What to Do About Ensign Peak Advisors

In my last post, I wrote about the 60 Minutes segment on Ensign Peak Advisors. As part of that segment, the interviewer asks Bishop Waddell, “But don’t you agree this would be a nonissue if there were more transparency?”

He responds, “No. Because then everyone would be telling us what they want us to do with the money.”

Frankly, I think he’s wrong. But for now let’s respect that. For purposes of this post, I’m going to assume that the church will maintain a significant investment portfolio. And whatever I think about it,[fn1] I’m going to be indifferent to whether and how it should spend down that portfolio. Because I think EPA’s current status, as an external tax-exempt investment advisor, is ultimately untenable, notwithstanding the fact that it’s legal.

What do I mean? Well, as a general rule, investment managers are for-profit, taxable endeavors. EPA is a nonprofit, tax-exempt organization. (Critically, “nonprofit” doesn’t mean it can’t earn a profit. Some nonprofits—including, notably, hospital chains—are tremendously profitable. The “non” in nonprofit means that the profit earned can’t benefit any individual. While this is a little over-simplified, it basically means a nonprofit can’t distribute its profits as dividends.)

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60 Minutes, David Nielson, and Ensign Peak Advisors

Sunday night, 60 Minutes aired a 13-minute segment on Ensign Peak Advisors. And honestly, if you’ve been following the story closely (I have!), there’s not a lot of new information here.

But not a lot isn’t no new information. And, in any event, the piece featured David Nielson, the whistleblower from 2019, speaking publicly for the first time, as well as Bishop Waddell, First Counselor in the Presiding Bishopric representing the church’s point of view. (It also featured an interview with Phil Hackney, a law professor at Pitt and, full disclosure, a friend, colleague, and coauthor of mine.)

I’m not going to give a full rundown of the piece. I’ve written about the tax and securities issues previously. And anyway, at 13 minutes (half that if you watch it at 2x speed!), watching it isn’t a heavy lift. Instead, I’m going to highlight a couple things that I found interesting and important.

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The Church, the Investment Advisor, and the SEC

By now, I assume you’ve heard that the church and Ensign Peak Advisors have settled an SEC investigation, with EPA agreeing to pay a $4 million fine and the church agreeing to pay a $1 million fine. (If you haven’t, you can see some excellent reportage on the issue here, here, and here, among other places.)

So what should practicing members make of this? I think it’s tough, and I’ll try to address that at the end of the post. But first, what exactly happened?

On Not Filing Form 13F

To understand what’s going on here, we need to start with Rule 13f. Under Rule 13f, investment managers must file a quarterly report with the SEC where (a) they “exercise investment discretion” over (b) accounts containing at least $100 million of (c) “13(f) securities.” (13(f) securities are basically stock traded on a securities exchange.)

Between 1997 (when it was formed) and 2019, Ensign Peak Advisors did not file a Form 13F.

But it’s not just that EPA didn’t file a 13F for 22 straight years. It’s that EPA, at church leaders’ behest, structured their investment to avoid the rules.

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