American Realty Advisors: How to Avoid a Department of Labor Audit

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A Real Estate Investment Program for Pension Plans:
How to Avoid a Department of Labor Audit

By Stanley L. Iezman

Reprinted from Journal of Pension Plan Investing, Fall 1996, 1(2), pages 56 - 72 with permission from Panel Publishers a division of Aspen Publishers, Inc. Gaithersburg, MD 20878 - 1-800-638-8437

Over the next ten years pension plan assets will continue to grow, and real estate, as an asset class, will assume a greater role in the asset mix. The author explains how to form the foundation for all real estate investments in order to have a clean DOL audit and to avoid possible violations of ERISA, with its incumbent civil and criminal penalties.

Many pension plan trustees have been reading with some trepidation that the U.S. Department of Labor (DOL) has started to more vigorously evaluate pension plan investments in real estate, which are under the purview of the Employee Retirement Income Security Act of 1974, as amended (ERISA) 1. This more direct involvement by the DOL is largely a result of the growth in total assets of pension funds, which are now close to $5 trillion, and because real estate assets of domestic pension plans now exceed over $200 billion. 'Me DOL wants to ensure that pension funds are generally complying with the procedural process dictated by ERISA for all investments and, in particular, the DOL is concerned that real estate investments might prove to be less than what was promised. The DOL wants to ensure that there is no political fallout or financial obligation should a portion of the real estate investment pool fail, with the concomitant obligation that the federal government become directly or indirectly responsible to ball out underfunded pension plans. In other words, the DOL wants to ensure that the procedural requirements of ERISA are followed by all pension plans and are not a simple formality articulated in a guideline and then filed away. Thus, the DOL is not seeking simply to determine whether a pension plan made a sound investment, which it expects that the plan will in fact do; rather, it Is also seeking to determine whether a plan's trustees have exercised their responsibilities in a prudent manner and have compiled with the procedural process surrounding its real estate investment decisions.

The DOL is more aggressively pursuing civil as well as criminal actions against trustees, consultants, and investment managers for restitution of the investment when there has been an egregious example of malfeasance or nonfeasance on the part of these parties in connection with these investments. The DOL is focusing on four key areas:

Failing to adequately investigate the merits and appropriateness of the plan's investments;
Failing to diversify plan investments by concentrating the plan assets in a limited number of investments without appropriate diversification;
Failing to perform appropriate due diligence in connection with hiring the investment manager; and
Failing to monitor the investments during the investment cycle.

Many real estate investment managers and pension plan trustees who made real estate investments in the 1980s could not be happier that the DOL has waited until now to begin evaluating in greater depth these investments. Three to four years ago most of these real estate portfolios were underperforming, but today the market has generally recovered, and in many cases, real estate portfolios are performing equal to or better than they were originally underwritten. Thus, many "bad" investments of yesterday look much better today. Needless to say, trustees of pension plans need to be very concerned if the plan has made a bad real estate investment, but they need to be more concerned if they have not fulfilled their legal responsibilities under ERISA in exercising their investment responsibilities prudently, in conjunction with those "bad" investments.

ERISA is extensive in its scope and governs, in part, the manner and way in which pension plan trustees are to operate. However, it is safe to say that the standards and guidelines that ERISA has established are designed to focus on process and procedure as they pertain to the investment of plan assets, rather than simply the return on the investment. Thus, trustees must exercise procedural prudence in connection with their investment decisions while, at the same time, exercising substantive prudence in connection with evaluating the investment decisions. In essence, the law seeks to impose coordinates on the manner in which investments are made, rather than simply and solely to evaluate the result, of such investments.

If the process by which the investments were made is appropriate and complies with the overall guidelines imposed by ERISA and the body of law interpreting ERISA, whether the investment proves to be less than what it was intended to be is not as important from an audit standpoint. The business-judgment rule will protect the trustees from liability, if the process by which the investment was made was in fact sound and complied with the guidelines outlined in this article. No one can protect the real estate investments of pension plans from market forces, but certainly a sound investment process will minimize those risks.

The DOL has identified four areas of concern pertaining to the management of real estate investments:

The manner in which investment advisors are hired and selected;
The standards by which investments are made,
The method by which investments are valued-, and
The monitoring of the performance of the investment portfolio and the investment manager.

DEVELOPING AN INVESTMENT POLICY

It is important that each pension plan develop an investment policy and guidelines before investing plan assets. The plan trustees should carefully consider how and in what they want to invest. This is not an easy issue, as It is the investment mix that invariably governs the returns to the pension trust. In many cases, the investment guidelines are not well thought through or well drafted on diversification of investments, manager selection asset allocation, controls over the process, and other similar issues. It is the trustee's responsibility to ensure that carefully crafted investment guidelines are created that fit the trustee's and the trust's risk expectations and financial goals. A pension plan cannot simply state that it wants to make a real estate investment or a stock or bond investment, as that is far too broad to create a working definition to follow in a prudent manner. The investment guidelines must clearly articulate the anticipated investment strategy for each asset class and the return expectations for that asset class. The real estate portion of the trust investment guidelines must be carefully reviewed and structured to ensure that risk, liquidity or the lack thereof, and all other aspects of the type, form, and substance of the real estate investment are considered.

It is generally accepted that a well thought through allocation model among many asset classes, for example, stocks, bonds, cash, real estate, and the like, best serves the financial needs of typical trusts. An asset allocation of 100 percent of the investment portfolio to real estate is imprudent and would not be considered appropriate; likewise, a similar allocation to stocks is equally imprudent. The appropriate allocation should take into account the actuarially computed returns necessary to meet the funding requirements of the plan, as well as a host of other criteria about which a good consultant and actuary can advise the plan. A pension plan should carefully consider the amount of risk that it wants to take for all its investments. For example, a fully mature fund, with high cash requirements, might not want to Invest in illiquid real estate for a long period of time; or, the risk of real estate development might not be something that a small fund wants to take on, because it might not have sufficient assets to cover future funding requirements.

REAL ESTATE INVESTMENT PARAMETERS

In general, trustees should ensure that, at a bare minimum, the investment guidelines consider these issues:

The investment must be a well-defined part of the overall pension plan's investment portfolio;
The investment must be reasonable for purposes of the plan's financial and timing needs;
The risk of loss and the opportunity for gain must be favorable, relative to other investments,
The investment must consider the overall diversification of the portfolio;
The investment must consider the need for liquidity and overall return to the plan; and
The investment must take into account the funding objectives of the plan.

More specifically, real estate investment parameters should establish the expectations of the real estate portfolio within the context of the risk-adjusted returns needed by the plan. These parameters should be evaluated by the plan when creating a real estate guideline:

Debt or equity investments
Size of each investment
Location and economic diversification
Product type or mix
Age of product type
Long-term yield hurdles on a cash and appreciation return basis
Current cash return expectations
Length of lease term
Diversity of tenant mix
Creditworthiness of borrower or tenant
Construction or permanent loans
Risk criteria of the investment
Life cycle of the investment (e.g., development-oriented investments, raw land fully leased or partially leased assets)

A great deal of thought must be given by the pension plan to the form of ownership to be used for the real estate investment; control, liquidity, liability, decision making, and limitation on losses should all be considered. These forms of ownership have benefits and detriments and must carefully be evaluated when making and structuring the real estate investment:

Separate account or commingled fund
Public or private real estate investment
Title holding corporation
Group trust
Limited liability company
Limited or general partnership Joint venture

The granting of discretion to the investment manager is another area of concern and must be reviewed carefully by the trustees. A nondiscretionary account imposes a great deal of responsibility on the trustees, as they become directly accountable for reviewing and participating in all real estate investment decisions. Alliteratively, a fully discretionary account gives investment discretion to the investment manager, but takes away control from the trustees. Each type of account has pros and cons which must be fully considered.

SELECTING A REAL ESTATE INVESTMENT MANAGER

Once the investment guidelines have been established, the pension plan must select and develop a process and procedure for selecting the real estate investment manager. Criteria for selecting the investment manager must be documented.

A range of proposed investment managers whose expertise is consistent with the proposed investment, manager should be considered. Investment styles for the position in question should be identified by the trustees or a third-party consultant. The process by which the proposed investment managers are identified should be carefully documented.

Information necessary for the prudent selection of an investment manager should be obtained from each manager. That information should include, but not necessarily be limited to, the types of information described below, with appropriate supporting documentation, for each proposed investment manager:

Whether the candidate qualifies as an investment manager pursuant to Section 3(38) of ERISA;
The business structure, financial condition, and affiliations of the candidate-,
The proposed investment style and investment process to be followed;
The identity, experience, and qualifications of the professionals who will be involved in handling the plan's account;
Whether any relevant litigation or enforcement actions have been initiated within a relevant period of time against the candidate, its officers or directors, or the investment professionals who would have responsibility for the plan's account,
The experience and performance record of the candidate and its investment professionals, including experience managing other tax-exempt and employee benefit plan assets,
Whether the proposed investment manager would use the services of affiliated parties and, if so, the types of transactions for which such affiliates would be used and the financial arrangement with the related parties;
The procedures to be employed to comply with ERISA's prohibited transaction restrictions, including whether the proposed firm is a qualified professional asset manager (QPAM);
Whether the candidate has the bonding required by ERISA;
Whether the proposed manager has fiduciary liability or other insurance that would protect the interests of the plan in the event of a breach of fiduciary duty;
The proposed fee structure;
The identity of client references;
The total amount of assets under the control of the proposed investment manager; and
Any other appropriate and relevant information.

The pension plan should make inquiries of the DOL and the Securities and Exchange Commission as to whether any enforcement actions have been initiated within a relevant period of time with respect to the proposed investment manager, its officers or directors, or its investment professionals who will have responsibility for the plan's account.

The information provided by the proposed investment manager should be verified with reliable sources independent of the proposed investment manager and that information should be reviewed.

Upon selection of the investment manager and after consultation with legal counsel, the trustees should enter into an investment management agreement that carefully documents the relationship between the parties. The investment management agreement must set forth the terms and conditions of the investment manager's engagement and the right of the pension plan to terminate the investment manager, upon 30 days' notice. The investment guidelines are an important part of this agreement and should be attached to the agreement.

MONITORING THE REAL ESTATE INVESTMENT MANAGER AND THE PERFORMANCE OF THE INVESTMENTS

Once the plan has selected the real estate investment manager, ongoing monitoring of the investment manager and the investments is obligatory. The following standards should be complied with on a regular basis to ensure that the real estate investment manager is performing its duties in accordance with ERISA and the investment guidelines established by the plan:

Review, at least quarterly, the portfolio of each investment manger for compliance with its investment,guidelines;
Review each investment manager's quarterly report, and -generally compare that report in material respects with information provided by the plan's custodial trustee, including the custodial trustee's statement of transactions;
Review, at least quarterly, the valuation basis for the real estate under each investment manager's control;
Compute quarterly rates of return for each investment manager on an overall basis;
Compare quarterly investment results of each 'investment manager with appropriate indices or benchmarks. The standard benchmarks for real estate, depending on whether the investment is debt or equity, typically consist of the NCREIF Property Index, the IPC
Portfolio Index, the Berkshire Barnes Mortgage Index Series, the Gilberto-Levy Commercial Mortgage Performance Index, and the National Real Estate Index,
Verify, at least quarterly, each investment manager’s fee computation;
Review, at least annually, the plan's cash management and short-term investment procedures and performances as well as the overall performance of the plan's custodial trustees;
Meet at least annually with each investment manager, and include a review of investment performance and any significant changes in corporate or capital structure, investment style, investment process, and professional staff; and
Establish procedures for communicating information about investments and investment managers among the trustees, the plan's staff, and the plan's attorneys, actuaries, and custodial trustees, and review these procedures at least annually.

Since real estate is an illiquid investment, the trustees of the plan should review the performance of the investment regularly. Past performance does not predict future results, but it does create the ability to determine the extent of damages caused by a breach of fiduciary duty by the trustees or the investment manager. For this reason, the DOL is examining the performance of the real estate portfolio to determine whether the investments that did not meet expectations occurred as a result of market conditions or for reasons relating to the trustee's own failure to comply with the procedural dictates of ERISA.

APPRAISING AND VALUATING REAL ESTATE ASSETS

All pension plans are required to mark to market their real estate investment assets on a regular basis. Marking the asset to market means adjusting the value of the real estate assets on the books of the pension plan to the then-current market value of these assets. This requirement applies to all assets and includes real estate loans and real estate equity investments. This is very significant because of the illiquid nature of real estate and because most pension plans invest in the nonpublic real estate market. The investment manager, in conjunction with the plan, must develop a working procedure so that the assets can be marked to market on a regular basis. Pension plans are required to mark to market for many reasons including, but not limited to:

Determining whether the plan is properly funded;
Determining whether there are sufficient assets to meet current liabilities;
Calculating the internal growth rate of the plan assets that is required to meet future benefits-
Determining the contributions required to meet the current and future needs of the plan; and
Filing Form 5500 with the IRS.

Many pension plans that own real estate in their portfolio have not properly valued their real estate assets and marked them to market. It is only when the asset is ultimately sold or disposed of that the "true value" of the asset becomes known. Then, the trustees become acutely aware of their exposure from failing to annually value assets during the holding period, should the liquidation price be lower than that at which the investment was carried on the books of the pension plan.

Given the very depressed nature of the real estate market during the last four years, the DOL 'is very concerned that pension plans are not properly valuing their assets to reflect market value. Marking down the value of the asset and not carrying its value at the original investment cost, or higher, has significant political and economic impact on true pension plan. It is safe to say that the positions of the trustee, administrator, chief investment officer, and others who are involved in the original investment decision are in jeopardy should the investments not perform according to the original investment outline. More importantly, a plan that is underfunded, as a result of such markdowns, has immediate financial problems that must be rectified by additional contributions to the pension plan. Such contributions most often have to come out of someone's pocket: taxpayers or participants in the public pension plans, the dividends and profits of corporate plans, and from wage increases with Taft-Hartley multi-employer pension plans.

The ability to mark investments in private real estate assets to market is not an easy one, as real estate is not traded in an active market ' similar to stocks or bonds. Therefore, it is impossible to value it on a daily basis. As a result, a market value must be estimated through an analysis using one or a combination of these three approaches:

Income approach. An appraiser derives a value indication for an income-producing property by converting its anticipated benefits (cash flows and reversion) into a property value.
Sales comparison approach. A value indication is derived by comparing the property being valued to similar properties that have been sold recently, applying appropriate units of comparison, and making adjustments to the sale prices of the comparables based on the elements of comparison.
Cost approach. A value indication is derived by estimating the cost to construct a reproduction or replacement of a structure, deducting accrued depreciation, adding land value, and adjusting the indicated value for the interest being valued.

The appropriate valuation method is determined by its applicability in each appraisal or valuation situation. For example, in the current real estate environment, where many investments in real estate are purchased at material discounts to replacement costs, the cost approach as the primary indicator of value has little bearing on the appraisal or valuation analysis. However, this method would be considered appropriate in estimating special-purpose properties, proposed developments, and other properties not frequently exchanged in a given market.

Evaluation Guidelines
To comply with ERISA guidelines and ensure protection against a DOL review, the investment manager and the trust fund should have written policies in three areas:

External appraisals, including the interaction between the manager and the independent appraiser;
Internal valuations; and
Investment management guidelines that specify the timing and management of the appraisal process.

External Appraisal.
The external approval is performed by an independent appraiser who is hired by the pension plan or by the investment manager. The external appraisal process varies for different pension plans because of the different degree of participating on n the valuation process by the trustees of the plan. Exhibit I is an appraisal process diagram that outlines the valuation process.

An outside appraiser should have the appropriate certification and credentials which denote that the appraiser meets the various educational, experience, and other requirements and professional standards. Many experienced and well-trained appraisers are members of the Appraisal Institute and have the Member Appraisal Institute (MAI) designation. These appraisers are well versed in appraising commercial properties. The primary requirements of the MAI designation are an undergraduate degree, 4,500 hours of specialized appraisal experience, a passing grade on an income-producing property demonstration appraisal report, and successful completion of a broad spectrum of appraisal courses. It is important for trustees to evaluate the experience and educational level of the person that they are hiring in determining whether the appraisal is likely to be reliable.

Often appraisers will submit their appraisal drafts to a manager for comments before finalizing their valuation. Upon reviewing the appraisal assumptions, the manager may recommend modification, additions, or deletions to the assumptions and provide supporting data for those recommendations. The appraiser may find it beneficial to consider the recommendations of the manager because the manager is one of the persons most likely to have reliable knowledge about the property.

However, the interface between the manager and the appraiser in the review process facilitates the possibility of valuation manipulation if improperly administered. Therefore, compliance with a written appraisal review procedure should be documented in writing. The high professional ethics to which the appraiser is required to adhere will almost certainly reduce any valuation manipulation between the manager and the appraiser.

If an appraiser rejects the recommendations of the manager and proceeds to complete an appraisal that the manager disagrees with, the manager may ask the trustees of the plan to comment on the appraisal, to require a redo, or to discard the appraisal and order a new one.

The following checklist should be used by all trustees in ensuring that the external appraisal Is appropriate:

Does the appraisal use current sales of similar properties in the market? Current sales means exactly that: sales that have occurred in a very short recent period of time. Sales that occurred more than a year earlier are questionable and should be discounted in connection with the appraisal. However, in markets with limited activity, they may be all that is available.
Does the appraisal consider the cost approach and contain a full cost-approach analysis that includes consideration of the functional obsolescence of a building? Functional obsolescence is also extremely important in determining rental rates.
Does the appraisal on a property that is less than 100 percent occupied contain a provision for occupancy at the lower rate? Many times, appraisals are made based upon a stabilized 90 percent to 95 percent occupancy rate, with no deduction for the temporary loss of income that occurs as a result of the required time to lease the building.
Is the current assessment imposed by the county assessor verifiable in relation to the appraisal? All too often, the appraisal is significantly higher than the assessment, which can occur for a variety of reasons. If the assessment lags behind the appraisal, there may be a rational explanation, but the trustee should be cognizant of this issue.
Is the valuation biased in any particular direction? Are assumptions consistently conservative or aggressive?

One of the most important areas of concern is the absolute levels of rates used as well as the relationship between the capitalization rate, the discount rate, and the growth rate. Typically, the discount rate is equal to the capitalization rate plus the growth rate that was used in the appraisal. This is important to evaluate, inasmuch as there may be a skewing of the numbers if there is no growth in the market.

Internal Valuations.
The investment manager is usually responsible for preparing Internal valuations, which are typically prepared through an income approach that utilizes two methods:

Discounted cash flow analysis; and
Direct capitalization analysis.

The sales comparison approach should generally be used to support the valuation derived by the income approach. In some cases, the sales comparison approach might be the primary indicator of value, and the income approach used as support. However, most investment managers rely upon the income approach and, within the context of the income approach, they tend to rely on discounted cash flow analysis. This is because of the flexibility of discounted cash flow analysis and its ability to model complex cash flows. However, in certain circumstances, the direct capitalization method is acceptable, such as when valuing a property that has a stabilized occupancy and a bond-like income stream that is subject to minimal competitive factors.

Preparing and updating internal valuations should focus on critical market observations and assumptions as they affect the market value of the real estate. The written policy should include a process to review the previous valuation and appraisal market observations and assumptions. If any changes have occurred in the observations or assumptions, the investment manager should explain, in writing, what caused the changes.

Upon updating the valuation model and deriving the new valuation, both should be subject to an internal review process by the investment manager. The investment committee or some other senior peer review board should sign off on all valuations. The review should be documented in writing and signed by the responsible reviewing parties within the investment manager's organization. Sample steps to take for an internal valuation model are:

Step 1. Review and accept revenue assumptions.
Step 2. Review and accept average effective vacancy and expense ratios.
Step 3. Review and accept absorption assumptions.
Step 4. Review and accept capital expenditure assumptions.
Step 5. Check that assumptions in the cash flow model match lease terms and desired assumptions.
Step 6. Obtain sign-off from the real estate analyst, asset manager, portfolio manager, and investment committee.

Timing Appraisals and Valuations.
It is recommended that a pension plan carefully consider how often it wants its real estate assets to be valued. Internal valuations should certainly be done annually, possibly quarterly, and through the preparation of a discounted cash flow model or the most appropriate methodology. An external appraisal should be done every one, two, or, at most, every three years. The external appraisal should be prepared by an independent appraiser through the preparation of an appraisal that considers the three valuation models: the income approach, the sales comparison approach, and the cost approach. The appraisal process should be controlled by either the manager or the trust and, if prepared by the manager, reviewed by the trust.

INVESTMENT ACCOUNT OPERATIONS

The other current review targets of the DOL pertain to the operations of real estate investment accounts and compliance with governing agreements and guidelines. To avoid a technical violation, the investment manager should periodically assess its compliance with the investment management agreement and the investment guidelines between the investment manager and the pension plan (the "Agreements"). Areas of importance are the provisions of the Agreements relating to advisor fees, distributions, and withdrawals. Outside of the Agreements, the DOL is currently examining the issues of property management and proper use of affiliates in working with the real estate assets.

Property Management
The DOL is evaluating who is managing the asset on a day-to-day basis and what Guidelines are in place to govern those management activities. The investment management agreement and investment guidelines provide top-level governance, but what is of more Interest is what is guiding the day-to-day activities of the real estate asset, such as:

Who approves a lease and under what conditions?
How is a prospective tenant's credit rating evaluated and deemed acceptable?
What is the process of selecting a service provider?
What are the annual budgeting criteria?
How are capital dollars expended?
Who approves the use of outside vendors?
What method is in place to control cash disbursements?
What is the timing of the property management reports?

Written policies and procedures that have been reviewed by the trustees, for management of the real estate assets at the 'investment manager level, are the best way to answer these questions.

Use of Affiliates
Many real estate 'investment managers are affiliated directly or indirectly with property managers, leasing brokers, appraisers, contractors, and the like, all of whom will receive a fee for their services. In the eyes of the DOL, the rule of thumb is that, if you can avoid using an affiliate to the 'investment manager, avoid it. If you cannot, proceed with extreme care and have extensive documentation to prove that each activity performed by an affiliate is done at "arm’s-length," to the extent possible. Trustees need to verify whether an investment manager will use affiliates of the 'investment manager and under what circumstances. To the extent that an affiliate will be used, trustees need to identify what controls are imposed on the fees, the work efforts, and the evaluation process of the affiliate. Trustees should understand what role, if any, affiliates of the real estate manager will play in the investment of the real estate assets and should approve the fee structure to be paid to an affiliate.

PARTIES IN INTEREST AND PROHIBITED TRANSACTIONS

Trustees of pension plans need to be mindful that ERISA prohibits a pension plan from dealing with a party in interest to the pension plan. This prohibition is very important from a planning standpoint in developing a real estate portfolio. A pension plan cannot purchase, sell, or lease a property to or from a party in interest or otherwise hire someone to provide services to the pension plan who 's a party in interest. Trustees must be mindful that they might be personally liable for these party-in-interest and prohibited-transaction violations, if no class exemption exists when dealing in this area.

One of the most useful exemptions is PTE 84-14 (published by the Department of Labor), known as the qualified professional asset manager (QPAM) exemption. This exemption permits an investment manager that is a bank, insurance company, or registered investment advisor to negotiate the terms of the investment and evaluate whether the plan should enter into a transaction that is otherwise a prohibited transaction.

The QPAM exemption contains several conditions designed to ensure the QPAM's independence from the plan and its party in interest. For example, it denies relief for transactions with a plan representing more than 20 percent of the assets managed by the QPAM or with a party in interest that has the ability to hire or fire the QPAM or negotiate the QPAM's fees, or has done so within the past 12 months.

Trustees of plans need to be mindful that dealing with a party in interest to the plan is a gross breach of a fiduciary duty and should be avoided at all costs, absent a truly independent third-party QPAM imposing itself between the plan and the party in interest.

CONCLUSION

Trustees can operate a relatively audit-free investment portfolio, provided they ensure that the process of making the investment Is compiled with. 'Me fact that an investment falls is difficult enough to contend with, not only with respect to the plan participants but from a financial standpoint as well. Trustees do not want to face the further concern that the DOL is going to be breathing down their neck and filing a lawsuit for restitution of any lost investment because they have not followed the guidelines outlined in this article. Once compliance with these guidelines is determined by the trustees, they can sleep better knowing that they will not necessarily have to worry that the DOL is behind them, asserting that the trustees have failed to exercise their responsibilities prudently. Additionally, a well thought through investment process and a meaningful monitoring system will generally provide a direct economic benefit, since it is likely to result in fewer underperforming or nonperforming real estate investments and above average returns to the pension plan to fund future benefits of the beneficiaries.

Stanley L. lezman is the President and Chief Executive Officer of American Realty Advisors, located in Glendale, California. The firm is registered with the SEC as an asset advisor and provides real estate investment management services to U.S. pension funds.