On March 18, 2020, Governor Gavin Newsom issued an Executive Order providing further flexibility to public agencies conducting their meetings during the COVID-19 pandemic. Executive Order N-29-20 (“Order”) amends a prior executive order on the same topic, a summary of which is available here.
The Order provides that state and local agencies are immediately authorized to: (1) hold public meetings by teleconference or electronically; and (2) to provide for public participation telephonically or electronically. The Order goes on to expressly waive all requirements in the Brown Act and the Bagley-Keene Act that “expressly or impliedly requir[e] the physical presence” of elected officials or other agency personnel.
Provided that the agency provides for appropriate notice and participation, public agencies may now conduct their public meetings entirely by teleconference or other electronic means. This represents a departure from the March 12 order, which required the agency to provide a physical location for members of the public to gather and provide comments.
In order to avail itself of the flexibility in the Order, a public agency must: (1) give advance notice of the meeting and its agenda, consistent with the requirements of Bagley-Keene and the Brown Act; and (2) provide notice of the means by which the public may observe the meeting and offer public comment. No board members or staff are required to be in physical attendance during the meeting. The agency may choose to provide for public participation telephonically, either in lieu of or in addition to providing a physical location for the public to gather and participate in the meeting. In recognition of the rapidly-evolving nature of the State’s COVID-19 response, the Order provides that where there is a change to the means by which the public may participate, the agency must advertise the change “using the most rapid means of communication available at the time”, which includes but is not limited to the agency’s website.
Where the public will participate via teleconference or otherwise electronically, the agency must first have a procedure in place for receiving and quickly resolving requests for reasonable modification or accommodation under the Americans with Disabilities Act, and resolving any doubt whatsoever in favor of accessibility. That procedure must be advertised in each notice or agenda, along with any identification of the means by which members of the public may participate in the meeting.
Other requirements relating to public meetings by teleconference, including the requirement that remote teleconference locations be noticed and publically accessible, and the requirement that a certain number of the legislative body be present or within the boundaries of the agency during the teleconferenced meeting, continue to be suspended consistent with the March 12 order.
While the Order stops short of making telephonic public participation an express requirement (agencies may still provide a public location for meeting participation), in the numerous municipalities now operating under a “shelter-in-place” order, this flexibility will be particularly crucial to allowing public agencies to continue to function. The Order’s requirements apply during the period in which state or local public health officials have imposed or recommended social distancing.
Agencies conducting meetings by teleconference or other electronic means should continue to take measures to ensure that any closed session items remain confidential and not open to the public; and must continue to conduct roll-call votes for action items decided during a teleconference meeting.
Agencies that continue to offer a public gathering place for participation should consider measures to ensure that appropriate social distancing and sanitation measures are enforced. Agencies should also consider whether local directives (both within and outside the agency jurisdiction) to shelter-in-place or practice home isolation may quell public participation. In such circumstances, agencies would be well advised to offer a telephonic public participation option.
Additional considerations for public agencies—and employers in general— include the identification and selection of “essential staff” and functions; considerations regarding public safety and utility shut-offs, human resources issues such as updating leave policies, when employees may be sent home, what rules apply to non-exempt employees working from home, and what employers may or may not require regarding employee testing or screening.
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