Attorney General Opinion Allows Board Members to Attend Meetings Remotely as an ADA Accommodation

08.09.2024

On July 24, 2024, the Office of the California Attorney General issued an opinion stating that the Americans with Disabilities Act (ADA) requires a California local agency to allow a member of its legislative body to attend meetings of the body remotely as a reasonable accommodation if that member has a qualifying disability that prevents in-person attendance. 

An earlier AG Opinion from 2001 had concluded that remote participation in meetings could not be a reasonable accommodation if the meeting was covered by the Brown Act, California’s open meetings law applicable to local agencies.  This new AG Opinion reaches a different conclusion, stating that the ADA requires a legislative body to allow one of its members to participate remotely in a meeting covered by the Brown Act as a “reasonable accommodation.”

The 2001 Opinion had argued that in-person attendance by a member of a legislative body was an “essential function” of serving as a member of the legislative body and therefore, remote participation could not be a reasonable accommodation under the ADA.  However, since 2001, several amendments to the Brown Act have challenged the notion that in-person attendance is “essential.”  In 2021, the Brown Act was amended to allow all members of a legislative body to participate remotely during the state of emergency declared due to the COVID-19 pandemic.  The Brown Act was also amended in 2022 to allow individual members to participate remotely for “just cause or “emergency circumstances,” so long as a quorum of members meet in person.  These exceptions remain in effect only until 2026 and allow members to participate remotely under “just cause” for only two meetings each calendar year.  

The 2022 amendment also states that “just cause” can be based on a disability that has not been “otherwise accommodated” under the ADA.  The Opinion interprets this language to mean that the Legislature presupposed the possibility that members would be permitted to participate remotely as a reasonable accommodation.  This would mean a member could participate remotely for an unlimited number of times as a reasonable accommodation under the ADA, even though the Brown Act only permits remote participation under the “just cause” provision for two meetings each year. 

Accordingly, the Opinion concludes that in-person attendance is no longer an “essential function” or “essential eligibility requirement” for members of legislative bodies subject to the Brown Act.  It also concludes that the Legislature did not intend to limit the number of meetings in which a member could participate remotely as a reasonable accommodation under the ADA. 

The Opinion also concluded that members who participate remotely (as an ADA accommodation) must use two-way, real time virtual access so that members of the public can address them directly.  If the connection is disrupted during a meeting of the legislative body, the other members may not act on any agenda item until the connection is restored.  Also, a remote member must disclose the presence and identities of other adults in their remote location, and the nature of their relationship.  Other conditions may be required, depending on the circumstances. 

The Opinion raises other questions.  For example, the Opinion does not address what would occur if several members requested to participate remotely as a reasonable accommodation, such that a quorum of the Board would not meet in person.  While the 2021 amendment allowed all members to meet remotely during declared states of emergency, it is unclear if this implies in-person attendance by a quorum of the body is not “essential” under non-emergency circumstances.

The Opinion also does not address whether the ADA would require a legislative body to provide remote participation as a reasonable accommodation to members of the public.  The Brown Act contemplates remote participation, under certain circumstances, both by members of legislative bodies and by members of the public.  However, at this time, the Opinion does not specifically require a legislative body to allow members of the public to participate remotely as a reasonable accommodation. 

Please do not hesitate to contact the authors of this alert or your AALRR counsel for further clarification and guidance regarding the issues raised by this Alert.

Special thank you to Riley J. McCoy, SCELPG law clerk, for her extensive work on this alert.

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 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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