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Are You Ready to Govern?

By Kristin Withrow posted 05-08-2023 01:21 PM

ready to govern?

By:  Roxanne Diaz

The voters have spoken and you were elected to meet the challenges faced by your district and its constituents.  While you may be ready to dig deep on district issues, public officials also must comply with laws that set standards for transparency and accountability.  Open meeting laws, ethics training, and the Political Reform Act are just a few of the laws that elected officials must navigate.  As governance becomes more complex, the Brown Act has been amended in the last several years to adapt to the new conditions that elected officials face.  Below are some noteworthy provisions to help you become more knowledgeable about the new fundamentals of governing.

Social Media and the Brown Act 

Under the Brown Act, a district board meeting of a majority of the legislative body must be open and public and all persons shall be permitted to attend any meeting of the legislative body of a local agency.[2]  A majority of the members of the legislative body may not, outside of a meeting, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body (i.e. district business).[3]  These types of interactions are often referred to as “serial meetings.”  As use of social media has grown more prevalent as a way of communicating with constituents and sharing information, the Brown Act until recently did not contain guidance as to when or if social media interactions could be considered a serial meeting if multiple members are “interacting.”  The difficulty came with determining what could be considered a “communication” for purposes of complying with the Brown Act.

The Brown Act now provides clarity and states that a member of a legislative body may engage in social medial conversations or communications to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is about district business.[4]  However, as it relates to social media communications between legislative body members, the Brown Act now provides that there shall be no social media interaction between members on matters of district business at all:  a member shall not respond directly to any communication that is made, posted, or shared by any other member of the legislative body.[5]  This means that if your district board colleague posts about an item on the board’s agenda, you may not like, comment on, share or tag your colleague’s social media post. This also includes any interaction by way of re-posting or using an emoji or digital icon. This prohibition is not limited to a majority of the body interacting on a post.  It applies to interactions between just two members.  This is a key element to be aware of, as typically an interaction between two members would not be a potential violation of the Brown Act. 

Removal of Disruptive Persons at Meetings

Establishing time limitations and other rules of decorum during public comment periods at meetings of a legislative body are permissible and  consistent with First Amendment principles.[6] Courts have determined that public agency meetings are limited public forums under the First Amendment. This means that legislative bodies are permitted to regulate the time, place, and manner of speech.[7] Public agencies are more limited in how they may regulate speech at public meetings. For example, local government agencies cannot prohibit public criticism of the policies, procedures, programs or services of the public agency, or the acts or omissions of the legislative body.[8] 

In order to be removed from a public meeting, courts have held that an individual must actually disturb the meeting.[9]  Using offensive words is not sufficient to justify removal from a meeting.[10] Only an actual disruption that impedes the progress of the meeting can justify the removal of a disruptive speaker.[11] This determination is a fact-specific determination made by the presiding officer of the legislative body. The Brown Act was amended in January 2023 to codify these rules established by courts on when disruptive individuals can be removed from public meetings.

Government Code Section 54957.95 states that the presiding officer may remove an individual from a meeting for disruptive behavior if they first warn the individual that their behavior is disruptive and that failure to cease their disruptive behavior could result in removal from the meeting. But, if the individual disrupting the meeting is using force or a true threat of force, they may be removed without a prior warning to cease their behavior. Section 54957.95 defines a true threat of force as a threat that is serious enough that a reasonable observer would perceive the threat to be an actual threat to use force by the person making the threat.

Section 54957.95 also defines disruptive behavior during a meeting as behavior that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting. Disruptive behavior includes noncompliance with the legislative body’s established rules of decorum, such as speaking out of turn or exceeding established time limits on how long an individual can speak on a particular topic during public comment.

The language of Section 54957.95 follows legal precedent regarding when an individual can be removed from a meeting for disturbing the meeting. Therefore, Section 54957.95 does not necessarily bestow new powers upon public agency legislative bodies but provides explicit uniform statutory language for public agencies to follow when faced with a disruptive speaker at a meeting.

Zooming in a Post-Pandemic World

Pre-pandemic, the Brown Act allowed for meetings to occur via teleconferencing (i.e. now zoom) subject to certain requirements: the agency must identify the teleconference location of each legislative body member that will be participating in the meeting; each teleconference location must be accessible to the public; members of the public must be allowed to address the legislative body at each teleconference location; the meeting agenda must be posted at each teleconference location; and at least a quorum of the legislative body must participate from locations within the boundaries of the agency’s jurisdiction.[12]

It is important to note that these teleconferencing rules have not changed and were in place throughout the pandemic.  What occurred, was a relaxation of these rules first through the Governor’s executive order and then by legislation (via AB 361) so as to allow a member of a legislative body to attend a meeting by zoom without complying with the above teleconference rules.  Now that the pandemic is over, the COVID-19 State of Emergency has been terminated and AB 361 is no longer applicable,[13] AB 2449 was adopted and amended the teleconferencing provisions of the Brown Act to provide public agency legislative bodies an additional, but limited, teleconferencing option starting January 1, 2023.

Similar to AB 361, AB 2449 does not require public agencies to follow certain traditional Brown Act teleconferencing requirements like posting agendas at all teleconference locations, identifying all teleconference locations in the meeting agendas, or making each teleconference location open to the public.[14]  However, public agencies must following certain requirements for noticing and conducting remote meetings. Meeting notices and agendas must identify the means by which members of the public may access the meeting and offer public comment.[15] Meeting agendas must identify and include an opportunity for all persons to attend and address the legislative body directly via a call-in option, via an internet-based service option, and at the in-person location of the meeting.[16]  The legislative body may not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time.[17]

Unlike teleconferencing under AB 361, AB 2449 requires at least a quorum of the legislative body to participate in person from a singular, physical location clearly identified on the agenda, open to the public, and situated within the boundaries of the territory over which the agency exercises jurisdiction.[18] This location would normally be the body’s regular meeting location.

Members of the legislative body participating remotely under these rules must publicly disclose at the meeting before any action is taken whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals.[19] Members must also participate through both audio and visual technology so that the public can remotely hear and visually observe them.[20] To do this, AB 2449 requires either a two-way audiovisual platform[21] or a two-way telephonic service[22] with a live webcasting[23] of the meeting.[24]

AB 2449 is not intended to allow for frequent teleconferencing under relaxed requirements, but rather provides a limited option to enable legislative body members to participate remotely from time-to-time without following the traditional Brown Act teleconferencing rules. Further, AB 2449 only allows for remote participation by legislative body members in two specified circumstances: (1) “just cause” or (2) “emergency circumstances.”[25]

Just Cause: “Just cause” means any of the following: (A) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (B) a contagious illness that prevents a member from attending in person; (C) a need related to a physical or mental disability[26] not otherwise accommodated by the agency’s procedures for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the Americans with Disabilities Act;[27] or (D) travel while on official business of the legislative body or another state or local agency.[28] To participate remotely for just cause, a member must notify the legislative body “at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause.” This notification must include a general description of the circumstances relating to their need to appear remotely at the given meeting.[29]

Emergency Circumstances: “Emergency circumstances” means a physical or family medical emergency that prevents a member from attending a meeting in person.[30] To participate remotely due to emergency circumstances, the member must request the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body must take action to approve the request.[31] If the legislative body does not approve the request, the member may not participate via teleconference under AB 2449 at that meeting. The legislative body must request a general description of the circumstances relating to the member’s need to appear remotely at the given meeting. A general description need not exceed 20 words and does not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law.[32]

A legislative body member should request to participate remotely at a meeting due to emergency circumstances as soon as possible, and a separate request is required for each meeting in which they seek to participate remotely.[33] The legislative body may approve such a request by a majority vote.[34] If the request is received at least 72 hours before a regular meeting, the legislative body’s action on the request should be included on the agenda. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting, the legislative body may take action at the beginning of the meeting.[35]

For “just cause,” legislative members are only allowed to participate remotely up to two meetings per calendar year. Otherwise, legislative members may not participate solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the legislative body within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.[36]

If your agency plans to use AB 2449 teleconferencing, consider the following recommendations: (1) Ensure that your remote meeting system meets all the procedural and substantive requirements of AB 2449; (2) Create a system for legislative body members to submit their remote participation requests; and (3) Keep track of the number of times each legislative body member participates remotely using AB 2449.

[1] Roxanne Diaz is a shareholder at the law firm of Richards, Watson & Gershon.

[2] Government  Code § 54953(a).  There are exceptions such as closed session meetings.

[3] Government Code Section 54952.2(b)(1).

[4] Government Code Section 54952.2(b)(3)(A).

[5] Government Code Section 54952.2(b)(3)(B).

[6] The Brown Act authorizes local government agencies to establish reasonable regulations to manage public comment at public meetings.  See, Government Code Section 54954.3

[7] Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

[8] Government Code Section 54954.3.

[9]  Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010).

[10] Acosta v. City of Costa Mesa, 718 F.3d 800, 810 (9th Cir. 2013); Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006); Musso v. Hourigan, 836 F.2d 736, 739 (2d Cir. 1988); see also Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 71 (9th Cir. 1995).

[11] Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010); Acosta v. City of Costa Mesa, 718 F.3d 800, 811 (2013); Dowd v. City of Los Angeles, WL 4039043,17 (2013).

[12] Gov. Code § 54953(b).

[13] AB 361, adopted as urgency legislation in 2021 and effective until January 1, 2024, amended the Brown Act to relax teleconferencing requirements during Governor-proclaimed state of emergencies.  The COVID-19 State of Emergency ceased as of February 28, 2023 at 11:59 p.m. and therefore public agencies may not currently rely on AB 361 in order to attend a meeting of the legislative body by zoom under its relaxed rules.

[14] Gov. Code § 54953(f)(1).

[15] Gov. Code § 54953(f)(1)(B).

[16] Gov. Code § 54953(f)(1)(C).

[17] Gov. Code § 54953(f)(1)(E).

[18] Gov. Code § 54953(f)(1).

[19] Gov. Code § 54953(f)(2)(B).

[20] Gov. Code § 54953(f)(2)(C).

[21]“Two-way audiovisual platform” means an online platform that provides participants with the ability to participate in a meeting via both an interactive video conference and a two-way telephonic function.

[22]“Two-way telephonic service” means a telephone service that does not require internet access, is not provided as part of a two-way audiovisual platform, and allows participants to dial a telephone number to listen and verbally participate.

[23]“Webcasting” means a streaming video broadcast online or on television, using streaming media technology to distribute a single content source to many simultaneous listeners and viewers.

[24] Gov. Code § 54953(f)(1)(A).

[25] Gov. Code § 54953(f)(2)(A).

[26] As defined in Government Code Sections 12926 and 12926.1.

[27]42 U.S.C. § 12132.

[28] Gov. Code § 54953(j)(2).

[29] Gov. Code § 54953(f)(2)(A)(i).

[30] Gov. Code § 54953(j)(1)

[31] Gov. Code § 54953(f)(2)(A)(ii).

[32] Such as the Confidentiality of Medical Information Act (Chapter 1 [commencing with Section 56] of Part 2.6 of Division 1 of the Civil Code).

[33] Gov. Code § 54953(f)(2)(A)(i)(I).

[34] Gov. Code §§ 54953(f)(2)(A)(i)(II); 54954.2(b)(4).

[35] Gov. Code §§ 54953(f)(2)(A)(i)(II).

[36] Gov. Code § 54953(f)(3).

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