BILL ANALYSIS Ó SENATE GOVERNANCE & FINANCE COMMITTEE Senator Lois Wolk, Chair BILL NO: SB 594 HEARING: 4/24/13 AUTHOR: Steinberg FISCAL: Yes VERSION: 4/18/13 TAX LEVY: No CONSULTANT: Grinnell CALIFORNIA CAREER PATHWAYS INVESTMENT Enacts several forms of financial assistance to aid investment in career pathways programs. Background and Existing Law California provides various tax credits designed to provide incentives for taxpayers that incur certain expenses, such as child adoption, or to influence behavior, including business practices and decisions, such as research and development credits and Geographically Targeted Economic Development Area credits. The Legislature typically enacts such tax incentives to encourage taxpayers to do something, but for the tax credit, they would not otherwise do. The California Constitution requires counties, cities, and school districts to get voter approval for long-term debt. Counties, cities, school districts, community college districts, and some special districts can issue general obligation (GO) bonds, secured by ad valorem property tax revenues, with 2/3-voter approval, and implemented in statute in the Government Code. State law allows public agencies to buy and sell property. Public agencies have used this authority to enter into various forms of lease transactions, including certificates of participation and sale-leasebacks, among others. State law applies specific laws to school and community college districts when leasing property. Additionally, state law authorizes public agencies to use certain vehicles to issue lease-revenue bonds (LRBs), where investors provide cash to the issuer to build a project, which in turn produces revenues to repay bond investors. As LRBs are not backed by the full faith and credit of the issuing agency, the amount issued generally doesn't count SB 594 (Steinberg) - 4/18/13 -- Page 2 against the California Constitution's debt limit so long as the payments are genuine payments for leasing the facility, and the LRBs don't function like a purchasing obligation for the city (Article XVI, Section 18). However, ratings agencies include LRBs whenever assessing an issuer's overall creditworthiness. Additionally, LRBs do not require approval by voters. Currently, state law restricts the following agencies to issue lease revenue bonds: The State Public Works Board, upon the Legislature enacting a statute such as AB 900 (Solorio, 2007). The state commonly issues LRBs. Joint Powers Agencies, which are collaborations of public agencies, and can include the State Public Works Board. Nonprofit public benefit corporations. Now-defunct redevelopment agencies. In a lease-revenue bond transaction, the JPA, nonprofit agency, or redevelopment agency issues a bond backed by the city's commitment to lease a facility, and then uses the proceeds to build the facility, which can be a fire station, convention center, or office building, among others. The city makes lease payments to the issuer, who then sends them onto the bondholder until the bond is redeemed. The interest rate of the bond generally reflects the credit quality of the city that commits to make lease payments. Lease revenue bonds are usually tax exempt, although whenever bond funds are used for purposes other than capital projects they may be deemed taxable when the use falls outside the "public activity" restriction in federal law. Proposed Law Senate Bill 594 has six major parts: the California Career Pathways Investment Committee, LRBs, Workforce Development Bonds, the Career Pathways Investment Trust Funds, the California Career Pathways State Revolving Fund, and the Career Pathway Investment Credit, among other provisions. I. California Career Pathways Investment Committee. Senate Bill 594 creates the California Career Pathways SB 594 (Steinberg) - 4/18/13 -- Page 3 Investment Committee, composed of the following: The Chancellor of the California Community Colleges, who serves as Chair, The State Superintendent of Public Instruction, The Chair of the California Workforce Investment Board, or his or her designee. One appointee of the Senate Committee on Rules to represent the business community, who will serve a four-year term, and One appointee of the Speaker of the Assembly, who will serve a four-year term. The committee allocates funds from the Career Pathways Revolving Fund and Career Pathways Investment Credits to local educational entities, community college districts, and applicants. The committee also creates application forms and procedures, as well as sets criteria and guidelines for evaluating applications for financial assistance. The committee shall allocate financial assistance based on the following priorities: Local educational agencies and community colleges that serve areas that have an unemployment rate above the statewide average, as measured by the Employment Development Department, or a high school graduation rate lower than the statewide average, as measured by the California Longitudinal Pupil Achievement Data System. Local educational agencies and community colleges that include in their applications significant amount of private funding support. Local educational agencies and community colleges that include in their applications articulated pathways connecting high school and postsecondary certificate and degree programs in their region, Local educational agencies and community colleges that are not seeking state funding for existing activities. However, priority shall be given to applicants that seek to expand or augment existing investments in career pathways programs. The Superintendent of Public Instruction, the Chancellor of the Community Colleges and the California Workforce Investment Board shall enter into a memorandum of understanding to allocate SB 594 (Steinberg) - 4/18/13 -- Page 4 staff resources to the committee. The costs to these entities shall be offset by fees charged to applicants for Career Pathways Tax Credits. The Committee can grant financial assistance, which is any combination of tax credits, grants, loans, and workforce development "bonds." II. Lease Revenue Bonds. SB 594 allows local education agencies or community college districts to issue lease revenue bonds secured by the lease of any of its property, or enter into other arrangements to lease or loan agreements not subject to California's Constitutional debt limit. The measure exempts school districts from any law that may restrict them from entering into agreements or execute any other documents necessary to carry out the purposes of the bill, such as restrictions on rental payments exceeding a percentage of the value of taxable property, number of years on the lease, and wage payments. The local education agency or community college district may enter into contracts or agreements with banks, insurers, or other financial institutions that it determines are necessary and desirable to improve the security and desirability of the lease revenue bonds. III. Trust Funds. The measure creates a Career Pathways Investment Trust Fund in each local education agency or community college district to finance program and administrative costs resulting from operating career pathways programs. The trust fund may accept money from any source, including property tax resulting from the dissolution of assets formerly held by now-defunct redevelopment agencies. The trust fund is administered by each local education agency or community college district. The administering agency shall use moneys in the fund for qualified expenditures, administrative costs, as well as grants, loans, and program costs with career pathways programs. IV. Workforce Development "Bonds." SB 594 allows the Committee to issue workforce investment "bonds" to applicants that have entered into a memorandum of understanding with a local education agency. The measure defines them as contracts between the Committee and an applicant who agrees to provide capital to fund a career pathways program jointly operated by the applicant and a SB 594 (Steinberg) - 4/18/13 -- Page 5 school district of community college district, or a consortium of school districts and community college districts. Proceeds from the "sale," or amounts delivered from the applicant to the school district under the terms of the contract, may vary according to the measured level of performance, and may be used for specified purposes in the bill, including: Career pathways program operation, Development of rigorous and career-relevant curriculum, Paid internships, Post-high school financial aid for college, Licensing and credentialing programs, Wage subsidies for full-time employment for pupils who successfully complete a career pathways program. The bill requires the committee to develop performance criteria for determining financial returns to private investors in workforce development "bonds," including, but not limited to: High school graduation. Completion of post-secondary programs that culminate in a certificate or degree. Attainment of industry-recognized credentials that are valued in high-growth, high-need or emerging economic sectors. Provision of high school pupil and community college student internships. Provision of paid summer jobs for high school pupils and community college students. Provision of high school teacher and community college faculty externships. Provision of scholarships or other financial assistance for students pursuing post-secondary education or training in a relevant career pathway. Offers of paid employment or apprenticeship to high school pupils or college students who are program participants or graduates. V. Revolving Fund. The bill creates the California Career Pathways State Revolving Fund, a continuously appropriated fund without regard to fiscal years that constitutes the sole source of funds for the program. The measure states that the state has no liability or obligation beyond the extent to which money is provided under the program. Within the Fund, SB 594 creates the SB 594 (Steinberg) - 4/18/13 -- Page 6 Career Pathways Financing Account to repay workforce investment "bonds," a Career Pathways Grant Account to fund grants, and a Career Pathways Loan Account to make loans. VI. Career Pathways Investment Tax Credit. The bill enacts tax credits against the Personal Income Tax and the Corporation Tax in an amount equal to the amount the Committee allocates to a taxpayer. Taxpayers can carry forward credits until exhausted. The committee can allocate Career Pathways Investment Tax Credits in an amount authorized in the Budget Act for that calendar year. The Committee can allocate credits that taxpayers can use for five calendar years as long as authorized amounts don't exceed amount authorized in the Budget Act. The bill directs the Committee to give priority to applications where: Applicants have entered into contracts or memorandums of understanding with local educational agencies, community colleges, or workforce investment boards in: o Communities with unemployment rates above the statewide average, o High school graduation rates below the statewide average, o Proportions of private funding support that exceed a one-to-one match, o Not seeking tax credits for existing activities, except for those that seek to expand or augment existing investments in career pathways programs, To the maximum extent practicable, the Committee shall give priority when allocating tax credits to applicants that seek to expand or augment existing career pathways program investments. The Committee shall not give priority to applicants by virtue of the date of application except to break a tie between two applicants with the same rating. The applicant must enter into an enforceable contract or memorandum of understanding with the Committee to comply with the bill. The contract or memorandum of understanding shall provide for legal action to obtain specific performance or monetary damage for breach of contract. The contract shall also provide for periodic audits. The Committee shall also adopt criteria that awards credits SB 594 (Steinberg) - 4/18/13 -- Page 7 to applicants that demonstrate that either it or the local education agency, community college, or workforce investment board that consider: The effectiveness of the career pathway program toward preparing students for productive, high-wage employment in growing or high-need sectors of the California economy, including: o Pathway completion rates, o High school or community college graduation rates, o Percentage of students transitioning successfully to postsecondary education or apprenticeship, o Employment and earnings after high school, The level of the applicant's investment, oversight, and ability to leverage and sustain current career pathways applications. The Committee shall also develop and provide forms to applicants. The amount of credit reserved for a calendar year shall not exceed 50% of the applicant's estimated expenditures. The Committee shall report to FTB once each year regarding the identity of the taxpayers to whom they allocate credits. The Committee may consult with the Treasurer or the Tax Credit Allocation Committee regarding allocation, of credits, and they must aid the Committee upon request. The Committee shall also adopt audit requirements. VII. Funding. The bill expresses legislative intent to appropriate $250 million from the General Fund in 2013-14 to the Career Pathways State Revolving Fund, and says that the source of funds may include Proposition 98 apportionments and offsetting budget savings resulting from reforms to the Enterprise Zone Program and the New Jobs Tax Credit. The measure states legislative intent to reduce allocations of tax credits for the New Jobs Tax Credit from $400 million to $300 million (ABx3 15 (Krekorian, 2009)/SBx3 15 (Calderon, 2009), and to authorize $100 million in Career Pathways Investment Tax Credit, effective January 1, 2014. VIII. Findings and definitions. The measure makes other legislative findings and declarations supporting its provisions. The bill also defines many terms, including SB 594 (Steinberg) - 4/18/13 -- Page 8 "applicant," "authentic application," "budget," "career pathways investment trust fund," "career pathways programs," "career pathways state revolving fund," "committee," "qualified expenditures," and "workforce development bond," State Revenue Impact Franchise Tax Board was unable to determine the costs of the 2/2/13 of the bill due to unresolved implementation issues. Comments 1. Purpose of the bill . California is blessed with a wealth of natural resources, but the most precious resource of all is our young people. Our young hold the key to the future of California - whether California will produce the high skill, wage jobs of the 21st century, or fall behind. Presently, our students abandon middle and high schools at the rate of 140,000 a year -- a number equivalent to the population of Pasadena, or Elk Grove, or all of Napa County. One in five students who started ninth grade four years ago have dropped out. In the most definitive measure of the achievement gap, Latino students drop out at twice the rate of white students; African American students at nearly three times the rate of white students. The outlook for dropouts is bleak: A third of those who dropped out of 10th grade in 2004 were neither back in school nor working four years later. Just one in 5 SB 594 (Steinberg) - 4/18/13 -- Page 9 returned to school to earn a diploma, and even fewer earned a GED. At the same time an unacceptable number of young people are dropping out of school, California is faced with a shortage of skilled workers in high-growth sectors such as biotechnology research and development, engineering and construction, advanced manufacturing, health sciences and nursing. We can do a better job preparing our students for the fastest growing occupations are ones that require scientific, technical, engineering or math skills. Investing more in public-private partnerships will enhance the human capital of our workforce and lead to wage and employment growth. SB 594 seeks to move public education in California toward the closer integration of rigorous academic preparation with work-based learning opportunities in key growing sectors of the state's economy. The goal of this effort is to reduce the dropout rate in California while preparing our workforce for the high skill, high wage jobs of the 21st century. 2. Throwing the book . SB 594 deploys an unprecedented combination of incentives to draw corporate investment into career pathways programs: allowing the Committee to allocate workforce development "bonds," up to $100 million in tax credits, as well as grants and loans, and authorizing local agencies to directly issue lease revenue bonds. When contemplating this degree of state assistance, the Committee should consider why the lack of corporate funding in career pathways education programs is sufficiently compelling to justify the use of these tools, but not for other state needs, like hiring teachers, police officers, or other steps to reduce general unemployment? Also, the Committee should think about whether the current programs are scalable, or whether more money will actually lead to more facilities and better education outcomes. Why do companies currently decide to partner with local agencies to create career pathways programs? Will this mix of incentives necessarily lead to more of them, or will firms simply be able to increase their internal rate of return on an investment in its future workforce that it SB 594 (Steinberg) - 4/18/13 -- Page 10 would have made without SB 594's financial assistance and tax credits? The Committee may wish to consider whether career pathways programs merit the unique mix of tools SB 594 authorizes, and whether they will truly change decision-making. 3. Building the future . Currently, taxpayers invest in these programs because they enhance the future labor pool from which they will draw, resulting in the attendant public benefit of providing superior education and helping enhance California's competitive advantage of an educated workforce. SB 594 complements the existing investments in these programs by granting a tax credit, and allowing other forms of financial assistance, likely leading to increased investment in career pathways programs. According to the Senate Education Committee's analysis of a similar bill, SB 974 (Steinberg, 2009), "Regional Occupational Centers and Programs (CROCP) conducted by the School Improvement Research Group at the University of California, Riverside and funded by the CDE, ROCP students improve their high school grade point averages at a greater rate than comparison students, enroll in post-secondary education in large numbers, earn higher wages than comparison group peers, have more success in securing raises and promotions on the job, prefer ROCP classes over other subjects, and question the value and relevance of many of their high school courses. A 2010 study conducted by the Career Academy Support Network finds that, after more than four decades of development and three decades of evaluation, career academies (small learning communities that provide a college-preparatory curriculum with a career-related theme) have been effective in improving outcomes for students during and after high school and declares them a proven strategy to prepare high school students for college and careers." 4. Not so fast ? SB 594 allows local educational agencies and community college districts to directly issue lease revenue bonds to build career pathways programs, an authority currently restricted only to the state, and to local agencies who enter into lease-lease back arrangements with either JPAs, nonprofit public benefit corporations, or redevelopment agencies. However, this may not be the time to allow local agencies new borrowing authority. First, the Assembly recently passed AB 182 (Buchanan), which significantly restricts school district bond issuance in SB 594 (Steinberg) - 4/18/13 -- Page 11 response to school districts issuing bonds with 30 years of deferred principle and interest payments and twelve to one debt to principal ratios. The Committee will hear the bill this year. Second, school districts are filing lawsuits against potentially unsavory financial advisors: the Willits Unified School District is suing Caldwell Flores Winters, Inc., stating it had been "duped" into overpaying the firm hundreds of thousands of dollars. Lastly, ratings agencies have departed from the traditional one notch difference between a California issuer's general obligation bonds and lease revenue bonds, stating that because lease revenue bonds are not directly secured by additional taxes, repayment is less certain given recent fiscal stress and municipal bankruptcies. Additionally, lease revenue bond transactions are highly complex, and could lead to taxable bonds given SB 594's potential to use lease revenue bond proceeds for non-capital projects. Leaving aside the bill's lack of detail on the bonds, is now the time to allow school districts and community college districts a new, complex borrowing mechanism? The Committee may wish to consider removing the measure's lease revenue bond authorization. 5. This word . SB 594 authorizes the Committee to issue or sell workforce development "bonds." However, they're not bonds: they aren't publicly traded, can't be sold from one person to another, don't require a financing team or bond opinions, and don't set forth a method of repayment. Instead, they're pay-for-performance contracts, where the applicant agrees to provide funds to the Committee to pay for career pathways programs, and the Committee repays the applicant based on the performance of the program. SB 594 even defines these bonds as contracts. To prevent confusion, the Committee may wish to consider amending SB 594 to delete workforce development bonds, and instead authorize it to enter into contracts with specified contents. 6. Begging the question . SB 594 authorizes new tax credits to draw corporate investment into career pathways programs, but contains intent language to limit or reform two others, the New Jobs Tax Credit and Enterprise Zone Credits, to pay for it. Added in 2009, taxpayers have only claimed $155 million of the $400 million in New Jobs Credits set aside. The Enterprise Zone Program, with academically demonstrated ineffectiveness at job creation, SB 594 (Steinberg) - 4/18/13 -- Page 12 and profiteering by accounting firms, contingency fee tax credit consultants, and tax attorneys, has been slated for elimination in the past by the Governor, and for reform this year by the Governor and SB 434 (Hill). Why will SB 594's credits achieve its intended goals when the New Jobs Credit and the Enterprise Zone Credit don't? What about it will create success where others fail? The Committee way wish to consider whether tax credits are the right tool to use to accomplish public policy goals when considering limiting their use for some purposes whilst simultaneously allowing them for SB 594's aims. 7. Right focus ? SB 594 deploys new financing mechanisms and tax credits in the hopes of improving the quality of California's workforce. However, the measure doesn't require any firm receiving financial assistance or tax credits to hire career pathway program participants. Additionally, the state's economy and workforce needs change rapidly, so many of the skills needed yesterday aren't needed today; manufacturing jobs and unskilled labor has moved from California to lower cost jurisdictions in recent years. What guarantee exists that if SB 594 is enacted, jobs will be available for career pathways graduates? The Committee may wish to consider whether SB 594 presents a risk for a sunk cost, where the state has invested in training for skills that its economy doesn't ultimately need. 8. Not so public ? By offering unprecedented financial assistance tools to draw in corporate investment, SB 594 concedes that not enough career pathway programs exist to provide sufficient training for today's students to be ready for tomorrow's economy. SB 594 assumes that the current system of public funding and governance has not sufficiently prepared these students, and more is needed. However, as public education has traditionally been a public responsibility, to what extent will corporate funding change the curriculum or practices currently under control of the State and local school boards? The measure also allows charter schools, already under less public control, equal funding footing with other schools so long as both meet the criteria for funding. The Committee may wish to consider whether SB 594 creates a desirable balance between public and corporate funding of public education. 9. Best intentions . SB 594 doesn't actually change the SB 594 (Steinberg) - 4/18/13 -- Page 13 New Jobs Credit or Enterprise Zone tax credits; instead, it states legislative intent to limit those programs and use the resulting revenues to fund its programs. As such, the measure is not keyed a 2/3 vote as a tax increase for the purposes of Section Three of Article XIIIA of the California Constitution. However, the measure doesn't actually allocate any funds for its purposes. 10. Cleaning up . SB 594 requires several elements not currently in the bill: Committee Powers: The measure doesn't grant basic powers to the Committee enjoyed by most similar bodies, such as the power to enter into contracts, buy and sell property, sue and be sued in its own name, to hire employees or an executive director, to design a seal and alter it at its will, and enact regulations pursuant to the Administrative Procedures Act, among others. Are the memorandums of understanding necessary to qualify for workforce development "bonds" enforceable contracts? If so, this should be clarified so that both parties enter into the MOU understanding that either has recourse to courts to enforce performance of the contract. If not, one can expect fewer businesses to supply funds to districts without the certainty of contractually-bound repayment. Why are enforceable contracts with provision for legal action and programmatic audits required for tax credits (Page 13, lines 10 through 18), but not for workforce development "bonds?" Is the list of items eligible for funding from the Local Pathways Investment Funds inclusive, exclusive, or advisory? Why should the Senate Committee on Rules designee be restricted to a member of the "business community," but not the Speaker of the Assembly appointment? Additionally, applicants should have to demonstrate tangible commitments of private funding support instead of only including it in their application. Why should the Committee develop performance criteria to assess the financial returns to private investors of workforce development bonds? Shouldn't they be assessing the returns of the program to the State, and leave the investor's assessment of his or her o returns to the investor? SB 594 (Steinberg) - 4/18/13 -- Page 14 Lease Revenue Bonds: The measure doesn't provide many mechanics necessary for lease revenue bonds: maximum terms and interest rates, bidding procedures, caps on issuance as a percentage of debt of total debt, property value, or revenues, among others. The measure needs a process for repaying lease revenue bondholders, specification of the purposes for which these bonds may be issued, and requirements for public hearings where resolutions are enacted calling for the sale of bonds, among others. Workforce Development Bonds: Under the current bill, local educational agencies and community college districts can spend proceeds from the sale of bonds/payments made from applicants to the Committee pursuant to the contract for whatever purpose they want to. Shouldn't the proceeds from sale/ payments made from applicant to the Committee pursuant to the bond/contract then transferred to the local educational agency or community college district be required to be spent on the bill's uses, not only allowed to? The notwithstanding clause in the Lease Revenue Bond authorization may exempt local education agencies and community college districts from any law that binds them when making agreements or executing documents, such as prohibitions on board members benefitting financially from contracts and the Fair Political Practices Act. Tax Credits: The measure needs a process for the Committee to certify amounts on the tax credit awarded, and a clear assignment of responsibility for doing so to the Committee. The measure should disallow as a business expense deduction any cost for which the Committee compensates the taxpayer with a tax credit. Criteria: On page 9, line 38 through page 10, line 17, and again on page 12, line 22 through page 13, line 9, the bill isn't clear whether the criteria for allocation SB 594 (Steinberg) - 4/18/13 -- Page 15 is comprehensive, meaning priority is given to applicants that meet all criteria; ordered, where the Commission should prioritize applications meeting the first criterion, then those meeting the second criterion, and so on, or if applications meeting any one criterion are prioritized over those that don't. Why should the committee apply one set of criteria when prioritizing tax credit awards, but a different one when allocating other financial assistance? The tax credit allocation criteria reference employment measures from the United States Census, which isn't the agency's appropriate title, but more importantly, doesn't measure unemployment. The bill should instead use unemployment as measured by the Employment Development Department as it does when setting priorities for the Committee to allocate financial assistance. The measure also contains several technical issues that require clarification or amendment: "Significant" (Page 10, line 7), "articulated," (Page 10, line 10), "rigorous," (Page 7, line 38), "career-relevant," (Page 7, line 39), require definition. Criterion (4) on Page 10, lines 13 through 17, and (d) on page 12, line 39, may be contradictory unless clarified. What's the difference between not applying for existing activities and expanding or augmenting existing investments in career pathways programs? Is the legislative intent to appropriate $100 million for Career Pathways Investment credits part of the overall $250 million General Fund appropriation to the Career Pathways State Revolving Fund, or in addition to it? Intent sections should be combined. Definitions not in alphabetic order. The bill often uses the terms "school district," "community college district," and "local educational entity," interchangeably. The measure should be consistent in its terms to prevent confusion. The bill also often uses the terms "business entities," "applicants," "business partners," "private funding support," interchangeably. The bill uses the terms "performance targets" and "performance criteria" interchangeably. SB 594 (Steinberg) - 4/18/13 -- Page 16 Workforce Development "Bonds" are created in a definition as part of the bill's section containing definitions. While the "bonds" are no more than contracts, should the Committee choose not to eliminate reference to them, the bill should create a separate section of law to authorize its use instead of grafting it into a definitional subdivision. How do the "priority in allocating tax credits" criteria on Page 12, line 22 through page 13, line 9, interact with the "criteria that awards credits to applicants that demonstrate" criteria on Page 13, lines 19 through 38? The metrics stated in the bill for the Committee to use when assessing financial returns to private entities are better measures of whether the program is working, not its financial return to business entities. Instead of referring to "financial returns" to applicants, the measure should be more accurate and instead to discuss "repayments made by the Committee to the applicant pursuant to the bond/contract" The measure states that the "financial returns" may vary pursuant to the level of performance. As such, the Committee can sell bonds/enter into contracts that aren't repaid according to the program's success. Why isn't this requirement mandatory? The measure doesn't specify how lease revenue bonds will be repaid. On page 12, line 18, substitute "taxable" for "calendar" Insert (1) on Page 12, line 39, after (D). Delete the reference on Page 12, line 34, as subdivision (e) doesn't have a paragraph (1). Support and Opposition (04/22/13) Support : America's Edge, Bay Area Council, California Association of Regional Occupational Programs and Centers, California Chamber of Commerce, Metropolitan Education District, Sacramento City Unified School District, San Bernardino County District Advocates for Better Schools, San Francisco Unified School District, Silicon Valley Leadership Group, Southwest California Legislative Council, United Way of California SB 594 (Steinberg) - 4/18/13 -- Page 17 Opposition : None received.