By: Nicholaus Norvell and Holland Stewart, Best Best & Krieger, LLP
During its most recent session, the California State Legislature adopted and the Governor signed three significant bills amending the Ralph M. Brown Act (Brown Act). These bills — which take effect on January 1, 2023 — relate to future teleconferencing by members of legislative bodies, posting agenda-related materials, and the removal of members of the public who are disrupting meetings.
Assembly Bill 2449 – Enhanced Teleconferencing and Recent Developments Relating to Assembly Bill 361 of 2021
Subject to a number of requirements, AB 2449 provides public agencies with the additional ability for legislative body members to participate remotely in meetings without having to give the public access to private locations. In 2021, in response to the COVID-19 pandemic, the Legislature adopted AB 361 to ease certain requirements for holding teleconference/virtual meetings under the Brown Act during Governor-declared emergencies. Before AB 361, the Brown Act’s teleconferencing rules required public agencies to identify each teleconference location on the agenda, post the agenda at those locations, and make each location open to the public, none of which was feasible during a pandemic.
Although AB 361 remains in effect through January 1, 2024, Governor Gavin Newsom recently announced that the declared statewide State of Emergency related to COVID-19 will end on February 28, 2023. This shift is likely to mean that, absent an additional declared State of Emergency affecting a local agency, any local agencies conducting meetings under the provisions of AB 361 will — if they have not already — soon need to revert to holding fully in-person public meetings or meetings using the newly adopted AB 2449 or traditional Brown Act teleconference rules.
AB 2449 provides for relaxed teleconferencing rules when a member of the legislative body has to attend remotely for an emergency or other reasons supported by “just cause”. Under these new rules, a legislative body may hold a hybrid (partial teleconference, partial in-person) meeting without having to comply with the standard Brown Act teleconference rules under certain circumstances. Those circumstances are:
- One or more members of the legislative body (but less than a quorum) have notified the body at the earliest opportunity of their need to participate remotely for just cause (e.g., childcare or family caregiving need, contagious illness, physical or mental disability need, travel while on official public business); or
- One or more members of the legislative body (but less than a quorum) experience an emergency circumstance (e.g., a physical or family medical emergency that prevents in-person attendance). The member must provide a general description of the circumstances relating to their need to appear remotely; however, they are not required to disclose a medical diagnosis, disability or other confidential medical information. The legislative body must then take action on each member’s request. If the request does not allow sufficient time to be placed on the posted agenda for the meeting for which the request is made, the legislative body may take action on it at the beginning of the meeting.
Members of legislative bodies who wish to use one of these provisions should be sure to contact the agency’s clerk/secretary, general manager, and/or legal counsel as soon as possible before seeking to attend a meeting remotely under AB 2449. Not only does the individual member have to meet the requirements to attend remotely, but there are restrictions on the number of times a member may attend remotely in a year under the just cause provision and in total under AB 2449. In addition, a quorum of the body must still meet in-person at a single location within the district boundaries, and the meeting format must meet the following remote access rules:
- Use either a two-way audio-visual system or a two-way phone service with live webcasting.
- Members participating remotely must 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.
- Identify a call-in or internet-based access option for the public on the agenda, along with the in-person meeting location.
- Ensure that, if a disruption to the online meeting occurs, the body takes no further action on agenda items until public access is restored.
- Avoid requiring public comments to be submitted in advance and provide a real-time option for the public to address the body at the meeting.
- Take all votes by roll call.
As referenced earlier, the provisions of AB 2449 cannot be used as the means for any member of a legislative body to participate in meetings of the legislative body 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 local agency within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.
In lieu of AB 2449 teleconferencing, local agencies may always rely on the traditional teleconferencing rules that applied pre-COVID and remain an available option: All votes must be by roll call, the meeting must be conducted to protect the rights of the public appearing before the body or wishing to comment, all members of the public must be able to access the meeting and provide public comment, teleconference locations must be identified in the agenda, copies of the agenda must be posted at all teleconference locations, and teleconference locations must be open to the public. Finally, under traditional Brown Act teleconferencing requirements, at least a quorum of the members of the legislative body who are participating remotely must do so from locations within the agency’s jurisdiction.
AB 2449 will present a host of administrative questions for special districts as board members seek to avail themselves of this new option for remote meeting participation. It will be important for special districts to get ahead of this issue and establish a board policy that institutes a workable process for administering requests and ensuring the district remains in compliance with the law. Violations of the Brown Act can leave the agency open to costly legal challenges that could void board actions conducted during a failure to comply.
Assembly Bill 2647 – Posting of Agenda-Related Materials
AB 2647 makes clear that agenda-related materials distributed to the majority of a legislative body less than 72 hours before a meeting can be posted online to satisfy the requirement of making the documents available to the public.
Previously, under the Brown Act, when local agencies distributed agenda-related materials to members of a legislative body less than 72 hours before a meeting, the agencies were required to make the materials physically available for public inspection at a public office or location. Although the Brown Act previously allowed agencies to post such materials on their websites, its basic requirement to make the materials physically available to the public at a public office or location remained in effect.
In Sierra Watch v. Placer County (2021) 69 Cal.App.5th 86, an appellate court determined that a county violated the Brown Act when it made agenda-related materials available to members of its board of supervisors at a time when the county’s office was closed because members of the public would not also have physical access to the materials at that time.
AB 2647 will ensure that agencies can distribute agenda-related materials in a timely fashion, such as updated staff reports or proposed agreements, to their legislative bodies, as long as the materials are made immediately available on the agency’s website in a manner that makes it clear that they relate to an agenda item for an upcoming meeting.
Senate Bill 1100 – Removing Disruptive Individuals from Meetings
Under SB 1100, legislative bodies now have additional clarity on their ability to address unwelcome meeting disruptions. The Brown Act already authorizes a legislative body to order the room cleared and continue in session if a group willfully interrupts the orderly conduct of the meeting, provided certain requirements are met. SB 1100 amends the Brown Act to make clear that the presiding member of a legislative body may have an individual removed for disrupting a meeting.
Before removing an individual however, the legislative body must warn them that their behavior is disruptive and that continued disruption may result in their removal (however, no prior warning is required if they are engaging in or threatening the use of force). Behavior is otherwise “disruptive” if it actually disrupts or impedes the orderly conduct of the meeting.
For more on this topic, check out the FREE Webinar for CSDA Members: "Brown Act: Come for the Basics, Stay for the Updates."
Register for Webinar: Brown Act: Come for the Basics, Stay for the Updates
- January 17, 2023
- 10:00 a.m. – 12:00 p.m.
This Brown Act presentation is geared toward board members and general managers / department heads to provide an overview of obligations to the public relative to the open conduct of the public’s business, including an overview of new teleconferencing in rules in effect January 1.
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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Missed Part 2? Read it now: Unpaid Water Service Bills: Where We are in 2023
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Communication 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 communications. #FeatureNews#AdvocacyNews#BrownAct#TransparencyandAccountability