The conflict of interest between the fundraising concerns of an elected official and the investment and business decisions that must be made by a trustee to such a large fund is exemplified by the scandal involving Comptroller Edward V.
The Commission found that a high-level advisor on the state payroll at the Comptroller's office acted as a liaison to Regan's campaign committee, and that this liaison "wrote a series of memoranda to the Comptroller on Comptroller's Office letterhead, setting forth in detail a campaign fundraising agenda that appear[ed] to link campaign contributions with the award of lucrative investment management contracts and other business by the Comptroller's Office.
In meetings leading up to the Regan scandal, campaign fundraisers (some of who were also state employees) observed that by virtue of his office and role as sole trustee of the CRF, the Comptroller has "more leverage than most elected officials since he provide[s] firms with actual dollars" and suggested a campaign strategy that would "make it clear that those who give will get.
These cases, however, addressed the Comptroller's discretion in light of specific attempts by the legislature to alter the pension fund; the courts often refer to the reserved power of the legislature, and do not foreclose the possibility of an alteration of the manner in which the pension fund is invested, perhaps removing the comptroller as sole trustee.
Cases Involving the Comptroller and the Nonimpairment Clause
The court has pointed out that the state, in addition to the Comptroller, has a fiduciary duty to pension fund members.
Levitt, the Court of Appeals held that the legislature unconstitutionally impaired pension benefits by forcing the state comptroller to purchase Municipal Assistance Corporation (MAC) bonds as a bailout strategy during a New York City financial crisis.
78) The opinion mentioned that the Comptroller's role as sole trustee was in fact a statutory grant of authority from the legislature, and that the difference between an appropriate exercise of legislative power and an unconstitutional one is the difference between "authority to invest and a mandatory direction to invest in certain securities, and in certain minimum amounts, whether or not the State Comptroller deems it advisable.
In Sgaglione the state legislature attempted to force the state comptroller to invest in securities regardless of whether he thought the investments were sound.
89) The Court did not mention the management structure of the fund, or the status of Comptroller as "sole" trustee; it discussed the Comptroller's discretion in relation to that of the legislature, which, in this case, was held to have unconstitutionally encroached upon his autonomy.
After Chapter 210 was held unconstitutional in McDermott, Comptroller McCall enacted a plan to restore the contributions that were lost while the overturned funding method was still in place.
99) The court held that the SRF is a part of the retirement system, and as such falls under the authority of the state comptroller as trustee; in large part, the court's reasoning relied on the comptroller's fiduciary role, and the fact that members of the retirement system are constitutionally entitled to his independent judgment regarding the most fiscally appropriate method of management and investment of the fund.
