BILL ANALYSIS                                                                                                                                                                                                    






                                                       Bill No:  AB  
          142
          
                 SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
                       Senator Roderick D. Wright, Chair
                           2009-2010 Regular Session
                                 Staff Analysis



          AB 142  Author:  Hayashi
          As Amended:  February 1, 2010
          Hearing Date:  February 23, 2010
          Consultant:  Chris Lindstrom


                                     SUBJECT  

                            California State Lottery

                                   DESCRIPTION
           
          AB 142, an urgency measure, modifies the allocation formula  
          of the California State Lottery Act (Lottery Act or Act) of  
          1984.  Repeals the modifications to the allocation formula  
          if it is determined by the California State Controller that  
          the amount of revenues allocated to the benefit of public  
          education by the California State Lottery (Lottery) is less  
          than what would have been allocated if the law were not  
          changed, as specified.

          Specifically, AB 142:

          1)Amends Section 8880.4 of the Government Code to require  
            the total revenues of the lottery to be allotted so as to  
            maximize the amount of funding allocated to public  
            education, as follows:

             a)   Not less than 87% (an increase of 3% from current  
               law) of the amount of the total revenues shall be  
               returned to the public as follows:

                i)      Not less than 50% of the total revenues shall  
                  be returned to the public in the form of prizes, as  
                  determined by the Commission.





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                Repeals the requirement that a fixed 50% of the total  
                  annual revenues shall to be returned to the public  
                  in prizes.

                ii)                The percentage of the total  
                  revenues to be allocated for public education shall  
                  be established by the Commission at a level  
                  designed to maximize the total net revenues for  
                  public education.

                Repeals the requirement that at least 34% of the  
                  total annual revenues are to be allocated to the  
                  benefit of public education.

             b)   No more than 13% (a decrease of 3% from current  
               law) of the total revenues shall be allocated for the  
               payment of expenses of the Lottery.  
              
          2)Adds Section 8880.4.5. to require: 

             a)   The Lottery, following the end of each full fiscal  
               year, to calculate and report to the Controller and to  
               the Legislature the amount of total net revenues  
               allocated to the benefit of public education from the  
               California State Lottery Education Fund for that  
               fiscal year.

             b)   The Controller, no later than September 1 of each  
               of the first five full fiscal years in which the  
               changes by this bill are in effect, to determine if  
               either of the following have occurred:

               i)     The total net revenues allocated to the benefit  
                 of public education by the Lottery are less than the  
                 total net revenues allocated to the benefit of  
                 public education by the Lottery in the last full  
                 fiscal year prior to enactment of this bill.

               ii)                The annual average of total net  
                 revenues allocated to the benefit of public  
                 education from the Lottery after enactment of this  
                 bill is less than the total net revenues allocated  
                 to the benefit of public education by the Lottery in  
                 the last full fiscal year prior to enactment of this  
                 bill, adjusted for an annual growth rate of 1.8  
                 percent or the actual growth rate of lottery  




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                 revenues since enactment of the bill, whichever is  
                 greater.

             c)   If both 2(b)(i) and 2(b)(ii) occur within the first  
               five full fiscal years in which the changes by this  
               bill are in effect, then:

               i)     The Controller shall notify the Legislature and  
                 Governor of his or her determination and report his  
                 or her findings on the Controller's Internet Web  
                 site.

               ii)                The changes to the Lottery Act made  
                 by this bill shall become inoperative and the  
                 language in the Act as it existed immediately prior  
                 to enactment of the bill shall become operative.

          3)Requires the Controller, at the end of the first five  
            full fiscal years following enactment of this measure, to  
            convene a lottery review group to report to the  
            Legislature, no later than December 31 following the  
            final fiscal year, on whether the amendments made by this  
            measure have furthered the purposes of the Lottery Act,  
            as intended.

          4)States that the bill addresses the fiscal emergency  
            declared by the Governor by proclamation issued on  
            January 8, 2010, pursuant to the California Constitution.  
             

          5)Makes other technical and conforming changes.

          6)Declares that the bill furthers the purpose of the Act.

          7)Requires a 2/3 vote of the Legislature as an amendment of  
            the Act.

          8)Declares that the bill, if enacted, is to take effect  
            immediately as an urgency statute.

                                   EXISTING LAW

           The California State Lottery Act of 1984, enacted by  
          initiative, authorizes a California State Lottery and  
          provides for its operation and administration by the  
          California State Lottery Commission and the Director of the  




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          California State Lottery, with certain limitations.

          Existing law requires that not less than 84% of the total  
          annual revenues from the sale of state lottery tickets or  
          shares be returned to the public in the form of prizes and  
          net revenues to benefit public education, and that no more  
          than 16% of those revenues be used for expenses of the  
          lottery. 

          Existing law requires that all unclaimed prize money revert  
          to the benefit of public education, and that all of the  
          interest earned upon funds held in the State Lottery Fund  
          be allocated to the benefit of public education.

          Existing law requires that 50% of the total annual lottery  
          revenues be returned to the public in the form of prizes,  
          and that 34% of those revenues be used to benefit public  
          education.

          Existing law provides, beginning in the 1998-99 fiscal  
          year, 50 percent of any increase above the amount allocated  
          to education for the 1997-98 fiscal year shall be allocated  
          to school districts and community college districts for the  
          purchase of instructional materials, as specified.

          Existing law requires that, to the extent that expenses of  
          the lottery are less than 16% of the total annual revenues,  
          any surplus funds be allocated to the benefit of public  
          education.

          The California State Lottery Act of 1984, an initiative  
          measure, specifies that none of its provisions may be  
          changed except to further its purpose by a bill passed by a  
          2/3 vote of each house of the Legislature and signed by the  
          Governor.

          The California Constitution authorizes the Governor to  
          declare a fiscal emergency and to call the Legislature into  
          special session for that purpose. The Governor issued a  
          proclamation declaring a fiscal emergency, and calling a  
          special session for this purpose, on January 8, 2010.

                                    BACKGROUND
           
          Purpose of the bill.  According to the author's office, "AB  
          142 seeks to increase the amount of funding education  




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          receives from the California State Lottery.  By making  
          minor changes to the lottery act's funding formula, the  
          lottery commission will have the opportunity to increase  
          the financial support to California's schools."

          Background.  In 1984, California voters passed Proposition  
          37 and created the California State Lottery.  The purpose  
          of the Lottery is to provide supplemental funding for the  
          benefit of public education.

          The Lottery Act provides that the net revenues of the  
          Lottery shall not be used as substitute funds, but rather  
          shall supplement the total amount of money allocated for  
          public education in California.  In the 25 years since  
          sales began in October 1985 through June 30, 2009, the  
          California Lottery has raised over $23 billion in  
          supplemental funding for public education.  In addition,  
          since 1984, the Lottery's retail partners throughout the  
          state have earned over $4 billion in retail commissions  
          and/or compensation for the sale of lottery products.

          Modernization of the Lottery and Securitization of bonds  
          with Lottery revenues.  After a record breaking prolonged  
          budget impasse in 2008, the Legislature enacted, among  
          other things, two measures and a constitutional amendment  
          that would allow for the modernization of the Lottery and  
          the use of Lottery revenues to securitize (debt-service)  
          the sale of bonds, upon voter approval.  The Lottery  
          package appeared on the May 2009 election as Proposition  
          1C.  If approved by the voters, Proposition 1C would have  
          provided an estimated $5 billion in revenues to the state.   
          The revenues would have been realized from increased sales  
          as a result of the Lottery modernization and the ultimate  
          sale and debt-servicing of bonds from proceeds realized  
          from the modernized Lottery.  The modernization provisions  
          would have modified the distribution percentages of total  
          revenues of the Lottery, allowed the Lottery Commission to  
          set prize payout rates, modified the administrative  
          expenses of the Lottery (which are reduced to 13% from 16%  
          of total revenues), allocated $1 million to the Office of  
          Pathological and Problem Gambling within the Department of  
          Alcohol and Drug Programs, and, generally, make other  
          conforming changes.  Education funding would have no longer  
          been paid from Lottery revenues, rather would have been  
          paid from the General Fund.  Education would have been  
          guaranteed at least $1.1 billion, adjusted annually for  




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          cost-of-living and student growth adjustments.  The ballot  
          measure was not approved by the voters.  

          According to an exit poll survey conducted by Voter  
          Consumer Research after the May 2009 election in which  
          Proposition 1C was considered, 61% of the voters support  
          "modernizing the lottery to improve its performance with  
          increased payouts, improved marketing and effective  
          management."  However, when the "$5 billion of borrowing  
          from future lottery profits" and "debt-service payments on  
          this borrowing" elements of Proposition 1C were mentioned,  
          support dropped to just 35 percent in the same survey.  

          Previous proposals by the Governor to sell or lease the  
          Lottery.  In early May 2007, Governor Schwarzenegger  
          publicly stated that the Lottery is an underperforming  
          asset and is not run in the most efficient way.  He also  
          indicated that the Department of Finance had received  
          proposals from investment banking firms identifying  
          potential benefits associated with leasing the Lottery to a  
          private entity.  Investment banking firm proposals for  
          leasing the Lottery have ranged from a conservative $8  
          billion upfront lump-sum payment to a very aggressive $37  
          billion upfront lump-sum payment.

          Initially, the Schwarzenegger Administration believed that  
          leasing the Lottery could generate sufficient money to  
          maintain the amount of funding generated for the benefit of  
          education, pay off the Economic Recovery Bonds, fund new  
          capital outlay projects, and address many other options.   
          Later in the year, the Governor proposed privatizing the  
          Lottery to help finance his plan to overhaul the state's  
          health care system.  Under the Governor's latter proposal,  
          the Lottery would no longer provide monies to education -  
          the state would replace that funding with money from the  
          General Fund.

          Staff comments.  Do the changes proposed by the bill need  
          voter approval for them to go into effect?  Numerous  
          opinions have been rendered by the Legislative Counsel,  
          attorneys representing the Lottery Commission and interest  
          groups as to whether voter approval is required for certain  
          modifications to the Lottery Act to go into effect.  In  
          particular, attorneys have opined on whether the changes  
          that would modify the distribution percentages of the total  
          revenues for prize payouts and education need to go before  




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          the voters.  Legislative Counsel has long held the opinion  
          that any changes to the Lottery Act that divert money from  
          education need to go back to the voters for approval.  It  
          is argued by the proponents of this bill, and using  
          examples of other state lotteries from around the country,  
          that the proposed changes will increase the amount of money  
          allocated to education by the Lottery.

          Additionally, the Lottery Commission, among others, have  
          maintained that Section 5 of the Lottery Act allows the  
          Legislature and Governor to change the Act's provisions in  
          order to further the purpose of the Act, which is, to  
          provide more money for education.  The Lottery Commission  
          and others have sited that the Act has been modified more  
          than 40 times statutorily and holds that changes to all of  
          the Act's provisions by the Legislature and Governor were  
          expressly authorized by the voters, provided such changes  
          further the purpose of the Act.
                                         
                           PRIOR/RELATED LEGISLATION
           
           SB 570 (Maldonado), 2009-2010 Legislative Session  .  Would  
          have instituted a number of changes to reform the Lottery  
          Act.  Generally, the changes would have: (1) modified the  
          definition as to what constitutes total revenues, (2)  
          modified the distribution percentages of total revenues,  
          (3) enhanced the authority of the Lottery Commission to  
          establish the percentage of total revenues that will be  
          allocated for prizes and to education, (4) authorized the  
          allocation of $1 million a year to the Office of Problem  
          Gambling within the State Department of Alcohol and Drug  
          Programs for problem gambling awareness and treatment  
          programs, (5) modified the percentage of total revenue  
          allocated for the expenses of the Lottery, (6) enhanced the  
          authority of the Director of the Lottery, (7) modified the  
          Lottery's procurement and contracting authority to allow  
          for the award of contracts to the best (not lowest and  
          best) proposal, and, increases the noncompetitive bid  
          contract threshold from $100,000 to $500,000, and, (8)  
          provided that the provisions of the Lottery Act will  
          control in the event that there are any conflicts between  
          the provisions of the Lottery Act and any other provision  
          of law.  (Set but never heard in Senate Government  
          Organization.  Died in Senate)
          
           AB 1654 (Budget), Chapter 764, Statutes of 2008  .  Would  




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          have implemented a number of changes to the Lottery Act to  
          "modernize" the Lottery if the voters would have approved  
          Proposition 1C (which was placed on the ballot by SCA 12  
          (Resolution Chapter 143 of 2008) in May 2009.  (The voters  
          did not approve Proposition 1C)

           SB 1679 (Florez), 2007-2008 Legislative Session  .  Would  
          have made a number of changes to enhance the performance of  
          the Lottery.  (Never heard in the Senate)

           SB 1011 (Florez), 2006-2007 Legislative Session  .  Would  
          have required, among other things, that at least 50 percent  
          of multistate lottery revenues to be allocated to the  
          public in the form of prizes, at least 42 percent must  
          benefit public education, and no more than eight percent to  
          be allocated for lottery expenses.  (Died on the Assembly  
          Floor)

           SB 329 (Perata), 2005-2006 Legislative Session  .  Would have  
          increased the percentage of lottery revenue allocated to  
          prizes from 50 percent to no more than 60 percent and  
          decreased the percentage of revenue allocated to public  
          education from 34 percent to at least 26 percent.  Would  
          have decreased the amount of revenue allocated to the  
          payment of lottery expenses from 16 percent to 14 percent.   
          Would have required the Lottery Commission to guarantee  
          that the contribution to education per year will not fall  
          below the level of funds allocated to education for the  
          2002-03 fiscal year ($1.019 billion).  Would have sunset on  
          January 1, 2012.  (Died on the Senate Floor)
          
           AB 2938 (Plescia), 2004-2005 Legislative Session  .  Would  
          have increased the percentage of lottery revenue allocated  
          to prizes from 50 percent to no more than 62 percent.   
          Would have decreased the percentage of revenue allocated to  
          public education from 34 percent to at least 25 percent.   
          Would have decreased the amount of revenue allocated to the  
          payment of lottery expenses from 16 percent to 13 percent.   
          Would have required the Lottery Commission to guarantee  
          that the contribution to education per year not fall below  
          the level allocated for the 2002-03 fiscal year ($1.019  
          billion).  Would have sunset on January 1, 2012.  (Never  
          heard in the Assembly)
          
           SB 930 (Vincent), 2001-2002 Legislative Session  .  Would  
          have authorized the California Lottery to, among other  




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          things, sell lottery tickets using an electronic or  
          electromechanical device that also serves a separate  
          function that could involve dispensing cash or things of  
          value as long as that function was independent of the  
          lottery ticket dispensing function.  (Died on the Senate  
          Floor)

           SB 2053 (Governmental Organization), Chapter 509, Statutes  
          of 2000  .  Requires the competitive bidding standards,  
          procedures, and rules contained in the Lottery Act that  
          apply to procurements or general contracts of more than  
          $100,000 to also apply to subcontracts involving an  
          expenditure of more than $100,000.

           AB 1453 (Cardenas), Chapter 800, Statutes of 1998  .   
          Provides that 50% of any increase beyond the 34% of Lottery  
          revenues as calculated for the 1997/98 fiscal year, and  
          currently given to K-12 school districts and community  
          college districts, will be allocated to the schools for the  
          sole purchase of instructional materials.  Provides that  
          its provisions take effect only upon approval by the  
          voters.  The Cardenas Textbook Act of 2000 (Proposition 20)  
          was approved by the voters on March 7, 2000.

           AB 3032 (V. Brown), Chapter 581, Statutes of 1994  .  Amends  
          the Lottery Act to make the Department of Mental Health  
          eligible for lottery payments for clients enrolled in state  
          hospital education programs.  

          AB 2425 (Baca), Chapter 1236, Statutes of 1994  .  Requires  
          all interest earned upon funds held in the State Lottery  
          Fund to be allocated to public education.  The interest is  
          in addition to the 34% of lottery revenues otherwise  
          required to go to public education and are not to supplant  
          Proposition 98 funds or funds committed for child  
          development programs.

           AB 3824 (Floyd), Chapter 500, Statutes of 1992  .  Deletes  
          the requirement that 50% of the projected revenue for each  
          lottery game be apportioned for payment of prizes, and  
          instead, provides that 50% of the projected revenues for  
          prizes be computed on a year-round basis.

           SB 312 (Dills), Chapter 56, Statutes of 1991  .  Codifies  
          existing Lottery Commission policy of reverting unclaimed  
          prizes from all "on-line" games, including "lotto,"  




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          "decco," and "topper," to the Lottery Education Fund.

           SB 906 (Dills), Chapter 917, Statutes of 1989  .  Among other  
          things, requires unclaimed Lotto winnings to revert back  
          for support of education.  Provides that the Lottery  
          Commission, upon a finding that it will generate more net  
          revenue for education may, as a valid promotional expense,  
          supplement the prize pool.

           SB 1327 (Eastin), Chapter 425, Statutes of 1988  .  Provide  
          that payments from the Lottery also be made to the  
          Department of Developmental Services on the basis of  
          average daily attendance (ADA) for clients with  
          developmental or mental disabilities enrolled in hospital  
          or developmental center education programs.

           SB 116 (Dills), Chapter 426, Statutes of 1987  .  Requires  
          the State Lottery to adopt and publish competitive bidding  
          procedures for the award of procurements or contracts which  
          involve expenditures in excess of $100,000.  The bill also  
          requires the CSL director to determine whether goods and  
          services subject to these bidding procedures are available  
          through the Department of General Services.  
           
          AB 3145 (Vasconcellos), Chapter 1362, Statutes of 1986 .   
          Requires the Controller to make quarterly distributions of  
          funds from the California State Lottery Education Fund to  
          the Department of the Youth Authority.  In addition, the  
          bill requires the Department of the Youth Authority,  
          through January 1, 1990, to implement a model system of  
          employment preparation and placement services for youthful  
          offenders.

           SB 333 (Dills), Chapter 1517, Statutes of 1985  .  Among  
          other things, adds Hastings College of Law and the  
          California Maritime Academy as recipients of lottery funds.  
           
           SUPPORT  :  

          Association for California State Supervisors
          California Retailers Association
          GTECH
          Service Employees International Union
          Superintendent of Public Instruction Jack O'Connell
          Numerous retailers and individuals





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           OPPOSE  :  

          None registered.

           FISCAL COMMITTEE:   Senate Appropriations Committee



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