Changes to the Ralph M. Brown Act

11.09.2022

The Ralph M. Brown Act (commencing with Government Code § 54950) (“Brown Act”) governs public meetings and other functions conducted by legislative bodies of public agencies. The Brown Act seeks to ensure that the actions of all public agencies will be taken openly and their deliberations are conducted openly. (Gov. Code § 54950.)

During the 2021-2022 Legislative Session, multiple changes to the Brown Act were enacted as a response to the realities of conducting public meetings during the COVID-19 pandemic. The legislation discussed below becomes effective on January 1, 2023.

Senate Bill 1100 (Cortese) – Disruption.

Currently, the Brown Act authorizes a legislative body to adopt reasonable regulations, such as limiting the total amount of time allocated for public comment on issues and individual times for each speaker. (Gov. Code § 54954.3.) Similarly, if groups have willfully interrupted the orderly conduct of a meeting and order cannot be restored by the removal of the disruptive individuals, existing law authorizes members of the legislative body conducting the meeting to order the meeting room cleared, with certain limitations, and to continue in session without the public. (Gov. Code § 54957.9.) Most legislative body bylaws governing meeting conduct contain provisions consistent with these rules.

Senate Bill 1100 adds Section 57957.95 to the Government Code, specifically authorizing the removal of individual(s) for disrupting public meetings. SB 1100 requires that prior to removal, the presiding member of a legislative body or designee shall warn a disruptive individual that their behavior is disrupting the meeting and failure to “promptly cease” their disruptive behavior will subject them to removal.

“Disruptive behavior” is defined as engaging in behavior that “actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting,” which includes, but is not limited to, “a failure to comply with reasonable and lawful regulations adopted by a legislative body … or any other law,” or “engaging in behavior that constitutes use of force or a true threat of force.” A “true threat of force” means sufficient evidence of intent or seriousness so that a reasonable observer would perceive the behavior to be an actual threat to use force by the person making the threat.

Notably, the legislation is silent as to how legislative bodies are to remove the disruptive individual. As is currently the case, local agencies will likely need to partner with local law enforcement to seek enforcement of this provision.

Assembly Bill 2647 (Levine) – Public Records Provided to All, or a Majority of All, of the Members of a Legislative Body Within 72 Hours Before a Public Meeting.

The Brown Act currently requires that agendas and certain other writings that are distributed to all, or a majority of all, of a legislative body be made available to the public upon request without dely. If any relevant writings are distributed to all, or a majority of all, of the members of a legislative body in connection with an agenda item less than 72 hours before a meeting, the writings must “be made available for public inspection … at the time the writing is distributed to all, or a majority of all, of the members of the body” (the “72-Hour Documents”). (Gov. Code § 54957.5.) Existing law further requires all public records be made available for public inspection at a public office or location that the agency designates. The local agency is required to list the address of the office or location on the agendas for all meetings of the legislative body of that agency.

AB 2647 revises existing law and provides local agencies with another avenue for compliance with disclosure of the 72-Hour Documents. First, regarding writings other than 72-Hour Documents, local agencies will only be required to make agendas (as opposed to agendas and “other writings”) available upon request without delay. Requests for “other writings” will be governed pursuant to the California Public Records Act.

Second, AB 2647 adds an alternative means of compliance when providing 72-Hour Documents to the public. The local agency will not be required to make the 72-Hour Documents available for in-person inspection at the time it is distributed to all, or a majority of all, of the legislative body if the local agency satisfies all of the following:

An initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item is made available for public inspection at the office or location designated by the local agency at least 72 hours before the meeting.
The local agency immediately posts any 72-Hour Document (“public records” that were distributed less than 72 hours prior to a meeting that relate to an open session agenda item) on the local agency’s website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.
The local agency lists the web address of the local agency’s internet website on the agendas for all meetings of the legislative body of that agency.
The local agency makes physical copies of the 72-Hour Document available for public inspection, beginning the next regular business hours for the local agency, at the office or location designated by the local agency.

Despite the foregoing, a local agency may only use the alternative compliance method for 72-Hour Documents if its next regular business hours commence at least 24 hours before a meeting. For example:

A regular governing board meeting is set for Wednesday at 5:00 pm and the local agency’s business hours end at 4:30 pm. The local agency may only use the alternative compliance method for 72-Hour Documents received and printed before 4:30 pm on Tuesday. If a 72-Hour Document is received after 4:30 pm on Tuesday, the “next regular business hours” would commence less than 24 hours before the Wednesday meeting.

As a practical matter, this alternative method allows an agency to issue 72-Hour Documents to the legislative body after hours and wait until the next business day to make them available for inspection in person, provided the four above conditions are met.

Assembly Bill 2449 (Rubio) – Teleconferencing.

AB 2449 amends existing requirements set forth in Government Code § 54953 to facilitate virtual meetings in the absence of a state emergency by removing some of the barriers that proved to be burdensome and unrealistic during the COVID-19 pandemic. Traditional teleconferencing rules require remote locations to be held open to the public. This legislation authorizes less than a majority of members of a legislative body to participate remotely through teleconferencing a limited number of times per year, subject to certain requirements, if the members have “just cause” or “emergency circumstances,” without holding the remote location(s) open. This provision sunsets on January 1, 2026. Our firm published a detailed Alert regarding the requirements of AB 2449 at the following link: https://www.aalrr.com/newsroom-alerts-3943.

Special thanks to Christy Kim, our Irvine law clerk, for her extensive work on this alert.