A series of executive orders, the most recent of which was set to expire on September 30, 2021, waived all physical-presence requirements under the Brown Act as a means of limiting the spread of COVID-19. Last week Governor Newsom signed into law AB 361, extending the authority of public agencies to conduct meetings by teleconference, including video conference, during the COVID-19 pandemic.
In light of the on-going pandemic, AB 361 gives the option to continue meeting virtually. Virtual meetings are permitted presently because the Governor has proclaimed a state of emergency and the state and many local officials recommend measures to promote social distancing. If those conditions change, the local agency can still meet virtually and has determined that physical presence at meetings would present imminent risks to the health and safety of attendees.
Beginning 30 days after the first meeting, the legislative body must reconsider the continuing need for virtual meetings every 30 days. The legislative body must find each time that it has reconsidered the circumstances of the state of emergency, and the state of emergency continues to directly impact the ability of the members to meet safely in person or state and local officials continue to impose or recommend measures to promote social distancing. If a majority of the members of a legislative body do not adopt these findings, then traditional Brown Act rules for teleconferencing apply.
Once a legislative body votes to implement AB 361, these requirements apply:
- Notices and agenda requirements remain the same under the Brown Act;
- No physical location is required for public attendance or public comment. However, the public must be able to access and participate in the meeting through a call-in or an internet-based service, and instructions for how to participate must appear in the posted notices or agenda;
- Teleconference meetings must protect the statutory and constitutional rights of the parties and the public;
- If there is any disruption of the call-in or internet-based service the agency must suspend the meeting until the problem is fixed;
- Legislative bodies may allow public comments to be submitted prior to a meeting, but must also allow the public to participate in real time through call-in or internet-based service;
- If an internet-based service requires registration through a third-party, individuals can be required to register with the third-party to participate in the meeting;
- When providing a public comment period, whether after each item or during a general comment period, a legislative body must allow reasonable time for members of the public to comment, and must also include reasonable time for members to register with a third-party host, if applicable.
AB 361 is an urgency measure that went into effect immediately. It will expire on January 1, 2024. Members of local agencies are encouraged to contact their counsel with any questions about AB 361 or Brown Act rules going forward.