In response to public agencies’ urgent need to adapt to the challenges brought by the COVID-19 pandemic, in March 2020, California Gov. Gavin Newsom issued Executive Order N-29-20 (amending in part Executive Order N-25-20) to suspend portions of the Brown Act that ordinarily limit the use of teleconferencing public meetings. In anticipation of California’s so-called reopening on June 15, 2021, Gov. Newsom issued Executive Order N-08-21 on June 11, 2021, where he provided a timeline for the expiration of various portions of his prior executive orders. In it, he set Sept. 30, 2021, as the final date on which public agencies may hold virtual meetings under the modified Brown Act provisions within Executive Order N-29-20. Thereafter, full compliance with the Brown Act is required, absent passage of pending legislation that amends the Brown Act.
Background
The Brown Act is California’s “open meeting” law, which requires that meetings of legislative bodies of local agencies be open and public. Historically, a key tenet of the Brown Act was the requirement for local agencies to hold “in-person” meetings, with narrow exceptions for individuals to join via telephone conference. The Brown Act’s teleconferencing rules, found in Government Code section 54953, require that:
- Each teleconference location be open and accessible to the public;
- Each teleconference location be equipped to allow public comment;
- An agenda be posted at each teleconference location; and
- A quorum of the legislative body participate from teleconference locations within the local agency’s jurisdiction.
These rules were suspended by Gov. Newsom’s Executive Order N-29-20 (“COVID-19 Executive Order”),which permits:
- Holding public meetings “via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically”;
- Teleconferencing meetings without having to make available a physical location from which members of the public may observe the meeting and offer public comment;
- Implementing “a procedure for receiving and swiftly resolving requests for reasonable modification or accommodations from individuals with disabilities, consistent with the Americans with Disabilities Act, and resolving any doubt in favor of accessibility”;
- Giving advance notice of the public meeting and posting agendas according to the time frames and procedures already prescribed by the Brown Act (i.e., 72 hours for regular meetings and 24 hours for special meetings); and
- Giving notice of the means by which members of the public may observe the meeting and offer public comment, in each instance where notice or agendas are posted.
Where Things Stand Now
The COVID-19 Executive Order was originally intended to last “only during the period in which state or local public health officials have imposed or recommended social distancing measures.” However, Executive Order N-08-21 withdrew and replaced portions of the COVID-19 Executive Order to permit these modified teleconferencing rules to remain in place through Sept. 30, 2021. Absent the passage of pending legislation that affects the Brown Act’s teleconferencing rules, on Oct. 1, 2021, local public agencies must come into full compliance with the Brown Act.
What’s On the Table
A variety of bills intended to permanently incorporate into the Brown Act some of the flexibility of the COVID-19 Executive Order were introduced this year. AB 703 and AB 1419 have already failed to pass; however, the outcome for other bills remains to be seen.
AB 361 – Virtual Meetings Only Allowed in Cases of Declared Emergencies. AB 361 would leave the existing Brown Act teleconferencing rules in place, but would except agencies from complying with them where the legislative body meets either (1) for the purpose of declaring or ratifying a local emergency or (2) during a declared state of emergency or local emergency. AB 361 is intended to guarantee that local agencies do not have to rely on an executive order from the governor to serve their communities remotely during future emergencies.
Under AB 361, the public must be provided a call-in or internet-based service option, but need not be given a physical location from which to observe and comment on the meeting. In the event of a disruption that prevents the broadcasting of the meeting via the call-in or internet-based service options, a body may not take further action until access is restored. Within 30 days of holding a virtual meeting for the first time, and every 30 days thereafter, the legislative body must make findings ratifying the state of emergency.
On May 5, this bill was heard in the Assembly Local Government Committee in the first house, where it passed The bill will be heard in the Senate Governance and Finance Committee on July 1.
AB 339 – Allows Virtual Meetings Indefinitely; Mandatory Virtual Meetings for Large Cities. AB 339 allows jurisdictions to opt to continue to hold virtual meetings; for jurisdictions with at least 250,000 people, however, virtual access would be mandatory. Where a teleconferencing option is made available, a quorum of the legislative body would be required to participate from locations within the territorial boundaries of the jurisdiction.
Additionally, in an effort to encourage public participation regardless of national origin or language, earlier iterations of AB 339 also required agencies to provide translation services. The most recent amendments to this bill, however, have removed this requirement.
On April 28, this bill was heard in the Assembly Local Government Committee in the first house, where it passed out 7-0. The bill was then referred to the Assembly Appropriations Committee, where it passed 11-2. Subsequently, the bill was sent to the Assembly Floor, where it also passed 54-9. The bill has since been double referred to the Senate Governance and Finance Committee and the Senate Judiciary Committee; the process will continue in the second house. The bill will be heard in the Senate Governance and Finance Committee on July 1.