 of section 21 of said chapter 32, as appearing in the 2008 Official Edition, is hereby amended by inserting after the third sentence the follow sentence:- Each board shall maintain a copy of all collective bargaining agreements which cover the systems members and shall make the agreements available to the commission for review at such time as the commission shall specify.

SECTION 9. Said chapter 32 is hereby amended by inserting after section 21 the following section:-

Section 21A. (a) As used in this section the following words shall, unless the context requires otherwise, have the following meanings:-

"Affiliates'', entities which are affiliates of each other when either directly or indirectly one concern or individual controls or has the power to control another or when a third party controls or has the power to control both.

"Commission'', the public employee retirement administration commission.

"Contract'', a contract for the furnishing of supplies or services to a retirement board.

"Debarment'', an exclusion from contracting or subcontracting with a retirement board for a reasonable and specified period of time commensurate with the seriousness of the offense.

"Person'', a natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.

"Retirement board”, a board established under chapter 32, chapter 34B or the retirement board of the Massachusetts Water Resources Authority, excluding the pension reserves investment management board.

"Suspension'', the temporary disqualification of a vendor who is suspected upon adequate evidence of engaging or having engaged in conduct which constitutes grounds for debarment.

"Vendor'', a person that has furnished or seeks to furnish supplies or services under a contract with a retirement board.

(b) The commission shall establish and maintain a consolidated list of vendors to whom contracts shall not be awarded and from whom offers, bids or proposals shall not be solicited. The list shall show at a minimum the following information:

(1) the names of those persons debarred or suspended in alphabetical order with appropriate cross reference where more than one name is involved in a single debarment or suspension; (2) the basis of authority for each debarment or suspension; (3) the extent of restrictions imposed; (4) the termination date of each debarment or suspension; and (5) in the case of a suspension, the hearing date, if and when set, for debarment proceedings.

The commission shall cause the list to be kept current by the issuance of notices of additions and deletions. The list shall be published on a periodic basis, together with notices of additions and deletions, in the goods and services bulletin and the central register published by the state secretary and in other publications as the commission shall designate. The commission shall also forward the list to the inspector general, the attorney general and the state auditor.

(1) conviction or final adjudication by a court or administrative agency of competent jurisdiction of any of the following offenses:

(i) a criminal offense incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; (ii) a criminal offense involving embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty which seriously and directly affects the vendor's present responsibility as a public contractor; (iii) a violation of state or federal antitrust laws arising out of the submission of bids or proposals; (iv) a violation of chapter 268A; or(v) a violation of this chapter.

(2) substantial evidence, as determined by the commission, of any of the following acts:

(i) willfully supplying materially-false information incident to obtaining or attempting to obtain or performing any public contract or subcontract; (ii) willful failure to comply with record-keeping and accounting requirements prescribed by law or regulation; (iii) a record of failure to perform or of unsatisfactory performance in accordance with the terms of 1 or more public contracts; provided, however, that the failure to perform or unsatisfactory performance has occurred within a reasonable period of time preceding the determination to debar; and provided further, that the failure to perform or unsatisfactory performance was not caused by factors beyond the vendor’s control; (iv) the submission to the board or the commission of an inaccurate disclosure statement; (v) the failure to disclose to the board and the commission compensation provided to a person in regards to attempting to obtain or the performance of a public contract or subcontract, including, but not limited to, compensation provided by third parties retained by the vendor to another person; or(vi) any other cause affecting the responsibility of a vendor which the commission determines to be of a serious and compelling nature as to warrant debarment.

(d) No vendor may be suspended unless the commission has first informed the vendor by written notice of the proposed suspension mailed by registered or certified mail to the vendor's last known address, except when the commission determines that immediate suspension is necessary to prevent serious harm to the retirement system, in which case the suspension shall take effect immediately upon signing by the executive director of the commission of an order of suspension and notice shall be mailed to the vendor at the earliest opportunity. The notice shall inform the vendor of the reasons for the proposed suspension and shall state that the vendor may, within 14 days, respond in writing and may in the response request a hearing. The commission may extend the period for response at the request of the vendor. The commission shall determine whether to impose the suspension or, in the case of an emergency suspension imposed prior to notice to the vendor, whether to continue the suspension after reviewing the vendor's response, if any, and making an investigation as the commission determines is necessary and appropriate. An indictment, or any information or other filing by a public agency charging a criminal offense, for any of the offenses listed in paragraph (1) of subsection (d) shall constitute adequate evidence to support a suspension.

If the vendor requests a hearing and the suspension is not based on an indictment, the commission shall conduct a hearing according to the rules for the conduct of adjudicatory hearings established by the secretary of administration under chapter 30A. The hearing shall be initiated within 30 days of the imposition of the suspension, unless the vendor requests that the hearing be delayed. Officers and employees of the commission and records of the commission shall not be subject to subpoena for such hearing, if in the opinion of the commission production of records or testimony would prejudice any pending investigation by the commission.

A suspension shall not exceed 12 months unless a pending administrative or judicial proceeding in which the vendor is a party may result in a conviction or final adjudication of an offense listed in paragraph (1) of subsection (d).

(e) No vendor may be debarred under this section unless the commission has first informed the vendor by written notice of the proposed debarment mailed by registered or certified mail to the vendor's last known address. The notice shall inform the vendor of the reasons for the debarment and shall state that the vendor will be accorded an opportunity for a hearing if the vendor so requests within fourteen days of receipt of the notice. A hearing requested under this paragraph shall be conducted by the commission within sixty days of receipt of the request, unless the commission grants additional time therefore at the request of the vendor. The hearing shall be conducted according to the rules for the conduct of adjudicatory hearings established by the commissioner of administration pursuant to chapter thirty A. A debarment shall not be imposed until (i) fourteen days after receipt by the vendor of notice of the proposed debarment if no hearing is requested, or (ii) the issuance of a written decision by the commission which makes specific findings that there is sufficient evidence to support the debarment and that debarment for the period specified in the decision is required to protect the integrity of the public contracting process. A vendor shall be notified forthwith of the decision by registered or certified mail, and of the vendor's right to judicial review in the event that the decision is adverse to the vendor. If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.

(f) A debarment or suspension may include all known affiliates of a vendor. The decision to include a known affiliate within the scope of a debarment or suspension shall be made on a case-by-case basis, after giving due regard to all relevant facts and circumstances. The offense or act of an individual justifying suspension, or the evidence justifying a suspension, may be imputed to the entity with which the individual is connected when such offense or act occurred in connection with the individual's performance of duties for or on behalf of the entity or with the knowledge, approval, or acquiescence of the entity or one or more of its principals. The entity's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence. The offense or act of an entity justifying debarment, or the evidence justifying a suspension, may be imputed to any officer, director, shareholder, partner, employee or other individual associated with the entity who participated in, knew of, or had reason to know of the entity's act. An entity may not be suspended or debarred except in accordance with the procedures set forth in this section.

(g) In determining whether to debar a vendor, or the period of a debarment, all mitigating facts and circumstances shall be taken into consideration. A debarment may be removed or the period thereof may be reduced by the commission upon the submission of an application supported by documentary evidence setting forth appropriate grounds for the granting of relief, such as newly discovered material evidence, reversal of a judgment or conviction, bona fide change of ownership or management, or the elimination of the cause for which the debarment was imposed.

(h) During the period for which a person has been debarred or suspended, that person shall not submit or cause to be submitted offers, bids, or proposals to any retirement board, nor shall any retirement board solicit or consider offers, bids, or proposals from, nor execute, renew, or extend any contract with, a debarred or suspended vendor, and a vendor shall not contract for services from a debarred or suspended subcontractor on any contract with a retirement system.

SECTION 10. Subdivision (2) of section 23 of said chapter 32, as appearing in the 2008 Official Edition, is hereby amended by striking out paragraph (b) and inserting in place thereof the following paragraph: -

(b) The board of each system shall invest and reinvest the funds of the system in the PRIT Fund under subdivision (8) of section 22, in the PRIT Fund by purchasing shares of the fund, as provided for in the trust agreement adopted by the PRIM board under subdivision (2A) or as follows:-

(i) in accordance with the standards set forth in subdivision (3), provided that: -

(A) no investment of funds shall be made in stocks, securities or other obligations of a company which derives more than 15 per cent of its revenues from the sale of tobacco products; (B) in investing funds the board shall employ an investment manager or investment managers who shall invest the funds of the system; and (C) no funds shall be invested directly in mortgages or collateral loans.

(ii) No investment of funds shall take place until board has received from the commission an acknowledgement of receipt of the following:-

(A) certification that, in making the selection, the board has complied with the process established in section 23B; (B) a copy of the vendor certification required under section 23B; (C ) copies of disclosure forms submitted by the selected vendor; (D) a certification that the investment is not a prohibited investment as set forth in regulations of the commission; (E) if the board has retained a consultant, a copy of the consultant reports pertaining to the investment and the selected vendor; and(F) a copy of the board certification required under section 23B.

The commission may withhold the acknowledgement if it determines that it is in the best interest of the retirement system; provided, however, that it must so notify the board within 10 days of receipt of completed documents as required by this section.

(iii) Prior to the retention of an investment consultant the board must receive from the commission an acknowledgement of receipt of the following:-

(A) certification that, in making the selection, the board has complied with the process established in section 23B; (B) copy of the vendor certification required under section 23B; (C ) copies of disclosure forms submitted by the selected consultant; and(D) copy of the board certification required under section 23B.

SECTION 11. Subdivision (3) of said section 23 of said chapter 32, as so appearing, is hereby amended by adding the following sentence:

Each member of a retirement board established pursuant to the provisions of this chapter shall upon the commencement of their term file with the commission a statement acknowledging that they are aware of and will comply with the standards set forth in chapter 268A of the general laws, the provisions of this chapter and the provisions of regulations promulgated pursuant to this chapter.

SECTION 12. Said section 23 of said chapter 32, as so appearing, is hereby amended by striking out subdivision (4) and inserting in place thereof the following subdivision:-

(4) If the commission makes a written finding that a board of any retirement system has violated or neglected to comply with this chapter or the rules and regulations promulgated by the commission, in a manner that substantially impacts the duties or obligations of the board, the commission may appoint a receiver to oversee a board that is responsible for the administration of such system. The receiver shall be authorized to take or desist from any action in order to insure that the system is managed with reasonable care, skill, prudence and diligence. The action may include, but is not limited to, the following:-

(i) transfer of assets to the PRIT Fund;

(ii) removal of a board member;

(iii) appointment of board member;

(iv) termination of a contract;

(v) approval or denial of retirement benefits;(vi) employment or termination of employees; and, conduct of a fiduciary audit.

SECTION 13. Said chapter 32 is hereby amended by inserting after section 23 the following section –

Section 23B. (a) This section shall apply to every retirement board contract for the procurement of investment, actuarial, legal and accounting services.

(b) As used in this section the following words shall, unless the context requires otherwise, have the following meanings:-

"Contract'', all types of agreements for the procurement of services, regardless of what the parties may call the agreement.

"Contractor'', a person having a contract with a retirement board.

"Retirement board”, a board established under this chapter, chapter 34B or the retirement board of the Massachusetts Water Resources Authority excluding the pension reserves investment management board.

"Majority vote'', as to any action by or on behalf of a retirement board, a simple majority of the board.

"Minor informalities'', minor deviations, insignificant mistakes and matters of form rather than substance of the proposal or contract document which can be waived or corrected without prejudice to other offerors, potential offerors or the retirement board.

"Person'', a natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.

"Procurement'', acquiring a service and all functions that pertain to the obtaining of a service, including description of requirements, selection and solicitation of sources, preparation and award of contract and all phases of contract administration.

“Procurement officer”, an individual duly authorized by the retirement board to assist in a procurement.

"Proposal'', a written offer to provide a service at a stated price submitted in response to a request for proposals.

"Purchase description'', the words used in a solicitation to describe the services to be purchased, including specifications attached to or incorporated by reference into the solicitation.

"Request for proposals'', the documents utilized for soliciting proposals, including documents attached or incorporated by reference.

"Responsible bidder or offeror'', a person who has the capability to perform fully the contract requirements and the integrity and reliability which assures good faith performance.

"Responsive bidder or offeror'', a person who has submitted a bid or proposal which conforms in all respects to the request for proposals.

"Services'', the furnishing of labor, time or effort by a contractor, not involving the furnishing of a specific end product other than reports; provided, however, that the term shall not include employment agreements, collective bargaining agreements or grant agreements.

(c) A retirement board shall enter into procurement contracts for investment, actuarial legal and accounting services utilizing competitive sealed proposals, in accordance with the provisions of this section.

(d) A retirement board that awards a contract shall maintain a file on each contract and shall include in the file a copy of all written documents required by this section. Written documents required by this section shall be retained by the retirement board for at least 6 years from the date of final payment under the contract.

(e) The retirement board or its procurement officer shall give public notice of the request for proposals and a reasonable time prior to the date for the opening of proposals. The notice shall:

(1) indicate where, when and for how long the request for proposal may be obtained; (2) describe the service desired and reserve the right of the retirement board to reject any or all bids; (3) remain posted, for at least 2 weeks, in a conspicuous place in or near the offices of the retirement board until the time specified in the request for proposals; and (4) be published at least once, not less than 2 weeks prior to the time specified for the receipt of proposals, in a newspaper of general circulation within the area served by the retirement board and in the case of a procurement for investment, accounting, actuarial or legal services in a publication of interest to those engaged in providing such services.

The retirement board or its procurement officer shall also place the notice in a publication established by the state secretary for the advertisement of such procurements.

The retirement board or its procurement officer may distribute copies of the notice to prospective bidders and may compile and maintain lists of prospective bidders to which notices may be sent.

(f) The retirement board shall unconditionally accept a proposal without alteration or correction, except as provided in this section. A bidder may correct, modify or withdraw a proposal by written notice received in the office designated in the request for proposals prior to the time and date set for the proposal opening. After proposal opening, a bidder may not change the price or any other provision of the proposal in a manner prejudicial to the interests of the retirement board or fair competition. The retirement board shall waive minor informalities or allow the bidder to correct them. If a mistake and the intended proposal are clearly evident on the face of the proposal document, the procurement officer shall correct the mistake to reflect the intended correct proposal and so notify the bidder in writing and the bidder may not withdraw the proposal. A bidder may withdraw a proposal if a mistake is clearly evident on the face of the proposal document but the intended correct proposal is not similarly evident.

(g) The retirement board shall solicit proposals through a request for proposals. The request for proposals shall include:

(1) the time and date for receipt of proposals, the address of the office to which the proposals are to be delivered and the maximum time for proposal acceptance by the retirement board; (2) the purchase description and all evaluation criteria that may be utilized under subsection (h); and (3) all contractual terms and conditions applicable to the procurement; provided, however, that the contract may incorporate by reference a plan submitted by the selected offeror for providing the required services.

The request for proposals may incorporate documents by reference; provided, however, that the request for proposals specifies where prospective offerors may obtain the documents. The retirement board or its procurement officer shall make copies of the request for proposals available to all persons on an equal basis.

(h) The retirement board or its procurement officer shall not open the proposals publicly, but shall open them in the presence of 1 or more witnesses at the time specified in the request for proposals. Notwithstanding section 7 of chapter 4, until the completion of the evaluations or until the time for acceptance specified in the request for proposals, whichever occurs earlier, the contents of the proposals shall remain confidential and shall not be disclosed to competing offerors. At the opening of proposals the retirement board or its procurement officer shall prepare a register of proposals which shall include the name of each offeror and the number of modifications, if any, received. The register of proposals shall be open for public inspection.

(i) The retirement board or its consultant retained under this chapter shall be responsible for the initial evaluation of the proposals. The retirement board or its consultant retained under of this chapter shall prepare their initial evaluations based solely on the criteria set forth in the request for proposals. The evaluations shall specify in writing:

(1) a rating of each proposal evaluation criteria as highly advantageous, advantageous, not advantageous or unacceptable, and the reasons for the rating; (2) a composite rating for each proposal and the reasons for the rating; and (3) revisions, if any, to each proposed plan for providing the required services which should be obtained by negotiation prior to awarding the contract to the offeror of the proposal.

If the initial evaluation is conducted by a consultant retained under this chapter the consultant shall review all initial evaluations with the retirement board and provide to each member of the retirement board the initial evaluation of each proposal.

(j) The retirement board shall determine the most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals. The retirement board shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement. The retirement board may condition an award on successful negotiation of the revisions specified in the evaluation and shall explain in writing the reasons for omitting any revision from a plan incorporated by reference in the contract.

(k)(1) If a competitive process to select an investment service provider the request for proposals includes mandatory contractual terms and conditions to be incorporated into the contract including provisions stating that the contractor is a fiduciary with respect to the funds which the contractor invests on behalf of the retirement board, provisions stating that the contractor shall not be indemnified by the retirement board, provisions requiring the contractor to annually inform the commission and the board of any arrangements in oral or in writing, for compensation or other benefit received or expected to be received by the contractor or a related person from others in connection with the contractors services to the retirement board or any other client, provisions requiring the contractor to annually disclose to the commission and the retirement board compensation, in whatever form, paid or expected to be paid, directly or indirectly, by the contractor or a related person to others in relation to the contractors services to the retirement board or any other client and provisions requiring the contractor to annually disclose to the commission and the retirement board in writing any conflict of interest the contractor may have that could reasonably be expected to impair the contactor’s ability to render unbiased and objective services to the retirement board. Other mandatory contractual terms and conditions shall address investment objectives, brokerage practices, proxy voting and tender offer exercise procedures, terms of employment and termination provisions. The retirement board shall make a preliminary determination of the most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals. The retirement board or its duly designated agent, subject to the approval of the retirement board, may negotiate all terms of the contract not deemed mandatory or non-negotiable with the offeror. If, after negotiation with the offeror, the retirement board in consultation with its duly designated agent and its consultant retained under this chapter determines that it is in the best interests of the retirement board, the retirement board in consultation with its consultant retained under this chapter may determine the proposal which is the next most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals and may negotiate all terms of the contract with the offeror. The retirement board shall award the contract to the most advantageous proposal from a responsible and responsive offeror taking into consideration price, the evaluated criteria set forth in the request for proposals,and the terms of the negotiated contract. The retirement board shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The time for acceptance may be extended for up to 45 days by mutual agreement between the retirement board and the responsible and responsive offeror offering the most advantageous proposal as determined by the retirement board.

On or before January 1 of each year the contractor shall file the disclosures required with the board and the commission. Failure to file disclosures or the filing of inaccurate disclosures shall subject the contractor to proceedings under section 21A.

(2) The retirement board may cancel a request for proposals or may reject in whole or in part any and all proposals when the retirement board determines that cancellation or rejection serves the best interests of the system. The retirement board shall state in writing the reason for a cancellation or rejection.

(3) A person submitting a proposal for the procurement or disposal of services to a retirement board shall certify in writing on the proposal as follows:

The undersigned certifies under penalties of perjury that this proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word ""person'' shall mean a natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.

___________________________________________________ (Signature of individual submitting bid or proposal)

___________________________________________________ (Name of business)

(4) Each retirement board member shall certify to the commission in writing with respect to a procurement subject to the provisions of this section, as follows:

The undersigned certifies under penalties of perjury that, to the best of the members knowledge and belief, this proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word ""person'' shall mean any natural person, business, partnership, corporation, union, committee, club or other organization, entity or group of individuals.

____________________________________________________ (Signature of individual retirement board member)

____________________________________________________ (Name of retirement board)

(5) No person shall cause or conspire to cause the splitting or division of a request for proposals, proposal, solicitation or quotation for the purpose of evading a requirement of this section.

(6) Unless otherwise provided by law and subject to clause (i), a retirement board may enter into a contract for a period of time which serves the best interests of the retirement board; provided, however, that the retirement board shall include in the solicitation the term of the contract and conditions of renewal, extension or purchase, if any.

(i) A retirement board shall not award a contract for a term exceeding 5 years, including any renewal, extension or option; provided, however, that a retirement board may participate in a limited partnership, trust or other entity with a term for a period longer than 5 years as part of an investment of system assets.

When a contract is to contain an option for renewal, extension or purchase, the solicitation shall include notice of the provision. The retirement board shall retain sole discretion in exercising the option and no exercise of an option shall be subject to agreement or acceptance by the contractor.

(ii) The retirement board shall not exercise an option for renewal, extension or purchase unless the retirement board, after reasonable investigation of costs and benefits, has determined in writing that the exercise of the option is more advantageous than alternate means of procuring comparable services.

(7) All specifications shall be written in a manner which describes the requirements to be met without having the effect of exclusively requiring a proprietary service or procurement from a sole source.

(8) All contracts shall be in writing and the retirement board shall make no payment for a service rendered prior to the execution of the contract.

(i) A contract made in violation of this section shall not be valid and the retirement board shall make no payment under such contract. Minor informalities shall not require invalidation of a contract.

(ii) A person who causes or conspires with another to cause a contract to be solicited or awarded in violation this section shall forfeit and pay to the appropriate retirement board a sum of not more than $2,000 for each violation. In addition, the person shall pay double the amount of damages sustained by the retirement board by reason of the violation, together with the costs of any action. If more than 1 person participates in the violation, the damages and costs may be apportioned among them.

(iii) The commission or the retirement board shall have authority to institute a civil action to enforce clause (ii).

SECTION 14. Section 19 of chapter 34B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word “date”; in line 6, the following words:- ; provided, however, that this section, unless otherwise explicitly noted, shall not apply to Essex county or an entity managing the contributory retirement system formerly administered by Essex county.

SECTION 15. Said section 19 of said chapter 34B, as so appearing, is hereby further amended by inserting after the figure “32”, in line 14, the following words:- ; provided, however, that no employee, contractor, vendor or person receiving remuneration, financial benefit or consideration of any kind, other than a retirement benefit or the statutory stipend for serving on the retirement board, from a retirement board or from a person doing business with a retirement board shall be eligible to serve on a retirement board; provided further, that an employee of a retirement board may serve on a retirement board other than the retirement board by which the person is employed; and provided further, that this paragraph shall apply only to individuals who first become members of a retirement board on or after January 1, 2010.

SECTION 16. Paragraph (b) of said section 19 of said chapter 34B, as so appearing, is hereby amended by striking out clauses (1) to (4), inclusive, and inserting in place thereof the following 4 clauses:-

(1) The first member, who shall serve as chairman, shall be elected by the other 4 members and shall serve for a term of 6 years. If the first member is not chosen by the other 4 members within 30 days of the expiration of his term or if a vacancy occurs in the office, the public employee retirement administration commission shall appoint the first member.

(2) The second member shall be a member of the regional retirement board advisory council and shall be elected by a majority of those present and voting at a public meeting of the council, properly posted, and specifically called for such election pursuant to paragraph (g) and shall serve for a term of 3 years.

(3) A third and fourth member, hereinafter referred to as the elected members, shall be elected by the members in or retired from the service of the system from among their number in accordance with paragraph (h) and shall serve for a term of 3 years.

(4) A fifth member, who shall not be an employee, retiree or official of the retirement system or of any of its constituent governmental units, shall be chosen by the other 4 members and shall serve for a term of 5 years. If the fifth member is not chosen within 30 days of the expiration of the member’s term or if a vacancy occurs in the office, the public employee retirement administration commission shall appoint the fifth member.

SECTION 17. Paragraph (b) of said section 19 of said chapter 34B, as so appearing, is hereby amended by striking out clause (6).

SECTION 18. Said section 19 of said chapter 34B, as so appearing, is further hereby amended by striking out paragraph (d) and inserting in place thereof the following paragraph:

(d) The retirement board may employ clerical and other assistants as may be required to transact the business of the retirement system; provided, however, that all employment contracts shall be subject to review and approval by the public employee retirement administration commission. All permanent employees of the retirement system shall be members of the retirement system.

SECTION 19. Said Section 19 of said chapter 34B, as so appearing, is hereby further amended by striking out paragraph (k).

SECTION 20. Said chapter 34B is hereby amended by inserting after section 19 the following section:-

(a) The contributory retirement system for Essex county, operating under the terms of sections 1 to 28, inclusive, of chapter 32, shall be known as the Essex regional retirement system, and all business shall be transacted under this name.

(b) The contributory retirement system of Essex county shall be managed by a retirement board which shall have the general powers and duties set forth in subdivision (5) of section 20 of chapter 32. The board shall consist of 5 members as follows:

(1) The first member shall be a chief executive or chief administrative officer of a member town, unit or district belonging to the Essex regional retirement system for a term of 3 years. This member shall be chosen by weighted vote of the chief executive or chief administrative officers of member towns, units or districts belonging to the Essex regional retirement system. The member town, unit or district weighted vote shall be computed based on the percentage of members of the retirement system who were employed by the member town, unit or district. For the purposes of this section, “chief executive or chief administrative officer” shall mean, in the case of a town, the town manager or town administrator, except for a town which has neither a town manager nor a town administrator, in which case it shall mean the chairman of the board of selectmen; in the case of a school district, the superintendent; in the case of a water district, the superintendent; in the case of a veterans’ services entity, the director; in the case of a housing authority, the executive director; in the case of a regional vocational institute, the superintendent; in the case of a mosquito control district, the superintendent; and in the case of a regional retirement board, the chief executive officer; provided, however, that in the case of the Essex regional retirement board, the chief executive officer shall not be eligible to be elected as the first member of the regional retirement board. If the first member is not chosen by the other 4 members within 30 days of the expiration of his term, or of any earlier vacancy in this office, the public employee retirement administration commission shall appoint the first member.

(2) The second member shall be a member of the regional retirement board advisory council, and shall be elected by a majority of those present and voting at a public meeting of the council, properly posted and specifically called for such election under subsection (g) and shall serve for a term of 3 years.

(3) The third and fourth member, hereinafter referred to as the elected members, shall be elected by the members in or retired from service of the Essex county retirement system from among persons retired under the system in accordance with subsection (h) and shall serve for a term of 3 years.

(4) A fifth member, who shall not be an employee, retiree or official of the retirement system, or of any of its constituent governmental units, shall be chosen by the other 4 members and shall serve for a term of 5 years. If the fifth member is not chosen within 30 days of the expiration of the member’s term, or if a vacancy in the office occurs before the end of the term, the public employee retirement administration commission shall appoint the fifth member.

(5) Upon the expiration of the term of office of an member, or in the event of a vacancy, the member’s successor shall be elected as for a term of 3 years or for the unexpired portion thereof, as the case may be.

(6) The members of the retirement board shall elect a chairman from among the members.

(c) The members of the Essex regional retirement board shall be compensated in an amount to be determined by the board but not to exceed the amounts set forth in subdivision (6) of section 20 of chapter 32.

(d) No person shall be both a member of the Essex regional retirement board, or an employee thereof, and registered as a legislative or executive agent, as defined in section 39 of chapter 3. Should a sitting member of the board register as a legislative or executive agent, as so defined, the member’s seat shall be considered vacant.

(e) The retirement board may employ clerical and other assistants as may be required to transact the business of the retirement system; provided, however, that all employment contracts shall be subject to review and approval by the public employee retirement administration commission. All permanent employees of the retirement system shall be members of the retirement system.

(f) The retirement board may purchase or lease property, facilities and equipment and employ personnel necessary for the proper administration and transaction of business of the retirement system.

(g) The board of the regional retirement system and the chairman thereof shall respectively be and act as the board and treasurer-custodian of the system with respect to the employees of any town or district who become members of the system as provided for in paragraphs (b) or (c) of subdivision (3), or paragraph (b) of subdivision (4) of section 28 of chapter 32, or who have become members under corresponding provisions of law. The treasurer or other disbursing officer of any such town or district shall act as a liaison officer between the employees thereof and the board of the system.

(h) There shall be an Essex regional retirement board advisory council consisting of all the treasurers, elected or appointed, of each town, unit, or district belonging to the Essex regional retirement system. The members of the advisory council shall elect a chairman from among the members; provided, however, that such election shall happen by weighted vote, which shall be computed based on the percentage of members of the retirement system who were employed by the member town, unit or district. The council shall meet at the call of the chairman of board, but shall meet at least twice in each year. The council shall supervise and certify the procedures involved in the election of the elected members of the retirement board, as provided in subsections (b) and (i). Upon approval by votes of the retirement board and the council, the actuary shall be furnished with an estimate of the expenses and costs of administration of the system for the ensuing year. The actuary shall annually, on or before December 15, specify by written notice to the council and the board the amounts so required to be paid from the pension fund, the annuity reserve fund, the military service fund and the administration fund, as provided in subdivision (7) of section 22 of chapter 32.

(i) The Essex regional retirement board advisory council, which shall serve as the election board, shall supervise the election of the elected members of the retirement board. The council shall make available nomination papers to a member in or retired from service so requesting and shall require that the nomination papers be signed by the candidate and be returned to the office of the retirement board for safekeeping until the election board shall meet. The chairman of the council shall give a duplicate receipt for the nomination papers to each candidate. Completed nomination papers shall contain the signatures and addresses of at least 5 active or retired members of the retirement system. The election board shall determine whether each candidate has filed nomination papers containing the requisite signatures and addresses. If, an after investigation, the election board determines that a candidate has filed nomination papers containing less than 5 signatures as required, the election board shall declare the nomination papers invalid and shall notify the candidate of the determination. If, after an investigation, the election board determines that only 1 candidate has filed the requisite number of signatures, the election board shall declare the candidate to be the elected member of the county retirement board. If, after an investigation, the election board determines that more than 1 candidate has obtained the requisite number of valid signatures, the election board shall notify the candidates of the determination and shall immediately prepare election ballots and set the date for an election to be held within 40 days.

The election board shall mail ballots to all members of the retirement system whether active or retired. The election board shall instruct each member to place an appropriate marking on the face of the printed ballot envelope next to the name of 1 candidate, insert the ballot into a ballot envelope and the ballot envelope into the pre-stamped envelope, seal the pre-stamped envelope and mail the envelope to the election board in care of the Essex regional retirement board, within 20 days after they were mailed. An envelope postmarked later than 20 days after the mailing shall not be used to determine the elected member. The election board shall notify each candidate of the time and location of the tabulation of the ballots and shall permit all candidates to be present at the tabulation. At the specified time for tabulation, the election board shall assemble all envelopes and inspect the envelopes. Any envelope which has been opened prior to that date or which has not been signed on the rear by the appropriate addressee shall be invalidated and shall not be used to determine the elected member. The election board shall assemble all properly signed, unopened envelopes and shall open each envelope and separate the enclosed ballot from the envelope. The election board shall assemble all ballots and shall tabulate the vote for each candidate. Any ballot which contains a marking for more than the number of vacancies shall be declared invalid.

The election board shall notify each candidate in writing of the results of the election. All envelopes and ballots received by the election board, including those determined to be invalid, shall be preserved by the election board for 2 years. The costs incurred by the election board in administering the election shall be paid from the Essex regional retirement system administration fund.

(j) The group insurance commission shall make available to board members and employees of the Essex regional retirement board health, life and disability benefits and board members and employees shall be eligible to participate in all benefits administered by the group insurance commission. The costs thereof, including any administrative costs incurred by the group insurance commission, shall be borne by the employees and board members and the regional retirement system.

Any benefits provided, prior to the abolition of county government, to employees and retirees of a regional retirement system that are not available through the group insurance commission may be provided to employees and retirees through the Essex regional retirement system; provided, however, that the system is fully reimbursed, in the case of retirees, for the cost of the benefits, and, in the case of employees, is reimbursed in a percentage equal to that of the percentage paid by state employees for similar benefits.

(k) Any provisions of chapter 32, including provisions that apply to a county retirement system, that are not inconsistent with the provisions of this chapter shall apply to the Essex regional retirement system.

SECTION 21. Section 7 of chapter 150E of the General Laws, as so appearing, is hereby amended by inserting after subsection (d) the following subsection:-

(e) An employer entering into a collective bargaining agreement with an employee organization must provide a copy of the agreement to the retirement board to which the employees covered by the agreement are members. All retirement systems must maintain files of all active collective bargaining agreements which cover the systems members. The retirement board shall review collective bargaining agreements for compliance with chapter 32.

SECTION 22. Section 2 of chapter 229 of the acts of 2008 is hereby repealed.

SECTION 23. (a) The public employee retirement administration commission, as established by section 49 of chapter 7 of the general laws, shall appoint a receiver to conduct and oversee the functions of the Essex regional retirement board, hereinafter referred to as the board. The receiver shall be a person with expertise relevant to the administration of a retirement system. The commission shall appoint the receiver for a period not to exceed 1 year; provided, however, that the commission may, on a date not more than 6 months but not less than 3 months prior to the expiration of the receiver’s appointment, extend the receiver’s appointment, effective at the end date of the original appointment, for not more than 1 year; provided further, that upon an extension, the commission shall notify the joint committee on public service; and provided further, that the commission shall authorize no more than 1 such extension. The commission may at any time, with or without cause, remove the receiver and appoint a successor or terminate the receivership. The commission shall determine the salary of the receiver, which salary shall be paid by the board.

(b) The purpose of the receivership shall be to restore sound and prudent management practices to the board. A receiver appointed pursuant to this section shall not take any actions inconsistent with this purpose.

(1) to appoint, remove, supervise and direct all employees of the board, to exercise any function or power of any employee and have control over all personnel matters;

(2) to supervise and direct all members of the board and to exercise any function or power of the board, except as otherwise provided in this section;

(3) to remove, for cause, any member of the board; provided, however, that before removal, the receiver shall provide not less than 30 days’ notice to the member; provided further, that a member to whom the receiver provides notice to remove shall have the right to appeal the removal to the commission, who shall promptly hear the appeal and may overrule the receiver if the commission finds that there was no cause for removal. If a member is removed, the member’s seat shall be vacant and an election to fill the seat shall be conducted under section 19 of chapter 34B of the General Laws; provided, however, that with respect to the fifth seat on the board, the receiver shall not direct the members to vote for or against any candidate;

(4) to subpoena from the board or system or from any member or employee of the board, documents, files or other item prepared for the system or board and which the receiver considers useful in conducting the receiver’s duties;

(5) to promulgate rules and regulations governing the operation and administration of the board;

(6) to alter or rescind any action or decision of the board or of its employees within 14 days of receipt of notice of such action or decision;

(7) to otherwise oversee and discharge any other duties, responsibilities and powers of the board as described in subdivision (5) of section 20 of chapter 32 of the General Laws; provided, however, that the receiver may delegate or otherwise assign these powers with the approval of the commission.

(d) Employees and members of the board shall continue to discharge their duties, subject to rules, regulations, decisions and policies that the receiver may make or implement.

(e) The receiver shall report not less than quarterly to the commission on the receiver’s actions, the status of the retirement system and any recommendations for further regulatory or legislative modifications and shall, not less than 6 months before the receiver’s appointment is scheduled to expire, indicate to the commission whether an extension of the receivership is warranted.

(f) The receiver shall be immune from civil liability arising from the exercise of the receiver’s duties.

(g) Upon the expiration of the receiver’s appointment, all seats on the board shall be considered vacant and new elections shall be held under section 19A of chapter 34B of the General Laws; provided, however, that members of the board in place at the time of expiration shall continue in their duties until new members are elected and installed; provided further, that this section shall not be construed to prohibit serving members of the board or members removed by the receiver from being a candidate for these elections.

(h) Notwithstanding any general or special law to the contrary, no receiver for the board shall be eligible to serve as an employee of the board after the receiver’s appointment has expired.

SECTION 24. Notwithstanding any general or special law to the contrary, section 22 shall take effect upon the Essex regional retirement board under subsection (b) of section 19A of chapter 34 of the General Laws and the Essex regional retirement board advisory council under subsection (i) of said section 19A of said chapter 34 being elected, selected or appointed under the requirements of said section 19A of said chapter 34; provided, however, that until the Essex regional retirement board and the Essex regional retirement board advisory council are operating, the abolished county’s retirement board and retirement board advisory council and its members shall continue to serve.

SECTION 25. Section 6 shall take effect as of January 1, 2010.

SECTION 26. Sections 1 to 5, inclusive, sections 7 to 19, inclusive, and sections 21 and shall take effect 90 days after the effective date of this act.