By Jenica Maldonado, Ethan PawsonDane Hutchings and Sharon Gonsalves

With the September 30, 2021 Expiration of Brown Act Executive Order Looming, Governor Signs Assembly Bill 361 to—Effective Immediately—Amend California’s Open Meeting Laws to Better Facilitate Virtual Meetings During Declared Emergencies

***On Wednesday, we circulated an alert regarding A.B. 361. At that time, the bill was sitting on the Governor’s desk awaiting signature. On Thursday evening, Governor Newsom signed A.B. 361 into law. Given the Bill’s urgency clause, the Bill is now law. The Governor has yet to take action on A.B. 339, which must be signed into law by October 10, 2021.

We have updated our alert to account for this change and now recirculate the alert for your use.***

The pandemic has resulted in many changes to how local governments conduct business, including significant changes to open meeting rules and public access to local officials. Beginning in March 2020, Executive Order N-29-20 authorized exemptions to certain requirements under the Brown Act and the Bagley-Keene Open Meeting Act relating to teleconferencing rules. These exemptions facilitated virtual meetings while social distancing orders were in place so that state and local agencies could continue to provide services with a remote workforce and elected officials. Executive Order N-08-21 extended the previous order until September 30, 2021. With this deadline fast approaching, the Legislature has stepped in to formally amend open meeting laws to account for a new reality where a persistent global pandemic and extreme wildfires stoked by climate change create an enduring need to make virtual meetings a more permanent fixture for public meetings in California.

On September 10, 2021, both houses of the Legislature voted to approve AB 361 (Rivas), “Open Meetings: State and Local Agencies: Teleconferences.” AB 361 maintained wide bipartisan support as many local agencies have had success with remote meetings throughout the pandemic. Opposition came from the California Newspaper Publishers Association and the ACLU, which oppose the erosion of longstanding protections for public’s right to access and oversee state government. Sponsored by the California Special District’s Association, the bill’s coalition of support from local government included the California State Association of Counties and the League of California Cities. Given such broad support, the bill passed 66-4 in the Assembly and 28-7 in the Senate. The Governor has signed AB 361 and it takes effect immediately as an urgency statute.

On September 3, 2021, the Legislature amended the bill based upon the Governor’s recommendations to include similar teleconferencing exemptions for state agencies under the Bagley-Keene Open Meeting Act and California State University student body organizations under the Gloria Romero Open Meeting Act. The Governor’s amendments provide an earlier sunset clause than that which applies to local agencies under the Brown Act. The Brown Act (local agency) teleconferencing exemption rules sunset on January 1, 2024, while the newly added Bagley-Keene Act (state agency) and Gloria Romero Open Meeting Act (C.S.U.) teleconferencing exemptions sunset on January 31, 2022.

A.B. 361 amends Government Code section 54953 to provide more clarity on the Brown Act’s rules and restrictions surrounding the use of teleconferencing to conduct meetings. The Brown Act provides that if a legislative body elects to use teleconferencing, then it must identify each teleconference location in the public notice and agenda and post agendas at all teleconference locations. (Gov. Code § 54953(b)(3).) All teleconference locations must be publicly accessible and there must be an opportunity for public comment at each teleconference location. Additionally, a quorum of the members of the legislative body must participate from locations physically within the jurisdictional boundaries of the agency. (Gov. Code § 54953(b)(3).) These requirements were suspended during the COVID-19 pandemic to facilitate social distancing recommendations and orders and the remote work environment that all employers faced. (Exec. Order N-29-20 § 3; Exec. Order N-08-21 § 42.)

The exemptions included in A.B. 361 only apply during a declared state of emergency as defined under the California Emergency Services Act. (Gov. Code §§ 52953(e)(1), (e)(4).) In addition, one of the following circumstances must apply:

  • State or local officials have imposed or recommended measures to promote social distancing.
  • The legislative body is meeting to determine whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
  • The legislative body has determined that, as a result of the emergency, meeting in person presents imminent risks to the health or safety of attendees.

(Gov. Code § 52953(e)(1).)

If those circumstances apply, then the newly proposed section 52953(e) provides an exemption from the Brown Act’s existing requirements (i.e., section 52953(b)(3)) and creates alternate measures to protect the statutory and constitutional rights of the public to appear before local legislative bodies. Specifically, newly proposed section 52953(e) exempts the agency from complying with the following requirements:

  • Ensuring that each teleconference location is physically accessible to the public;
  • Maintaining quorum with members physically within the jurisdiction; and
  • Providing an opportunity for public comment at each teleconference location.

When an agency elects to hold a virtual or remote meeting because the emergency and public health and safety criteria are met, an alternate set of requirements apply. The agency must provide adequate notice of the meeting and post an agenda as otherwise required by the Brown Act, however, the agenda does not need to list each teleconference location or be physically posted at each teleconference location. (Gov. Code § 54953(e)(2)(A)-(B).) Additionally, where there is a disruption in the public broadcast of the call-in or internet-based meeting service, the legislative body must cease and take no further action on agenda items until public access is restored. (Gov. Code § 54953(e)(2)(D).) Local agencies are also prohibited from requiring public comments to be submitted in advance of the meeting and cannot close the comment period or opportunity to register online until the timed public comment period has elapsed. (Gov. Code § 54953(e)(2)(E)-(G).)

Finally, every 30 days during the proclaimed state of emergency and/or the period during which state or local officials have imposed or recommended social distancing measures, the legislative body acting under the teleconference exemptions must make findings about whether the circumstances explained above still apply. The body must find that it reconsidered the circumstances of the state of emergency and that one of the following circumstances exist: “(i) the emergency continues to directly impact the ability of members to safely meet in person,” or “(ii) state or local officials continue to impose or recommend measures to propose social distancing.” (Gov. Code § 54953(e)(3).) If the legislative body cannot make these findings by majority vote, then it will no longer be exempt from the physical public access, quorum, and public comment opportunity rules applied to teleconference meetings under subsection 54953(b)(3).

The legislature has also recently approved a related bill, A.B. 339, which only applies to city councils and county boards of supervisors in jurisdictions with more than 250,000 residents. The Governor has until October 10, 2021 to take action on A.B. 339. Unlike A.B. 361, it is not an urgency statute and would not take effect until January 1, 2022. A.B. 339 requires large cities and counties to provide an opportunity for the public to attend public meetings via a two-way telephonic option or a two-way internet-based service option. (Gov. Code § 54653.9(a)(1).) It requires any jurisdiction that has previously provided video streaming of any public meeting, as of June 15, 2021, to continue to provide video streaming. (Gov. Code § 54653.9(a)(2).) The bill also requires jurisdictions to provide in-person, telephonic, and internet-based public comment opportunities at public meetings, “unless there are any laws that prohibit in-person government meetings in the case of a declared state of emergency.” (Gov. Code § 54653.9(a)(3).) A.B. 339 is a separate bill and the recent enactment of A.B. 361 has no bearing on whether the Governor also signs A.B. 339. If signed, A.B. 339 would create additional teleconferencing requirements for the large jurisdictions to which it applies. For example, A.B. 339 would require jurisdictions with over 250,000 residents to provide at least one physically accessible meeting location, unless emergency declarations and laws prohibit public gatherings. If A.B. 339 is signed into law, it has a sunset date of December 31, 2023.

Our attorneys and professionals are available to support your agency and to answer any specific questions that you have about how A.B. 361 and A.B. 339 may impact your public agency.