BILL NUMBER: SB 1322	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 14, 2008
	AMENDED IN ASSEMBLY  JUNE 10, 2008
	AMENDED IN SENATE  APRIL 7, 2008
	AMENDED IN SENATE  MARCH 24, 2008

INTRODUCED BY   Senator Lowenthal

                        FEBRUARY 20, 2008

   An act to amend Sections 38135, 44932, 44939, 45303, and 88122 of,
and to repeal Section 38136 of, the Education Code, and to amend
Sections 1028, 1360, 3103, and 18150 of, to add Section 1225.5 to,
and to repeal Sections 1027.5 and 1028.1 of, the Government Code,
relating to public employment and property.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1322, as amended, Lowenthal. Public employment and property.
   (1) The Civic Center Act requires the governing body of a school
district to grant the use of school property, when an alternative
location is not available, to nonprofit organizations, and clubs or
associations organized to promote youth and school activities. That
act also contains other provisions that require a person who intends
to use school property on behalf of an organization to deliver a
statement, signed under penalty of perjury, that the organization is
not a Communist action organization or Communist front organization
required to be registered with the Attorney General of the United
States or does not, to the best of that person's knowledge, advocate
the overthrow of the government of the United States or of the State
of California by force, violence, or other unlawful means. These
other provisions have been declared unconstitutional.
   This bill would delete those unconstitutional provisions.
    (2) Existing law prohibits an individual, society, group, or
organization from using school property for the commission of any act
intended to further a program or movement the purpose of which is to
accomplish the overthrow of the government of the United States or
of the state by force, violence, or other unlawful means.
   This bill would, in addition, permit the school board to require
the furnishing of information as it deems reasonably necessary to
determine that the use of school property for which application is
made would not violate that provision.
   (3) Under existing law, a permanent or classified school employee,
or a classified community college employee may be suspended or
dismissed from employment for specified causes, including, but not
limited to, knowing membership in the Communist party.
   This bill would delete provisions that a permanent or classified
school employee, or a classified community college employee may be
suspended or dismissed from employment if he or she is a knowing
member of the Communist Party.
   (4) Under existing law, a public employee is required to answer,
under oath, specified questions, including, but not limited to,
knowing membership in an organization advocating the forceful or
violent overthrow of the government of the United States or of any
state.
   This bill would delete these provisions. The bill would also
delete related findings and declarations by the Legislature regarding
communism and the Communist Party.
   (5) The California Constitution requires Members of the
Legislature, and all public officers and employees, to take a
specified oath of office. The California Constitution permits
inferior officers and employees to be exempted by law from this
requirement.
   This bill would require that a public employee or applicant
seeking public employment be permitted to decline to take and
subscribe to the oath of office based on religious beliefs that
conflict with his or her ability to take and subscribe to the oath
without mental reservation, provided that he or she is otherwise
willing and able to uphold the United States Constitution and the
constitution and laws of this state and to complete the duties of
employment.  The bill would require that person to take and
subscribe a specified statement to that effect.  The bill would
except from these provisions a public officer, employee, or applicant
for public employment who is elected or who serves at the pleasure
of an elected official. The bill would also make conforming changes
and make a statement of findings.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature hereby finds and declares the
following:
   (a) From 1946 to 1991, the United States of America was locked in
a precarious and potentially deadly "Cold War" with the Soviet Union.

   (b) At the height of the Cold War, California responded to the
perceived threat of a communist takeover and enacted a number of
statutes subjecting members of the Communist Party, or others who
refused to testify against themselves under oath, to termination of
employment.
   (c) Though communists who attempted to harm the United States and
collude with her enemies during the Cold War were prosecuted for
their actions, many innocent persons suffered due to nothing more
than their personal political convictions or relationships.
   (d) Although the Cold War is long over and the threat of a
communist takeover of the state or federal government no longer
exists, these statutes remain current law.
   (e) The United States Constitution and longstanding tradition
guarantee all Americans the right to freely associate with others of
similar beliefs no matter how unpopular those beliefs might be.
   (f) These statutes are inconsistent with constitutional
protections of free speech, political affiliation, and the right to
remain silent.
   (g) While this act repeals statutes that subject persons to
termination based on their affiliation with a political party, the
act maintains existing laws that allow for termination of an employee
who is knowingly a member of an organization that advocates the
overthrow of the state or federal government by force or violence.
  SEC. 2.  The Legislature further finds and declares the following:
   (a) Section 3 of Article XX of the California Constitution
requires that Members of the Legislature and all public officers and
employees take and subscribe to the oath that is set forth in its
provisions and defines public officer or employee for these purposes.

   (b) Section 3 of Article XX of the California Constitution permits
the Legislature to make exceptions from the oath requirement for
"inferior officers and employees."
   (c) The California Supreme Court, in the case of Vogel v. County
of Los Angeles (1967) 68 Cal.2d 18, struck down the second paragraph
of the oath set forth in the provisions of Section 3 of Article XX of
the California Constitution as an unconstitutional violation of the
rights guaranteed by the First Amendment of the United States
Constitution.
   (d) Some applicants for public employment who are loyal citizens
and well qualified for their respective jobs are precluded by their
religious beliefs from taking oaths.
   (e) It is necessary to create an appropriate exemption for loyal
and qualified employees and applicants for public employment based on
the fundamental American value of freedom of religion.
  SEC. 3.  Section 38135 of the Education Code is amended to read:
   38135.  Any use, by any individual, society, group, or
organization for the commission of any act intended to further any
program or movement the purpose of which is to accomplish the
overthrow of the government of the United States or of the state by
force, violence, or other unlawful means shall not be permitted or
suffered.
   Any individual, society, group, or organization which commits any
act intended to further any program or movement the purpose of which
is to accomplish the overthrow of the government by force, violence,
or other unlawful means while using school property pursuant to the
provisions of this chapter is guilty of a misdemeanor.
   The school board may require the furnishing of information as it
deems reasonably necessary to make the determination that the use of
school property for which application is made would not violate this
section.
  SEC. 4.  Section 38136 of the Education Code is repealed.
  SEC. 5.  Section 44932 of the Education Code is amended to read:
   44932.  (a) A permanent employee shall not be dismissed except for
one or more of the following causes:
   (1) Immoral or unprofessional conduct.
   (2) Commission, aiding, or advocating the commission of acts of
criminal syndicalism, as prohibited by Chapter 188 of the Statutes of
1919, or in any amendment thereof.
   (3) Dishonesty.
   (4) Unsatisfactory performance.
   (5) Evident unfitness for service.
   (6) Physical or mental condition unfitting him or her to instruct
or associate with children.
   (7) Persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government of
the public schools by the State Board of Education or by the
governing board of the school district employing him or her.
   (8) Conviction of a felony or of any crime involving moral
turpitude.
   (9) Violation of Section 51530 or conduct specified in Section
1028 of the Government Code.
   (10) Alcoholism or other drug abuse which makes the employee unfit
to instruct or associate with children.
   (b) The governing board of a school district may suspend without
pay for a specific period of time on grounds of unprofessional
conduct a permanent certificated employee or, in a school district
with an average daily attendance of less than 250 pupils, a
probationary employee, pursuant to the procedures specified in
Sections 44933, 44934, 44935, 44936, 44937, 44943, and 44944. This
authorization shall not apply to any school district which has
adopted a collective bargaining agreement pursuant to subdivision (b)
of Section 3543.2 of the Government Code.
  SEC. 6.  Section 44939 of the Education Code is amended to read:
   44939.  (a) Upon the filing of written charges, duly signed and
verified by the person filing them with the governing board of a
school district, or upon a written statement of charges formulated by
the governing board, charging a permanent employee of the district
with immoral conduct, conviction of a felony or of any crime
involving moral turpitude, with incompetency due to mental
disability, with willful refusal to perform regular assignments
without reasonable cause, as prescribed by reasonable rules and
regulations of the employing school district, or with violation of
Section 51530, the governing board may, if it deems action necessary,
immediately suspend the employee from his or her duties and give
notice to him or her of his or her suspension, and that 30 days after
service of the notice, he or she will be dismissed, unless he or she
demands a hearing.
   (b) If a permanent employee demands a hearing within the 30-day
period, he or she shall continue to be paid his or her regular salary
during the period of suspension and until the entry of the decision
of the Commission on Professional Competence, if and during that time
as he or she furnishes to the school district a suitable bond, or
other security acceptable to the governing board, as a guarantee that
the employee will repay to the school district the amount of salary
so paid to him or her during the period of suspension in case the
decision of the Commission on Professional Competence is that he or
she shall be dismissed. If it is determined that the employee may not
be dismissed, the school board shall reimburse the employee for the
cost of the bond.
  SEC. 7.  Section 45303 of the Education Code is amended to read:
   45303.  In addition to any causes for suspension or dismissal
which are designated by rule of the commission, employees in the
classified service shall be suspended and dismissed in the manner
provided by law for conduct specified in Section 1028 of the
Government Code.
  SEC. 8.  Section 88122 of the Education Code is amended to read:
   88122.  In addition to any causes for suspension or dismissal
which are designated by rule of the commission, employees in the
classified service shall be suspended and dismissed in the manner
provided by law for conduct specified in Section 1028 of the
Government Code.
  SEC. 9.  Section 1027.5 of the Government Code is repealed.
  SEC. 10.  Section 1028 of the Government Code is amended to read:
   1028.  It shall be sufficient cause for the dismissal of any
public employee when that public employee advocates or is knowingly a
member of an organization which during the time of his or her
membership he or she knows advocates overthrow of the government of
the United States or of any state by force or violence.
   SEC. 11.  Section 1028.1 of the Government Code is repealed.
  SEC. 12.  Section 1225.5 is added to the Government Code, to read:
   1225.5.  (a) Notwithstanding any other provision of law to the
contrary, a public employee or applicant seeking public employment
shall be permitted to decline to take and subscribe to the oath
required by Section 3 of Article XX of the California Constitution
based on religious beliefs that conflict with his or her ability to
take and subscribe to the oath without mental reservation, provided
that he or she is otherwise willing and able to uphold the United
States Constitution and the constitution and laws of this state and
to complete the duties of employment.  Any person exempted from
taking the oath pursuant to this section shall instead take and
subscribe the following statement: 
    "I, ____, do solemnly affirm that I will uphold the
Constitution of the United States and the Constitution and all other
laws of the State of California; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that I will
well and faithfully discharge the duties upon which I am about to
enter." 
   (b) The option to decline to take and subscribe to the oath
required by Section 3 of Article XX of the California Constitution
based on religious beliefs provided by this section shall not apply
to a public officer, employee, or applicant for public employment who
is elected or who serves at the pleasure of an elected official.
  SEC. 13.  Section 1360 of the Government Code is amended to read:
   1360.  Unless otherwise provided, and subject to the limitations
of Section 1225.5, before any officer enters on the duties of his or
her office, he or she shall take and subscribe the oath or
affirmation set forth in Section 3 of Article XX of the Constitution
of California.
  SEC. 14.  Section 3103 of the Government Code is amended to read:
   3103.  Subject to the limitations of Section 1225.5, the oath or
affirmation required by this chapter is the oath or affirmation set
forth in Section 3 of Article XX of the Constitution of California.
  SEC. 15.  Section 18150 of the Government Code is amended to read:
   18150.  Subject to the limitations of Section 1225.5, the oath
required by this chapter is the oath set forth in Section 3 of
Article XX of the Constitution of California.