Update: Gov. Newsom Signs AB 361 Amending the Brown Act

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Best Best & Krieger LLP

Urgency Bill Takes Immediate Effect to Allow Virtual Meetings Under Certain Circumstances

As the California State Legislative session drew to a close on September 10, AB 361, one of several bills that had been introduced to deal with the anticipated expiration of Executive Order N-29-20, not only survived, but passed with wide margins with the addition of an urgency clause. If signed into law, AB 361 will allow local government to continue to conduct virtual meetings as long as there is a state-proclaimed state of emergency, but it won’t be quite as flexible as it has been under the Executive Order.

The Executive Order allowed for flexible approaches to virtual meetings.
As part of a package of executive orders adopted soon after the beginning of the COVID-19 pandemic, Executive Order N-29-20 allowed local governments to meet remotely without having to adhere to all of the traditional teleconferencing rules that had been part of the Brown Act for decades, including public posting of agendas at the location of remote participation by members of the legislative body and public access to those locations. With the assistance of teleconferencing and remote video technology, local governments statewide have been able to continue the business of the people while following mandated protocols against indoor gatherings. At the same time, interested members of the public could virtually attend meetings safely from home and offer public comment using a variety of methods, from emails to voicemails and video participation, through applications that had previously only been used in corporate boardrooms or for social interactions between friends.

With the end of the Executive Order looming, AB 361 allows for some virtual meetings still, with a few more restrictions.
Executive Order N-29-20 expires on September 30, and with it, local government’s authority to continue with this broader remote participation. So the legislature adopted AB 361—as an urgency measure that goes into effect immediately if signed by the governor. The bill amends the Brown Act to allow local legislative bodies to continue using teleconferencing and virtual meeting technology as long as there is a gubernatorial “proclaimed state of emergency.” But this allowance also depends on state or local officials imposing or recommending measures that promote social distancing or a legislative body finding that meeting in person would present an imminent safety risk to attendees. Though adopted in the context of the pandemic, AB 361 will allow for virtual meetings during other state-proclaimed emergencies, such as earthquakes or wildfires, where physical attendance may present a risk.

Real-time public comment is required.
The key difference between Executive Order N-29-20 and AB 361 is that AB 361 requires a public comment period where the public can address the legislative body directly. It expressly prohibits councils and boards from limiting public comments to only comments submitted in advance and specifies that the legislative body “must provide an opportunity for the public to … offer comment in real time.” Additionally, the body must allow for public comment up until the public comment period is closed at the meetings. The agenda must include information on the manner in which the public may access the meeting and provide comments remotely, and if technical problems arise that result in the public’s access being disrupted, the legislative body may not take any vote or other official action until the technical disruption is corrected and public access is restored.

Watch the sunset.
Finally, AB 361 will sunset on January 1, 2024, and requires the legislative body to make findings by majority vote that the state of emergency still exists and continues to directly impact the ability of the members to meet safely in person, or that officials continue to impose or recommend measures to promote social distancing.

Local agencies that want to continue holding virtual meetings or allowing remote participation by the public under the Brown Act should ensure that the public can make real-time comments up until the close of the public-comment period. Limiting comment to emails sent at least an hour before the meeting starts will no longer be acceptable. And push pause if there is a technical disruption: Don’t hold the vote until the public is back online.

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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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