Questions & Answers on State and Local Variations on SEC Pay-to-Play Rule

by K&L Gates LLP

Many states and municipalities have adopted laws and regulations that affect how investment managers may solicit investment advisory business, including investment in sponsored public and private funds, from the state agencies and municipalities that administer employee benefit plans and other state investment vehicles. This Q&A seeks to highlight some of the issues relating to soliciting business from, or doing business with, these instrumentalities and also seeks to explain some of the important differences between state and local laws and the SEC’s pay-to-play rule under the Investment Advisers Act of 1940, Rule 206(4)-5.

Q1: We are an SEC-registered investment adviser and comply with SEC pay-to-play rule. If we comply with the SEC rule, must we also comply with state and municipal laws relating to pay-to-play?

A1: Yes; the SEC pay-to-play rule does not preempt federal, state and local pay-to-play, lobbying and related requirements, and there are significant restrictions imposed by the federal government, states, municipalities, governmental pension plans and other authorities that often exceed SEC requirements.

Q2: Who is restricted under state laws from making political contributions? Are they the same persons that fall within the definition of Covered Associates under the SEC rule?

A2: There is no uniformity among jurisdictions as to who is covered by the pay-to-play or similar restrictions against seeking to obtain government business by making campaign or other contributions to elected officials. Some state restrictions are more expansive than the SEC rule and may include, in addition to employees who solicit government entities, affiliates and third-party solicitors and marketers.

Q3: We have heard that the SEC exception from the two-year time-out look-back (to only a six-month look-back for a natural person who joins an adviser and does not solicit clients for that adviser) and the natural person de minimis dollar contribution exception (of $350 per election to any one official for whom a person is entitled to vote or $150 to other officials) may be different in various states; is that right?

A3: Yes, these exemptions may not be available or may vary widely in detail, depending on the jurisdiction. For example:

  • In New Jersey, there is no exemption to the two-year look-back for contributions to any candidate for governor or for a seat in the legislature, certain local officials and political parties that applies specifically to firms that provide investment management services to a New Jersey pension fund or annuity fund.

  • Connecticut looks back to the beginning of the previous election cycle – which, until the 2014 election, means a look-back to January 2007 – with no de minimis exemption with respect to contributions to candidates for state treasurer.

Q4: What types of contributions are restricted under state laws?

A4: Many state statutes and regulations are far more restrictive than the SEC rule (which applies to any gifts or other contributions of value made for the purpose of influencing any election for federal, state or local office). For example:

  • Types of gifts covered –

    • Trustees, investment officers and employees in a position of investment discretion over a state retirement system are often prohibited from soliciting or accepting anything of value, including reimbursement of expenses, meals, entertainment and the like, and state statutes may contain detailed descriptions of what may or may not be included.

    • In many states, violation of gift statutes is a crime for both the recipient and the donor.

    • Many states have de minimis (i.e., less than $50; in some cases, less than $10) exceptions to gift prohibitions; some states have no de minimis exception.

  • Purpose of contribution –

    • State laws typically prohibit contributions made for any purpose (not only for the purpose of influencing an election).

Q5: What individuals in government entities are restricted from receiving gifts or contributions under state laws?

A5: Once again, state laws vary from jurisdiction to jurisdiction and also vary from the SEC rule (which applies to any person – or that person’s election committee – who is at the time of the contribution an incumbent, a candidate or a successful candidate for elective office directly or indirectly responsible for, or influential over, the hiring of an adviser, or with authority to appoint a person with that authority). For example:

  • New Jersey regulates contributions to any candidate for governor or for a seat in the legislature, certain local officials and political parties in New Jersey.

  • Connecticut restricts contributions to any exploratory, candidate or political committee established by, or supporting or authorized to support, certain candidates for state office or a party committee (including a state central committee as well as town committees).

  • Maryland requires disclosure of contributions to any state employee or official and any campaign finance committee that promotes the success or defeat of a candidate or political party and also covers such contributions that are related to a public question.

Q6: How do state laws restrict the activities of solicitors and placement agents?

A6: States and other jurisdictions restrict activities related to the hiring of third-party placement agents (regardless of the SEC rule’s permitted use of certain registered solicitors) in various manners. Examples include the following:

  • Certain states prohibit paying any contingency fee in connection with investments by a public investment fund with an investment manager or in the manager’s funds.

  • Prohibitions usually apply to payments of contingency fees to third-party placement agents and may also apply to contingency fees paid to employees (in some cases, regardless of whether such employees are required to register as “lobbyists” in such state or locality).

  • Non-contingent performance bonuses to employees may be permitted in some circumstances; for example, if a bonus is based upon the performance of the investment advisory firm as a whole and is not contingent upon the award of business by a state or local plan.

  • Violation of a contingency fee prohibition could be a felony in certain states.

  • The policies and procedures of the New York City Comptroller’s Office and the Board of Trustees of the New York City Retirement Systems (“NYC Systems”) generally prohibit private fund managers from using (whether or not fees are paid) placement agents in connection with securing a commitment by the NYC Systems.

  • In addition, a private fund manager must disclose any placement agent fees paid in connection with securing commitments by other investors in a fund in which any of the NYC Systems invests.

  • New York’s governor has announced a permanent ban on the use of all placement agents, including in connection with investments by its largest retirement system, whether compensated on a flat fee, a contingent fee or any other basis.

Q7: Is it true that our investment management activities could be considered lobbying under state law?

A7: Yes, certain activities related to contracting with a government entity for providing investment management services (or investing in a fund sponsored by the investment manager) may trigger state lobbyist registration considerations. For example:

  • Many states have adopted lobbying laws that require individuals and entities who work for third-party placement agents, as well as certain employees of hedge fund managers, hedge funds, investment advisers and other investment managers, to register with those states as lobbyists.

  • In these states, sales staff of third parties, as well as in-house sales and marketing personnel, are the most likely to be required to register.

  • Ohio and California are among the states requiring lobbyist registration for investment management professionals, in certain circumstances.

  • Examples of activities triggering lobbyist registration –

    • Ohio

      • “Lobbyist,” in connection with a state retirement system, is defined as a person or entity whose main purpose on a “regular and substantial basis” is to influence the system’s decisions by direct communications with board members, investment officials or any employee whose position involves substantial and material exercise of investment discretion.

    • California

      • Any placement agent (finders, solicitors, marketers, consultants, brokers or other intermediaries), including internal sales or marketing personnel that influence state pension plan investments, must register as a lobbyist, with limited exceptions.

Q8: If lobbyist registration is required, who is required to register?

A8: If registration is required, the person or entity required to register varies from jurisdiction to jurisdiction. For example, in some cases, the marketing employee who lobbies on behalf of an investment manager is required to register as a lobbyist, while in other cases, the investment manager entity registers as a lobbyist and may be required to list marketing employees who lobby on behalf of the investment manager on the investment manager’s registration statement.

Q9: Are there common exemptions from state lobbying registration requirements that we might rely on?

A9: Yes, if a state requires an investment manager or placement agent to register as a lobbyist in order to solicit business from a state agency or plan, they may also provide for exemptions. Common exemptions from registration as a lobbyist that exist in some states include the following:

  • De minimis exemptions are fairly common, where an individual has not been compensated for its lobbying activities, and has not expended funds on such lobbying activities, above set thresholds. De minimis thresholds vary significantly from state to state.

  • De minimis exceptions may apply in some states when an individual spends only a minimal amount of its time on lobbying activities.

  • Participation in a state competitive bid and/or request for proposal process may be an exempted activity.

Q10: What are the consequences of registering with a state as a lobbyist?

A10: Common requirements that apply to state registered lobbyists include the following:

  • Ongoing reporting requirements for individual lobbyists and their employers.

  • Ethics training.

  • Prohibition on contingency fees (i.e., based on an award of an advisory contract or an investment in a fund) in some states.

  • Filing of written placement agent and/or lobbyist agreement (or summary of such an agreement, if oral).

  • Payment of registration fees.

  • Reporting of information such as compensation, lobbying expenditures, gifts and entertainment to public officials or political contributions.

Q11: What are the consequences of failing to register with a state as a lobbyist?

A11: Potential consequences may include:

  • Possible cancellation of the contract between the investment manager and the state entity.

  • Failure to comply with a state or municipal lobbying statute can result in a fine and, in some cases, may rise to a misdemeanor.

  • Possibly triggering “bad boy” status:

    • Pursuant to the Dodd-Frank Act, the SEC has proposed rules under Regulation D of the Securities Act that would disqualify certain bad actors from relying on the Rule 506 safe harbor exemption from Securities Act registration.

    • A criminal conviction for failure to comply with state or local lobbying laws could be considered a “disqualifying event” for purposes of the SEC’s proposed rules, resulting in treatment as a “bad boy” for purposes of the Regulation D Rule 506 exemption.

Q12: Are there any additional state disclosure requirements?

A12: Yes; state disclosure requirements are often broader than those under the SEC pay-to-play rule. Investment managers doing business or seeking to do business with state plans may be required to make disclosures to state boards of ethics or state elections enforcement commissions or other agencies, in addition to making disclosures to the plans with whom they wish to do business, and the information disclosed may be publicly available (for example, posted online) in some circumstances.

Q13: Where and/or how do we find the applicable state laws?

A13: Applicable requirements appear in state and local statutes and regulations and often include formal and informal positions taken by municipalities, cities, counties and the state or local pension plans themselves. Sometimes positions appear in minutes of meetings of public officials or standardized contractual provisions or may only be clarified by direct communications with governing bodies. Many of these laws are in a state of flux and are subject to change.

Q14: What are some of the steps we should take to be sure we are in compliance?

A14: Affirmative steps should be taken to monitor and achieve compliance with the various state and local requirements concerning lobbyist registration (including for internal marketing activities), placement agent use, political contributions and gifts and entertainment, including the following:

  • Before accepting an engagement with any government entity, determine what laws, policies and disclosures apply to such an engagement, and whether current preclearance requests for political contributions, if approved, or any prior political contributions would preclude such engagement.

  • Prior to hiring new employees, require disclosure of all political contributions and gifts and entertainment provided to state and local government officials.

  • Identify the permissible political contribution and gift and entertainment thresholds applicable to your business and do not approve any political contributions or gifts and entertainment exceeding applicable thresholds.

  • Update policies and procedures to require preclearance of all political contributions and gifts and entertainment, and do not approve any gifts and entertainment above a de minimis amount, which could be $0, depending on an investment manager’s clientele.

  • Review and update recordkeeping policies as necessary.

  • Before marketing to a state or local plan, determine whether registration as a lobbyist and/or lobbyist employer is required.

  • Prior to engaging a placement agent to contact a particular state or local plan on your behalf, confirm that the use of placement agents or payment of fees to placement agents is not prohibited by state or local law or by a plan’s own policies.

Q15: Has information already been compiled setting forth the requirements relating to various state and local plans?

A15: As of the date of this Q&A, K&L Gates LLP attorneys have researched requirements relating to the following state and local plans, and in certain cases, entities that administer state and/or local plans, with respect to multiple issues: pay-to-play; campaign contributions; lobbying; use of placement agents; and gifts and entertainment, including any pre-contractual disclosure requirements, ongoing contractual disclosure requirements and penalties for violating these requirements:


Plan or Entity


  • Alaska Retirement Management Board (which serves as the trustee of the assets of the Public Employees’ Retirement System, Teachers’ Retirement System and six other state plans)


  • Arizona State Retirement System

  • Arizona Public Safety Personnel Retirement System

  • City of Phoenix Employees Retirement System


  • Alameda County Employees Retirement Association

  • Alameda-Contra Costa Transit District Retirement System

  • Bay Area Rapid Transit (BART) Investment Plans Committee (which administers BART’s Deferred Compensation Plan and Money Purchase Pension Plan)

  • California Public Employees’ Retirement System

  • California State Teachers’ Retirement System

  • Contra Costa County Employees Retirement Association

  • Contra Costa Water District Retirement Plan

  • East Bay Municipal Utility District Retirement System

  • Fresno City Employees Retirement System

  • Fresno County Employees Retirement Association

  • Fresno Fire and Police Retirement System

  • Imperial County Employees Retirement System

  • Kern County Employees Retirement Association

  • Los Angeles City Deferred Compensation Plan

  • Los Angeles City Employees Retirement System

  • Los Angeles City Fire and Police Pension Fund

  • Los Angeles City Water and Power Employees Retirement Plan

  • Los Angeles County Employees Retirement Association

  • Marin County Employees Retirement Association

  • Mendocino County Employees Retirement Association

  • Merced County Employees Retirement Association

  • Oakland Municipal Employees Retirement System

  • Oakland Police and Fire Retirement System

  • Orange County Employees Retirement System

  • Sacramento County Employees Retirement System

  • San Bernardino County Employees Retirement Association

  • San Diego City Employees Retirement System

  • San Diego County Employees Retirement Association

  • San Francisco Employees Retirement System

  • San Joaquin County Employees Retirement Association

  • San Jose Federated City Employees Retirement System

  • San Jose Police and Fire Department Retirement Plan

  • San Luis Obispo County Pension Trust

  • San Mateo County Employees Retirement Association

  • Santa Barbara County Employees Retirement System

  • Sonoma County Employees Retirement Association

  • Stanislaus County Employees Retirement Association

  • Tulare County Employees Retirement Association

  • University of California Retirement Plan (UC Regents)

  • Ventura County Employees Retirement Association


Colorado Public Employees’ Retirement Association
Fire and Police Pension Association of Colorado


Connecticut Retirement Plans and Trust Funds (which consist of the State Employees’ Retirement Fund, Teachers’ Retirement Fund, Municipal Employees’ Retirement Fund, Probate Court Retirement Fund, Judges’ Retirement Fund, the State’s Attorneys’ Retirement Fund and eight state trust funds)


Florida State Board of Administration (which manages the Florida Retirement System Pension Plan, the Florida Retirement System Investment Plan and four other state investment funds)


Illinois Municipal Retirement Fund
Teachers’ Retirement System of the State of Illinois
Illinois State Board of Investment


Indiana Public Employees’ Retirement Fund
Indiana Teachers’ Retirement Fund


Kentucky Retirement Systems (which consist of Kentucky Employees Retirement System, State Police Retirement System and County Employees Retirement System)
Kentucky Teachers’ Retirement System


Louisiana State Employees’ Retirement System


Maryland State Retirement and Pension System


Massachusetts Pension Reserves Investment Trust Fund (which is supervised by the Pension Reserves Investment Management Board, or MassPRIM)
Massachusetts Public Employee Retirement Administration Commission (which oversees over 100 public pension systems in Massachusetts, including municipal pension systems)


Missouri Department of Transportation and Highway Patrol Employees’ Retirement System
Missouri State Employees Retirement System
Missouri Local Government Employees Retirement System
City of St. Louis Employees Retirement System


Montana Board of Investments

New Jersey

Division of Investment of the New Jersey Department of Treasury (which manages all of the New Jersey state pension funds)

New Mexico

New Mexico State Investment Office (which manages the New Mexico Permanent Trust Funds, as well as investments for 17 other governmental clients)
New Mexico Educational Retirement Fund

New York State

New York State Common Retirement Fund (which holds assets of the New York State and Local Police and Fire Retirement System and the New York State and Local Employees’ Retirement System)
New York State Teachers’ Retirement System

New York City

New York City Employees’ Retirement System
New York City Police Pension Fund
New York City Fire Department Pension Fund
New York City Teachers’ Retirement System
New York City Board of Education Retirement System

North Carolina

Investment Management Division of the Department of the State Treasurer of North Carolina (which manages the assets of the Teachers’ and State Employees’ Retirement System, the Consolidated Judicial Retirement System, the Firemen’s and Rescue Workers’ Pension Fund, the Local Governmental Employees’ Retirement System, the Legislative Retirement System and the North Carolina National Guard Pension Fund)


Ohio Public Employees Retirement System
State Teachers Retirement System of Ohio
Ohio Highway Patrol Retirement System
Ohio Police & Fire Pension Fund
School Employees Retirement System of Ohio


Oklahoma Police Pension and Retirement System
Oklahoma City Employees Retirement System


Oregon Public Employees Retirement System


Pennsylvania State Employees’ Retirement System
Pennsylvania Public School Employees’ Retirement System

South Carolina

South Carolina Retirement System Investment Commission (which invests the assets of the South Carolina Retirement System, South Carolina Police Officers Retirement System, Retirement System for Judges and Solicitors of the State of South Carolina, Retirement System for Members of the General Assembly of the State of South Carolina and the National Guard Retirement System)


Tennessee Consolidated Retirement System


The Teacher Retirement System of Texas
The Employees Retirement System of Texas
Texas Permanent School Fund
Texas County & District Retirement System


Utah Retirement System


Virginia Retirement System

Fairfax County Retirement Administration Agency (which manages the Employees’ Retirement System, the Police Officers Retirement System and the Uniformed Retirement System)


Washington State Investment Board (which manages 17 retirement plans for public employees, teachers, school employees, law enforcement officers, firefighters and judges, including Public Employees’ Retirement System, Teachers’ Retirement System, School Employees’ Retirement System, Law Enforcement Officers’ and Fire Fighters’ Retirement System, Washington State Patrol Retirement System, Public Safety Employees’ Retirement System, Judges’ Retirement Fund, Judicial Retirement System, Judicial Retirement Account and Deferred Compensation Program, and 22 other public funds)


State of Wisconsin Investment Board (which invests assets on behalf of the Wisconsin Retirement System, the State Investment Fund and five state trust funds)


Wyoming Retirement System (which consists of nine separate retirement programs: the Public Employees Pension System; the Warden, Patrol and DCI System; two Paid Firefighter systems; the Volunteer Fire Pension System; Volunteer Emergency Medical Technician Pension System; the Air Guard Firefighter Pension System; the Law Enforcement Pension System; and the Judicial Pension System)

In addition to the extensive research relating to the plans listed above, as of the date of this Q&A, K&L Gates LLP attorneys have researched specific issues (such as pay-to-play, campaign contributions, lobbying, use of placement agents and/or gifts and entertainment) relating to the following state and local plans, and in certain cases, entities that administer state and/or local plans:


Plan or Entity


  • Arkansas Teachers Retirement System


  • City of Miami Fire Fighters’ and Police Officers’ Retirement Trust

  • Clearwater Employees’ Pension Fund

  • Chief Investment Officer and Pension Administration Manager for the City of Jacksonville


  • Georgia Employees Retirement System


  • County Employees’ and Officers Annuity Benefit Fund of Cook County

  • Forest Preserve District Annuity and Benefit Fund of Cook County

  • Chicago Laborers’ and Retirement Board Employees’ Annuity and Benefit Fund

  • Metropolitan Water Reclamation District Retirement Fund

  • The Public School Teachers’ Pension and Retirement Fund of Chicago

  • The Park Employees’ Annuity and Benefit Fund

  • Municipal Employees’ Annuity and Benefit Fund of Chicago

  • Policemen’s Annuity and Benefit Fund of Chicago


Kansas Public Employees Retirement System


Parochial Employees Retirement System of Louisiana
Teachers’ Retirement System of Louisiana


Maine Public Employees Retirement System


Michigan Retirement Systems
General Retirement System of the City of Detroit


University of Minnesota Foundation
Minnesota State Board of Investment


Public Employees Retirement System of Mississippi


Nebraska State Investment Council

New Mexico

New Mexico Public Employees Retirement Association


Philadelphia Board of Pensions & Retirement

Rhode Island

Rhode Island State Investment Commission


City of Nashville Pension System


Fort Worth Employees Retirement System
Texas Municipal Retirement System

West Virginia

West Virginia Investment Management Board (which is responsible for the investment of the assets of the Public Employees’ Retirement System, Teachers’ Retirement System, State Police Retirement System, Judges’ Retirement System and 14 other plans).

Please feel free to contact the authors of this Q&A or your K&L Gates relationship lawyer if you have any questions relating to these requirements.


[1] To view our previous alert on general state and local pay-to-play requirements, please click here. For our previous California focused pay-to-play alerts and updates, please click here, here, here, and here. For our previous New York focused pay-to-play alert, please click here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.