Amended in Senate June 20, 2016

Amended in Assembly May 31, 2016

Amended in Assembly April 26, 2016

Amended in Assembly April 11, 2016

Amended in Assembly March 28, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2844

Introduced by Assembly Member Bloom

(Principal coauthors: Assembly Members Levine, Medina, and Nazarian)

(Principal coauthors: Senators Allen, Block, Glazer, Hertzberg, Jackson, and Wolk)

(Coauthors: Assembly Members Campos, Dababneh, and Olsen)

February 19, 2016

An act to add begin delete Chapter 2.6 (commencing with Section 2100) to Part 1 of Division 2 of end delete begin insert Section 2010 to end insert the Public Contract Code, relating to public contracts.

LEGISLATIVE COUNSEL’S DIGEST

AB 2844, as amended, Bloom. Public contracts: begin delete Boycott, Divestment, and Sanctions of Recognized Sovereign Nations or Peoples. end delete begin insert discrimination. end insert

Existing law governs the procurement process for contracts of specified public entities. begin delete Existing law prohibits a person that, at the time of bid or proposal for a new contract or renewal of an existing contract, engages in investment activities in Iran from bidding on, submitting a proposal for, or entering into, a contract with a public entity for goods or services of $1,000,000 or more. end delete

begin delete

This bill would require the Attorney General to develop, maintain, and post on its Internet Web site, a list of companies that are engaging in discriminatory business practices in furtherance of a boycott of any sovereign nation or peoples recognized by the government of the United States. The bill would also require the Attorney General, on or before January 1, 2018, to provide an assessment to the Legislature of the constitutionality of prohibiting a company on the list from entering into a contract with a public entity.

end delete begin insert

This bill would require a person that submits a bid or proposal to, or otherwise proposes to enter into or renew a contract with, a state agency with respect to any contract in the amount of $100,000 or more to certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed that they have complied with the Unruh Civil Rights Act and the California Fair Employment and Housing Act, and that any policy that they have adopted against any sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel, is not used as a pretext for discrimination in violation of the Unruh Civil Rights Act or the California Fair Employment and Housing Act. By requiring a person to certify under penalty of perjury, this bill would expand the definition of a crime, thereby imposing a state-mandated local program. The bill would authorize the Attorney General to receive and investigate complaints regarding violations of, and to bring suit to enforce, these provisions.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert The Legislature hereby finds and declares all of
the following: end insert

begin insert

(a) California is a leader in protecting civil rights and
preventing discrimination.

end insert begin insert

(b) California’s robust nondiscrimination laws include
protections on the basis of religion, race, national origin, sex,
sexual orientation, gender identity, gender expression, and
disability, among other characteristics.

end insert begin insert

(c) California’s strong public policy against discrimination is
reflected in numerous statutes. The California Fair Employment
and Housing Act (Chapter 7 (commencing with Section 12960) of
Part 2.8 of Division 3 of Title 2 of the Government Code) and the
Unruh Civil Rights Act (Section 51 of the Civil Code) prohibit
discrimination in employment, housing, public accommodation,
and services provided by business establishments on the basis of
certain personal characteristics, such as sex, race, color, religion,
ancestry, national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation. Section 11135
of the Government Code specifically prohibits discrimination on
the basis of many of these same characteristics in the conduct,
operation, or administration of any program or activity that is by
the state or by any state agency, funded directly by the state, or
receives any financial assistance from the state.

end insert begin insert

(d) California’s Public Contract Code similarly affirms these
nondiscrimination policies and prohibits a state agency from
entering into certain contracts with any contractor unless the
contractor complies with all appropriate state laws concerning
wages, workplace safety, rights to association and assembly, and
nondiscrimination standards as well as appropriate federal laws.

end insert begin insert

(e) Both freedom of speech and religion are cornerstones of
law and public policy in the United States, and the Legislature
strongly supports and affirms these important freedoms.

end insert begin insert

(f) The exercise of one’s First Amendment rights is not a
justification for engaging in acts of discrimination.

end insert begin insert

(g) California must take action to avoid supporting or financing
discrimination against protected classes.

end insert begin insert

(h) It is the policy of the State of California to promote fairness
and equality and to combat discrimination and if California hopes
to remain a national leader on behalf of these communities, action
must be taken to recognize that discriminatory laws and policies
are unacceptable for California’s partners in business.

end insert begin insert

(i) California has significant influence in the marketplace. The
state at times operates not as a market regulator, but as a market
participant, and in this latter role it may determine that companies
engaging in discriminatory actions in the conduct and operation
of their business adversely affects the state’s procurement activities
and places the state in a position of supporting activities that could
be seen as a violation of the nondiscrimination policies of the State
of California.

end insert begin insert

(j) It is the intent of the Legislature to ensure that taxpayer funds
are not used to do business with or otherwise support any state or
private entity that engages in discriminatory actions against
individuals under the pretext of exercising First Amendment rights.
This includes, but is not limited to, discriminatory actions taken
against individuals of the Jewish faith under the pretext of a
constitutionally protected boycott or protest of the State of Israel.

end insert begin insert

(k) It is the intent of the Legislature to ensure that taxpayer
funds are not used to do business with or support discriminatory
actions against any individuals.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 2010 is added to the end insert begin insert Public Contract Code end insert begin insert , to
read: end insert

begin insert

begin insert 2010. end insert   

(a) A person that submits a bid or proposal to, or
otherwise proposes to enter into or renew a contract with, a state
agency with respect to any contract in the amount of one hundred
thousand dollars ($100,000) or more shall certify, under penalty
of perjury, at the time the bid or proposal is submitted or the
contract is renewed, all of the following:

(1) That they have complied with the Unruh Civil Rights Act
(Section 51 of the Civil Code).

(2) That they have complied with the California Fair
Employment and Housing Act (Chapter 7 (commencing with
Section 12960) of Part 2.8 of Division 3 of Title 2 of the
Government Code).

(3) That any policy that they have against any sovereign nation
or peoples recognized by the government of the United States,
including, but not limited to, the nation and people of Israel, is
not used as a pretext for discrimination in violation of the Unruh
Civil Rights Act (Section 51 of the Civil Code) or the California
Fair Employment and Housing Act (Chapter 7 (commencing with
Section 12960) of Part 2.8 of Division 3 of Title 2 of the
Government Code).

(b) The Attorney General may receive and investigate complaints
regarding violations of, and may bring suit to enforce the
provisions of, subdivision (a).

end insert

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Chapter 2.6 (commencing with Section 2100) is
added to Part 1 of Division 2 of the Public Contract Code, to read:

 

Chapter  2.6. Boycott, Divestment, and Sanctions of
Recognized Sovereign Nations or Peoples

 

2100.  

(a) The Attorney General shall develop, maintain, and
post on the Internet Web site of the Office of the Attorney General
a list of companies that have engaged in discriminatory business
practices in furtherance of a boycott of any sovereign nation or
peoples recognized by the government of the United States.

(b) (1) On or before January 1, 2018, the Attorney General
shall provide an assessment to the Legislature of the
constitutionality of prohibiting a company on the list developed
pursuant to subdivision (a) from entering into a contract with a
public entity.

(2) (A) The requirement for submitting a report imposed under
paragraph (1) is inoperative on January 1, 2022, pursuant to Section
10231.5 of the Government Code.

(B) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government
Code.

(c) For the purposes of this section, the following definitions
shall apply:

(1) (A)  “Boycott” means refusing to deal with, terminating
business activities with, or taking other actions that are intended
to penalize, inflict economic harm, or otherwise limit commercial
relations with the boycotted entity for reasons other than business,
investment, or commercial reasons.

(B) “Boycott” does not include any of the following:

(i) A decision based on business or economic reasons.

(ii) Termination or prohibition of commercial activity within a
particular jurisdiction that is required by federal or state law.

(2) “Company” means a sole proprietorship, organization,
association, corporation, partnership, joint venture, limited
partnership, limited liability partnership, limited liability company,
or other entity or business association, including all wholly owned
subsidiaries, majority-owned subsidiaries, and parent companies,
that exists for the purpose of making profit.

(3) “Discriminatory business practices” means business
arrangements that are prohibited by Sections 16721 and 16721.5
of the Business and Professions Code.

(4) “Public entity” shall have the same meaning as defined in
subdivision (a) of Section 5100.

end delete