Existing law provides that a person in this state cannot be denied the benefits of, or be subjected to discrimination under, a state program or activity, as specified, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation. Existing law also prohibits a state agency, department, board, authority, or commission, as specified, from requiring or approving travel to states that have enacted laws that meet certain criteria.

This bill would prohibit a state agency, department, board, or commission, as specified, from prohibiting or denying travel to states on the basis of political beliefs.

Date of Hearing: March 28, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 517

Author:(Harper) – As Introduced Ver:February 13, 2017

SUBJECT: State government: travel: political beliefs

KEY ISSUE: should a state agency be prohibited from denying state-funding for travel or prohibiting an employee from traveling TO A state on the basis of political beliefs?

SYNOPSIS

This author-sponsored bill would prohibit a state agency from denying a request for state-funded travel or prohibiting an employee from traveling to a state "on the basis of political beliefs." This bill reacts to last year's AB 1887 (Chapter 687, Statutes of 2016). Last year's measure was itself a response to legislation enacted in other states that failed to protect, or actually discriminated against, LGBTQ persons. Specifically, last year's AB 1887 prevents a state agency in California from requiring employees to travel to states that have enacted discriminatory legislation or repealed protective legislation. In addition, AB 1887 prohibits a state agency from funding employee travel to those states that tolerate or authorize such discrimination. Conversely, this bill would, without repealing or amending existing law, prohibit a state agency from prohibiting any of its employees or officers from traveling to a particular state "on the basis of political beliefs." The bill would also prohibit a public entity from denying any request to fund travel to any state "on the basis of political beliefs." Although it is not clear on this point, the bill presumably refers to the "political beliefs" of the state agency, not the political beliefs of the employee, the state of destination, or political ideas associated with the purpose of the travel. Because it is highly unlikely that a state agency would "prohibit" an employee from traveling to another state at his or her own expense – especially if the same agency wanted the employee to go there for a work-related purpose – the more significant provision of the bill must be the one that prohibits a state agency from denying a travel funding request "on the basis of political beliefs." That provision directly conflicts with the AB 1887 statute, because denying state funds for travel to a state that discriminates against LGBTQ persons, as AB 1887 requires, would most likely be considered a denial "on the basis of political beliefs." Since the author believes that AB 1887 was misguided – and the material submitted to the Committee makes that clear – then a more defensible response would be to repeal that measure rather than enact an obviously conflicting statute. The bill is opposed by the ACLU and several advocates of LGBTQ rights because it would clearly undermine existing law. Significantly, last year's AB 1887 passed out of this Committee on an 8-2 vote and by more than a two-thirds vote (56-21-3) in its final vote on the Assembly Floor.

SUMMARY: Prohibits a state entity from prohibiting an employee or officer from traveling to a state, or denying a request for state-funded travel, on the basis of political beliefs. Specifically, this bill:

1. Provides that a state agency, department, board, authority, or commission, including an agency, department, board, authority, or commission of the University of California, the Board of Regents of the University of California, or the California State University, and the Legislature shall not do either of the following:
2. Prohibit any of its employees, officers, or members from traveling to a state on the basis of political beliefs.
3. Deny a request for state-funded or state-sponsored travel to a state on the basis of political beliefs.

EXISTING LAW:

1. Governs the reimbursement of travel expenses for state employees and state officers when they must travel to conduct state business. (Government Code Sections 19815.4 (d), 19816, and 19820.)
2. Prohibits a state agency or the Legislature from requiring any of its employees, officers, or members to travel to, or approve a request for state-funded travel to, any state that enacted a law that voids or repeals, or has the effect of voiding or repealing, existing state or local protections against discrimination on the basis of sexual orientation, gender identity, or gender expression, or has enacted a law that authorizes or requires discrimination against same-sex couples or their families or on the basis of sexual orientation, or gender expression, except as provided. (Government Code Section 11139.8.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Last year this Committee heard and passed AB 1887 (Chapter 687, Statutes of 2016). That measure prohibited a state agency from requiring or approving funding for travel to any state that enacted laws that discriminated against LGBTQ persons or repealed laws that protected them from discrimination. AB 1887 was enacted shortly after the North Carolina legislature passed a law effectively repealing a local city ordinance protecting gay and transgender persons from discrimination. Other states have enacted "religious freedom" laws that permit a business to refuse service to LGBTQ persons on the basis of the business' religious belief. All of these measures were widely seen as thinly veiled reactions to gains made by gays, lesbians, and transgender persons in recent years, especially advances in marriage equality. A number of public and private entities, including large business corporations, condemned these actions and threatened to stop doing business in those states. The National Basketball Association cancelled plans to hold its 2017 All-Star game in Charlotte, North Carolina, in response to that state's discriminatory legislation. The game was moved to New Orleans.

Last year's AB 1887 was part of that larger national trend. It prohibited a state agency from requiring its employees to travel to states that had enacted objectionable legislation, and it also prohibited state agencies from providing travel funds to employees who traveled to those states for work-related reasons, but still voluntarily. (For example, university professors are not necessarily required to attend academic conferences, but colleges and universities generally subsidize travel expenses because they are considered work-related professional development.) AB 1887 recognized a number of exceptions, including travel that was necessary for law enforcement or litigation purposes, to meet contractual obligations, to comply with federal government requests, to participate in meetings or training to maintain grant funding, or to meet certain job training requirements.

This Bill: Whereas AB 1887 prohibited a state agency from requiring an employee to travel to an identified state, this measure prohibits a state agency from prohibiting an employee to travel to a particular state. Presumably this bill refers to prohibiting work-related travel as nothing in existing law would authorize a state agency to prohibit an employee from traveling to another state on his or her own time. The more significant provision of the bill, therefore, must be the one that prohibits a state agency from denying a request for travel funds "on the basis of political beliefs." That provision directly conflicts with the statute created by AB 1887 – at least to the extent that denying funding for travel to a state that discriminates against LGBTQ persons would be a denial "on the basis of political beliefs."

Would it make more sense for this bill to repeal the statute created by AB 1887? Although the bill under consideration does not amend or repeal the statute created by AB 1887, the background material submitted by the author makes it clear that this bill is a response to AB 1887. According to the author, such travel bans are counter-productive measures that block communication, whereas allowing representatives of our state to travel to other states and engage in dialogue might be a more effective means of changing policies in those states. But if the author believes that AB 1887 was wrong-headed and short-sighted, then perhaps the better response would be to introduce a bill that would repeal or substantially amend the statute created by AB 1887. Instead, the author adds a new section to the Government Code that directly, and apparently purposefully, conflicts with the existing statute. While this Committee would not likely support the repeal of the AB 1887 statute – given that this Committee passed AB 1887 on an 8-2 vote only last year – seeking repeal of that statute makes more sense than enacting legislation that contradicts, but does not change or replace it.

The Political Beliefs of whom? In addition to its indirect nature, this measure is also ambiguous in other ways. To begin with, the bill does not define "political beliefs." Perhaps more important, the bill does not specify whose political beliefs are at issue. Does the bill refer to the political beliefs of the employee wanting to travel, the political beliefs of the destination state, the political beliefs associated with the purpose of the travel, or the political beliefs of the state agency that prohibits travel or denies a request for travel funds? Given that this is a response to AB 1887, it seems reasonable to conclude that the bill refers to the political beliefs of the state agency, or perhaps even to the state itself. To the extent that it is possible for a state or state agency to have "political beliefs," then AB 1887 expressed the Legislature's political belief that discrimination against LGBT persons is improper and inconsistent with California's values. If that is so, then a state agency that denies travel requests pursuant to AB 1887 does not do so on the basis of the agency's political beliefs; it denies the request because a state law requires it to deny the request.

Author's Pending Related Legislation: The author's much more modest AB 518, which has been referred to this Committee and will be set for hearing for a later date, would amend rather than contradict the statute created by AB 1887. Specifically, AB 518 would create additional exceptions from the travel-funding ban in order to reimburse the travel of state employees and officials who attend academic conferences, participate in athletic events, or recruit prospective student athletes.

ARGUMENTS IN SUPPORT: According to the author, prohibiting travel to other states is "not only . . . inherently regressive, but also halt progress in other areas. Cities and states collaborate on many issues, from urban planning to public education." Bans such as those codified in AB 1887 "undermine collaboration" and "erect walls between public employees, placing entire states on one side or the other, with no exception for areas where their views and work are aligned." The author maintains that "a more effective way [than AB 1887] to protest would be to allow our state's representatives to travel and dialogue with these states that have [objectionable laws]. We learn far more when there are open lines of communication than when we close off and retreat to our corners. Travel opens people to new ideas, cultures, and ways of thinking. Boycotting travel to states because of one law or its current choice of leader is misguided . . . AB 517 is needed so states can continue to work together to find solutions to complex issues."

ARGUMENTS IN OPPOSITION: Equality California (EQCA) opposes this bill because it would "undermine AB 1887 (Low), passed in this committee and enacted last year." EQCA argues that in direct response to gains made by the LGBTQ community, especially same-sex marriage rights, "state legislatures across the county [enacted laws] designed to allow discrimination against LGBT people in virtually all aspects of their lives." However, while states like North Carolina and Mississippi enacted discriminatory laws, "other states have just as forcefully opposed these efforts. Businesses, cities, and other states have been taking a firm stand against this dangerous scapegoating of and backlash against LGBT people and their families. AB 1887 ensured that California has a strong role in that nationwide effort." California is "national leader" in the fight for LGBTQ rights, EQCA contends, and it "is imperative that California continues to denounce [discriminatory] actions publicly and financially." The ACLU and several groups supporting LGBTQ rights oppose this bill for substantially similar reasons.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

ACLU

Equality California

National Center for Lesbian Rights

Stonewall Democratic Club

Stonewall Democratic Club of Greater Sacramento

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334