On September 13, 2022, Governor Gavin Newsom signed Assembly Bill 2449 (AB 2449) into law, amending requirements of the Brown Act relating to teleconference participation of legislative body members during public meetings. AB 2449 will go into effect on January 1, 2023.
The Brown Act previously required the posting of meeting agendas at all teleconference locations, identifying all teleconference locations in the notice and agenda, and making each teleconference location accessible to the public.
During the COVID-19 pandemic, these requirements became an issue. Were members of legislative bodies required to identify their home addresses on the notice and agenda and then let members of the public into their home while they Zoomed into the public meeting? No, but only because Governor Newsom initially issued a series of Executive Orders modifying the requirements, and subsequently the Legislature passed AB 361 (2021) which allows legislative bodies to conduct their meetings via teleconference without complying with these requirements. However, AB 361 applies only during a gubernatorial declared state of emergency and has a sunset date of January 1, 2024.
Under AB 2449, the teleconferencing rules enacted by AB 361 remain available during a state of emergency declared by the Governor. AB 2449 adds additional exceptions to the normal teleconference rules, however, that also allows legislative bodies to use teleconferencing without complying with the normal teleconferencing requirements absent a declared state of emergency when a member of the legislative body is unable to attend in person due to “just cause” or due to an “emergency circumstance,” as described in greater detail below.
AB 2449 allows a member of a legislative body to attend meetings remotely without having to identify and open up their teleconference location to the public, under the following circumstances:
- The legislative body member has “just cause” or faces “emergency circumstances” that require them to attend remotely;
- AB 2449 defines “just cause” as any of the following: (1) childcare or caregiving of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely, (2) a contagious illness that prevents them from attending in person, (3) a need related to a disability not otherwise accommodated, or (4) travel while on official business of the legislative body or another state or local agency;
- The member must notify the legislative body of their need to participate remotely as soon as possible and provide the legislative body a general description of the circumstances relating to their need to appear remotely;
- “Just cause” cannot be used by an official for more than 2 meetings per calendar year.
- AB 2449 defines “emergency circumstances” as a physical or family medical emergency that prevents a member from attending in person;
- The member must request the legislative body allow them to participate remotely due to emergency circumstances as soon as possible and the legislative body must take action to approve that request. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the legislative body may take action by majority vote on the emergency circumstances request at the beginning of the meeting;
- The legislative body shall request a general description of the circumstances relating to the member’s need to appear remotely at the given meeting. This description need not exceed 20 words and must not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law.
If a member of a legislative body attends a public meeting remotely, they must participate through both audio and visual technology, and, when action is being taken on an item, they must publicly disclose if someone over the age of 18 is in the room with them and their general relationship to that person.
Members are limited in how often they can remotely participate in public meetings. They cannot participate remotely for a period of more than three consecutive months or 20% of the regular meetings within a calendar year. If the legislative body meets fewer than 10 times a year, they cannot participate remotely in more than 2 regular meetings.
Under what circumstances can a legislative body use teleconferencing without identifying each teleconference location in the agenda, posting agendas at all teleconference locations, and opening up teleconference locations to the public?
- At least a quorum of the members of the legislative body must participate in person at a single physical location within the legislative body’s jurisdiction;
- The legislative body must provide the public a means to observe and participate in the meeting through either a two-way audiovisual platform (like Zoom) or a two-way telephonic service and a live webcasting of the meeting (the classic remote option);
- Whenever notice of the meeting or agenda is posted, it must include information on how to access the meeting and make public comment, whether that be through the in-person or remote option;
- The legislative body may not require public comments to be submitted before the meeting. The public must have an opportunity to address the legislative body in real time; and
- If there is a disruption that prevents the legislative body from broadcasting the meeting or prevents members of the public from offering public comment, the legislative body cannot take further action on the agenda items until remote public access is restored.
While these requirements seem onerous, keep in mind that these provisions are required only if a member of a legislative body is participating due to “just cause” or “emergency circumstances.” Legislative bodies may always meet via teleconference by following the traditional Brown Act rules of identifying, posting, and opening up their teleconference locations.
AB 2449 will remain in effect until January 1, 2026.
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.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Jeffrey Mitchell
jmitchell@kmtg.com | 916.321.4591
Andreas Booher
abooher@kmtg.com | 916.321.4372
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