By @Derek Cole, Partner, Cole Huber LLP
2024 was a mostly quiet year for developments involving the Ralph M. Brown Act (“Brown Act”). No major changes were made to the Act or in its interpretation. The Legislature passed two bills—one concerning the Act’s requirements for remote participation, and the other expanding a ground for closed session. The State Attorney General issued two opinions clarifying remote participation requirements and interpreting the Act’s application to “state of the city” addresses.
Assembly Bill 2302 Changes the Requirements for Remote Participation at Meetings – Revised Limitations on the Number of Times Per Year Board Members May Appear Remotely
Teleconferenced meetings were the norm during the Covid pandemic. The use of audiovisual means in meeting participation continues today.
In 2021 and 2022, the Legislature codified standards for remote participation, building from the experiences of the previous Covid-era executive orders. The legislation from these years, in particular AB 2449 (2022), allows members of Brown Act bodies to participate remotely in two situations:
- For “just cause,” defined as the need to provide care to a child or close relation, having a contagious illness, needs related to a physical or mental disability, or being on official travel for the agency; or
- “Emergency circumstances,” which include physical or family emergencies that prevent a member from attending.
The right to appear remotely in these circumstances is not unlimited. Currently, members of Brown Act bodies may not appear remotely for a period of more than three consecutive months or for 20% of the year’s regular meetings. (If a body meets fewer than ten times a year, a member may only appear remotely twice during the year.)
2024’s AB 2302 (Addis), which takes effect on January 1, 2025, replaces these limitations with an easier-to-apply formulation. It limits the allowed number of remote appearances for members of Brown Act bodies to:
- Two times per year if the body regularly meets once per month or less;
- Five times per year if the body regularly meets twice per month; or
- Seven times per year if the body regularly meets three or more times per month.
Assembly Bill 2715 Expands the Public Security Ground for Closed Session Meetings to Include Cybersecurity Threats
In 2023, the Federal Bureau of Investigation reported that government entities were the third-most targeted sector by ransomware. The average ransom demanded for government organizations that year was over $1 million. Unfortunately, California local agencies have been no strangers to this trend.
Thankfully, 2024’s AB 2715 (Boerner) allows local agencies to meet in closed session concerning cyberattacks by expanding on an existing ground for closed session. Under current law, agencies may meet in closed session to discuss threats to the security of public buildings, essential public services, or the public right of access to public facilities. The current focus of this exception is on physical threats to security.
AB 2715 expands this ground to include non-physical threats to “critical infrastructure controls” and “critical infrastructure information” relating to cybersecurity.
AB 2715 defines the circumstances in which these threats exist specifically. Agencies should pay close attention to these definitions to ensure they satisfy the grounds for meeting in closed session. More specifically, they may meet in closed sessions to discuss cybersecurity threats to:
• “Critical infrastructure controls,” which include “networks and systems controlling assets so vital to the local agency that the incapacity or destruction of those networks, systems, or assets would have a debilitating impact on public health, safety, economic security, or any combination thereof”; or
• “Critical infrastructure information,” which is “information not customarily in the public domain,” and which pertains to:
- “Actual, potential, or threatened interference with, or an attack on, compromise of, or incapacitation of critical infrastructure controls by either physical or computer-based attack or other similar conduct, including, but not limited to, the misuse of, or unauthorized access to, all types of communications and data transmission systems, that violates federal, state, or local law or harms public health, safety, or economic security, or any combination thereof”;
- “The ability of critical infrastructure controls to resist any interference, compromise, or incapacitation, including, but not limited to, any planned or past assessment or estimate of the vulnerability of critical infrastructure”; or
- “Any planned or past operational problem or solution regarding critical infrastructure controls, including, but not limited to, repair, recovery, reconstruction, insurance, or continuity, to the extent it is related to interference, compromise, or incapacitation of critical infrastructure controls.”
The Attorney General Provides Guidance on the Intersection of the Brown Act and Americans with Disabilities Act
In 2024, the Attorney General provided two opinions interpreting Brown Act provisions. Although Attorney General opinions do not have the same force as published court decisions, they still are considered as authoritative on the issues they address. Agencies may—and should—rely on them for guidance.
In one of the two opinions, issued in July, the Attorney General considered the interplay of the Brown Act and the federal Americans with Disabilities (“ADA”). Specifically, his opinion considered whether the ADA allows remote meeting participation to serve as a reasonable accommodation for a member of a Brown Act body with a qualifying disability.
The Attorney General answered “yes” to this question. (Cal. Att. Gen. Op. 23-1002, Jul. 24, 2024.) Years ago the Attorney General had concluded the contrary. But because of the post-Covid changes to the Brown Act expanding on the right of members to participate remotely, the Attorney General concluded the prior reasoning no longer applied.
The new opinion noted, however, that disabled members accommodated through remote participation are required to comply with two conditions the Legislature placed on remote participation. Specifically, these members must be connected in real time through both audio and visual means, and they must disclose the identities of any adults present with them at the remote location.
The Attorney General Opines that “State of the City” Addresses are Brown Act Meetings
The Attorney General also opined in April that “state of the city” and similar addresses are “meetings” of “legislative bodies” subject to Brown Act requirements. (Cal. Att. Gen. Op. 23-102, Apr. 18, 2024.) When more than a quorum of an elected body attends these events, even when sponsored by private organizations such as chambers of commerce, the Brown Act’s noticing and agenda requirements apply. The Attorney General noted the Act’s exclusion of conferences and community meetings from the Act’s definition of “meetings” but found these inapplicable. Nor, he opined, did any other Brown Act exception allow the event to be treated as anything other than a meeting.
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.
Take a look back at previous parts of the 2025 New Laws Series in CSDA eNews for more in-depth overviews of new laws affecting special districts:
Missed Part 2? Read it now: Assembly Bill 2561 (McKinnor): All Local Agencies Must Present Status of Job Vacancies at a Public Hearing
Missed Part 1? Read it now: Public Officials May Not Block Commenters from Official Social Media Accounts and Posts
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