Daniel A. Vigil is a highly respected Colorado attorney and Professor of Ethics at the University of Colorado School of Law. Until recently, he was also one of five members of the Colorado Lottery Commission appointed to that position by Gov. Roy Romer.
Technically, Vigil's second four year term of office ended July l, 1997, but during the month of July and part of August, he continued to serve as a holdover commissioner. And it was in early July when Joanne Conte, reporter for radio station KGNU and Ann Carnahan of the Rocky Mountain News exposed a $25,000 study called "Mindsort" paid for by the state lottery and prepared by Research Dimensions of Littleton.
Mindsort, according to Carnahan's article, "analyzes the left and right sides of the human brain to understand how to manipulate player behavior."
Conte has written a 44 page "Case Study of the Colorado Lottery Advertising and Marketing" which was released July 28th. In it, she quotes from the Mindsort Report which focuses on the "core" players who are "lower on trial (reluctant to start playing) but once hooked, hooked. They have the highest playership, highest volume (and) highest consistency.."
As soon as Vigil learned of the Mindsort study, he became its chief opponent. Vigil told Conte and Carnahan "It might be OK for Dealin' Doug to do that if he wanted to, but I don't think it's appropriate for the lottery."
Conte's report quotes Vigil: "In focus groups we would display to the participants potential products, and ask them if they had played the game, if they liked it, what they thought of the graphics, etc. But I believe that Mindsort goes at least one step beyond that, in that now we want to explore the mind of the potential player to entice them to play the game."
Vigil told Carnahan he planned to raise the issue of Mindsort at the July 8th monthly meeting of the lottery commission. But at that meeting, according to Rocky Mountain News reporter John Ensslin, Lottery Commission chairwoman Courtney Cowgill said "Commissioners plan to read the (Mindsort) report and resume discussion of how to use it at the August meeting."
At 4 p.m. on the day before the August commission meeting, and after the Conte report was released, Vigil received a phone call telling him not to bother attending the meeting, because he was no longer a commissioner.
As you might have assumed if you are somewhat cynical, "Mindsort" was NOT on the official agenda of the commission meeting Aug.12th. However, reporter Conte was allowed to address the commission before the noontime break. What she wanted was a response to: (1) Are you going to use the tactics provided in the Mindsort report ? And (2) if you are, when will this happen?
Present at the meeting were the commissioners, high-ranking staff members, and Revenue Director Renny Fagan. Conte did tape her portion of the meeting which I have listened to, and as expected, she did not get a straight answer no matter how many times she tried. For those who have been around state government any length of time, you know that means "yes" to question (1). As to (2), use of Mindsort as a "marketing tool" will likely occur in 1998.
Vigil, as a commissioner, and since, is concerned by the distortion presented in a lottery video ad (which most of us have probably seen). He told Conte "The camera panned a very palatial (12 to 15 million dollar) estate. The announcer said `another reason to play lotto'".
"We just don't give that kind of money away," said Vigil. "If you had a thirty million dollar jackpot, by the time we pay forty percent, and Uncle Sam will take another third out of that, you still wouldn't be able to buy that estate. So I think we need to keep dreams in proportion and not give people expectations that we can't fulfill with the amount of money we give them."
"I don't know how much we have to advertise. It's a product that in some ways sells itself" said Vigil, and "If they want to play it (the lottery) they should be free to play it. But I don't know how much we have to continue to entice them to play."
Vigil's comments were touching a raw nerve. According to the state auditor's report for the fiscal year ending June 30, 1997, the Lottery Commission spent $9.76 million on marketing and communication (advertising) compared to $9 million in fiscal 1996.
Ever since the lottery began selling tickets in Colorado in 1983, the percentage of money spent by lottery staff for advertising and promotion each year as a percentage of sales has placed Colorado anywhere from No. 1 in the nation to one of the top six or seven of the 37 states and District of Columbia that have lotteries.
The firm of Karsh and Hagan has been THE advertising agency for the Colorado Lottery since the lottery's inception in 1982. While there
has sometimes been competition for the contract, no one else has ever won it. Talk about "I don't know how much we have to continue to entice them to play" strikes directly at a $9 to $10 million yearly advertising payout.
One thing clear to me after decades as a Colorado legislator: Except for appointed boards that function to discipline persons regulated by a statute, Colorado boards do not have real power. "Staff" always run the show, as did the Chinese civil service which outlasted Genghis Kahn. The lottery staff runs the lottery and, as University of Illinois Professor John Kindt (who studies the effect of lottery gambling on vulnerable people) told Conte:
"Those people who direct and promote the lottery want to have, like any other agency, a successful agency. And so there is a constant drive for more revenues and more and more gambling. The only way you can get those revenues is by more gambling activities and faster gambling activities, and new games as part of the lottery system. So it is just human nature that more gambling is going to come about simply because that's the way systems and bureaucracies work."
Conte points out in her report that in Colorado there is also a personal money incentive: "The director of marketing for the lottery receives an incentive payment up to $7,600 a year, based on total sales achievement." Thus, the more that Coloradans gamble on the lottery, the higher the potential pay to the director of marketing.
So what next for Vigil? Romer could NOT reappoint Vigil to the Lottery Commission. The state law since 1982 has limited everyone to no more than two terms on that board. But it would be foolish to waste Dan Vigil's eight years of experience and knowledge, especially since Vigil's concerns quite nicely match those of the governor regarding expansion of state run gambling.
Romer knows he doesn't get everything he needs to be aware of from "official" sources. The unannounced Mindsort Report is one example. It was not exposed until one year after it made its way into the lottery staff files.
If Romer is smart enough to be CEO for nearly four million Coloradans, he should be smart enough to find a use for Vigil in combating marketing tools that could increase the number of new compulsive gamblers.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
Copyright 2015 Jerry Kopel & David Kopel