Specifically, AB 361 suspends the requirements located in California Government Code section 54953, subdivision (b), paragraph (3). What does this mean for local agencies? This means that, during a state of emergency and under specified circumstances, local agencies can meet pursuant to modified Brown Act requirements. The differences in meeting procedures for those meetings held pursuant to AB 361, as opposed to the normal procedures for typical Brown Act-compliant meetings, are examined below.
THE DIFFERENCES: THE BROWN ACT AFTER AB 361
The procedures for a meeting under AB 361 depart from the traditional telecommuting requirements under the Brown Act (as written prior to 2021) in the following ways:
AGENDA POSTING:
- Agendas are not required to be posted at all teleconference locations
- Meetings must still be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency
CONTEXT: In the context of a declared emergency, members of the legislative body of a local agency may be teleconferencing from less-than-ideal locations – e.g., the private domicile of a friend or relative, a hotel room, an evacuation shelter, from a car, etc. To address this issue, AB 361 provides relief from the obligation to post meeting agendas at all teleconference locations.
Although local agencies are relieved from this obligation, local agencies should endeavor to post meeting agendas at all usual locations where it remains feasible to do so.
PHYSICAL ACCESS TO MEETING:
- Agendas are not required to identify each teleconference location in the meeting notice/agenda
- Local agencies are not required to make each teleconference location accessible to the public
CONTEXT: Impromptu, ad hoc locations are not ideal for conducting meetings consistent with the usual Brown Act requirements, which may impede local agencies seeking to meet promptly in response to calamity. To that end, AB 361 removes the requirement to document each teleconference location in meeting notices and agendas. Similarly, local agencies are not required to make these teleconference locations accessible to the public.
MEETING LOCATION:
- No requirement to have a quorum of board members participate from within the territorial bounds of the local agency’s jurisdiction
CONTEXT: An emergency which drives individuals from an area could make meeting within the bounds of a local agency impossible to do feasibly or safely. Accordingly, AB 361 allows for local agencies to meet quorum requirements even if a majority of members of a legislative body teleconferences from locations beyond the local agency’s territory.
ACCESSIBILITY:
- In each instance in which notice of the time of the teleconferenced meeting is given or the agenda for the meeting is posted, the legislative body shall also give notice of the manner by which members of the public may access the meeting and offer public comment
- The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option
- The legislative body shall allow members of the public to access the meeting, and the agenda shall include an opportunity for members of the public to address the legislative body directly
- In the event of a disruption which prevents the local agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored
CONTEXT: AB 361 permits local agencies to meet without making teleconference locations available to members of the public, provided that members of the public are afforded the opportunity to provide public comment remotely as well.
Importantly, local agencies must ensure that the opportunity for the public to participate in a meeting remains as accessible as possible. This means that local agencies cannot discriminate against members of the public participating either remotely or in-person.
Local agencies are required to provide the relevant remote access information to members of the public looking to attend a meeting of a local agency legislative body. This information includes, but is not limited to: phone numbers, passwords, URLs, email addresses, etc. Using this information, members of the public must be able to attend the meeting remotely. Any of the information related to participation must be included in the relevant meeting notice(s) and meeting agenda(s). If an agency fails to provide one or more of these key pieces of information in a meeting notice or agenda, the agency should not proceed with the meeting as-is, as it could result in any subsequent action being rendered null or void.
In a notable departure from the terms of the Governor’s orders, AB 361 explicitly requires that local agencies must first resolve any remote meeting disruption before proceeding to take further action on items appearing on a meeting agenda. In the event that a public comment line unexpectedly disconnects, a meeting agenda was sent out with the incorrect web link or dial-in information, the local agency’s internet connection is interrupted, or other similar circumstances, a local agency is required to stop the ongoing meeting and work to resolve the issue before continuing with the meeting agenda. Local agencies should ensure that the public remains able to connect to a meeting and offer public comment by the means previously advertised in the meeting notice or agenda. This may require directing staff to monitor the means by which the public can observe the meeting and offer comment to ensure that everything is operating as intended. In the event that a meeting disruption within the control of the agency cannot be resolved, a local agency should not take any further action on agenda items; the local agency should end the meeting and address the disruption in the interim, or it may risk having its actions set aside in a legal action.
- Written/remote public comment must be accepted until the point at which the public comment period is formally closed; registration/sign-up to provide/be recognized to provide public comment can only be closed when the public comment period is formally closed
- An individual desiring to provide public comment through the use of an Internet website, or other online platform, not under the control of the local legislative body that requires registration to log in to a teleconference, may be required to register as required by the third-party internet website or online platform to participate
CONTEXT: It is not permissible to require that members of the public looking to provide public comment do so by submitting their comment(s) in advance of a meeting – in fact, not only is this a violation of AB 361’s terms, it is also a violation of the Brown Act generally. Both AB 361 and the Brown Act explicitly require that members of the public be given the opportunity to provide public comment directly – that is, live and at any point prior to public comment being officially closed during a public meeting. Until such time during a meeting that the chairperson (or other authorized person) calls for a close to the public comment period, members of the public are allowed to submit their public comments directly or indirectly, orally, written, or otherwise. Similarly, local agencies cannot require that individuals looking to provide public comment register in advance of a meeting (though agencies may extend the possibility of advance registration or commenting as a non-mandatory option). Nor may local agencies require that individuals looking to provide public comment register in advance of the agenda item being deliberated by a local agency. Local agencies may only close registration for public comment at the same time that they close the public comment period for all. Until the public comment period is completely closed for all, members of the public must be permitted to register for, and provide, public comment.
The Brown Act has long prohibited the use of mandatory registration or “sign-ups” to attend public meetings or to provide public comment. AB 361 resolves this issue by explicitly allowing local agencies to use platforms which, incidental to their use and deployment, may require users to register for an account with that platform so long as the platform is not under the control of the local agency.
IMPLEMENTING AB 361: EFFECTING A TRANSITION TO REVISED MEETING PROCEDURES
A local agency wishing to rely on the provisions of AB 361 must meet one of the following criteria:
(A) The local agency is holding a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing; or
(B) The local agency is holding a meeting during a proclaimed state of emergency 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; or
(C) The local agency is holding a meeting during a proclaimed state of emergency and has 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.
These criteria permit a local agency to schedule a remote meeting to determine whether meeting in-person during the state of emergency would pose imminent risk to the health or safety of attendees. At that remote meeting, a local agency may determine by majority vote that sufficient risks exist to the health or safety of attendees as a result of the emergency and pass a resolution to that effect. These criteria also permit a local agency to meet remotely in the event that there is a state of emergency declaration while state or local officials have recommended or required measures to promote social distancing.
If a local agency passes a resolution by majority vote that meeting in-person during the state of emergency would present imminent risks to the health or safety of attendees, the resolution would permit meeting under the provisions of AB 361 for a maximum period of 30 days. Should the agency wish to continue meeting under the provisions of AB 361 beyond 30 days, the local agency would need to renew its resolution, consistent with the requirements of AB 361 or allow the resolution to lapse.
Importantly, the ability to renew the resolution is subject to certain requirements and conditions. In order to renew the resolution, a local agency must:
- Reconsider the circumstances of the state of emergency
- Having reconsidered the state of emergency, determine that either
- The state of emergency continues to directly impact the ability of the members to meet safely in person, or
- State or local officials continue to impose or recommend measures to promote social distancing
AB 361 requires that the renewal of the resolution effecting the transition to the modified Brown Act requirements must be based on findings that the state of emergency declaration remains active, the local agency has thoughtfully reconsidered the circumstances of the state of emergency, and the local agency has either identified A) ongoing, direct impacts to the ability to meet safely in-person or B) active social distancing measures as directed by relevant state or local officials.
CSDA has published an implementation guide to assist its members in enacting AB 361’s provisions. That implementation guide and the accompanying sample materials contained therein are available on CSDA’s website, at https://www.csda.net/advocate/take-action/361-resources.
This article was written by CSDA Legislative Analyst Marcus Detwiler, as part of CSDA’s New Laws Series, where experts explain recently enacted laws and how they will impact special districts moving forward. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.
Stay tuned to the New Laws Series in CSDA eNews for more in-depth analyses on new laws affecting special districts.
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