Governor Issues New Executive Orders Suspending More Brown Act Requirements Due to Coronavirus (COVID-19)

03.18.2020, updated 03.24.20

UPDATE:  On March 21, 2020, the Governor signed Executive Order N-35-20, authorizing additional exceptions to the Brown Act’s usual requirements for public meetings, as follows:

• Members of a local legislative body may receive updates (including simultaneously) relevant to the COVID-19 emergency, from federal, state and local officials, and may ask questions of those officials, in order to stay apprised of emergency operations and the impact of the emergency on constituents.
• Executive Order N-35-20 specifically states, however, that it does not permit action or discussion among members of a local legislative body, unless this occurs in the context of a meeting that otherwise complies with the Brown Act and with Executive Order N-29-20.

In effect, Executive Order N-35-20 gives greater flexibility for members of a local legislative body to receive briefings and ask questions of federal, state, and local officials regarding emergency operations, even if the members of the body are receiving such briefings simultaneously outside of a duly noticed meeting (which would not be permissible under ordinary Brown Act rules).  The Executive Order makes clear, however, that any discussion among or action by the members of the local legislative body must await a duly noticed meeting (regular, special, or emergency).

The Executive Order does not specifically address whether a school or community college district’s own superintendent/president would constitute a “local official” for purposes of providing updates to board members on emergency operations.  In the absence of anything in the Order to the contrary, we interpret it to allow emergency updates from a superintendent/president so long as this is done consistent with the other terms of the executive order.  Existing Brown Act provisions also remain in effect allowing an employee or official of a local agency to answer questions or provide information to board members, provided that the employee or official does not communicate to board members the comments or position of any other member or members of the legislative body [Gov’t Code 54952.2(b)(2)].

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03.18.20

Among the many challenges for public agencies of the coronavirus (COVID-19) emergency is balancing public health considerations with the need of governing boards to continue to function, and the public’s continuing right to know how public business is conducted.  On March 17, 2020, the Governor signed Executive Order N-29-20 that suspends, on an emergency basis pursuant to Government Code § 8571, certain provisions of the Brown Act’s general requirements for public meetings.  The suspension will remain in effect only as long as state or local public health officials have imposed or recommended social distancing measures.

Readers will recall that on March 12, 2020, the Governor issued Executive Order N-25-20, Paragraph 11 of which suspended some Brown Act requirements, as summarized in our prior alert of the same date.  Importantly, Executive Order N-29-20 supersedes Paragraph 11 of Executive Order N-25-20.  Thus school districts, community college districts and county offices of education should now look to Executive Order N-29-20 for guidance on the conduct of board meetings in this time of “social distancing.”

Executive Order N-29-20 suspends any Brown Act requirement that members of the public be allowed to attend a meeting in person

Most notably, Executive Order N-29-20 provides that, subject to additional specified requirements, a local legislative body is authorized to hold public meetings via teleconferencing and make public meetings accessible “telephonically or otherwise electronically” to all members of the public seeking to observe and to address the legislative body.  All requirements of the Brown Act expressly or impliedly requiring the physical presence of board members or of the public as a condition of a quorum or public meeting are waived. 

This is in contrast to the executive order issued last week, which permitted all board members to participate telephonically, but still required that there be at least one physical location from which members of the public could observe and comment.  The requirement of a physical location for members of the public to attend in person has been removed.  Instead, as provided in Executive Order N-29-20:

“A local legislative body that holds a meeting via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements [as specified in the Executive Order], shall have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment.  Such a body need not make available any physical location from which members of the public may observe the meeting and offer public comment.”

Executive Order N-29-20 suspends other Brown Act requirements for telephonic or electronic meetings

The Executive Order further provides:

• The requirement to notice each teleconference location from which members of the legislative body participate in a meeting is suspended.
• The requirement that each teleconference location be accessible to the public is suspended.
• The requirement that members of the public may address the legislative body at each teleconference location is suspended.
• The requirement that at least one member of the legislative body be physically present at the meeting location is suspended.
• The requirement that during a teleconference meeting, at least a quorum of the legislative body participate from locations within the boundaries of the territory over which the body exercises jurisdiction is suspended.

Executive Order N-29-20 establishes new requirements that must be met for a telephonic or electronic meeting to be held without the physical presence of board members or the public

Importantly, although Executive Order N-29-20 suspends certain requirements of the Brown Act as summarized above, it also establishes new requirements for the conduct of meetings via electronic means, intended to ensure the public’s continuing right of access to information about how meetings are conducted and decisions are made. 

In particular, when meetings are conducted via teleconferencing only (i.e. without providing for the physical presence of the public), the legislative body must also:

• Post the agenda for the meeting according to usual Brown Act requirements for the time and manner of posting (e.g. 72 hours for regular, 24 hours for special)
• Implement, and advertise in the posted meeting notice, a procedure to “swiftly resolve” requests for reasonable accommodation of disabilities, and for “resolving any doubt whatsoever in favor of accessibility.”
• In the posted meeting notice, include “notice of the means by which members of the public may observe the meeting and offer public comment.” If there is a change in such means of public participation, the legislative body may satisfy this requirement by advertising such means using “the most rapid means of communication available at the time,” including but not necessarily limited to posting on the local agency’s website.

Executive Order N-29-20 further urges local agencies “to use discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of… the Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize transparency and provide the public access to their meetings.”

Options for conduct of board meetings in compliance with Executive Order N-29-20

We offer some suggestions for possible methods of conducting board meetings according to the requirements of the new Executive Order.  Please note, these are only two possible options, and there are undoubtedly others:

1. Modified Traditional Model:

Board Meetings may be conducted in-person (i.e. in the Board Room, Gymnasium, Theater or other large space) if consistent with local health orders including “social distancing” requirements.

The entire Board may participate by conference call.

Public in-person attendance is allowed, but attendance may be limited (e.g. to 10 people) to ensure adequate space for “social distancing.”

Public comment must be allowed.  However, reasonable “time, place, and manner” restrictions apply, including: (1) limits on the number of comments; (2) limits on the number of people allowed in the room at one time; (3) time limits on length of comments.

2. Meeting “Telephonically or Otherwise Electronically”

Board Meetings may be conducted “telephonically or otherwise electronically.”  This could include teleconference, television, webcast, or other live means whereby the public can observe the meeting while it is occurring.

The entire Board may participate by conference call.

Public comment must be allowed.  However, public comment on a large conference call may be unwieldy.  Alternative means of allowing public comment during a telephonic/electronic meeting should be discussed with legal counsel, but may include soliciting comments via email — either in advance of or during the meeting — and having some (or all) of those read out by a facilitator.

Note:   In all cases, local agencies are advised to consult their legal counsel regarding the requirements of the Executive Order as it applies to the conduct of meetings.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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