Kansas bank official calls for repeal of state law granting charter to unique financial entity

TOPEKA — The Kansas banking commissioner wants the Legislature to repeal a 2021 law creating a unique state-chartered financial institution that has repeatedly pleaded with lawmakers for greater operational independence and less regulatory oversight.

Commissioner David Herndon questioned viability of the alternative asset management company known as Beneficient Fiduciary Financial. It stands as the nation’s only TEFFI, or technology-enabled fiduciary financial institution. The Legislature awarded the charter to Beneficient Fiduciary Financial in anticipation of an influx of comparable TEFFIs in Kansas, but that surge didn’t occur.

Herndon’s frustration surfaced when Derek Fletcher, president and chief fiduciary officer of Beneficient Fiduciary Financial, asked the House Financial Institutions and Pensions Committee to endorse more state regulatory changes packaged in House Bill 2235.

“Exempting any regulated financial institution from the banking code in essence allows that financial institution to claim it is regulated but not actually be regulated,” Herndon said. “If a TEFFI is unwilling or unable to produce financial statements like every other financial institituion is required to produce, a TEFFI should not be a financial institution. It should simply be a nonregulated business.”

He said the Legislature could repeal the TEFFI law so this type of company could exist in Kansas as a non-financially regulated business instead of a state-chartered entity with special exemptions from the banking code. TEFFIs could register with the secretary of state and be subject to reporting requirements applicable to many Kansas businesses, he said.

Regulatory relief

Fletcher urged the House committee to support the bill lowering as of July 1 the application fee for TEFFIs from $250,000 to $50,000. The bill would alter the definition of an alternative asset under management by a TEFFI. The list of such assets outlined by Beneficient Fiduciary Financial, or BFF, has included private real estate funds, venture capital, leveraged buyouts and structured credit. BFF has touted itself as a company capable of providing liquidity to investors holding certain assets.

The House bill would allow Beneficient Fiduciary Financial or a comparable TEFFI to operate with a new definition of “qualified charity” eligible for funding from economic development accounts formed by BFF to comply with state law controlling TEFFIs. The revision would take the definition of eligible recipients beyond a 501(c)(3) nonprofit organization to include nonprofit corporations irrespective of federal tax status.

The bill would extend the due date for a TEFFI’s annual report from Jan. 31 to March 1. TEFFIs would be able to submit other financial reports on a quarterly basis, instead of daily or monthly like typical chartered financial institutions.

In addition, the bill would say a TEFFI could issue certificates of trust to show it had a legal authority to exist. And, a TEFFI wouldn’t be subject to Kansas lending limit laws.

The House committee didn’t act last week on the bill aimed at bolstering Beneficient Fiduciary Financial’s business model. The Legislature previously considered at least five bills to satisfy the company’s requests for help delivering on the promise to build an alternative asset management mecca in Kansas.

Alan Deines, a managing director at Beneficient Fiduciary Financial, asked the committee to free TEFFIs from the bonds of regulatory provisions applicable to commercial banks or trust companies in Kansas.

“We are asking for changes to be made in the Kansas TEFFI act to allow for the law and our business model to be aligned,” Deines said.

So far, Beneficient Fiduciary Financial is the only TEFFI in existence. It is a subsidiary of Beneficient, a Nevada corporation headquartered in Dallas, Texas.

Rebuttal insights

During the House committee’s hearing on the bill drafted by BFF, Kansas Bank Commission general counsel Brock Roehler pointed to issues the Legislature could consider as it evaluated the bill.

He said lawmakers expanding the definition of a qualified charity eligible for economic development grants should include firewall language “to eliminate any possibility of a conflict of interest between a TEFFI and the qualified charity, including conflicts between officers, directors and stakeholders of the TEFFI and qualified charity.”

When alternative assets were placed in trust with Beneficient Fiduciary Financial, state law required 2.5% of the total amount financed to be placed in an economic development account for benefit of Kansans. Since 2021, the Kansas Department of Commerce distributed $3.2 million in economic seed grants to 90 rural Kansas community projects. In addition, BFF donated $17 million in cash and assets toward revitalization projects in Hesston, Kansas.

In terms of lowering the application fee for new TEFFIs by $200,000, Roehler said the original rate was established by organizers and supporters of Beneficient Fiduciary Financial. The OSBC commissioner didn’t have input into that decision, he said.

“The application fee, whatever the amount, is and has been since the inception of the TEFFI act a moot point,” Roehler said. “There has been no market for TEFFIs to exist. BFF representatives have implied the application fee amount was a barrier to entry for new TEFFIs. Perhaps it is. Nobody knows because no application, no inquiries and no conversations have taken place between any potential applicant at the OSBC or the state banking board since the TEFFI Act was created in 2021.”

Roehler said altering financial reporting deadlines for TEFFIs appeared to have no purpose other than delaying timely access by state regulators to Beneficient Fiduciary Financial information.

One section of the bill would exempt TEFFIs from keeping copies of stockholder and director minutes, capital stock ledgers, daily statements of condition and a summary of fiduciary assets prepared each month, he said.

In addition, Roehler said the bill would allow TEFFIs to continue including non-physical intangibles as a capital component in violation of generally accepted accounting principles. Including intangibles when the state evaluated a TEFFI, he said, created a “substantial barrier” to sound regulation.

(An earlier version of this story mistakenly identified Rep. Kyler Sweely, R-Hutchinson, in a photograph cutline.)