A Man Who Was ERISA

By Joel Chernoff

Apr. 11, 2008

For nearly 34 years, we’ve had ERISA. And for virtually all of that time, the Department of Labor has had Morton Klevan—the sagacious lawyer who has interpreted the law’s sometimes ambiguous provisions.

On April 3, however, Klevan retired from the DOL’s Employee Benefits Security Administration. Many pension professionals will miss him, and even more who do not know the effect Klevan has had on the interpretation of the Employee Retirement Income Security Act will miss him too—even if they don’t realize it.

Klevan guided me—then a young reporter for Pensions & Investments (a sister publication of Workforce Management)—through some nettlesome regulatory issues, including the DOL’s complex definition of plan asset rules that determined when venture capital and real estate managers were fiduciaries with regard to the underlying assets of an alternative investment fund. I still get migraines thinking about that rule, but they would have been far worse without Klevan’s help.

Robert A.G. Monks, who was the administrator of the DOL’s pension program in 1984, has referred to Klevan as his consigliere. In remarks e-mailed in advance of Klevan’s retirement party earlier this month, Monks also referred to Klevan’s infamous bluntness: “Mort had a very straightforward approach—‘You can do things my way, which is the right way, or any other way; I won’t fight you.’ I am smart enough not to look a gift horse in the mouth, so every day started with Mort and ended with Mort.”

Klevan always was a pioneer. In his comments at the retirement party, Klevan shared his proudest moment as a lawyer: He had traveled to Mississippi as a young lawyer during the “freedom summer” of 1964. Among other things, he worked on a brief to desegregate drinking fountains and restrooms in the state Capitol.

In October 1974, a month after ERISA was signed into law, he joined the DOL’s Office of the Solicitor, charged with enforcing the law’s fiduciary provisions. In the law’s first five years, he and a handful of others wrote key regulations implementing the fledgling law.

He also created the country’s first course on ERISA’s fiduciary rules at Georgetown University’s law school, and helped educate generations of pension attorneys.

“Mort had kind of a Talmudic approach to ERISA. He wanted to tease out the meaning.” said Nell Hennessey, president and CEO of Fiduciary Counselors Inc., Washington, who was a student of Klevan’s in the early 1980s and later served as deputy executive director and chief negotiator of the Pension Benefit Guaranty Corp.

Klevan also headed the task force that investigated corruption at the Central States Teamsters pension fund and shifted control of its assets to professional money managers.

At his retirement party, Klevan offered high praise for Monks and Olena Berg, who ran the pension program during the Clinton administration. Monks put corporate activism on the ERISA map, Klevan said, while Berg “institutionalized it” by saying ancillary benefits of economically targeted investments could be considered as long as risk and reward factors were equal.

Klevan said Berg’s pronouncement made ETIs “safe from left-wing zealots, who wanted the department to take into account benefits accruing to third parties … and from right-wing zanies, who wanted the department to state that such incidental benefits could never be considered.”

In saying farewell to colleagues and friends, Klevan said, “ERISA, I will miss you—and all of you, also.”

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