Plan Document availability

[Guest wlank]

I am the Plan administrator of a Profit Sharing Plan of a single employer. In June 2007 the office of Plan Sponsor was “raided” by about a dozen agents from several agencies (federal and state). Among the material removed from the office was a notebook containing the current Plan, SPD, FDL, the most recent Administrator’s Report, and other items. I did not learn of the removal of the plan information until a meeting in October. At that time I directed the office manager to contact the agency who had possession of the plan information and request a return of the original documents. As of today that has not been done.

1. Does anyone have any experience in this area?

2. Is the following ERISA section the correct one for requesting the return of the original documents?

104b-1(b)(3)(i)

(i) In the case of a plan not maintained according to a collective

bargaining agreement, including a plan maintained by a single employer

with more than one establishment, a multiple employer plan, and a plan

maintained by a controlled group of corporations (within the meaning of

section 1563(a) of the Internal Revenue Code of 1954 (the Code)),

determined without regard to section 1563(a)(4) and (e)(3)© of the

Code), documents shall be made available for examination in the

principal office of the employer and at each employer establishment in

which at least 50 participants covered under a plan are customarily

working.

[QDROphile]

The provision you quote is an obligation of the plan administrator for the benefit of participants. You might argue that inability of the plan administrator to have access to plan documents makes the administrator unable to comply with the law; that would be true for a lot more law than the provision you quoted.

[Ron Snyder]

There is a disconnect implicit in your facts and question: are you really the Plan Administrator, or are you an outside person who performs administrative functions?

A fiduciary is required to act prudently. Whether you are the named fiduciary or an outside administrator, the prudent course of action would be to have a duplicate set of all plan records off-site (typically at the office of the plan's legal counsel, accountant, third-party administrator, consultant, financial planner, etc.). Failure to take this prudent step has now caused you to potentially be in violation of your fiduciary duties.

Are you an employee of the company who allowed yourself to named as a fiduciary without realizing the import of the designation? Or did you know that you were an ERISA fiduciary but fell asleep on the job? It seems that an inside employee would have known about the records being carted off in any event.

Or are you an outside administrator who only became aware of the confiscation at a meeting in October? If so, don't you have copies of all plan records?

Whether you are the Plan Administrator (named fiduciary) or a contracted administrator, there was an apparent violation of your duty to the plan which you now seek to blame on the law enforcement officials. However, in a lawsuit between you and a participant, you have failed in your duty and I doubt that your failure will be excused by blaming the cops.

[Guest Kabert]

Call the office of the closest US Attorney's office. If you're in a large city, it'll be in the phone book. If not, find the phone number via the internet - -there's likely an office in the state capital and in other large cities in the state. It's hard to believe there was only one copy of these docs.... I'd start with just picking up the phone and asking for a copy of the docs.

Another approach -- locate a plan service provider (which should have most all the docs you are looking for) or a participant who has been with the company for a long time -- they are likely to have at least some of the docs you are looking for.