February 18, 2011
RE: SEC Release 34-63576 (the Release)
Dear Ms. Murphy,
These comments are submitted on behalf of the Iowa Public Agency Investment Trust (IPAIT) in response to the Release which proposes permanent rules to implement Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. IPAIT is very concerned that the proposal contemplates the including members of a governing board of a municipal entity within the definition of a municipal advisor.
IPAIT is a local government investment pool, registered with the SEC under the Investment Company Act of 1940 and operated in accordance with SEC Rule 2a-7. Further, IPAIT has hired an independent custodian and has hired an investment advisor who is registered with the SEC under the Investment Company Act of 1940. Under state law, IPAIT is considered a municipal entity, subject to Open Records/Meetings laws and statutory public fund investment standards. IPAIT is not only subject to fiduciary obligations mandated by state law, but also fiduciary obligations imposed under the Investment Company Act of 1940. These fiduciary standards apply to all Trustees, whether elected or appointed. The distinction between elected and non-elected board members in the Release is arbitrary and nonsensical.
Most importantly, the Release is fundamentally flawed conceptually: a municipal entity cannot be a municipal advisor to itself. A municipal advisor is hired by the municipal entity to provide advice and recommendations to the municipal entity and the municipal entity must make decisions based upon the advice and recommendations supplied by the municipal advisor. Therefore, including any employee or board member within the definition of municipal advisor is irrevocably flawed from the beginning.
In its current state the proposal in the Release would impose an unnecessary and burdensome duty on municipal entities, to permanently register with the SEC, engage in certain record-keeping and continuing education requirements, and incur potential liability for civil or criminal matters. This also adds a significant and unnecessary financial burden upon all municipal entities, which ultimately must be passed on to the taxpayers of the municipal entity.
Current IPAIT Trustees do not purport to be, or hold themselves out to be knowledgeable, credentialed financial advisors. They rely upon the advice and counsel of widely recognized, experienced, knowledgeable and registered professionals engaged by the Trustees to carry out the financial objectives and transactions associated with IPAIT, allowed by current state and federal law. We respectfully request the SEC reconsider the Release to include all employees and board members of a municipal entity within the definition of a municipal entity, not a municipal advisor.