BILL ANALYSIS AB 1322 Page 1 Date of Hearing: June 18, 2008 ASSEMBLY COMMITTEE ON EDUCATION Gene Mullin, Chair SB 1322 (Lowenthal) - As Amended: June 10, 2008 SENATE VOTE : 24-16 SUBJECT : Public employment and property. SUMMARY : Deletes various references in statute to communism; and, clarifies exemptions with regard to the required oath of allegiance for public officers and employees. Specifically, this bill : 1)Deletes the requirement that a specific signed statement be provided to the school prior to the use of school property by a private group; and, instead authorizes the school board to require the furnishing of information as it deems reasonably necessary to make the determination that the use of school property for which the application is made would not violate the Civic Center Act. 2)Deletes membership in the Communist Party and violations of health and welfare benefits provisions as reasons for suspension and notice of dismissal for permanent school employees, and removes a corresponding provision that allows suspended school employees to provide a verified written denial. 3)Deletes membership in the Communist Party from the reasons for which a permanent school employee may be dismissed. 4)Deletes membership in the Communist Party as reasons for suspension and notice of dismissal for permanent school employees; and, removes a corresponding provision that allows suspended school employees to provide a verified written denial. 5)Deletes membership in the Communist Party as a reason for suspension and dismissal of classified school or community college employees. AB 1322 Page 2 6)Deletes membership in the Communist Party as sufficient cause to dismiss a public employee. 7)Deletes provisions relative to public employees being questioned under oath by non-law enforcement governmental entities about overthrowing the government or membership in the Communist Party. 8)Replaces existing findings and declarations relative to the threat of communism with language relative to the Cold War threat of a communist takeover and constitutional protections of free speech, political affiliation and the right to remain silent. 9)Clarifies that 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. EXISTING LAW regarding the dismissal of school employees: 1) Provides that a permanent school employee (such as teachers, principals, and librarians) cannot be dismissed except for one or more of the following causes: a) Immoral or unprofessional conduct b) Commission, aiding or advocating the commission of acts of criminal syndicalism. c) Dishonesty. d) Unsatisfactory performance. e) Evident unfitness for service. f) Physical or mental condition unfitting him or her to instruct or associate with children. g) Persistent violation of or refusal to obey laws and regulations, as specified. h) Conviction of a felony or of any crime involving moral turpitude. i) Advocating or teaching communism with the intent to indoctrinate or to inculcate in the mind of any pupil a preference for communism, or advocating or being a member of an organization that advocates the overthrow of AB 1322 Page 3 the government. j) Knowing membership by the employee in the Communist Party. aa) Alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children. 2) Authorizes the governing board of a school district to suspend and give 30 day notice of dismissal to a permanent employee upon the filing of written charges of immoral conduct, conviction of a felony or any crime involving moral turpitude, incompetence due to mental disability, willful refusal to perform regular assignment without reasonable cause, advocating or teaching communism, knowing membership in the Communist Party or violations of health and welfare benefits provisions. 3) Authorizes a permanent employee who is suspended for membership in the Communist Party or health and welfare benefits violations to file with the school district governing board a verified written denial within 10 days of receiving notice of suspension. 4) Requires a classified school employee or classified community college employee to be suspended and dismissed for, among other things, knowing membership in the Communist Party or advocating or being a member of an organization that advocates the overthrow of the government. EXISTING LAW regarding the dismissal of public employees: 1) Provides that it is sufficient cause to dismiss a public employee (including school district employees) if he or she advocates or is knowingly a member of either the Communist Party or an organization which advocates the overthrow of the government of the United States by force or violence. 2) Provides that a public employee may be required to answer, under oath, specified questions, including, but not limited to: a) Personal advocacy of or membership since October 3, 1945, in any organization which advocated the forceful or violent overthrow of the government. b) Knowing membership or past membership in the Communist Party. AB 1322 Page 4 EXISTING LAW regarding the use of school facilities: 1) Permits private groups to use school facilities or grounds for meetings and other activities, so long as such use does not encroach upon the primary educational purpose of the school subject to approval by the school district governing board under the Civic Center Act. Current law specifically prohibits the use of school facilities or grounds by any individual, society, group or organization to further any program or movement to overthrow the United States or any state government. 2) Requires schools to verify that school property will not be used in violation of the Civic Center Act by requiring a signed statement from the applicant stating that, among other things: a) The property will not be used for the purpose of overthrowing the government of the United States or the State of California. b) The applicant organization is not a Communist action organization or Communist front organization. 3) Authorizes the school district to require additional information it deems necessary to determine that the use of school property would not be in violation of the Civic Center Act. EXISTING LAW regarding the loyalty oath for public officers and employees: 1)Requires that members of the Legislature and all public officers and employees, except such inferior officers and employees as may be by law exempted, must take and subscribe to the oath in Section 3 of Article XX of the California Constitution before he or she enters upon the duties of their respective offices. 2)Defines "Public officer and employee" to include every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing. AB 1322 Page 5 FISCAL EFFECT : Unknown COMMENTS : This bill deletes various references in statute to communism, with regards to the employment of public employees, and the use of public school facilities, and creates various stipulations with regard to the required oath of allegiance for public officers and employees. According to the author, references to communism in statute are antiquated and the threat of a communist takeover no longer exists. Moreover, the author contends that this bill is about protecting constitutional freedoms: freedom of speech, freedom of political affiliation, and the freedom not to testify against oneself. The author argues that if a person can be fired from his or her job for simply being a member of the Communist Party, then it would implicitly be okay to fire a person for membership in any party, including the Libertarian Party, the Republican Party, or the Democratic Party. This bill does not diminish current law with regard to the dismissal of school, community college and public employees for advocating, or belonging to a group that advocates the overthrow of the government. Moreover, this bill does not affect current law that prohibits a teacher from advocating or teaching communism with the intent to indoctrinate or to inculcate in the mind of any pupil a preference for communism. While California joins other states in providing for the dismissal of teachers who advocate the overthrow of the government, California is the only state that provides for the dismissal of a teacher for being a member of the Communist Party. Current law includes a cross-reference to health and welfare benefits provisions as a reason for suspension and notice of dismissal for permanent school employees. Those health and welfare benefits provisions do not reference any possible violations. It appears that the cross-reference is outdated and irrelevant to the suspension and dismissal of school employees. This bill deletes this cross-reference and those changes should be considered technical clean-up. This bill would delete the requirement for a person who intends to use school property on behalf of an organization to deliver a signed statement, signed under penalty of perjury, that the organization is not a Communist action or Communist front organization, or does not, to the best of the person's AB 1322 Page 6 knowledge, advocate the overthrow of the government of the United States or of the State of California by force, violence, or other unlawful means. The bill would instead permit local school boards to require the furnishing of information as it deems necessary to determine that the use of school property for which application is made would not violate the provisions set forth in the Civic Center Act. This bill would allow public employees, except elected or appointed officials, to decline to take the loyalty oath based on religious beliefs that conflict with the employee's ability to sign the oath "without mental reservation," provided that the employee's objection to the oath is not related to his or her willingness and ability to uphold the Constitution and other laws of the State of California and/or willingness and ability to complete the duties of employment for which he or she is being considered. These proposed changes address two recent cases within the CSU system in which instructors who were members of the Quaker religion were denied employment because the oath conflicted with their religious conviction to avoid violence. In one case, Marianne Kearney-Brown was fired from her position at Cal State East Bay when she inserted the word "non-violently" before signing her oath so that it read that she would "nonviolently support and defend the Constitution of the United States?." She was told by the CSU that adding the word "nonviolently" was inconsistent with the oath and that she would be terminated unless she signed the oath unaltered. The University of California allows employees to attach personal statements to the oath to indicate religious beliefs. Previous legislation AB 137 (DeVore) from 2007 would have deleted references in statute to the Communist Party and replaced those references with "extremist terrorist network." AB 137 failed passage in the Assembly Judiciary Committee. REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union California Academic Senate of the California State University California Faculty Association AB 1322 Page 7 California Federation of Teachers California Teachers Association Friends Committee on Legislation of California Opposition Capitol Resource Family Impact Analysis Prepared by : Irene Wan / ED. / (916) 319-2087