New York City Comptroller William C. Thompson, Jr. today issued the following statement concerning the New York City Corporation Counsel’s legal action filed this week against the Apache Corporation:

“It is important that corporate America embrace acceptance and afford all employees the same protections, regardless of their sexual orientation or gender identity,” Thompson said. “Apache’s refusal to place a measure by the New York City Pension Funds before its shareholders sends a message that it does not respect all of its workers, and that it does not place a sufficient priority on benefiting from the skills of a diverse workforce.”
This week, the City filed in the U.S. District Court for the Southern District of New York in Manhattan  lawsuit on behalf of the New York City Employees’ Retirement System (NYCERS), New York City Police Pension Fund, New York City Fire Department Pension Fund, New York City Teachers' Retirement System (TRS) and New York City Board of Education Retirement System.

The lawsuit seeks to compel Apache to include the Funds’ shareholder proposal in its annual proxy materials. The proposal asks the company to revise its policies to forbid discrimination based on sexual orientation and gender identity. Collectively, the Funds have 930,337 shares valued at more than $100 million in Apache, which is based in Houston, TX.

The legal actions comes a week after Thompson and the Pension Funds criticized the federal Securities and Exchange Commission (SEC) for allowing Apache to avoid giving shareholders the opportunity to vote on a measure to ban discrimination based on sexual orientation and gender identity.

Earlier this year, the Pension Funds filed a shareholder resolution calling on two dozen of America’s largest companies to bar discrimination based on sexual orientation and gender identity – nearly twice as many proposals as in the previous proxy season. To date, eight of those companies have agreed to make the change.

But Apache wrote to the SEC, asking for assurance that there would not be any enforcement action against Apache if it were to exclude the resolution from its proxy materials this season. Staff of the SEC’s Division of Corporation Finance recently granted Apache’s request by issuing a “no-action” letter.

Thompson said that his office filed papers documenting the SEC’s prior denial of “no-action” relief with respect to an identical shareholder proposal less than a year ago.

In addition to Apache, this season’s resolutions were filed with: HCC Insurance Holdings of Houston, TX; Timken Company of Canton, OH; ExxonMobil Corp. of Irving, TX; AK Steel Corp. of Middletown, OH; Fidelity National Financial, Inc. of Jacksonville, FL; Brink’s Company of Richmond, VA; Liberty Global, Inc. of Englewood, CO; Lyondell Chemical Company of Houston, TX; Eastman Chemical Co. of Kingsport, TN; Tesoro Corp. of San Antonio, TX; Murphy Oil Corp. of El Dorado, AR; Kelly Services, Inc. of Troy, MI; EchoStar Communications Corp. of Englewood, CO; Huntsman Corp. of Salt Lake City, UT; Marshall & Ilsley Corp. of Milwaukee, WI; Frontier Oil Corp. of Houston, TX; Borg Warner. Inc. of Auburn Hills, MI; Anadarko Petroleum Corp. of The Woodlands, TX; Synovus Financial Corp. of Columbus, GA; Erie Indemnity Company (Erie Insurance) of Erie, PA; SPX Corporation of Charlotte, NC; American Financial Group, Inc. of Cincinnati, OH; and, Leggett & Pratt, Inc. of Carthage, MO.

The Funds hold nearly 30 million shares worth nearly $2.2 billion in those companies.

This season to date, seven companies have agreed to make the change: Erie Indemnity, SPX Corp., The Brink’s Company, Synovus Financial Corp., AK Steel Corp. and Marshall & Ilsley Corp., and Liberty Global. The Comptroller’s Office has since withdrawn those resolutions.

This is the eighth time that the Funds have filed a measure with ExxonMobil, with each year bringing stronger support from its shareholders. The measure calls for ExxonMobil to amend its Equal Employment Opportunity policy to bar discrimination based on sexual orientation and gender identity.

Shareholder support for the proposal has increased in each subsequent year it has been filed: in 2007, it was supported by 37.7 percent of shares voted; in 2006, it was supported by 34.6 percent of shares voted; and in 2005, it was supported by 29.4 percent.

The resolutions build on proposals submitted by the Pension Funds for more than a decade asking dozens of Fortune 500 companies to adopt policies that explicitly prohibit discrimination based on sexual orientation. To date, 52 companies have amended their policies to include protections against discrimination based on sexual orientation and/or gender identity.

Besides Thompson, the New York City Pension Funds’ trustees are:

New York City Fire Department Pension Fund: Mayor Michael Bloomberg; New York City Fire Commissioner Nicholas Scoppetta (Chair); New York City Finance Commissioner Martha E. Stark; Stephen Cassidy, President, James Slevin, Vice President, Robert Straub, Treasurer, and John Kelly, Brooklyn Representative and Chair, Uniformed Firefighters Association of Greater New York; Michael Currid, Captains’ Rep.; John J. McDonnell , Chiefs’ Rep., and Stephen J. Carbone, Lieutenants’ Rep., Uniformed Fire Officers Association; and, Joseph Gagliardi, Marine Engineers Association.

New York City Police Pension Fund: Mayor Michael Bloomberg; New York City Finance Commissioner Martha E. Stark; New York City Police Commissioner Raymond Kelly (Chair); Patrick Lynch, Patrolmen’s Benevolent Association; Michael Palladino, Detectives Endowment Association; Edward D. Mullins, Sergeants Benevolent Association; Thomas Drogan, Lieutenants Benevolent Association; and, Roy. T. Richter, Captains Endowment Association.

New York City Employees’ Retirement System: New York City Finance Commissioner Martha E. Stark (Chair); New York City Public Advocate Betsy Gotbaum; Borough Presidents Scott Stringer (Manhattan), Helen Marshall (Queens), Marty Markowitz (Brooklyn), Adolfo Carrion (Bronx), and James Molinaro (Staten Island); Lillian Roberts, Executive Director, District Council 37, AFSCME; Roger Toussaint, President Transport Workers Union Local 100; and, Gregory Floyd, President, International Brotherhood of Teamsters, Local 237.

Teachers’ Retirement System: New York City Finance Commissioner Martha E. Stark (Chair); Deputy Chancellor Kathleen Grimm, New York City Department of Education; and, Sandra March, Melvyn Aaronson and Mona Romain, all of the United Federation of Teachers.

Board of Education Retirement System: mayoral appointees Schools Chancellor Joel Klein, Alan Aviles, Philip Berry, David Chang, Tino Hernandez, Edison O. Jackson, Richard Menschel and Marita Regan; Luis Peguero (Bronx), Patrick Sullivan (Manhattan), Wendy Gilgeous (Brooklyn), and Joan Correale (Staten Island); and employee members Joseph D'Amico of the IUOE Local 891 member and Milagros Rodriguez of District Council 37, Local 372.

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