Remote Meetings Under the Brown ActFebruary 21, 2023
Under the Brown Act, legislative bodies must conduct their business in open, public, and noticed meetings. Before COVID-19, decisionmakers, staff, and the public almost always attended meetings in person. Infrequently, public agencies invoked a narrow provision of the Brown Act to allow one or more members to “teleconference” into a meeting from a remote location, provided that the public was given notice and could attend from that same location.
Then, COVID arrived. Governor Gavin Newsom declared a State of Emergency and issued a series of Executive Orders allowing remote public meetings without complying with the usual teleconferencing rules. The California Legislature eventually passed AB 361, which continued to allow remote meetings, provided legislative bodies adopt findings every 30 days during a continued State of Emergency. Over the last three years, many decisionmakers, staff, and members of the public have become accustomed to logging into public meetings from the comfort of their homes.
As pre-pandemic routines return, Governor Newsom has announced that he will end the COVID State of Emergency on February 28, 2023 and agencies will then return to in-person meetings, if they have not already. Anticipating these events, in fall 2022 the legislature passed AB 2449, which modestly expands the Brown Act’s pre-COVID teleconference provision to allow decisionmakers to attend public meetings from nonpublic remote locations for “just cause” or due to a personal emergency, provided certain conditions are met.
Although allowing remote attendance under AB 2449 is optional, agencies that decide to do so will need to lay the groundwork ahead of time. Even if an agency decides to opt out, the pre-existing teleconference provision continues to apply. Under that rule, a member of a legislative body wanting to attend a meeting remotely must publish their physical location, post the agenda in a visible place there, and ensure the location is accessible to the public and that the public is able to address the full decisionmaking body from there.
What does AB 2449 allow, and what is required?
AB 2449 provides broader opportunities for remote attendance at public meetings than before COVID. Unlike the Brown Act’s existing teleconference provision, AB 2449 does not require that the meeting agenda identify the location of the remotely participating members, or require those locations to be accessible to the public. However, the law’s remote conferencing provisions also come with significant restrictions. Thus, the default rule, that decisionmakers must attend meetings in person unless they meet the narrow criteria for remote attendance, will stay the same.
Under the law, there are two main grounds for a member to attend a meeting remotely.
Under the just cause provision, a member must notify the agency “at the earliest opportunity” – which could be at the start of the public meeting – of their need to attend remotely due to one or more of four circumstances: (a) caregiving for certain family members, (b) a contagious illness, (c) a need due to a physical or mental disability, or (d) travelling while on official business for a public agency. The member must provide a “general description” of the circumstances relating to their need to appear remotely. The member may use this just cause provision no more than two times within a calendar year.
Under the personal emergency provision, a member must make a request to participate remotely at a meeting due to emergency circumstances “as soon as possible.” Emergency circumstances means a physical or family medical emergency that prevents attendance in-person. The member must generally describe the circumstances but does not need to disclose any personal medical information. If the request is made too late to include it on the posted agenda, the body may still consider it. (Gov’t. Code § 54954.2(b)(4)). A majority of the legislative body must approve the request; however, AB 2449 does not provide guidance on any standards to be used.
Several additional requirements apply under both methods:
- A member attending remotely must participate through both audio and visual technology.
- A member may not request remote attendance for more than 3 consecutive months or 20 percent of the regular meetings within a calendar year (and no more than twice per calendar year, if the body meets fewer than 10 times per calendar year).
- If any audio or visual connection providing the public access to decisionmakers is disrupted, no further action can be taken until the disruption is resolved.
- Members participating remotely must give notice if anyone over 18 is in the room with them, and that person’s relationship to the member.
- At least a quorum of the members of the decisionmaking body must attend the meeting in person from a single location identified on the agenda, open to the public and within the jurisdiction.
In addition, the agency must ensure the public can remotely hear, visually observe, and address the meeting by means of either a two-way audiovisual platform (e.g., Zoom), or a two-way telephonic service and a live webcasting of the meeting (e.g., webcast + call-in option). The meeting agenda must explain the available options for attending and how to address the decisionmaking body in real time under each option. As a practical matter, this means that in order to accommodate last-minute notices of remote appearance, the agency must publicize and make available remote attendance options for the public at every meeting. The agency must also implement a procedure for addressing requests for reasonable accommodations for individuals with disabilities and must give notice of those procedures.
Given the new law’s complexity, the fact that it contemplates last-minute remote attendance requests, uncertainty regarding whether there will be the necessary quorum attending in-person, and the unpredictable nature of technology, many agencies are choosing to opt out of AB 2449’s provisions. Those that wish to allow this new remote option may find implementation comes with challenges.
One “best practice” is to ensure that the necessary two-way technology is provided at every meeting. Agencies could also consider adopting a standing agenda item at the start of each meeting to consider any last-minute, personal emergency requests. Given that multiple members may seek remote attendance at the same meeting, and that the legislative body can vote not to grant a personal emergency request, agencies would be wise to advise their decisionmakers that remote attendance under AB 2449 is not a guarantee.
It bears repeating that AB 2449’s new procedures are optional and agencies will continue to be able to use the Brown Act’s longstanding teleconferencing provision. AB 2449 nevertheless will give rise to many new questions, while also facilitating expanded participation options by decisionmakers and community members. AB 2449’s remote options are set to expire on December 31, 2025, but don’t be surprised if the legislature takes action to extend it, likely with further tweaks to the procedures and requirements.
For information about how to successfully implement AB 2449 in your jurisdiction, contact Seph Petta.