Brown Act Teleconferencing Rules Over the Next Five Year
Now until Jan. 1, 2023 – Traditional Brown Act Rules and AB 361
AB 2449 was not passed as an urgency legislation and has an effective date of January 1, 2023. Until its effective date, the legislative bodies of local public agencies may continue to meet virtually under either:
- Traditional Brown Act teleconferencing rules that require a quorum of the legislative body to meet in person in the agency’s jurisdiction, the posting of the members’ remote location on the legislative body’s meeting notice and agenda, and public access to each teleconferencing location; or
- AB 361’s abbreviated teleconferencing procedures, which require that the local agency’s legislative body makes the following factual determinations by majority vote to justify remote or virtual meetings:
- That a proclaimed state of emergency exists, and either:
- State or local officials have imposed or recommended social distancing measures, or
- As a result of a proclaimed state of emergency, meeting in person would present imminent risks to the health and safety of attendees.
Jan. 1, 2023 to Jan. 1, 2024 – Traditional Brown Act Rules, AB 361, and New Rules under AB 2449
Section 1 of AB 2449 specifies the requirements and procedures for local legislative bodies to hold remote public meetings for calendar year 2023. Gov’t Code § 54953(k). Effective January 1, 2023, AB 2449 amends the Brown Act’s teleconferencing rules and adds a new alternative for abbreviated teleconferencing procedures that does not require a proclaimed state of emergency. During this period, local legislative bodies may hold virtual, remote public meetings under one of the following alternatives:
- Traditional Brown Act teleconferencing rules; or
- AB 361’s abbreviated teleconferencing rules described above; or
- AB 2449’s new teleconferencing rules specified in new subdivision (f) of Government Code section 54953 of the Brown Act.
However, if and when the Governor lifts the proclaimed state of emergency due to the COVID-19 pandemic, the legislative bodies of local agencies will no longer be able to rely on AB 361’s provisions and will be left only with traditional Brown Act teleconferencing rules and AB 2449’s new teleconferencing rules for virtual, remote meetings.
AB 2449’s new teleconferencing rules provide a hybrid model of physical and remote attendance for members of local legislative governing bodies, under certain specified circumstances.
As a threshold matter, AB 2449 requires that at least a quorum of members of the local legislative body participate in person from a single physical, public location clearly identified on the agenda and within the local agency’s territorial jurisdiction. Gov’t Code § 54953(f)(1). Unless there is a physical quorum of members present, the governing body may not utilize AB 2449.
If the physical attendance quorum requirement is met, AB 2449 permits a member who is not physically present to request virtual attendance at the local legislative body’s meeting under two circumstances: (1) for “just cause” and (2) due to "emergency circumstances". Both “just cause” and “emergency circumstances” are defined under the statute.
1. A Member’s Request to Attend Virtually for “Just Cause”
- Request Timing and Procedure: Under AB 2449, in order to attend remotely for “just cause,” a member must (1) notify the local agency’s legislative body at the earliest opportunity of their need for such participation, and (2) provide a general description of the circumstances justifying their virtual attendance. Gov’t Code § 54953(f)(2)(A)(i). The statute allows a member to make their notification as late as the start of a regular meeting of the local legislative body. Id. The legislative body does not need to take action to allow its member to attend the meeting virtually under such circumstances. See id.
- Qualifying Reasons as “Just Cause”: AB 2449 provides a list of reasons that qualify as “just cause” under its provisions. Specifically, a member has “just cause” for remote participation when:
- There is a childcare or caregiving need (for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) that requires the member to participate remotely (Gov’t Code § 54953(j)(2)(A));
- A contagious illness prevents the member from attending the meeting in person (Id., subd. (j)(2)(B));
- There is a need related to a defined physical or mental disability that is not otherwise accommodated for (Id., subd. (j)(2)(C)); or
- Traveling while on official business of the legislative body or another state or local agency (Id., subd. (j)(2)(D)).
- Number of Instances Permitted: A member is limited to two virtual attendances based on “just cause” per calendar year. Gov’t Code § 54953(f)(2)(A)(i).
2. A Member’s Request to Attend Virtually Due to an Emergency
- Request Timing and Procedure: A member of the legislative body must make a request to the body to allow the member to meet remotely due to an emergency circumstance, and further must provide a general description of the circumstance justifying such attendance. Gov’t Code § 54953(f)(2)(A)(ii). The member seeking to appear remotely must make the request “as soon as possible,” and shall make a separate request for each meeting in which they seek to participate remotely. Id., subd. (f)(2)(A)(ii)(I).
If the request does not allow sufficient time to be placed on the agenda as a proposed action item, then the legislative body may take action at the beginning of the meeting in accordance with paragraph (4) of subdivision (b) of section 54954.2 of the Brown Act. Id., subd. (f)(2)(A)(ii)(II). Unlike a request for remote attendance for “just cause,” a request from a member to attend remotely due to an emergency circumstance requires that the legislative body take action and approve the remote attendance at the start of the meeting for the member to be allowed to participate remotely for that meeting. Id., subd. (f)(2)(A)(ii).
- Qualifying Reasons as an “Emergency Circumstance:” AB 2449 defines “emergency circumstances” as “a physical or family medical emergency that prevents a member from attending the meeting in person.” Gov’t Code § 54953(j)(1). A member is not required to disclose any medical diagnosis or disability, or any personal medical information that is already exempt from existing law. Id., subd. (f)(2)(A)(ii).
3. Additional Requirements for a Member Participating Remotely: In addition to making a request either for “just cause” or due to an “emergency circumstance” for remote appearance, AB 2449 imposes the following three additional requirements on legislative body members seeking to appear remotely at public meetings:
- Before any action is taken during the meeting, the member must publically disclose whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals. Gov’t Code § 54953(f)(2)(B).
- A member of the legislative body participating from a remote location must participate through both audio and visual technology. Id., subd. (f)(2)(C).
- A member’s remote participation cannot be for more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year.Id., subd. (f)(3). And if the legislative body regularly meets fewer than 10 times per calendar year, a member’s participation from a remote location cannot be for more than two meetings. Id.
4. Technological Requirements for Virtual Meetings: Assuming the above substantive requirements for virtual meetings are met under AB 2449, the new law provides the following technical specifications for information posted on the meeting’s notice and agendas, and for the conduct of the virtual public meeting:
- Notice, agenda, and public access: The legislative body must provide either a two-way audiovisual platform or a two-way telephonic service and a live webcasting of the meeting so that the public may remotely hear, observe, and address the legislative body during the meeting. Gov’t Code § 54953(f)(1)(A). The legislative body must also provide notice and post agendas as otherwise required under the Brown Act (setting aside traditional teleconferencing requirements) and must indicate on the notice how the public may access the meeting and offer comment. Id., subd. (f)(1)(B). The agenda must identify and include an opportunity for all persons to attend via a call-in option, an internet-based service option, and at the in-person location of the meeting. Id., subd. (f)(1)(C). The agenda does not need to be posted at all teleconferencing locations. Id., subd. (f)(1). Public access only needs to be assured at the teleconference location identified as the singular physical location at which a quorum of the legislative body will conduct the meeting, and the notices and agenda do not need to list the individual remote locations that members of the legislative body might attend the meeting from. Id.
- Public comment: An individual may be required to register for public comment before being allowed to provide public comment, where a third-party platform (such as Zoom or Microsoft Teams) is employed. Gov’t Code § 54953(f)(1)(F). However, AB 2449 prohibits a local legislative body from requiring public comments to be submitted in advance of the meeting and specifies that the agency must provide an opportunity for the public to address the legislative body and offer comment in real time. Id., sub. (f)(1)(E). These requirements are similar to those currently provided under AB 361.
- Disrupted broadcasting procedures: In the event that the broadcasting of the meeting to the public by phone or by Internet is disrupted, the local legislative body is prohibited from taking further action on agenda items until public access is restored. Gov’t Code § 54953(f)(1)(D). Actions taken on agenda items during a disruption are subject to challenge. Id. These requirements are also similar to those currently provided under AB 361.
Jan. 1, 2024 to Jan. 1, 2026 – Traditional Brown Act Rules and New Rules under AB 2449
Section 2 of AB 2449 becomes operative on January 1, 2024, which is the date that AB 361 is scheduled to sunset. Accordingly, effective January 1, 2024, local legislative bodies will only have the traditional Brown Act teleconferencing rules and AB 2449’s new rules for teleconferencing for “just cause” or due to “emergency circumstances” as options for remote meetings for this period. As a result of AB 361’s sunset date, the provisions of AB 2449 will move from subdivision (f) of Gov’t Code section 54953 to subdivision (e) of the same statute. This marks a trend towards moving the meetings of local agencies towards in-person meetings and allowing virtual attendance based on need only, as discussed above.
Section 2 of AB 2449 is also scheduled to sunset on January 1, 2026.
Jan. 1, 2026 and Onward – Traditional Brown Act Rules
Section 3 of AB 2449 becomes operative on January 1, 2026. Once AB 2449 sunsets on January 1, 2026, the available teleconferencing rules revert to those provided under the traditional Brown Act teleconferencing rules. Thus, in order for a legislative body to hold a remote meeting under the relevant part of the traditional Brown Act teleconferencing rules, they must do the following:
- All votes must be by roll call vote;
- The teleconference locations must be posted on the agendas and each teleconference location must be identified on the notice and agenda of the meeting or proceeding;
- Each teleconference location must be made accessible to the public; and
- During the teleconference, at least a quorum of the members of the legislative body must participate from locations within the boundaries of the legislative body’s territorial jurisdiction.
Under AB 2449’s new teleconferencing rules, in effect from Jan. 1, 2023 to Jan. 1, 2026, it is important to coordinate amongst members of the local legislative body to ensure that a physical quorum is secured ahead of each meeting. Moreover, any request for a member to participate remotely under AB 2449 – either for “just cause” or due to a specified "emergency circumstance" should be stated on the record at the beginning of each public meeting. If a member seeks to participate due to a specified "emergency circumstance" and the legislative body votes not to accept the basis for virtual attendance under AB 2449, then that member may only participate as a general member of the public and cannot vote on any action item.
AB 2449’s requirements for providing a general description of “just cause” or an “emergency circumstance” will require that the legislative body delicately balance the need for transparency with the need to participate remotely against the member’s privacy interest. Therefore, whether a reason is justified under the statute may be up for debate at the start of the meeting. Any justification for virtual attendance must be clearly stated on the record to meet the three requirements of AB 2449:
- Justification for the need to appear virtually – either for “just cause” or due to an "emergency circumstance";
- A public affirmation of whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individual(s); and
- A statement that the member will participate with both audio and video capabilities turned on throughout the meeting (video cannot be turned off).
Lastly, AB 2449 is going to require a lot of administrative support and record-keeping of:
- Which member has made a request to appear remotely under AB 2449’s procedures.
- How many times each member has appeared remotely under its terms.
- The member’s reason for appearing remotely, and any action taken by the legislative body.
- Whether staff can confirm ahead of each meeting that there will be a physical quorum of members for any given meeting, and who will be in physical attendance.
Understanding how to comply with and administer AB 2449’s myriad of provisions can be complicated. If you need assistance with interpreting the provisions and implementing AB 2449, please do not hesitate to reach out to the counsel listed with this client alert.