Are Virtual Public Meetings Here to Stay?

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Three New Bills Could Make Permanent Changes to Public Meetings

As we conclude a full year of virtual meetings, the use of “Zoom” and other virtual meeting applications has become so commonplace that it might be easy to forget that such virtual meetings are not actually a permanent part of the open meeting laws.

On March 17, 2020, Gov. Gavin Newsom issued Executive Order No. N-29-20, which suspended portions of the Brown Act that limit the use of teleconferencing for public meetings, but the Order will sunset when the pandemic ends. The Brown Act requires that all teleconference locations — i.e., the physical location that a council or board member call in from — be identified on the agenda and open to the public. Meaning, for example, if sickness impeded a city council member’s meeting attendance, that member would need to post their location on the agenda and invite the public into their house or hospital room. As we begin to look forward to a return to normalcy, will it also mean a return to these odd and outdated Brown Act teleconference rules?

Perhaps not, but it depends on the approach the Legislature takes. Three pending bills would each provide a different approach to virtual public meetings.

Assembly Bill 703 – Continues Option for Virtual Meetings
AB 703, a bill that would codify the Executive Order’s virtual meeting opportunities, is the bill that many public officials considered a likely outcome of this year. It allows for virtual meetings indefinitely and permanently removes the existing Brown Act rules limiting virtual meetings or requiring public attendance at various physical locations.

It would generally allow virtual meetings to operate under regular meeting procedures (for public notice, public comment and public ability to observe the meeting). When local governments post the agenda or other notices, they would also post instructions for joining virtually. The bill would remove the current requirements that each teleconference location be identified and accessible to the public, curing problems of public access to, say, a council member’s home or hotel room. It would also remove the requirement that at least a quorum of the members of the legislative body participate from within the boundaries of the local agency. Lastly, the bill would renew requirements that legislative bodies make a procedure for handling and swiftly resolving Americans with Disabilities Act requests for virtual meetings.

Assembly Bill 361 – Virtual Meetings for Declared Emergencies Only
The next bill, AB 361, would allow virtual meetings with newer, streamlined procedures, but only if the purpose of the meeting is to declare a local emergency or if the meeting occurs during a period of a declared local emergency. This means most teleconferencing after the pandemic would likely need to occur under existing Brown Act rules.

The new rules for emergency declaration virtual meetings only would eliminate the Brown Act’s intrusive requirements requiring identification and public access to of a council members’ private domain. Further, members of the legislative body would not have to join from within the physical boundaries of the jurisdiction. The bill also provides that the meeting must protect statutory and constitutional rights of parties and the public, providing an odd reference to constitutional compliance, which is legally superfluous.

Assembly Bill 339 – Mandatory Virtual Meetings with Translation Services
Many local governing bodies will likely resume in-person meetings post-pandemic. AB 361 and AB 703, if passed, will provide the option for public boards to hold virtual meetings. AB 339, on the other hand, goes a step further; it will require public boards to continue to provide virtual access for the public, even if all of the board or council members attend in-person.

The additions would mandate virtual public access by calling in and by Internet, and require that local governments provide closed captioning (on-screen text for those who cannot hear audio) for virtual participants. The instructions for virtual participation would have to be posted with the agenda. Local governments would also have to provide a place for the public to go to provide in-person comments — even in states of emergency.

Lastly, AB 339 would not only require virtual access, it would also add new provisions to the Brown Act requiring public agencies to provide live translation services during all meetings, including real-time translators during all meetings and a translation of all agendas and meeting instructions into all languages spoken by 5 percent or more of the jurisdiction’s population.

Each of these Assembly Bills remains active as of publication of this Legal Alert and have potential to become law. Best Best & Krieger LLP will continue to track the progress of these bills for future updates via Legal Alerts.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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