On March 4, 2020, Governor Newsom declared a State of emergency due to the threat of COVID-19. In light of the ongoing threat of COVID-19, on March 12, 2020, Governor Newsom issued Executive Order N-25-20 (“March 12th Executive Order”) to temporarily grant state and local agencies certain powers to aid in the implementation of social distancing measures recommended by state and local public health officials.
On March 17, 2020, Governor Newsom issued Executive Order N-29-20 (“March 17th Executive Order”) revoking portions of the March 12th Executive Order and imposing revised temporary requirements on state and local agencies to address changes in the recommendations and requirements imposed by public health officials in light of the spread of COVID-19.
In addition to granting specific powers to certain state agencies, these Executive Orders affect the allowable procedures for public meetings of local agencies that are subject to the Ralph M. Brown Act (Gov. Code § 54950 et seq.) The March 17th Executive Order revokes and revises the temporary measures that were set forth in Section 11 of the March 12th Executive Order.
The March 17th Executive Order lists specific portions of the Brown Act that are waived for the period that social distancing measures are recommended and required by state and local public health officials. More specifically, the following Brown Act requirements are waived:
- That the location from which each member participating via teleconference be noticed on the agenda for the meeting that member is participating via teleconference.
- That each teleconference location be open and accessible to any member of the public.
- That each teleconference location be equipped to allow comments from any member of the public wishing to make a public comment.
- That an agenda be posted at each teleconference location.
- That a quorum of members of the legislative body participate from teleconference locations within the local agency’s jurisdiction.
The waiver of these Brown Act provisions is nevertheless subject to the following requirements:
- That advance notice of meetings being conducted be accomplished in accordance with the Brown Act.
- That members of the public be allowed to observe and address public meetings telephonically or through other electronic means.
- That procedures be in place to “swiftly” accommodate any reasonable request to accommodate access by disabled individuals to meetings that are accessible telephonically or through other electronic means in accordance with the Americans with Disabilities Act (“ADA”).
- Provide notice of the procedure for making requests for such reasonable accommodation with the notice for any public meeting.
These requirements take immediate effect and also apply retroactively to any meeting that was noticed before the issuance of the March 17th Executive Order. This means that any meeting that had been noticed to have a publicly accessible venue is no longer required to provide this access. Instead, the local agency must provide notice of the telephonic access procedures by the “most rapid means of communication available at the time” in accordance with Government Code section 54954(e), including, but not limited to, posting on the local agency’s website.
Finally, these Executive Orders contain a general admonishment for local agencies to use sound discretion and make reasonable efforts to continue to adhere as closely as possible to the provisions of the Brown Act in order to maximally effectuate the purposes of the Brown Act.
Key Take Away
In light of this threat to health and safety, government agencies are allowed to deviate from existing teleconference rules set forth in the Brown Act but must still account for allowing public participation by enabling access to public meetings by telephonic or other electronic means.
The primary takeaway for local agencies scheduling public meetings is that they are no longer required to make a location available from which members of the public may observe and comment on the meeting. Instead, local agencies are required to make meetings held by teleconference accessible by some telephonic or other electronic means and have procedures in place to quickly enable access to disabled persons consistent with the ADA.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys from our office, or the attorney with whom you typically consult.
Jeffrey Mitchell
jmitchell@kmtg.com | 916.321.4591
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Andreas Booher
abooher@kmtg.com | 916.321.4372