Is California’s Open Meetings Law a ‘Long Haul’ COVID-19 Victim?

Manatt, Phelps & Phillips, LLP

New Law Permits Local Governments to Continue to Meet Remotely Until 2024
 

California’s historic open meeting law, the Ralph M. Brown Act, requires that local governments conduct their business in public meetings and permit in-person public participation.

The Brown Act has previously only permitted video or teleconference meetings in limited circumstances. On March 20, 2020, in response to the coronavirus pandemic, Governor Gavin Newsom issued an executive order that temporarily allowed local governments to conduct all meetings by live, interactive video or telephonically. That executive order is set to expire on September 30, 2021. The legislature, however, recently amended the Brown Act to provide for exemptions that permit local legislative bodies to continue to meet remotely under limited circumstances.

When Can Locals Meet Remotely?

The legislature passed Assembly Bill 361 (R. Rivas) to amend the Brown Act to permit legislative bodies to continue to use live video and teleconferencing for public meetings in any of the following circumstances:

  • The legislative body holds a meeting during a proclaimed state of emergency and state or local officials have imposed or recommended measures to promote social distancing.
  • The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. 
  • The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

A legislative body must review its determination every 30 days and make a new determination as to whether the legally required circumstances to meet remotely still exist.

Governor Newsom signed AB 361 into law effective September 16, 2021. He then issued an executive order on September 20 that stays the effective date until October 1, 2021, to provide local governments a small amount of time to transition to the new law.

AB 361’s exemptions for video and teleconferencing are repealed by its terms effective January 1, 2024.

The Legislative Body Must Observe Certain Rules When Holding a Remote Meeting

When a legislative body holds a meeting remotely, it must:

  • Give notice of the meeting and post agendas as otherwise required by the Brown Act;
  • Provide a legally acceptable means by which members of the public can access the meeting and address the body in real time during the meeting; 
  • Conduct the meeting in a manner that protects the legal rights of those accessing the meeting; 
  • Not take action on open or unheard agenda items if there is a disruption in the broadcast of the meeting or in the public’s ability to provide comments until the issue is resolved; and 
  • Not require that public comments be submitted in advance of a meeting.

Other Open Meeting Laws Also Amended to Permit Remote Meetings

AB 361 amended the Bagley-Keene Open Meeting Act (applicable to state agencies) and the Gloria Romero Open Meeting Act (applicable to the California State University) to provide for similar exemptions. These exemptions are subject to an earlier sunset clause, January 31, 2022, than is applicable to local governments under the amended Brown Act.

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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