2022 -- H 8048

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LC005561

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO PUBLIC FINANCE -- RHODE ISLAND SECURE CHOICE RETIREMENT

SAVINGS PROGRAM ACT

     Introduced By: Representatives Williams, Giraldo, Batista, Diaz, Biah, Henries, Perez,
Felix, Barros, and Cassar

     Date Introduced: March 25, 2022

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 35 of the General Laws entitled "PUBLIC FINANCE" is hereby

amended by adding thereto the following chapter:

CHAPTER 23

RHODE ISLAND SECURE CHOICE RETIREMENT SAVINGS PROGRAM ACT

     35-23-1. Short title.

     This chapter shall be known and may be cited as the "Rhode Island Secure Choice

Retirement Savings Program Act."

     35-23-2. Definitions.

     As used in this chapter:

     (1) "Board" means the Rhode Island secure choice retirement savings board.

     (2) "Eligible employee" means a person age eighteen (18) or older who is employed by an

eligible employer. "Eligible employee" does not include:

     (i) Any employee covered under the federal Railway Labor Act (45 U.S.C. § 151), or any

employee engaged in interstate commerce not subject to the legislative powers of the state, except

insofar as application of this chapter is authorized under the United States Constitution or laws of

the United States; or

     (ii) Any employee on whose behalf an employer makes contributions to a Taft-Hartley

pension trust fund.

     (3) "Eligible employer" means a person or entity engaged in a business, industry,

profession, trade, or other enterprise in the state, whether for-profit or not-for-profit, excluding the

federal government, the state, any county, any municipal corporation, or any of the state's units or

instrumentalities, that has five (5) or more employees and that satisfies the requirements to establish

or participate in a payroll deposit retirement savings arrangement. "Eligible employer" does not

include an employer that provides a tax-qualified retirement savings program as described in § 35-

23-10.

     (4) "IRA" means an individual retirement account or individual retirement annuity under

Section 408(a), 408(b), or 408A of Title 26 of the United States Code (the federal Internal Revenue

Code).

     (5) "Participating employer" means an eligible employer that provides a payroll deposit

retirement savings arrangement provided for by this chapter for eligible employees.

     (6) "Payroll deposit retirement savings arrangement" means an arrangement by which an

employer allows employees to remit payroll deduction contributions to RISavers retirement savings

program.

     (7) "RISavers retirement savings program" or "program" means a retirement savings

program offered by the Rhode Island secure choice retirement savings program.

     (8) "State investment commission" or "commission" means the state investment

commission as defined in § 35-10-1.

     35-23-3. Creation, membership, and terms of the Rhode Island secure choice

retirement savings board.

     (a) There is authorized, created, and established a public corporation of the state, having a

distinct legal existence from the state and not constituting a department of the state government,

with the politic and corporate powers set forth in this chapter, to be known as the Rhode Island

secure choice retirement savings board (the "board"), to carry out the provisions of this chapter.

The board is constituted as a public instrumentality and agency exercising public and essential

governmental functions, and the exercise by the board of the powers conferred by this chapter shall

be deemed and held to be the performance of an essential governmental function of the state.

     (b) It is the intent of the general assembly by the passage of this chapter to create and

establish a public corporation and instrumentality and agency of the state for the purpose of the

activities authorized by this chapter, and to vest the corporation with all powers, authority, rights,

privileges, and titles that may be necessary to enable it to accomplish those purposes. This chapter

shall be liberally construed in conformance with the purpose expressed in this section.

     (c) The powers of the corporation shall be vested in seven (7) members, consisting of the

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general treasurer, or designee, who shall act as chairperson; the director of the department of

business regulation, or designee; two (2) members of the public to be appointed by the governor

with advice and consent of the senate, one of whom shall serve for an initial term of two (2) years,

and one of whom shall serve for an initial term of one year; an individual with small business

administration experience to be appointed by the treasurer with the advice and consent of the senate,

for an initial term of two (2) years; an individual with expertise in retirement planning to be

appointed by the treasurer with the advice and consent of the senate, whom shall serve for an initial

term of one year; and one member of the public to be appointed by the treasurer with advice and

consent of the senate, whom shall serve for an initial term of two (2) years.

     (d) After the initial term, all appointed members shall serve staggered three (3) year terms

or until their respective successors are appointed and qualified after expiration of the appointed

term.

     (e) Any vacancy occurring in the office of a member by death, resignation, or otherwise

shall be filled in the same manner as the original appointment.

     (f) Members shall receive no compensation for the performance of their duties but may be

reimbursed necessary expenses.

     (g) The members of the board shall at regular intervals at least four (4) times a year conduct

business meetings for the purpose of carrying out its general business. The board shall be

considered a "public body" for purposes of, and shall be subject to, the provisions of chapter 46 of

title 42 ("open meetings") and to the provisions of title 38 concerning public records.

     (h) The board shall continue until its existence is terminated by law.

     (i) The state shall indemnify and hold harmless every past, present, or future member,

officer, or employee of the board who is made a party to or is required to testify in any action,

investigation, or other proceeding in connection with or arising out of the performance or alleged

lack of performance of that person's duties on behalf of the corporation. These persons shall be

indemnified and held harmless, whether they are sued individually or in their capacities as

members, officers, or employees of the board, for all expenses, legal fees and/or costs incurred by

them during or resulting from the proceedings, and for any award or judgment arising out of their

service to the corporation that is not paid by the board and is sought to be enforced against a person

individually, as expenses, legal fees, costs, awards or judgments occur. Provided, however, that

neither the state nor the corporation shall indemnify any member, officer, or employee:

     (1) For acts or omissions not in good faith or which involve intentional misconduct or a

knowing violation of law;

     (2) For any transaction from which the member derived an improper personal benefit; or

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     (3) For any malicious act.

     (j) No one shall be eligible for appointment unless they are a resident of the state.

     35-23-4. Rhode Island secure choice retirement savings program.

     (a) There is hereby established a retirement savings program known as the Rhode Island

secure choice retirement savings program to be administered by the board for the purpose of

promoting greater retirement savings for Rhode Island private sector employees in a convenient,

voluntary, low-cost, and portable manner.

     (b) The secure choice retirement savings program is a plan in which retirement savings are

accumulated in individual accounts for the exclusive benefit of the participants or their

beneficiaries. The program is established effective upon receipt of sufficient funds, at which time

contributions by employees begin.

     35-23-5. Investments.

     (a) The board may select an appropriate third-party administrator for the program and shall

adopt such plan, trust and/or custodial documents, with such features and attributes as the board

determines necessary or advisable in its discretion to effectuate the provisions of this chapter in

accordance with the following:

     (1) The board may select one or more firm(s) or company(ies) to provide retirement

program investments, program administration, and communication services to employees who

participate in the retirement savings program. The program shall provide for appropriate long-term

retirement-oriented investments and shall include investment options as determined by the state

investment commission. In determining the firm or the company to provide these services, the

board shall consider the following:

     (i) The financial stability of the company or firm;

     (ii) The cost of the investments, program administration, and services to the members;

     (iii) The experience of the company or firm in administering retirement savings plans;

     (iv) The experience of the company or firm in providing education, counseling, and advice

to participants of retirement savings plans; and

     (v) Any criminal convictions, securities or antitrust law violations, material civil or

regulatory fines or judgments against the company or firm which the company or firm shall be

required to disclose to the commission as part of the selection process.

     (2) The program shall provide education, counseling, and objective employee-specific plan

advice to participants.

     (3) The program shall include a limited number of investment options which shall include

either:

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     (i) Investment portfolio options that are constructed to reflect different risk profiles such

as conservative, moderate and aggressive; and/or

     (ii) Options constructed to reflect different risk profiles that automatically reallocate and

rebalance contributions as an employee ages. There shall be investment options that prioritize the

securities of companies that demonstrate good governance, efficient use of environmental resources

and thoughtful management of social impact. All investment offerings shall be approved by the

state investment commission.

     (b) The Rhode Island secure choice retirement savings program is an instrumentality of the

state. Any security issued, managed, or invested by the state investment commission within the

Rhode Island secure choice retirement savings program on behalf of an individual participating

within the RISavers retirement savings program shall be state income tax deferred for investment

earnings to include interest, dividends and capital gains until such time as withdrawal pursuant to

the terms of this chapter.

     (c) The state investment commission shall adopt a written statement of investment policy

that includes a risk management and oversight program. The commission shall consider the

statement of investment policy and any changes in the investment policy at a public meeting.

     35-23-6. Payroll deduction.

     The RISavers retirement savings program shall include, as determined by the board, one

or more payroll deduction IRA arrangements.

     35-23-7. Powers of the board.

     (a) The board shall have the power and authority to do all of the following:

     (1) Adopt a seal and change and amend it from time to time;

     (2) The treasurer shall, on behalf of the board, appoint an executive director, who shall not

be a member of the board and who shall serve at the pleasure of the board. The treasurer shall

determine the duties of the executive director and other staff as appropriate and set their

compensation. The board may authorize the executive director to enter into contracts on behalf of

the board or conduct any business necessary for the efficient operation of the board;

     (3) Make provisions for the payment of costs of administration and operation of the

program;

     (4) Employ staff;

     (5) Retain and contract with of a Rhode Island public retirement system, consultants,

actuaries, counsel, auditors, and other professionals as necessary;

     (6) Procure insurance against any loss in connection with the property, assets, or activities

of the program;

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     (7) Procure insurance indemnifying each member of the board from personal loss or

liability resulting from a member's action or inaction as a member of the board;

     (8) Set minimum and maximum contribution levels in accordance with contribution limits

set for IRAs by the Internal Revenue Code;

     (9) Collaborate and cooperate with a public retirement system, private financial

institutions, service providers, and business, financial, trade, membership, and other organizations

to the extent necessary or desirable for the effective and efficient design, implementation, and

administration of the program and to maximize outreach to eligible employers and eligible

employees;

     (10) Collaborate with, and evaluate the role of, licensed insurance agents and financial

advisors in assisting and providing guidance for eligible employees;

     (11) Cause expenses incurred to initiate, implement, maintain, and administer the program

to be paid from contributions to, or investment returns or assets of, the program or arrangements

established under the program, to the extent permitted under state and federal law;

     (12) Facilitate compliance by the retirement savings program or arrangements established

under the program with all applicable requirements for the program under the Internal Revenue

Code of 1986, including tax qualification requirements or any other applicable law and accounting

requirements, including providing or arranging for assistance to program sponsors and individuals

in complying with applicable law and tax qualification requirements in a cost-effective manner;

and

     (13) Carry out the duties and obligations of the Rhode Island secure choice retirement

savings program pursuant to this title and exercise any and all other powers as appropriate for the

effectuation of the purposes, objectives, and provisions of this title pertaining to the program.

     (b) The board shall adopt regulations it deems necessary to implement this chapter

consistent with the Internal Revenue Code and regulations issued pursuant to that code to ensure

that the program meets all criteria for federal tax-deferral or tax-exempt benefits, or both.

     35-23-8. Additional authority of the board.

     In addition to the powers and authority granted to the board pursuant to § 35-23-7, the

board shall have the power and authority to do the following:

     (1) Cause the retirement savings program or arrangements established under the program

to be designed, established, and operated, in a manner consistent with all of the following:

     (i) In accordance with best practices for retirement savings vehicles;

     (ii) To encourage participation, saving, and sound investment practices; and

     (iii) With simplicity, ease of administration for participating employers, and portability of

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benefits.

     (2) Disseminate educational information designed to educate participants about the benefits

of planning and saving for retirement and information to help them decide the level of RISavers

retirement savings program participation and savings strategies that may be appropriate for them;

     (3) Disseminate information concerning state and federal tax credits available to small

business owners for allowing their employees to participate in the program, and any relevant state

or federal tax credits available for participating employees;

     (4) Submit progress and status reports to participating employers and eligible employees;

     (5) If necessary, determine the eligibility of an employer, employee, or other individual to

participate in the program;

     (6) Evaluate and establish the process by which an eligible employee of an eligible

employer is able to contribute a portion of their salary or wages to the program for automatic deposit

of those contributions and the participating employer provides a payroll deposit retirement savings

arrangement to forward the employee contribution and related information to the program or its

agents. This evaluation and process may include, but is not limited to, financial services companies

and third-party administrators with the capability to receive and process employee information and

contributions for payroll deposit retirement savings arrangements or other arrangements authorized

by this chapter;

     (7) Design and establish the process for the enrollment of program participants;

     (8) Allow participating employers to use the program to remit employees' contributions to

their IRAs on their employees' behalf;

     (9) Allow participating employers to make their own contributions to their employees'

IRAs; provided that, the contributions would be permitted under the Internal Revenue Code and

would not cause the program to be treated as an employee benefit plan under the federal Employee

Retirement Income Security Act; and

     (10) Evaluate and establish the process by which an individual or an employee of a

nonparticipating employer may enroll in and make contributions to the program.

     35-23-9. Disclosure of information.

     (a) Prior to opening the RISavers retirement savings program for enrollment, the board

shall design and disseminate to employers an employee information packet that shall also be made

available in an electronic format. The packet shall include background information on the program

and appropriate disclosures for employees.

     (b) The disclosure form shall include, but not be limited to, all of the following:

     (1) The benefits and risks associated with making contributions to the program;

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     (2) The mechanics of how to make contributions to the program;

     (3) How to opt-out of the program;

     (4) The process for withdrawal of retirement savings; and

     (5) How to obtain additional information on the program.

     (c) In addition, the disclosure form shall clearly articulate the following:

     (1) Employees seeking financial advice should contact financial advisors in that employers

do not provide financial advice, that employees are not to contact their employers for financial

advice, and that employers are not liable for employee investment decisions;

     (2) This retirement program is not sponsored by the employer, and therefore the employer

is not responsible for the plan or liable as a plan sponsor; and

     (3) The program fund is not guaranteed by the state.

     (d) The disclosure form shall include a method for the employee to acknowledge that the

employee has read all of the disclosures and understands their content.

     (e) The employee information packet shall also include an opt-out form for an eligible

employee to note their decision to opt-out of participation in the program. The opt-out form shall

be simple and concise and drafted in a manner that the board deems necessary to appropriately

evidence the employee's understanding that they are choosing not to automatically deduct earnings

to save for retirement.

     (f) The employee information packet with the disclosure and opt-out forms shall be made

available to eligible employees by the RISavers retirement savings program and supplied to

employees at the time of hiring. All new employees shall review the packet and acknowledge

having received it.

     (g) The employee information packet with the disclosure and opt-out forms shall be

supplied to existing employees when the program is initially launched for a participating employer.

     35-23-10. Employer participation.

     (a) After the board opens the RISavers retirement savings program for enrollment, eligible

employers shall have a payroll deposit retirement savings arrangement to allow employee

participation in the program under the terms and conditions prescribed by the board.

     (b) Within twelve (12) months after the board opens the program for enrollment, eligible

employers with more than one hundred (100) eligible employees and that do not offer a retirement

savings program pursuant to subsection (g) of this section shall have a payroll deposit retirement

savings arrangement to allow employee participation in the program.

     (c) Within twenty-four (24) months after the board opens the program for enrollment,

eligible employers with more than fifty (50) eligible employees and that do not offer a retirement

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savings program pursuant to subsection (g) of this section shall have a payroll deposit retirement

savings arrangement to allow employee participation in the program.

     (d) Within thirty-six (36) months after the board opens the program for enrollment, all other

eligible employers that do not offer a retirement savings program pursuant to subsection (g) of this

section shall have a payroll deposit retirement savings arrangement to allow employee participation

in the program.

     (e) The board, in its discretion, may extend the time limits defined in subsections (b)

through (d) of this section.

     (f)(1) Each eligible employee shall be enrolled in the program unless the employee elects

not to participate in the program. An eligible employee may elect to opt-out of the program at any

time by making a notation on the opt-out form.

     (2) Following initial implementation of the program pursuant to this section, at least once

every year, the board shall designate an open enrollment period during which eligible employees

that previously opted out of the program may enroll in the program.

     (3) An employee who elects to opt-out of the program who subsequently wishes to

participate through the employer's payroll deposit retirement savings arrangement may enroll at

any time.

     (g)(1) An employer that provides an employer-sponsored retirement plan, such as a defined

benefit plan or a 401(k), 403(b), 457(b), Simplified Employee Pension (SEP) plan, or Savings

Incentive, Match Plan for Employees (SIMPLE) plan, or that offers an automatic enrollment payroll

deduction IRA, shall be exempt from the requirements of the RISavers retirement savings program,

if the plan or IRA qualifies for favorable federal income tax treatment under the federal Internal

Revenue Code.

     (2) An employer shall retain the option at all times to set up and offer a tax-qualified

retirement plan, instead of facilitating employee participation in the RISavers retirement savings

program.

     (h) By regulation, the board may set a default contribution rate which, unless otherwise

specified by the employee, shall be the amount of the employee's annual salary or wages

contributed to the program. Employees shall have the ability to elect to change their contribution

rate at any time with thirty (30) days' notice provided to the program administrator.

     (i) The board may implement annual automatic escalation of employee contributions.

     (j) Employee contributions subject to automatic escalation shall not exceed eight percent

(8%) of salary.

     (2) Automatic escalation shall result in no more than a one percent (1%) of salary increase

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in employee contributions per calendar year.

     (3) A participating employee may elect to opt-out of automatic escalation and may set his

or her contribution percentage rate at a level determined by the participating employee.

     35-23-11. Employer liability protection.

     (a) Employers shall not have any liability for an employee's decision to participate in, or

opt-out of, the RISavers retirement savings program, or for the investment decisions of employees

whose assets are deposited in the program.

     (b) Employers shall not be a fiduciary, or considered to be a fiduciary, over the Rhode

Island secure choice retirement savings program. The program is a state-administered program, not

an employer-sponsored program. If the program is subsequently found to be preempted by any

federal law or regulation, employers shall not be liable as plan sponsors. An employer shall not

bear responsibility for the administration, investment, or investment performance of the program.

An employer shall not be liable with regard to investment returns, program design, and benefits

paid to program participants.

     (c) An employer's voluntary contribution pursuant to § 35-23-8(10) shall not in any way

contradict the provisions of this section or change the employer's relationship to the program or an

employer's obligations to employees.

     (d) An employer shall not have civil liability, and no cause of action shall arise against an

employer, for acting pursuant to the regulations prescribed by the board defining the roles and

responsibilities of employers that have a payroll deposit retirement savings arrangement to allow

employee participation in the program.

     35-23-12. State immunity.

     The state shall not have any liability for the payment of the retirement savings benefit

earned by program participants pursuant to this chapter. The state, and any of the funds of the state,

shall have no obligation for payment of the benefits arising from this chapter.

     35-23-13. Annual audited financial report.

     (a) The board shall submit no later than December 31 an annual audited financial report,

prepared in accordance with generally accepted accounting principles, on the operations of the

Rhode Island secure choice retirement savings program to the governor, and the legislature. The

annual audit shall be made by an independent certified public accountant and shall include, but not

be limited to, direct and indirect costs attributable to the use of outside consultants, independent

contractors, and any other persons who are not state employees.

     (b) The annual audit shall be supplemented by the following information prepared by the

board:

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     (1) Any studies or evaluations prepared in the preceding year;

     (2) A summary of the benefits provided by the program including the number of

participants in the program; and

     (3) Any other information that is relevant in order to make a full, fair, and effective

disclosure of the operations of the Rhode Island secure choice retirement savings program.

     35-23-14. Required favorable federal tax treatment.

     (a) The board shall not implement the program if the IRA arrangements offered fail to

qualify for the favorable federal income tax treatment ordinarily accorded to IRAs under the

Internal Revenue Code, or if it is determined that the program is an employee benefit plan under

the federal Employee Retirement Income Security Act.

     (b) Prior to opening the program for enrollment, the board shall report to the governor and

legislature the specific date on which the program will start to enroll program participants and that

the following prerequisites and requirements for the program have been met:

     (1) The program is structured in a manner to keep the program from being classified as an

employee benefit plan subject to the federal Employee Retirement Income Security Act;

     (2) The payroll deduction IRA arrangements offered by the program qualify for the

favorable federal income tax treatment ordinarily accorded to IRA arrangements under the Internal

Revenue Code;

     (3) The board has defined in regulation the roles and responsibilities of employers in a

manner to keep the program from being classified as an employee benefit plan subject to the federal

Employee Retirement Income Security Act; and

     (4) The board has adopted a third-party administrator operational model that limits

employer interaction and transactions with the employee to the extent feasible.

     35-23-15. Prohibited conduct.

     A board member, program administrator, and other staff of the board shall not do any of

the following:

     (1) Directly or indirectly have any interest in the making of any investment made for the

program, or in the gains or profits accruing from any investment made for the program;

     (2) Borrow any funds or deposits of the program, or use those funds or deposits in any

manner, for themselves or as an agent or partner of others; or

     (3) Become an endorser, surety, or obligor on investments by the board.

     35-23-16. Duties of board and staff.

     The board, commission, and the program administrator and staff, including contracted

administrators and consultants, shall discharge their duties as fiduciaries with respect to the

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program for the exclusive purposes of providing benefits to program participants and defraying

reasonable expenses of administering the program.

     35-23-17. Penalties.

     (a) The board shall have the power and duties necessary to administer the enforcement of

employer compliance with this title including the ability to impose penalties.

     (b) The board shall issue a notice of noncompliance to each employer that fails to allow its

eligible employees to participate in the Rhode Island secure choice savings retirement program

pursuant to this title.

     (c) Each eligible employer that, without good cause, fails to allow its eligible employees

to participate in the program within thirty (30) days from the date the notice of penalty was issued,

shall be subject to a penalty of two hundred fifty dollars ($250) per eligible employee. Proceeds of

such penalties, after deducting enforcement expenses, shall be deposited for the benefit of the

program.

     (d) The director of the department of labor and training shall assist the board in its

enforcement of this chapter.

     35-23-18. Rules and regulations.

     (a) The board may adopt regulations to implement this chapter.

     (b) The tax administrator in consultation with the board shall adopt rules and regulations

regarding the reporting and the deferral of taxers in accordance with the provisions of this chapter.

     35-23-19. Effect on benefit means test.

     A payroll deposit IRA arrangement offered pursuant to the RISavers retirement savings

program shall have the same status as, and be treated consistently with, any other IRA for the

purpose of determining eligibility or benefit level for a program that uses a means test.

     35-23-20. Liberal construction.

     This chapter shall be construed liberally in order to effectuate its purpose. The purposes of

this chapter and all of its provisions with respect to the powers granted shall be broadly interpreted

to effectuate that intent and purposes and not as to any limitation of powers.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC FINANCE -- RHODE ISLAND SECURE CHOICE RETIREMENT

SAVINGS PROGRAM ACT

***

     This act would establish the Rhode Island secure choice retirement savings program, which

provides for the creation of IRA-type retirement investments managed by a board established by

the act which would be a public corporation.

     This act would take effect upon passage.

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