PLANSPONSOR - September 2017 - 54

ERISA EXAMINATION
Minutes
Essentials
Drilling down to the procedural issues
M
eeting minutes are critically important. So important,
in fact, that we are continuing our discussion on the
do's and don'ts of taking them. Here, we pick up from
our last column and focus on the procedural issues associated
with taking minutes.
Who Should Take Minutes?
One person should be assigned the job of taking minutes at
committee meetings. Having the same person fulfill this role
at each meeting provides a consistent format and process. But
who should that person be? There are no specific qualifications
needed to take minutes, but the person assigned this task should
have an understanding of the committee's purpose and the
subject matter of the meetings. The minute-taker does not have
to be a formal member of the committee. In fact, it is better to
assign a non-committee member-someone who is not actively
participating in meeting discussions and is free to listen and take
notes. The minute-taker may be a representative of the human
resources (HR) department or the employer's benefits counsel
or another internal person familiar with the plan. Alternatively,
outside counsel, investment advisers or consultants may prepare
committee minutes.
If the minute-taker is an internal person, we recommend
that some training be provided to make sure he or she understands
the purpose of the minutes, what should or should not
be included, the minutes format, timing, etc. While it may seem
like a mundane task, as we explained in our last column, there is
a fine line between providing too much detail and not providing
enough. It's important that the person understand the nuances
associated with making such a determination.
Occasionally, committees will record meetings in order to
help the minute-taker prepare the minutes. However, there is no
need to do so, and recording may actually inhibit frank and open
discussion amongst the committee members. Someone who
understands the committee's agenda and issues is generally able
to take good notes without the need for a recording. If a recording
is made, it should be disposed of once the minutes are finalized.
Quick Turnaround
The minute-taker should prepare the minutes as soon as possible
after the meeting, while everything is fresh in his or her mind.
Once a draft is prepared, it should be circulated for review and
54 PLANSPONSOR.com September 2017 Art by Joseph Ciardiello
comment by third parties who attended-e.g., counsel, investment
advisers, etc. The minutes should then be circulated
amongst the committee members for review, and approval at the
next committee meeting.
Once the minutes are
approved and finalized,
any notes from the meeting
and any draft minutes should
be discarded.
Retention of Final Minutes
Once the minutes are approved and finalized, any notes from
the meeting and any draft minutes should be discarded. Only
the final minutes should be retained. Retention of this written
record is important-it is evidence of the process engaged in by
the committee in exercising fiduciary and settlor responsibilities.
Minutes may need to be referred to for a variety of reasons-
e.g., to confirm decisions or actions of the committee, to respond
to Department of Labor (DOL) inquiries, or to support defense in
the case of fiduciary litigation. To facilitate these possible needs,
the minutes, and any accompanying materials presented at the
meeting, should be retained permanently and kept in a manner
that makes them easy to retrieve. If you took the minutes but
can't locate them, they do no good!
Uses for the Minutes
In addition to proving the committee's prudent process, the
minutes can be used for reporting. The board or other fiduciary
assigned to delegate plan responsibilities to the committee has an
obligation to monitor the committee's activities, which is generally
done through reviewing an annual report the committee
creates. The meeting minutes provide the perfect source for
preparing a short summary of the committee's activities over the
year for this type of report.
Summer Conley is a partner in the Los Angeles office of
Drinker Biddle and Reath LLP, and Michael Rosenbaum is a
partner in the firm's Chicago office.
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