The Governor has signed Assembly Bill 361 (“AB 361”) into law, which relates to electronic/virtual access to Brown Act meetings. AB 361, effective immediately, amends open meeting requirements to permit the legislative body of a local public agency to hold virtual meetings during certain emergencies proclaimed by the Governor.
Background
The Brown Act, which is codified at Government Code section 54950 et seq., requires meetings of legislative bodies of local public agencies be noticed, open, and public. Prior to the COVID-19 pandemic, teleconferencing was only permitted if the majority of the body was within the territorial jurisdiction of the body, each teleconference location was identified and open to the public, and all votes were via rollcall.
During the COVID-19 pandemic, the Governor passed Executive Order N-29-20 which suspended the Brown Act teleconference requirements (other than roll call voting) as long as members of the public were permitted to participate at least electronically, and certain notice and electronic accessibility requirements were met. Unless otherwise amended, that Order is set to expire on September 30, 2021.
California’s Amended Law
Assembly Bill 361 takes effect immediately because it is an urgency statute and it will expire on January 1, 2024, unless extended. The bill amends the Brown Act to provide the following:
- Authorization. A legislative body may meet via teleconference during a proclaimed state of emergency by the Governor at a local, state, or national level in any of the following situations:
- State or local officials have imposed or recommended measures to promote social distancing.
- The legislative body holds a meeting for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
- The legislative body holds a meeting and has already determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
- Renewal Every 30 Days. The decision to meet telephonically must be renewed at least every 30 days with the legislative body adopting findings that it has reconsidered the circumstances of the state of emergency and (1) the emergency continues to directly impact the ability of the members to meet safely in person or (2) state or local officials continue to impose or recommend measures to promote social distancing.
- Meeting Requirements. An AB 361 teleconference meeting must comply with the following procedures:
- Give notice and post agendas as otherwise required by the Brown Act;
- List on the agenda how the public can electronically attend and comment at the meeting. Note that a public agency is not required to offer an in-person option for the public to attend and comment at such a meeting;
- Provide an opportunity to comment in advance of and during the meeting;
- Allow a reasonable amount of time to register, if required, and comment on each agenda item or at least the amount of time allowed per agency meeting protocols, whichever is longer;
- No action may be taken during a disruption that inhibits the broadcast of the meeting or the public’s ability to comment;
- All votes must be via rollcall;
- Comply with state and federal civil rights and non-discrimination laws; and
- Take all precautions to protect the statutory and constitutional rights of the public.
While it only applies in situations where the Governor has proclaimed a state of emergency, and not, for instance, when only a local health officer has declared an emergency, this new law provides an explicit avenue for local public agencies to meet telephonically in the case of a public health, or other, emergency that inhibits the opportunity to meet in person. It is also a recognition of how technological advancements may promote public access to public meetings. Assembly Bill 361 expires on December 31, 2023, unless extended.
Note that this Legal Alert is limited to changes to the Brown Act. However, AB 361 also adds teleconference options to the Bagley-Keene Open Meeting Act, Government Code section 11120 et seq., applicable to state agencies and to the Gloria Romero Open Meetings Act, Education Code section 89305 et seq., applicable to student bodies of California State Universities. In brief, this new law provides that meetings of such legislative bodies may be virtually held as long as specified notice and accessibility requirements are met. These provisions expire on January 31, 2022.
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.
Olivia Clark
oclark@kmtg.com | 916.321.4290
Andreas Booher
abooher@kmtg.com | 916.321.4372
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Jeffrey Mitchell
jmitchell@kmtg.com | 916.321.4591
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