BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2844|
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THIRD READING
Bill No: AB 2844
Author: Bloom (D), et al.
Amended: 8/15/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 6/28/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno
NOES: Monning, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/11/16
AYES: Lara, Bates, Hill, McGuire, Mendoza, Nielsen
NO VOTE RECORDED: Beall
ASSEMBLY FLOOR: 64-0, 6/2/16 - See last page for vote
SUBJECT: Public contracts: discrimination
SOURCE: Author
DIGEST: This bill requires a person that submits a bid or
proposal to, or otherwise proposes to enter into or renew a
contract of $100,000 or more with, a state agency, as defined,
to certify, under penalty of perjury, their compliance with the
Unruh Civil Rights Act and the Fair Employment and Housing Act,
and that any policy against a Sovereign nation or peoples,
including, but not limited to, the nation and people of Israel,
are not used as a pretext in violation of those laws. This bill
sets forth various findings and declarations regarding the
state's anti-discrimination policies and First Amendment rights
of individuals, as specified.
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ANALYSIS:
Existing law:
1)Prohibits, under Section 11135 of the Government Code, any
person in this state from being unlawfully denied, on the
basis of race, national origin, ethnic group identification,
religion, age, sex, sexual orientation, color, genetic
information, or disability, full and equal access to the
benefits of, or the unlawful discrimination under, any program
or activity that is conducted, operated, or administered by
the state or by any state agency, is funded directly by the
state, or receives any financial assistance from the state.
2)Provides, under the Unruh Civil Rights Act, that all persons
in California are free and equal, and regardless of a person's
sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital
status, sexual orientation, citizenship, primary language, or
immigration status, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or
services in all business establishments.
3)Prohibits, under the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment on the
basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation,
or military and veteran status.
4)Provides, under both Unruh and FEHA, specific definitions for
various protected bases. For example, "sex" includes, but is
not limited to, a person's gender, which, in turn, includes a
person's gender identity and gender expression, as specified.
Further provides under these laws that "race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
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status, sex, age, sexual orientation, or military and veteran
status" includes a perception that the person has any of those
characteristics or that the person is associated with a person
who has, or is perceived to have, any of those
characteristics.
5)Requires, under the Public Contract Code, that bidders or
persons entering into state contracts sign various statements
or certify various matters under penalty of perjury.
This bill:
1)Requires 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 to certify, under
penalty of perjury, as specified, all of the following:
That they are in compliance with the Unruh Civil Rights
Act;
That they are in compliance with FEHA; and
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 or FEHA.
1)Sets forth various findings and declarations, including, among
other things::
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;
Both freedom of speech and religion are cornerstones of
law and public policy in the U.S., and the Legislature
strongly supports and affirms these important freedoms;
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The exercise of one's First Amendment rights is not a
justification for engaging in acts of unlawful
discrimination;
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; and
It is 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.
Background
According to various reports, numerous states across the country
have taken action in the last year to withdraw state support for
companies participating in a boycott of the State of Israel,
known as the Boycott, Divestment and Sanctions (BDS) movement.
The author cites among the states that have passed laws the
states of Florida, South Carolina, Indiana, Iowa, Illinois,
Colorado, and Arizona, and notes that a handful of others are
considering pending legislation on this issue as well.
The BDS Movement Web site describes BDS as "[t]he global
movement for a campaign of Boycott, Divestment and Sanctions
(BDS) against Israel until it complies with international law
and Palestinian rights [ . . . ]. BDS is a strategy that allows
people of conscience to play an effective role in the
Palestinian struggle for justice. [ . . . ] The campaign for
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[BDS] is shaped by a rights-based approach and highlights the
three broad sections of the Palestinian people: the refugees,
those under military occupation in the West Bank and Gaza Strip,
and Palestinians in Israel. The call urges various forms of
boycott against Israel until it meets its obligations under
international law by: (1) [e]nding its occupation and
colonization of all Arab lands occupied in June 1967 and
dismantling the Wall; (2) [r]ecognizing the fundamental rights
of the Arab-Palestinian citizens of Israel to full equality; and
(3) [r]especting, protecting and promoting the rights of
Palestinian refugees to return to their homes and properties as
stipulated in UN Resolution 194." (BDS Movement, Introducing the
BDS Movement
Page 6
"divestment" of university, municipal, church, union and other
investment portfolios from companies that do business with
Israel, as well as the banning of Israeli products,
professionals, academics, academic institutions and artistic
performances (in Israel and abroad). The arbitrary nature of
these boycotts and divestments has caused concern about
financial uncertainty within investment portfolios and has
caused corporations to stray from their fiduciary
responsibilities.
[ . . .] Companies adhering to boycotts of Israel undermine
the aforesaid policy and purpose of encouraging trade,
business, and academic cooperation between California and
Israel. Therefore, it is in the best interest of the State of
California that it not contract with any company participating
in a boycott of Israel. Although the state has affirmed its
relationship with Israel through SCR 25, it has yet to take
any binding action on the BDS movement. Numerous states around
the country have passed such legislation and California, as
one of Israel's partners, cannot stay silent.
FISCAL EFFECT: Appropriation: No Fiscal Com.:
YesLocal: Yes
According to the Senate Appropriations Committee:
Department of General Services (DGS): Unquantifiable but
potentially major future increase in ongoing operating costs
due to higher contract costs (General Fund) resulting from the
exclusion of otherwise qualified bidders that may no longer
submit bids under the required certification. The DGS
administers over 9,000 contracts with a value of $100,000 or
more with a combined value of $27.9 billion. In the absence of
any exceptions for situations involving a sole source or for
cases in which all otherwise qualified bidders are excluded,
the costs to obtain alternative goods and/or services may
increase costs to the state. Additionally, to the extent
exercising an option to extend a contract, which oftentimes
provides for advantageous rates or prices, is deemed a renewal
under the provisions of this bill could likewise result in
additional administrative workload and higher costs to the
state for goods and services. While the magnitude of the
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impact cannot be quantified, for context, even a one-half of
one percent (0.5%) increase to overall contract costs would
result in increased costs to the state of about $140 million.
Perjury violations: Unknown; potential increase in local
enforcement and incarceration costs (Local Funds) to the
extent felony arrests and convictions for the offense of
perjury are pursued under the provisions of this bill.
Other state agencies: In addition to the DGS, numerous other
state agencies that enter into contracts of over $100,000
would be impacted by an unquantifiable but potentially
significant amount due to the contract certification
requirement established in this bill.
Department of Fair Employment and Housing (DFEH): Potential
workload increase to receive and respond to complaints, and
potentially conduct investigations. The actual workload impact
of this bill is largely unknown and would be dependent on the
volume and nature of complaints received and subsequently
investigated. Although the bill does not directly specify DFEH
to field complaints or investigate potential violations, the
receipt of violations of the Unruh Act and FEHA do fall under
the purview of DFEH.
SUPPORT: (Verified8/12/16)
Agudath Israel of California
Alpha Epsilon Pi Fraternity, Inc.
Alpha Epsilon Pi, California Polytechnic State University, San
Luis Obispo
Alpha Epsilon Pi, Chapman University
Alpha Epsilon Pi, Claremont Colleges
Alpha Epsilon Pi, CSU, Chico
Alpha Epsilon Pi, CSU, Fullerton
Alpha Epsilon Pi, CSU, Northridge
Alpha Epsilon Pi, CSU, San Jose
Alpha Epsilon Pi, UC Berkeley
Alpha Epsilon Pi, UC Davis
Alpha Epsilon Pi, UC Irvine
Alpha Epsilon Pi, UCLA
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Alpha Epsilon Pi, UC Riverside
Alpha Epsilon Pi, UC Santa Cruz
Alpha Epsilon Pi, UC Santa Barbara
Alpha Epsilon Pi, UC San Diego
Alpha Epsilon Pi, San Diego State University
Alpha Epsilon Pi, San Francisco State University
American Jewish Committee
Arm Organization
Beit David Congregation
B'NAI B'RITH of Fariborz Matloob
Beth Abraham
Bruins for Israel
Bruin-Israel Public Affairs Committee
California Teamsters Public Affairs Council
Chabad of San Diego State University
City of Beverly Hills
City of West Hollywood
Cohen Synagogue, Inc.
Concerned Women for America
Democrats for Israel Los Angeles
Eretz Cultural Center
ETTA Israel
Hadassah Haifa
Hadassa Malka
J Street
Iranian Jewish Senior Center
Iranian Jewish Women's Organization
Israeli-American Council
Israeli-American Nexus
Jewish Community Relations Council of San Francisco
Jewish Public Affairs Committee of California
Iranian American Jewish Federation
Iranian Jewish Women's Organization
Magbit Foundation
Mayor Eric Garcetti, City of Los Angeles
Namat USA
Nessah Educational & Cultural Center
Ohel Moshe Congregation
Ohr Haemet Institute
ORT Organization
Religious Action Center of Reform Judaism
Torat Hayim
Trojans for Israel
Sacramento Jewish Community Relations Council
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Simon Wiesenthal Center
SC Students Supporting Israel
StandWithUs
Students Supporting Israel at UCLA
30 Years After
One individual
OPPOSITION: (Verified8/12/16)
American-Arab Anti-Discrimination Committee
American Civil Liberties Union
American Friends Service Committee
American Muslims for Palestine, various chapters
Arab American Civic Council
Arab American Caucus, California Democratic Party
Arab American Cultural Center of Silicon Valley
Arab Resource and Organizing Center, San Francisco Bay Area
Asian Pacific American Democratic Caucus
Bay Area Women in Black
BDS-LA for Justice in Palestine
Bill of Rights Defense Committee
Center for Constitutional Rights
Chico Palestine Action Group
Coalition of Palestinian American Organizations
Cognitive Liberty
Council on American Islamic Relations, California
Culture and Conflict Forum
Davis Committee for Palestinian Rights
Defending Dissent Foundation
East Timor Action Network
Episcopal Peace Fellowship, Palestine Israel Network
Episcopal Peace Fellowship, Palestine Israel Network, LA
Free Palestine Movement
Friends Committee on Legislation, California
Friends of Sabeel North America
If Americans Knew
International Jewish Anti-Zionist Network
International Solidarity Movement, Northern California
Islah Reparations Project
Islamic Shura Council of Southern California
Israel Palestine Task Force of the California Nevada Conference
of United Methodists
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Jewish Voice for Peace, various chapters
Justice for Palestinians, San Jose
Kairos USA
Keep Hope Alive -- Bay Area Presbyterians
LA Jews for Peace
Middle East Peace Task Force, Southwest California
Synod, Evangelical Lutheran Church
National Lawyers Guild, various chapters
North Coast Coalition for Palestine
Northern California Islamic Council
Our Developing World
Palestine American Congress
Palestine American League
Palestine Israel Action Committee
Palestine-Israel Working Group of Nevada County
Palestine Legal
Palestine Political Action Committee
Palestinian American Women's Association
Palestinian Youth Movement-USA
Peace Action of San Mateo Co.
Peace and Freedom Party of California
Peninsula Peace and Justice Center
People for Palestinian-Israeli Justice
Petaluma Progressives
Pilgrims of Ibillin
Queers Undermining Israeli Terrorism
Ramallah Club of San Jose
Rebuilding Alliance
Resource Center for Non-Violence, Santa Cruz
Sacramento Regional Coalition for Palestinian Rights
San Jose Peace and Justice Center
Social Justice Center of Marin
Stop AB 2844 Coalition
Students for Justice in Palestine, various chapters
Sustainable Agriculture Water and Health
Syria Solidarity Movement
UAW 2865 Joint Council/Executive Board
Unitarian Universalists for Justice in the Middle East
United Church of Christ Palestine Israel Network
United Methodist Kairos Response
U.S. Campaign to End the Israeli Occupation
U.S. Palestinian Community Network
Veterans for Peace, Chapter 87, Sacramento
Voices for Justice in Palestine, Rossmoor, Walnut Creek
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Washington Interfaith Alliance for Middle East Peace
Wellstone Progressive Democrats of Sacramento
Women's International League for Peace & Freedom, various
chapters
14 Friends of Palestine, Marin County
Hundreds of individuals
ASSEMBLY FLOOR: 64-0, 6/2/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bloom, Bonilla, Brough, Brown, Burke, Campos, Chang, Chau,
Chávez, Chiu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman,
Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gray, Grove, Hadley, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Lackey, Levine, Lopez, Low,
Maienschein, Mathis, Medina, Melendez, Mullin, Nazarian,
O'Donnell, Olsen, Patterson, Ridley-Thomas, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Bigelow, Bonta, Calderon, Chu, Dahle, Beth
Gaines, Gallagher, Gordon, Harper, Kim, Linder, Mayes,
McCarty, Obernolte, Quirk, Rodriguez
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
8/15/16 20:33:33
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