King v. NYCERS: David Against Goliath

This is a story of the King v. NYCERS case and a lone individual who fought NYCERS and in spite of many setbacks finally won. NYCERS was almost able to deprive this person of two thirds his pension except that Mr. King fought back. He never gave up.

On August 8, 2015, days short of his 95th birthday, Judge Jack Weinstein handed down a decision in the King v. NYCERS case. Ironically Weinstein was appointed as a federal judge to the Eastern District of New York in 1967 by President Lyndon B. Johnson. He is a recognized legal scholar and is one of the most famous judges in the United States.

Start of the Story

David King began working for the City of New York on May 19, 1971 at DEP. On the same day he joined NYCERS in the old Tier 1 pension plan. He was 29 at the time with a birthdate of November 16, 1941. He left DEP in 1977. He withdrew his NYCERS pension contributions on April 14, 1977 which terminated his Tier 1 membership.

In 1984, he started working at the TBTA as Bridge and Tunnel Officer. He rejoined NYCERS on February 16, 1984 as a Tier 4 member. On August 19, 2000, he resigned from the TBTA. He was 58 at that point. He was not yet eligible to retire. He had accrued 9 years of service over the 16 years at the TBTA but was short the needed age of 59.

He did not file a retirement application when he resigned nor when he turned 59 on November 16, 2000, the date he was eligible to retire. He had become a vested member of NYCERS in 1998 when legislation dropped the vesting criteria from ten years to five and therefore his membership remained active indefinitely. It is unclear why Mr. King did not file a retirement application at age 59 point but it is clear he did not.

In 2004, when he became aware that he might be eligible to reinstate his old Tier 1 membership in NYCERS, he filed an application with NYCERS for that reinstatement. The membership reinstatement statute was enacted on December 17, 1999. To be eligible for reinstatement you must be a member and not a retiree.

On October 25, 2005, NYCERS responded to his reinstatement application. They notified him that he was eligible and that he would have to pay $5,584.28 to restore the old Tier 1 membership. The amount reflected the amount he withdrew in 1977 with interest. On June 6, 2006, Mr King submitted his Tier 1 Membership application to NYCERS.

On November 17, 2006, he paid NYCERS $5,917.83 for his reinstatement and $5,544.72 for his Tier 1 deficit. At this point his membership date changed from February 16, 1984 (Tier 4) to May 19, 1971 (Tier 1) and his service credit increased from 9 years to 14.9 years.

On December 16, 2007, NYCERS notifies Mr. King that he had vested right to retire which was effective as of June 6, 2006. That was the day that he filed is Tier 1 membership application. He was 64 as of that date. On January 8, 2008, he filed for retirement under Tier 1. NYCERS began paying Mr. King advanced benefit payments under Tier 1 as of February 29, 2008.

Then the war started.

In a September 4, 2008 letter, NYCERS tells Mr. King that upon further review of his case he was retired under Tier 4 as of his 59 birthday, November 16, 2000 and that in turn made him ineligible for reinstatement to Tier 1 in 2006 because as stated before retirees are not eligible for reinstatement. This letter was signed by Andrew Feneck

NYCERS was absolutely wrong in its September 4, 2008 statement. It is clear case law that a member must file an application with NYCERS for his retirement to be effective. This issue has been litigated many times since 1920. It is settled law.

This is legal incompetence. The NYCERS trustees have a critical problem with its legal advice.

I know Mr. Feneck. I worked with him for over 20 years at NYCERS. He knows his letter was illegal but I am quite sure he was given orders from Karen Mazza, the in-house attorney, to write the letter. You will notice this letter was not signed by Mazza.

This is how corruption infects every phase of an organization’s daily workings. The NYCERS trustees recently appointed Mazza as acting executive director.

This decision by NYCERS changed Mr. King’s retirement benefit as follows:

1. Tier 1: $19,835.87/year starting on June 6, 2006
2. Tier 4: $6,240.80/year starting on November 16, 2000

There are annual cost of living adjustments involved, roughly $270/yr. for Tier 1 starting 2011 and $95/yr. for Tier 4 starting in 2005.

As of September 30, 2008, NYCERS started paying Mr. King Tier 4 retirement benefits and stopped his rightful Tier 1 benefits.

The following fight is over $13,600/yr. payable to a 64 year old man. Not high finance but to Mr. King this was substantial amount.

Up to this point, this is not an unusual story in so far as that NYCERS illegally hammers its members, retirees and employees all the time. What is unusual is Mr. King’s ability to fight back and win.

On August 25, 2011, Mr. King filed an Article 78 in NY State Supreme Court, Kings County challenging the September 4, 2008 action.

On January 12, 2012, his claim was dismissed because King had missed his 4 month deadline for filing an Article 78 claim against the September 4, 2008 action. The court, however, also dismissed all his arguments and found them without merit. As I said before, this was a case where NYCERS was without doubt wrong on the law and should have been correcting its error according to Section 13-182 of the NYC Admin Code.

On August 22, 2013, Mr King filed a claim in federal court on his own without a lawyer. Mr. King was not done yet. He claimed

1. that the state court without conducting an evidentiary hearing dismissed his claims on the merits,
2. that NYCERS had violated his constitutional rights to due process,
3. that NYCERS was in breach of contract and its fiduciary duties pursuant to Section 7 of Article V of the NYS Constitution and the NYCERS Rules and Regulations, and
4. that NYCERS violated Section 349 of the NY General Business Law.

On October 16, 2013 NYCERS moved to dismiss Mr. King’s federal action because all Mr King’s claims had already been resolved in state court.

On November 25, 2013, Judge Weinstein thinking his hands were tied dismissed Mr. King’s federal action.

In a last ditch effort Mr. King appealed to the Court of Appeals of the Second Circuit again on his own.

On December 10, 2014 the Second Circuit issued a summary order denying his appeal against the Article 78 dismissal but overturning the state court decision rejecting Mr King’s arguments on the merits. It then remanded Mr. King’s substantive claims to Judge Weinstein from determination.

King Wins

This was a win for a retired Bridge and Tunnel Officer fighting by himself against the Law Department of the City of New York before the premier federal appeals court in the United States. It was truly a David against Goliath moment. In addition the Second Circuit assigned Mr. King pro bono counsel

With the direction of the Second Circuit to consider the merits of the remanded claims, Judge Weinstein went to work. He wrote a 54 page decision dealing with due process, contractual rights and general business law.

He was not happy with the fact that a state issue was being marched through the federal courts but given the appeals decision he addressed the issues. In short, Judge Weinstein found that Mr. King was retired under Tier 1 as on June 6, 2006 and not under Tier 4 on November 16, 2000 and that NYCERS was wrong in 2008.

Specifically he found that Mr. King had both a due process claim and a contract claim.

The full details of his analysis exposes serious problems for NYCERS and the city in dealing with challenges to administrative pension decisions.

Judge Weinstein granted Mr. King equitable estoppel with respect to his due process claim and its three year filing requirement. He based his decision on the fact that NYCERS had provided no post-deprivation notice to Mr. King of his right to file an Article 78 against NYCERS and the four month time limitation for that filing. If fact, he found that NYCERS must provide a pre-deprivation hearing regardless of the adequacy of the post-deprivation (Article 78) remedy.

As far as I know, the NYC Law Department has never informed NYCERS that its members and pensioners have a due process right to pre-deprivation hearing based on the 14Th Amendment of the U.S. Constitution.

Judge Weinstein found that NYCERS violated Mr. King’s due process rights by not providing him with an opportunity to contest NYCERS’ decision prior to the reduction of his benefits.

Judge Weinstein also found that NYCES breached its contract with Mr. King in that the agency denied Mr. King his Tier 1 retirement benefit. This was the basis on which Judge Weinstein settled Mr. King’s claim stating that he did not want to impose damages which could attach to a due process finding.

NYCERS tried to appeal the 2015 decision. Remember this is a case where the city and NYCERS were clearly wrong on the substantive issue. This case was not about justice. It was about crushing a lone member. I can only guess what the legal costs were for this case.

At this point Mr. King's counsel was prevented in defending Mr. King further. Mr. King was, however, able to obtain legal counsel from Mr. Gary Stone at the Brooklyn Legal Services located at 105 Court Street in downtown Brooklyn. Mr Stone was also able to get the help of Mr. Edgar Pauk who has a long history of fighting the city.

The parties eventually settled the case with a resulting 2016 decision (7/25/2016) slightly modified allowing NYCERS to escape interest charges.

Let’s hope Mr. King is receiving his Tier 1 benefits.

Deceptive PR from the Comptroller

As of June 30, 2016 the Comptroller would have you believe that the five city pension funds have assets of $165.242B.

That breaks down as follows:

1. TRS - $61.649B
2. NYCERS - $54.553B
3. BERS - $4.495B
4. Police - $33.592B
5. Fire - $10.953B

This is, however, a very inaccurate description of the assets of the five pension funds. As stated in the city's 2016 Financal statement the total pension assets of the five funds is $146.915B broken down as follows:

1. TRS - $43.629B
2. NYCERS - $55.489B
3. BERS - $3.416B
4. Police - $33.482B
5. Fire - $10.899B

The main reason for the differences is that the Comptroller is adding in the assets of the 403(b) and VSF plans in the total figures. The assets in those plans can not be used cover the pension liabilities of the five pension funds. Listed below are the assets of those plans:

1. TRS-TDA - $28.444B
2. NYCERS-COVSF - $0.005B
3. BERS-TDA - $1.630B
4. Police-POVSF - $1.307B
5. Police-PSOVSF - $0.521B
6. Fire-FFVSF - $0.502B
7. Fire-FOVSF - $0.305B

They total up to around $32.6B.

Strange Accounting at the CO-VSF and NYCERS

There appears to be some strange entries in the CO-VSF financial statements (City CAFR's) over the last several years.

• In the fiscal year ending June 30, 2014 there is an entry for $38M for benefit payments. There wer was no VSF benefit payments in December, 2013. There was also an entry for $190M for a skim from NYCERS to CO-VSF. The year opened with a balance of $36M and closed with a balance of $188M
• In the fiscal year ending June 30, 2015 there is an entry for $78M for benefit payments. The skim entry was $30M. The year closed at $140M.
• In the fiscal year ending June 30, 2016 there is an entry for $82M for benefit payments. The skim entry was -$53M. The year closed at $5M.

In May, 2015 NYCERS appointed a new actuary, Ms. Sherry Chan. The NYCERS actuary is also the CO-VSF actuary. The NYCERS chair and the Comptroller are also trustees of the CO-VSF Board.

In a May 12, 2016 resolution the NYCERS Board and the NYCERS actuary stated that there was a mistake in FY-2014 skim. The skim should have been only $137M and not $190M. In response to this screw up NYCERS pulled $53M out of the CO-VSF.

It is not clear wheteher the -$53M entry was just an accounting correction or an actual movement of money from CO-VSF to NYCERS. I do not know whether there is any legal authority that allows money to flow back to NYCERS from the CO-VSF.

In a Nov. 4, 2016 letter to the CO-VSF Board the NYCERS actuary, Ms. Chan, states on page 3 that there will be no skim in FY-2017 into the CO-VSF.

The actuary states that the skim is based whether the FY-2016 return on NYCERS's equity investments exceeds the average yield on the 10 year U.S. Treasury Notes by 115%.

She does not define what are NYCERS equity investments nor does she describe how she computes the returns. In particular she does not state whether hedge funds, or private equity and real estate partnerships are included in the equity investment class and how she would compute their returns considering that they are illiquid. For the record she does not state specifically what was NYCERS's return on its equity investments in FY-2016. She does not state what was the average yield on the 10 year U.S. Treasury Notes or how that number was computed.

If there is no skim, then there was a deficit for the CO-VSF for FY-2016. She does not mention what that resulting deficit was. There should be running chart year by year showing what the excess or deficit is and what the skim hurdle is.

She also states that the market value of the CO-VSF assets as of June 30, 2016 is $47M. She provides no details or support for this statement. The city CAFR states that the June 30, 2016 CO-VSF closing balance was $5M. For the record the city CAFR also does not detail the CO-VSF assets.

As far as I know there is no documentation about the investment activity for the CO-VSF. With a 3% return rate interest rate on a $35M bond portfolio, you should expect a $1.5M interest flow each year into the fund. The reported interest earned was $184,000 in 2016, $10,000 in 2015, $20,00 in 2014, and $38,000 in 2013. There is something very strange going on.

Bad News - NYCERS Reup'd on the Lease for the LIC Disaster Site? No. Mazza is Acting Executive Director as of January 1.

In late spring of 2006 NYCERS signed a ten year lease for a disaster recovery site in Long Island City. It came up for renewal this year and it appears from recent comments by the executive director, Diane D'Alessandro that NYCERS renewed the lease.

At the November 10, 2016 Board Meeting, D'Alessandro announced that by January 1, 2017 some poor souls who work in document control and the mail room will be assigned to work at LIC. There was no mention of the Certificate of Occupancy for the site. Maybe NYCERS finally got the C.O. after ten years. Maybe they are afraid to say so because then they would have to admit it took them ten years to get it.

I don't understand how DC-37 has agreed to let their members to be permanently exiled to such a dump. You can be sure none of D'Alessandro's buddies will have to work there. I wounder if the Post Office will pick up mail from the site?

As far I know there has never been a full fledged test of a recovery plan since workers were not legally permitted on the site. I have no idea how NYCERS has been able to safely run their file backup system at this site when there is no permanent staff at the site. As far as I know there is no plan B.

I guess NYCERS had no option but to renew the lease for five years.

Well D'Alessandro will be gone on January 1. It will be someone else's mess then. Oh, maybe Mazza can solve this problem.

Structure of the CO-VSF

The CO-VSF Board has five trustees, the NYCERS chair(one vote), the Comptroller (one vote), the Finance Commissioner (one vote), the head of COBA (one & half votes) and the head of the Correction Captains union (half vote). By statute the NYCERS actuary is the actuary for the Co-VSF. I am not sure when the CO-VSF Board last met. This board along with the actuary should be publicly informing the CO-VSF retirees what is happening with the 2016 payments and providing them with supporting documentation. With modern technology this is an easy lift.

CO-VSF is required to publish a financial statement every year in the City Record - NYC Admin Code - § 13-194.7

7. The variable supplements board shall publish annually in the City Record a report for the preceding year showing the assets of the correction officers' variable supplements fund and a statement as to the accumulated cash and securities of such fund as certified by the comptroller, and shall set forth in such report such other facts, recommendations and data as the board may deem pertinent.

NYS DFS has issued only one audit of the CO-VSF system.

The following text is from that audit:

A. History

Chapter 657 of the Laws of 1999 established the Correction Officers Variable Supplements Fund (“COVSF” or the “Fund”) and the Correction Captains’ and Above Variable Supplements Fund (“CCAVSF”). Chapter 255 of the Laws of 2000 (“Chapter 255/00”) combined the COVSF and the CCAVSF into one amended fund (Correction Officers Variable Supplements Fund) effective December 29, 1999.

The Fund operates pursuant to the provisions of Title 13, Chapter 1 of the Administrative Code of the City of New York (“ACNY”). It provides supplemental benefits to members of the Uniformed Correction Force (“UCF”) that retire on or after July 1, 1999, with 20/25 or more years of service from the New York City Employees’ Retirement System (“NYCERS”).

Under current law, the Fund is not to be construed as constituting a pension or retirement system. Instead, it provides supplemental payments, other than pension or retirement system allowances, in accordance with applicable statutory provisions. The New York State Legislature has reserved to itself and the State of New York the right and power to amend, modify, or repeal the Fund and the payment it provides.

NYCERS, Is This Really a Ponzi Scheme?

In the NYCERS FY-2015 CAFR on page 189 you will find the updated Solvency Test issued by the NYCERS actuary.

The last year listed on the chart is 2013. The actuary has always been slow in doing his/her work. On the last line there are several amounts:

1. $7.6B = the total contributions made by active workers plus the 5% interest they have earned on their money.
2. $36.2B = the pension liability for all current retirees (7% assumed interest rate)
3. $30.6B = the employer financed pension liability for all active workers (7% assumed interest rate)
4. $47.3B = the actuarial value of NYCERS assets

What the City/Employers Actually Pay for Active Workers

Workers are currently contributing approximately 3.6% of payroll into NYCERS. In FY-2015, workers contributed $457.1M to NYCERS and the covered payroll was $12.7B.

For argument sake let us assume the city and the other employers are contributing $3 for each $1 that the workers are contibuting. That would be 10.8% of payroll. Lets assume that the $3 earn the same conservative 5% that worker's $1 earns. That would mean that there should be at least $22.8B along with the $7.6B set aside for the active workers. That would be $22.8B to cover a $30.6B liability. Wrong!

Faking It

If you go back to the last line in the chart, you will see that the actuary is claiming that both the liability for all current retirees, $36.2B, and the workers contributions, $7.6B, are 100% funded. She is also valuing NYCERS's assets at $47.3B.

So when you start with $47.3B and you subtract $36.2B and $7.6B, you are left with only $3.5B. That is $3.5B to cover a $30.6B liability for active workers. This is a truly frightening conclusion.

The Other City Pension Funds

The story only gets worse. The Police Pension Fund is in the same shape as NYCERS with only $2.3B to cover a $17.9B liability for working police officers (page 151 of the FY-2015 NYPPF CAFR).

Teachers and the Fire Funds are in totally worse shape. The Fire Pension Fund has NO money to cover a $5.2B liability for working firefighters and only $8.0B to cover a $10.5B liability for current retired firefighters (page 151 of the FDNYPF FY-2015 CAFR).

Teachers with over a 100,000 working teachers has NO assets to cover their $18.6B pension liability and only $31.9B to cover the $37.5B pension liability for retired teachers (page 120 of the NYC-TRS FY-2015 CADR).

This grim picture is based on the unrealistic 7% assumed interest rate assumption. You don't want to do the arithmetic for a lower interest rate assumption. Just going from 7% to 6% at NYCERS increases the unfunded liability from $20.2B to $28.0B (page 114 of NYCERS FY-2016 CAFR)

What is Really Going On

Of course, there is one major flaw. The current retirees benefits are not fully funded. Most of the pension contributions the city and the other employers are making each year are catch up payments covering pensions being paid to current retirees.

The city and other employers paid $3.4B to NYCERS in FY-2016. The workers paid $485.5M. Three times what the workers paid is $1.5B. Under our 3 for 1 scenario it is reasonable to conclude that $1.9B went to cover retirees benefits not current workers. This is actually a Ponzi scheme and not an actuarially funded pension plan. It is a lot like the Social Security benefit system.

What is actually going on is that the city and other employers are trying to pay two different pension bills each year. One for active workers and the other for former workers who are now collecting pensions from NYCERS. You can just imagine the political nightmare this is. Part of the ongoing pension funding issue is not just about pensions for current workers. It is the huge mass of current retirees whose benefits the city did not properly secure when the workers retired.

How did this happen?

When a worker retires, the actuary can very accurately compute the cost of the benefit. She, however, can be very prudent or a total screw up. You know where this going. A 62 year old retiree is going to get a pension of $40,000 a year for the rest of his/her life. The actuary can say that $400,000 will cover this benefit or she can say that $520,000 will cover the cost.

Now if the fund hasn't even put aside the $400,000, you can imagine how they feel about the $520,000 cost figure. In either case there is going to be catch up, even if the fund is hitting its interest targets. Needless to say pension funds are not known for hitting their interest targets

One thing that NYCERS active workers should immediately demand is that their annual statement be expanded to include how much the city or their employer have contributed on their behalf during the year for their future pension benefit. The statement should also include an opening balance of employer contributions and how those assets performed during the year. And don't let anyone tell you it can't be done.

Correction Officer VSF (COVSF) Payment for 2016

The NYCERS Board had their November Regular Meeting last Thursday. In the last 5 minutes of a two hour long meeting the actuary's representative dropped a bomb on the retired Correction Officers. They were not going to get their VSF payment this year.

Last Saturday my blog got inundated with hits, almost a thousand inquiries on my most recent posting on NYCERS's poor investment performance in FY-2016. Guess who gets hammered when NYCERS trustees screw up? Not the trustees but the retired Correction Officers.

Also something funny happened in FY-2016. NYCERS clawed back $52.724M from the COVSF. You can see in my previous posting the regular "skim" to the COVSF for the last six years.

COVSF History 2013-2016

Year	Open Balance	Interest Earned	"Skim"	Payments	Close Balance
FY-2013:	$35.925M	$0.038M	$0.000M	$0.000M	$35.963M
FY-2014:	$35.963M	$0.020M	$190.000M	$38.014M	$187.969M
FY-2015:	$187.969M	$0.010M	$30.012M	$78.285M	$139.706M
FY-2016	$139.706M	$0.184M	-$52.7240M	$82.149M	$5.017M
FY-2017

How Do You Lose $174M in a Rising Market?

On October 31, 2016 the Comptroller's Office released the city's Comprehensive Annual Financial Report (CAFR) for FY-2016. This report, in particular, contains the basic financial information for the city's five pension funds.

Based on this report, NYCERS lost $174.2M in asset value during FY-2016 and had a closing balance of $55.59B. Even worse,during the same period the five city pension funds plus the TDA & VSF funds, in total, lost $1.323B in assets.

At a September NYCERS investment board meeting the Comptroller's representative, Scott Evans, presented a performance report to trustees that stated that the fund had earned a return of 1.76% for the year.

What he did not say was that NYCERS had lost $174.2M of assets during the year and obviously he did not explain how that had happened. In a year that the index/core rate of return was 3.9%, NYCERS assets fell by -0.32%.

This is absolutely unacceptable. In three of the last six years NYCERS lost assets. All six years were up markets. See the table below.

The Index/Core Performance for FY-2016

During FY-2016 the S&P500 Index increased in value from 2063.11 to 2098.86, a 1.7% increase for the year. Not good but above water.

The NYCERS bond core target was 7.16% for FY-2016. According to the September performance report NYCERS managed a 6.64% return in this asset class. That was C+ grade but not a loss of capital.

With a 60/40 stock asset allocation the fund should have produced a 3.904% increase in assets with a closing balance of $57.85B.

So how did NYCERS lose $174.2M in capital, a -0.32% loss?

Over the last 17 years NYCERS has managed to leave over $25B on the table because of investment decisions made by Comptrollers and trustees. There is no personal penalty for trustees if they fail to do their job. Hell, they don't even get fired. They just go to work for investment mangers.

NYCERS Investment Fees for FY-2016

NYCERS paid $212.9M in investment fees during FY-2016. That is 38 basis points on the closing balance of $55.59B. NYCERS should never pay more than 10 basis points in fees, even for beating the index/core strategy. 10 basis points is $55.6M, a savings of $157M.

Of course beating the index/core strategy is not possible for a pension fund over a long period of time. Investment returns over a long period of time always reverts to the mean, if you are lucky. Trying to beat the mean will cause a pension fund to fall short of average market returns over extended periods of time.

Six Year Review

Look at the last two rows in the table below. In only one year did NYCERS outperform the Index/Core rate of return. Just adding up the shortages for the six years listed below adds up to $4.2B. If you compounded the shortages for the six years, the loss is over $10B. When you compound the shortages over the last 17 years, the calculation produces a $25B loss.

Why do the trustees always make these bad decisions? Follow the money. Who is getting the extra $157M in fees. Who is making and receiving campaign contributions?

The following table is a recap of NYCERS income statements from FY-2011 to FY-2016:

Income Statement History

Year	FY-2016	FY-2015	FY-2014	FY-2013	FY-2012	FY-2011
Employee contributions	$485.5M	$467.1M	$447.7M	$437.8M	$403.6M	$413.7M
Employer contributions	$3.366B	$3.160B	$3.114B	$3.047B	$3.017B	$2.387B
Interest income(bonds)	$692.8M	$635.8M	$658.7M	$624.7M	$528.0M	$492.2M
Dividends(stocks)	$836.5M	$795.3M	$739.7M	$696.7M	$637.1M	$619.9M
Securities Lending	$29.7M	$26.5M	$8.8M	$27.8M	$25.0M	$23.4M
Income-In	$5.413B	$5.089B	$4.974B	$4.884B	$3.941B	$4.616B
Benefits/refunds	$4.403B	$4.236B	$3.990B	$3.851B	$3.689B	$3.569B
Transfers to the other pension funds	$7.4M	$7.1M	$7.2M	$5.3M	$5.0M	$4.4M
Skim to VSF's	-$41.2M	$41.9M	$202.1M	$12.3M	$12.4M	$12.4M
Investment Expenses	$213.0M	$231.8M	$184.6M	$183.3M	$129.5M	$145.1M
Administrative expenses	$56.7M	$54.6M	$50.4M	$48.7M	$51.4M	$46.4M
Income-Out	$4.638B	$4.571B	$4.283B	$4.101B	$3.888B	$3.770B
Net Income	$774.4M	$518.1M	$691.0M	$783.0M	$728.0M	$164.1M
Actual Cl. Bal.	$55.489B	$54.889B	$54.442B	$47.195B	$42.655B	$42.409B
Index/Core Cl.Bal.	$57.806B	$57.107B	$55.171B	$47.863B	$45.523B	$42.107B
Shortage	$2.317B	$2.217B	$0.749B	$0.668B	$2.868B	-$0.302B
Actual RR	-0.317%	-0.093%	13.850%	8.806%	-1.136%	19.391%
Index/Core RR	3.904%	3.981%	15.437%	10.373%	5.626%	18.537%

Rejection of Index Investing at the Common Investment Meeting - This is Fraud.

So, the Comptroller has convinced the five city pension boards to attend a combined investment meeting, “Common Investment Meeting - CIM”, every month. Interestingly, the Teachers Retirement System continues to hold additional separate investment meetings every month.

The CIM is similar to a lecture hall class with 200 students as opposed to an ordinary class with 15 students. There is a certain circus quality to the meeting. You can judge for yourself. The videos are on this link.

I recently watched the September 26, 2016 meeting run by Scott Evans. He is the head of the Comptroller’s Bureau of Asset Management (BAM) and is paid $350,000 per year. The five pension funds actually pay his salary through a non-governmental grant scheme to the Comptroller’s revenue budget but the pension funds have no control over his hiring.

Comments on Index Investing

At about one hour into the show Mr. Evans started to comment on a possible simple index stock/bond investment strategy for the city's pension funds as opposed to the “sophisticated” strategy that the funds have adopted and he supports.

While he was not clear about what he precisely meant by the index stock/bond strategy, I am assuming that he was referring to the index stock-R-3000/core+5 bond strategy that NYCERS was using to a large extent circa 2000.

As of June 30, 2000, NYCERS had assets worth $43B of which $21B was in a Russell-3000 stock index and $10B was in a core+5 (Treasuries, investment grade corporate bonds and agency/mortgage backed bonds bond strategy, all with terms 5 years or greater) strategy. Together the two components were 75% of the total portfolio.

Specifically Mr. Evans stated that the index strategy would produce acceptable results, simplify the investment process for the pension funds, allow the pension funds to shrink the staff at BAM and have shorter investment meetings. He, however, claimed that it would be more risky than the “sophisticated” strategy and he made some vague reference to possible draw downs problems but nothing else.

That is basically the end of his discussion on this topic. He provided no quantitative support for his position. He felt his comment was sufficient to dismiss the index concept. No trustee asked any questions in spite of the importance and value of index investing.

What he failed to mention, however, was the actual historical rates of return for the two strategies. He did not list the radical differences in external fees, internal costs and taxes between the two strategies. He made no mention of the liquidity, volatility, currency, political, and credit risks inherent in the “sophisticated” strategy. He also failed to mention the potential of the “sophisticated” strategy for improper political influence and corruption which has occurred in the state pension fund in Albany and other public pension funds around the country.

Some Actual Numbers

In an effort to provide some specifics let me give you some historical numbers. Over the last 20 years (1996-2016) NYCERS assets have increased at annual rate of 3.4% per year, from $27.98B to $54.55B. See below.

From 1996 to 2000, as I mentioned above, NYCERS followed an investment strategy that was roughly 75% in a index/core+5 strategy with the other 25% in more dubious assets. The annual rate of increase in the assets for those four years was 11.3%. As of June 30, 2000 there were almost no private equity investments (non-publicly traded assets) in the NYCERS portfolio.

Since 2000, the annual rate of increase in NYCERS assets, using the quarterly numbers, has been 1.51%. Since 2007, that rate has been 2.88%. Needless to say, 2000 was the advent of the “sophisticated” investment strategy. By 2008 NYCERS was hip deep in shit with only 56% in the index/core+5 strategy. You can see that the trustees are not totally crazy.

Since 2009, NYCERS assets have increased at a 9.5% annual rate but the S&P 500 stock index has increased at an even higher 12.5% annual rate. As of June 30, 2106 NYCERS had assets of $54.6B. That number, however, includes a $3.2B positive cash inflow from 2009 to 2015 and $9.9B in non-publicly traded assets. The quoted values of non-publicly traded assets are basically guesses of what they are worth and you know the real number is less than $9.9B.

Based on the NYCERS official financial statements, which are different from the Comptroller's quarterly reports, the opening balance on July 1, 1999 was $41.9B and the closing balance on June 30, 2016 was $55.49B. That is an average annual increase of 2.53% for the seventeen years. The rate of increase for the S&P500 index/core+5 bond strategy with a 60/40 stock/bond allocation over the same 16 years is 4.648%. That translates into a $81.0B closing balance for June 30, 2016. That is a $25.5B higher than what NYCERS actually had. The sum of each year's difference individually is over $16.2B but compounded over the 16 years it is $25.5B. This is a big step towards full funding for NYCERS but we should be very aware that even indexing does not hit the 7% assumed interest rate that actuaries dream about.

Bottom line, NYCERS almost certainly would be in far better shape over any span of time with the “unsophisticated” index/core investment strategy. Of course, Scott Evans would be working somewhere else.

Listed below are the June 30 NYCERS asset values since 1985 as reported by the Comptroller in the quarterly performance reports along with closing balances from the CAFR's and estimates of index returns from FY-2000 forward.

• Year - Quartely - CAFR CB - Indexing CB
• 1985 - $10.178B
• 1986 - $12.534B
• 1987 - $13.866B
• 1988 - $14.349B
• 1989 - $16.499B
• 1990 - $17.904B
• 1991 - $18.852B
• 1992 - $20.670B
• 1993 - $22.939B
• 1994 - $22.432B
• 1995 - $25.455B
• 1996 - $27.983B
• 1997 - $32.439B
• 1998 - $37.711B
• 1999 - $41.024B
• 2000 - $42.997B - $42.824B - $43.746B
• 2001 - $37.519B - $37.251B - $40.222B
• 2002 - $32.212B - $32.842B - $34.106B
• 2003 - $30.841B - $31.524B - $32.477B
• 2004 - $33,526B - $34.178B - $33.480B
• 2005 - $34.703B - $35.526B - $35.406B
• 2006 - $36.650B - $37.288B - $36.008B
• 2007 - $42.237B - $42.514B - $42.707B
• 2008 - $38.862B - $39.716B - $40.342B
• 2009 - $30.929B - $31.903B - $34.490B
• 2010 - $34.618B - $35.383B - $35.633B
• 2011 - $41.623B - $42.409B - $42.107B
• 2012 - $41,620B - $42.655B - $45.523B
• 2013 - $46.623B - $47.194B - $47.862B
• 2014 - $53.549B - $54.422B - $55.171B
• 2015 - $54.289B - $54.889B - $57.106B
• 2016 - $54.553B - $55.490B - $57.806B

A Word of Caution About Selecting the New NYCERS Executive Director

Just in case anyone is entertaining the thought of appointing Karen Mazza as the new executive director of NYCERS, including Mazza herself, let me refresh your memory about her illustrious career.

In 1990 I was appointed executive director at NYCERS after 17 years with the agency. In that position I had steady contact with the NYCERS Chair and other NYCERS trustees. At that time it was common for the Mayor to appoint the Finance Commissioner as the Chair of NYCERS.

In 1993 Mazza went to work for the Mayor's Pension Unit at the Finance Department. That unit supported the Commissioner with his/her duties as NYCERS Chair. In that position she worked for an attorney named Norm Rosner who was the Commissioner's alternate at the NYCERS Board. Rosner made it clear to me that Mazza was not an effective employee but gave no details. At the time I did not appreciate his insight into this woman. In hindsight, it is quite clear why he held her in such low esteem. She left Finance in 1994 and went to work at the Comptroller's Office.

In 1991 Leo Vallee and I began writing procedural descriptions for all newly passed pension legislation that impacted NYCERS. These write ups are still being used today. At that time NYCERS had an old time permanent staff lawyer who thought he was a brilliant legal writer. Unfortunately he was not. He was, however, honest.

In 1997, I hired Mazza as an administrative staff analyst. I was hoping we would get help with the analysis of the pension legislation along with other in-house legal issues. Because of the 1996 legislation giving NYCERS budgetary independence, I was legally prohibited from hiring lawyers in legal titles unless I had approval from the Law Department. The Law department was not about to give NYCERS that approval.

Unfortunately, Vallee and I had to continue writing the legislative descriptions because Mazza was also not able get the job done. This was a warning sign that Mazza was not an astute analytical attorney.

Falsifying Time Sheets

In 2000, Mazza gave birth to her second child. Also in 2000 we moved into the new office site in Brooklyn. She returned from maternity leave in late 2000. She returned to 8:00-3:45 work schedule. I worked a 9-5 schedule. Her new office had an open glass front as did all managers' offices and was twenty feet down the hall from my office. Whenever I passed her office I would be able to know whether she was in her office or she was on the phone. For the record she was on the phone almost every time I walked by.

In 2001, I began to notice that when I would arrive to work she was not in her office. I would eventually find her after 9:30 or later. She was one of the top three managers in the agency. Managers have a certain leeway with their schedules in that a manager can be make up time at the end of the day if he/she comes in late in the morning. She, however, was meticulous about dashing out the door at 3:45 hoping I would not see her.

One of my duties was to sign off on the time sheets of all of my direct reports which Mazza was. When I became aware of her absences at the beginning of the day, I started to closely cross check her time sheets with the days when I knew she was late and found that she was falsely recording her starting time as 8:00 when she very often was not arriving until 9:30 or later.

To double check what I had found, I examined the security system which records when all employees enter the working area of the office. Sure enough as another sign of her dishonesty, on the days that she was late she would make sure she did not swipe her security access card. She instead would tell the security guard on the front desk that she had forgotten her card and ask him to buzz her in through the security door. This meant that there was no trace in the security system of when she actually arrived.

I should have fired her at this point.

In retrospect, it was the worst mistake I made while running NYCERS. Foolishly I gave her a second chance. I spoke to her about what I had discovered. She tried to deny it. I told her it had to stop and that I would be closely monitoring her time sheets. From then on she knew I was watching her like a hawk. This was not a good situation.

In addition, in a regular weekly managers' meeting I made it very clear to the all managers that they had to swipe through security every day and if they forgot their card that they had to sign in with Security and mark their time. I got a few funny looks but Mazza knew I was talking about her.

Perjury and Fraud

Subsequently in early 2004 during the hiring process for a new HR director Mazza enabled Felita Baksh to falsify her writing sample which was crucial in my decision to appoint Baksh as the NYCERS HR director. This was in addition to the help that she gave Baksh with her resume.

As everyone at NYCERS has come to know, it is a law of nature that Baksh/Ramsami/DiLorenzo can not write a grammatically correct sentence never mind a two page essay. As a cruel twist of fate, the one HR staff member who unknowingly observed Mazza and Baksh rig the writing sample was eventually fired by Mazza and Baksh. This was after Conflict of Interest Board had fined Baksh for using this employee's credit card to buy furniture.

Later in 2004 Mazza conspired with the DOI investigator, Carol DeFreitas, who was investigating Baksh's appointment. DeFreitas was Martha Stark's "man" on staff at DOI. DeFreitas was literally her employee on assignment at DOI. I need not say anything more about Stark. Together Mazza and DeFreitas were able to supress any mention of Baksh's lying under oath or the false writing sample.

While one trustee forwarded the perjury charge to DOI, there was never any follow up.

Retaliation Against My Wife

After I was fired in March of 2005 Mazza was involved with creating trumped up charges against my wife which lead to her being demoted. Over the next ten years Mazza was a driving force behind placing my wife in position where she had no work assignments and ensuring that any attempt to give her work was blocked. In 2015 my wife had to resign because of health reasons. Over the ten years she had developed sever colitis and had a major heart attacked which almost killed her.

Just a Bad Lawyer

I previously mentioned that Mazza is a incompetent lawyer. In 2008 she was so unable to handle pension issues that she had NYCERS issue a $100K per year no-bid contract to a former law Department staffer to do her work. This went on for 4 or 5 years.

In 2008 Mazza lawyer began harassing the Tier 4 accident disability EMT retirees over the alleged gainful employment issue and forced then to enact legislation to override her incorrect interpretation of the disability statute. She also managed to deny a disabled EMT worker her rightful disability benefit.

When the Workers' Compensation Offset issue arose in 2012, she was in the fore front of crucifying Tier 3 retirees who were receiving disability benefits. Who can forget her words when she was cutting disabled pensioners' checks to $10 a month "we're trying to leave them with something in their pocket at the end of the month".

In 2006 NYCERS signed a lease for a disaster recovery site in Long Island City. Mazza handled the lease and all the the contracts for this fiasco. Ten years later the site still does not have a Certificate of Occupancy.

Closing Thought

D'Alessandro, the executive director, has been a nasty empty suit for eleven years at NYCERS. Now, in July, she appoints Mazza as Deputy Executive Director to fill the spot that opened up with the retirement of the person who held the position for ten years. Then two months later in September D'Alessandro announces her own retirement. What do you think is going on?

Finally Someone Noticed the Skim at TRS

This month the Citizens Budget Commission discovered a city funded subsidy for the teachers TDA fund at the NYC Teachers Retirement Fund (TRS), better late than never.

In 2013 I stumbled on the fact that TRS had a persistent negative cash flow.

Then in 2014 someone reminded me of something I sort of knew but never understood the full impact.

I can not understand how the city allows this massive benefit to exist. It puts the entire TRS retirement structure at risk. The teachers have a very respectable pension benefit. This subsidy to the TDA program is irresponsible in that it pulls assets, $1.2B in FY-2015, out of the pension fund every year. I can see how the teachers love this benefit but if all the other city workers find out about this, there will be hell to pay.

Note: the skim for FY-2016 is $1.354B.

Questions about the Comptroller's Investment Expenses

On September 8, 2016 the NYCERS Board of Trustee held their regular board meeting for September. The second item on the agenda was three resolutions authorizing NYCERS to reimburse the City for “investment” expenses incurred by the Comptroller’s Bureau of Asset Management from July 1, 2016 to March 31, 2016. The amount for the first quarter of FY-2016 was $552,461. We never got hear what the amounts were for the two quarters from October 1, 2015 to March 31, 2016 because the resolutions were tabled for the next meeting in October. I have written about these reimbursements in the past.

The reason they were tabled was because the Chair of the Board, John Adler, asked that they be tabled.

Why?

Because as the Chair stated the documentation supporting the expenses provided by the Comptroller’s Office was “difficult to decipher”. He stated he had questions and he wanted all three resolutions held up until he was satisfied that the expense were properly documented and appropriate for reimbursement from the corpus of the fund.

The Comptroller’s representative asked whether the Chair had communicated his issues to the Comptroller’s Office.

The Chair said that he had not yet done so. He further said that the documentation was very unclear, hard to decipher and was not in any standard format. This made it a laborious process to analyze. He also stated that this analysis had not been done before.

John Adler is a low key person who became the Chair of NYCERS in March, 2015. This is the first time since he became settled into his current position that he has had to deal with this budgetary flimflam. It, unfortunately, also occurs at the other four city pension systems and runs about $5M per year.

The Comptroller’s representative agreed that this type of analysis on the expenses had never been done before and asked for specifics on what the reporting format should be.

The Chair responded that the City had uniform directives about documenting expenses. He also stated that it appeared to him that the Comptroller, as the City auditor, was not abiding by those actual directives. Specifically he said that the Comptroller was sometimes using city expense rules and sometimes federal rules.

The Comptroller’s rep said that she did not think that different rules were being use and that she would be surprised if they were.

“I think you will be surprised” the Chair said in response.

To the casual observer this might not seem to be a big deal. Trust me, this is a big deal.

A Little Good News!

On Wednesday, September 14, the NYCERS executive director, Diane D'Alessandro, announced that she was retiring at the end of December.

Hopefully the exit of this vicious incompetent boss should provide most NYCERS employees with some relief from their daily stress at work. Of course it will create serious concerns for all the equally incompetent flunkies that she has hired over the last 11 years as well as some other specific employees that have done her dirty work during that time. I am referring to Karen Mazza, Felita Baksh/Ramsami/DiLorenzo, Kin Mak, and Liz Reyes among others.

There was a DOI investigation started in response to the Ellen Carton hiring. I suspect D'Alessandro wants to get out of Dodge before the sheriff arrives.

I sincerely hope that the trustees are able to clean house after she is gone. This agency has a totally adequate operating budget as opposed to other city agencies. It should be an example of almost perfect service to members and retirees as opposed to the arrogant dismissive operation that it is.

Assuming D'Alessandro has no pre-2001 NYS/NYC service, her pension will be about $50K/yr. based on a $217K/yr salary and 14 years of service. This is not a smart financial move. Six more years of service and 12% increase in salary would have increased her pension to $97K/yr.

NYCERS dumps Hedge Funds

It appears that the NYCERS trustees have finally woken up. On April 14, 2016 the trustees voted to dump their hedge fund investments. What took them so long? Still there was one trustee who voted to stay with hedge funds, Teamster's Local 237. I find this position by a labor union very troubling

Now if they can only dump their private equity and real estate investments. But they can't do that, even if they want to. The idiots signed "no cut" contracts with no termination dates.

What is worse, is that they don't know what the contracts say. The Comptroller won't even let them see the contracts, contracts he signed. It gets even worse. The trustees authorize the Comptroller every year in June to continue this craziness for another 12 months.

I have written for a long time about this insanity. Don't let them tell you that they didn't know until now.

In a desperation move the investment community is attacking this action as being politically motivated. I'm sure there is a healthy dose of politics involved but the investment managers are terrified that if this movement gets going, they will all be taking orders behind the counter at McDonald's. That is if they get there first.

NY Times: NYC Pension Funds and "Operational Failure"

On Tuesday, January 26, 2016, the NY Times reported the public release of a study analyzing the investment capabilities of the NYC Comptroller's Office. The NY Times article focused on the expression "danger of operational failure" to summarize the opinion of the report. The city paid Funston Advisory Services $1.4M for the 406 page report.

According to the following exert below from the report, the Comptroller's Office is currently not up to the job and needs lots of money to get the office into shape.

Our overall conclusion is that additional resources are required or the current investment strategy presents a very high level of operational risk. This is a problem that has been growing over the course of multiple administrations. It requires a long-term solution, long-term leadership, the support of the Systems, and long-term resourcing, but it also demands immediate action.

Continuous improvement (doing what BAM already does, but better) is necessary but not sufficient. Discontinuous improvement (doing new things in new ways) is also required. Unfortunately, given its existing resources and demands, BAM’s management currently has little or no capacity to implement many of the recommendations of this report.

To me it appears that the study was designed to help the Comptroller hold onto his annual designation as investment manager and his control over the investment process at the five city pension funds. I also suspect that the Mayor's Office is pushing to outsource the management functions of the pension fund so as to remove the heavy political influence that emanates from the Comptroller's Office.

As a example of this political influence, one of the people listed by Funston Advisory as a member of their team is a man named Jon Lukomnik. Jon worked for The NYC Comptroller Alan Hevesi from 1994 to 1998 as his representative on the NYCERS Board of Trustees. In FY-1997 Jon lead the move to allow Hevesi complete control of all of the NYCERS investment contracts and the payment of the fees outlined in those contracts. This is exactly one of the primary sources of the current chaos in the Comptroller's Office. As NYCERS executive director I specifically opposed this move in 1997 but for some reason the mayor's Law Department went along with this take over.

As long ago as 2011, I pointed out the improper activities by the Comptroller's Officewhen it came to investment contracts and fees for the pension funds. As recently as November of 2015, I again pointed out the mess at the Comptroller's Office. This report, however, documents in details how bad the internal operational problems are at the Office of the Comptroller.

The real reason the Comptroller's Office has become overwhelmed with the investment process is that trustees of the five city pension funds have made terrible investment decisions over the last 15 years.

The solution to the trouble at the Comptroller's Office is not more staff, higher salaries, and more spending. The real change needed is much more simple than what the report recommends but just as radical.

Instead of spending more money and hiring more people, all five funds should radically simplify their investment strategies. Invest only in 1) direct US stock index funds (S&P 500 or Russell 3000) and 2) Treasury, high rated corporate, and agency bonds.

They should reduce the number of investment managers and have a target of ten managers for each fund. They should also set a target for investment fees of 10 basis per year.

When the dust settles, the Comptroller's Office will be able to do its job with mere mortals. The five pension funds will earn more returns on their assets, pay far less in fees and the city will save on pension costs.

Of course, the Comptroller would be totally irrelevant politically and lots of of people on Wall Street would be out of a job.

While the trustees are reforming things, they should consider the following suggestion. Since the pension funds are already paying the Comptroller to do such a tenuous job managing their investment activities, they should put out a RFP for the work to see if they could get the job done better at lower cost. That is what the Comptroller did with his pension custodial and cash management work.

And another thought. Don't you think that when a new Comptroller comes into office, that he/she will want to replace all those highly paid provisionals in the Bureau of Asset Management with his/her own "experts".

The following is another quote from the report that is indicative of the quality of the report:

The reduction in the number of investment committee meetings will go a long way toward alleviating BAM’s workload. This reduction will free up executive time to address much needed strategic and operational improvements, but BAM still requires additional resources for both staffing and modernized systems. In combination with our recommendations, BAM can make significant progress toward becoming a world-class investment operation.

If the proposed reduction of investment committee meetings had failed to be accepted, we believe BAM and the Systems would have had a basic choice to consider: 1) increase the level of BAM resources to fully implement the recommendations (people, processes and systems) contained in this report; or 2) reduce the complexity of the asset allocation to a level which can be supported by the current level of resourcing.

This is utter garbage. The jamming of the monthly investment board meetings for the five city pension funds into one meeting accomplishes only one thing. That is the staff at the Comptroller's Office only has to put on its dog and pony show once a month instead of five times. The cock and bull story about the five board meetings per month being such a burden is just a smoke screen for the total chaos that is happening in the Comptroller's Office.

It is interesting that up to 70% of any investment meeting is held in hidden executive session. How does the Comptroller's staff handle access to info for specific pension fund that it deems to be covered by executive session when five different groups of trustees are sitting in the meeting? I hope everyone realizes that the five funds do make different investment decisions. TRS has actually been able to avoid investing in hedge funds.

Of course, we all know that there is very little that honestly qualifies for executive session.

If there wasn't so much garbage in the investment portfolios, it would take the Comptroller's staff one day to prepare for a regular investment board meeting. Of course you might start to wonder what they were doing for the rest of the month.

The Board of Trustees for each of the five systems are responsible for the prudent investment of the each of the funds, not the Comptroller. His/her annual delegation is at the discretion of the trustees of each of the five funds.

Late Deposit Date for NYCERS January Pension Checks

NYCERS is making the EFT deposit for the retirees' January 31, 2016 pension checks on February 1, 2016. That is one day late. This is totally incorrect and will cause many retirees serious cash flow problems. The January 31 check represents payment for the month of January.

Guess what? When I got to the bank on January 30, the pension check had been deposited. NYCERS needs to update their chart.

The pension payments are due as of the last day of the month. If the deposit can not be made on that day due to banks being closed, the deposit has always been made properly on the day before, not the day after. On any given month the retirees have to wait until the end of the month to get the payments due for the days starting with the first day of that month. The check does not represent the following month's benefit.

NYCERS has no authority to delay the payment of pension benefits. NYCERS is in effect getting a one day loan of $250M for free.

The month of April is even worse. The EFT deposit date is May 2. That is two days late.

Someone might call this theft.

What's It Like Having Your Ex Working For You?

In November, 2005, Martha Stark and the other NYCERS Trustees knowingly hired a totally unqualified person off of Shelley Silver's staff to be the executive director of NYCERS. That person was Diane D'Alessandro.

On Monday, November 30, 2015, D'Alessandro hired a woman named Ellen Carton as a "deputy director" of HR at NYCERS. What is significant about this fact is that she was the domestic partner of D'Alessandro for over 18 years.

NYCERS's claims the relationship was legally ended in 2004. I am not sure how you end a domestic partnership as opposed to a marriage.

What rational chief executive hires her ex spouse as a senior HR manager for her organization? You would never hire your current spouse, never mind your former spouse. It is a mind blowing concept. The potential conflicts would make for a fabulous novel but not a well run organization. But, unfortunately, we all know we are not dealing with a well run organization.

It now seems that the NYC Department of Investigation is looking into this story.

Ms. Carton was appointed at a salary of $127,000/yr. There was no public posting for the position. NYCERS states that Ms. Carton is reporting to Ms. Vilma Ebanks, the deputy director of HR at NYCERS. It is unclear what Ms. Carton's HR qualifications are, if any. According to Carton her consulting practice had closed.

In May of 2014, D'Alessandro hired Ms. Ebanks as a "deputy director" of HR at a salary of $115,000. Again there was no posting for that position. Ebanks had worked at DC-37 for many years before moving to NYCERS. Fourteen months later, Ebanks salary was increased to $131,000.

On a side note, It appears that Ms. Ebanks lives with Michael Musuraca. For many years Musuraca represented DC-37 on the NYCERS Board of Trustees. He was on the Board in 2005 when the Board appointed D'Alessandro. In 2009 he went work for a private equity firm, Blue Wolf Capital, but not before he voted to hire Blue Wolf as private equity firm for NYCERS. Here is a little more background on Blue Wolf.

Both of these hirings follows the same pattern that D'Alessandro used when she hired Diane Bratcher.

As of June 30, 2015, the NYCERS HR division was a direct report to the executive director, Diane D'Alessandro. This has been the case since 1998 when I first created the HR division. As of June 30, 2015 Ms. Felita DiLorenzo (aka Baksh/Ramsami) was running the HR division and reported to D'Alessandro.

NYCERS now claims that Ms. Ebanks is the HR director and reports to Ms. Chiarello, the NYCERS deputy executive director. That is the number two person in the agency.

Note: As of June 30, 2017 the HR division is again reporting to the acting executive director, Karen Mazza.

As part of this story, in July of 2013, NYCERS entered into a contract with a small two person firm out of Tempe, AZ. The name of the firm is CWI Coaching & Consulting. The principals of the firm are Bruce and Kathleen Clark. Ms. Clark is the main contact with NYCERS. It is unclear how CWI was chosen to do whatever they are supposed to be doing for NYCERS. The original contract was for $80,000 but it was modified upwards during the year to $130,000.

Ms. Clark claims to have been introduced to Ms. Carton in NY in 2013. Based on Ms. Clark's response to whether D'Alessandro introduced the two, it is reasonable to assume that D'Alessandro made the introduction.

Shortly after that Ms. Carton started working with Ms. Clark on the NYCERS project. That may have the reason for the budget modification.

NYCERS actually paid CWI $129,736 in FY-2014 and $99,965 in FY-2015.

Going forward NYCERS has an open contract with CWI for the FY-2016 through FY-2018 period. The quoted cost for FY-2016 is $140K,000, for FY-2017, $161,000, and for FY-2018, $185,000.

Based on a December 10, 2015 Board of Trustees presentation by the IT deputy director, Liz Reyes, CWI appears to be a big player in the $132M Legacy Replacement Project. Needless to say, Reyes is in the same boat as D'Alessandro.

Renewal of the Lease for the NYCERS Disaster Recovery Site at Long Island City

In late spring of 2006 NYCERS signed a ten year lease for a disaster recovery site in Long Island City. It comes up for renewal this year.

As of today NYCERS still does not have a Certificate of Occupancy for the site. This means that there has never been a full fledged test of a recovery plan since legally workers are not permitted on the site. I have no idea how NYCERS can safely run their file backup system at this site when there is no permanent staff at the site. As far as I know there is no plan B.

NYCERS has an option to renew the lease for up to two five year periods.

What do you think D'Alessandro will do? What do you think the trustees will do?

NYCERS Investment Performance and Fees for FY-2015

As of June 30, 2014 NYCERS had a closing balance of $54,422.0M.

As of June 30, 2015, one year later, NYCERS had a closing balance of $54,889.3M

During FY-2015 NYCERS had revenue of $5,089.1M and expenses of $4,571.0M. That is a net inflow of $518.1M.

After the net inflow is subtracted from the June 30, 2015 closing balance, the adjusted FY-2015 closing balance is $54,371.2M. That is a decrease in assets for the year of $50.8M. This is essentially a no change in the value of the assets for the year.

During FY-2015, the S&P 500 index increased from 1960.23 to 2063.11 and the Barcaly's US Aggregate Bond Index increased by 1.86%. With a 70% stock/ 30% bond allocation, you should have had a target of 4.12% increase in assets for FY-2015.

At no point have the NYCERS Trustees made a public statement explaining why the fund performed so poorly or what they are going to do about it.

In conjunction with this poor performance NYCERS "reported" paying $231.8M in investment expenses for FY-2015. In FY-2014 NYCERS "reported" paying $184.6M. Listed below are the specifics of the $231.8M:

1. $28.4M : general stock & bond managers
2. $ 2.9M : Emerging managers - US equity
3. $ 0.4M : Emerging managers - US Fixed inc.
4. $ 7.0M : Junk bond managers
5. $ 2.3M : Convertible Bond managers
6. $40.4M : PE managers
7. $12.7M : PE Opportunity & Global FI
8. $31.7M : International Equity managers
9. $17.8M : RE managers
10. $39.8M : Hedge fund managers
11. $ 3.5M : investment consultants
12. $ 0.1M : legal fees (investment)
13. $13.0M : PE organizational fees
14. $ 5.1M : RE organizational fees
15. $ 4.5M : PE Opp/Global organizational fees
16. $15.5M : Foreign taxes
17. $ 2.1M : Comprtroller's subsidy
18. $ 4.5M : Miscellaneous

No one knows who the organization fees are paid to. That is $22.6M off into the great beyond.

Don't you wonder what the miscellaneous stuff was that the $4.5M bought?

What will the Comptroller's subsidy be in FY-2016 what with all the huge pay increase that the "investment" staff got in August?

This is all such obvious insanity. None are so blind as those who will not see.

Big Trouble with NYCEwork

On December 11, 2015 NYCERS filed a breach of contract claim against enChoice, a firm that NYCERS had hired in FY-2008 to implement a replacement system for its then current document imaging system. NYCERS is seeking $1,444,570 in damages plus interest and costs.

Last May I wrote about the lunacy at NYCERS when it comes to Information Technology (IT) issues. I particularly pointed out the serious problems that NYCERS was having with its new document management/workflow system. The following are NYCERS and my comments:

Comment from NYCERS:

RECENT HISTORY Over the past nine years, NYCERS has made significant infrastructure improvements. Document Management NYCERS continues to ensure the preservation and security of all vital records and to promote an environmentally sound approach to document management. This effort includes the incorporation of all incoming documents into the NYCEWORK system in an electronic format and the ongoing digitization of historical paper documents.

In 2014, NYCERS prepared, scanned and indexed over 200,000 incoming documents and converted over 1 million historical records into digital images. Since the inception of the document management project, over 38 million paper records have been imaged, saving approximately $600,000 in document storage fees.

My analysis:

From this quote you would think that document management was introduced during the last few years. In fact, it was there when D'Alessandro walked in the door. The system in place at that time used a software package called Staffware. It was working well but it was being stressed by the volume of documents that NYCERS was dealing with. It actually continued to function up until 2014 when a new software package, Filenet/NYCEWORK, was finally put into production. I wonder where the $600,000 in saved storage fees came from?

Unfortunately, while Staffware needed to be either upgraded or replaced, Filenet runs significantly slower than Staffware did. That in turn has created incremental delays at every step of every process in the agency. It has created havoc with the production levels for all major functions in the agency.

In FY-2008, NYCERS hired the company enChoice to do the upgrade. enChoice is an IBM partner specializing in implementing IBM's document management software, FileNet. NYCERS labeled the upgrade effort "NYCERwork". Over the next four years the NYCERS IT director, Liz Reyes, had enChoice working on this project.

NYCERS paid enChoice the following amounts:

• $1,609,278 in FY-2008
• $ 327,141 in FY-2009
• $ 267,465 in FY-2010
• $ 25,941 in FY-2011

Then, in NYCERS FY-2013 Annual Report, the agency's executive director, Diane D'Alessandro, made the follow statement:

NYCEWORK: A NEW DOCUMENT MANAGEMENT/WORKFLOW SYSTEM

NYCERS recognizes the imperative to update and link systems that process memberships, evaluate service, calculate pensions, and handle requests for account information as efficiently as possible. In June 2012, after extensive preparations, we launched NYCEwork, our document imaging and workflow system. NYCEwork maintains images of every document in a member’s lifecycle, beginning with the membership application and ending with the final payment of a retirement allowance to the member or survivor benefit to the designated beneficiary. In order to create a complete, imaged record and continue all of the ongoing work that business units handle, the IT team had to ensure that all active and closed work items and every relevant document were transferred from the outmoded Staffware system into NYCEwork, while at the same time accepting new forms and applications for the business units to process.

With the filing of the suit it is now clear to everyone that Reyes failed to properly manage the NYCEwork project.

What is really frightening about this failure is that the suit in no way fixes the problem. The day to day production problems are still there. There are threats to the integrity and security of the documents that have been committed to NYCEwork. Based on NYCERS claim to storage savings I have to asume the original documents have been destroyed. In addition, I know NYCERS's backup and recovery systems are totally ineffective.

And this is the management that wants to spend $132M over five years to do do an IT legacy upgrade.

The NYCERS trustees need to replace the senior management at NYCERS. If they don't, five years from now they will be looking at more breach of contract suits, more broken systems, a $132M in losses (if they are lucky), and five lost years.

Doesn't it ever occur to anyone that D'Alessandro worked for Shelley Silver before she came to NYCERS and that Martha Stark appointed her.

Note:

This is not the first contract suit that NYCERS has brought against an IT firm. At the same time enChoice was ramping up in FY-2008, NYCERS was also working with IBM ($2.36M over two year) to convert the NYCERS file system to a DB2 database system. Reyes again failed with this project and NYCERS subsequently sued IBM. Cleverly IBM settled with NYCERS by giving them a 20% discount on the purchase of hardware and services capped at $1M for a fixed period. NYCERS was only able to utilize $250,000 of the discount before the time period lapsed. These girls are really on the ball.

What is clear is that over the last 10 years the NYCERS administration has failed to put in place a modern relational database system for its applications.