Brown Act Partially Suspended Due to Coronavirus (Covid-19)

03.12.2020

We have been receiving a number of inquiries regarding the conduct of governing board meetings in light of current public health considerations, Brown Act requirements, and the need for governing boards to receive information and respond quickly in light of the rapidly changing public health environment.

Today, Governor Newsom — acting on an emergency basis pursuant to Government Code § 8571 — issued Executive Order N-25-20, which (at paragraph 11) partially suspends certain provisions of the Brown Act while “social distancing” measures are ordered or recommended by state or local public health officials.  The substance of the Executive Order is discussed below.  [see https://www.gov.ca.gov/wp-content/uploads/2020/03/3.12.20-EO-N-25-20-COVID-19.pdf]

The Brown Act also contains longstanding language authorizing emergency meetings without complying with usual notice requirements.  These provisions are discussed at the end of the Alert.

EXECUTIVE ORDER N-25-2 SUSPENDS PART OF BROWN ACT

In particular, the Governor ordered that, notwithstanding the Brown Act or other state or local laws, local legislative bodies are:

• “authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend . . . All requirements in . . . the Brown Act expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting are hereby waived.”

The Executive Order additionally clarifies that:

• Board Members may attend meetings remotely (i.e. by telephone or teleconference) without adhering to the usual requirements that require posting of notices at the remote location and public access to the remote location.
• Board Meetings may proceed even if a quorum of the Board — or the entire Board — is participating remotely.

The Executive Order imposes two conditions:

• Advanced notice of meetings must be provided as already required under the Brown Act. In other words, the usual agenda posting requirements (72 hours for regular meetings, 24 hours for special meetings) still apply. Please note however that Brown Act provisions allowing for emergency meetings remain in effect.
• The meeting notice must identify “at least one publicly accessible location from which members of the public shall have the right to observe and offer public comment at the public meeting, consistent with the public’s rights of access and public comment otherwise provided for by . . . the Brown Act, as applicable (including, but not limited to, the requirement that such rights of access and public comment be made available in a manner consistent with the Americans with Disabilities Act)."

The Executive Order further urges public entities to “use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the . . . Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize transparency and provide the public access to their meetings.”

In identifying publicly accessible locations for members of the public to observe and offer public comment, school and community college districts are advised to consider guidance from the California Department of Public Health also issued earlier today that that large public gatherings of 250 or more persons should be postponed or canceled, and smaller public gatherings should be held only in venues that allow social distancing of six feet per person:

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/Gathering_Guidance_03.11.20.pdf

EXISTING BROWN ACT PROVISIONS RELATING TO EMERGENCY

The Brown Act already contains limited authority — which remains in effect — which allows public entities to hold meetings on one-hour (or no) prior notice in the event of an “emergency situation” as defined by statute, and to additionally discuss emergency threats to public services in closed session:

• The Brown Act includes authority to conduct meetings in emergency circumstances with limited (one-hour) or no prior notice. (Gov. Code §§ 54952.2(b)(1); 54956.5.)
• The Brown Act also includes authority to meet with “agency counsel, sheriff, or chief of police, or their respective deputies, or a security consultant, or a security operations manager” in closed session to discuss “matters posing a threat to the security of public buildings, a threat to the security of essential public services . . . or a threat to the public’s right of access to public services or public facilities.” (Gov. Code § 54957(a).) 
• Prior to convening to closed session in an emergency meeting, the Board must agree to do so by a 2/3 majority vote, or, if 2/3 of the Board membership is not present, by unanimous vote of all members present. (Gov. Code § 54956.5(c).)

The Brown Act also contains authority allowing action on items not included on a posted regular agenda “Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted...” (Gov. Code § 54952.2(b)(2).

Additionally, the Brown Act contains authority which provides that if the Board meeting location is “unsafe” due to “emergency,” the “presiding officer” of the Board (i.e. the Board President) may designate an alternative location “for the duration of the emergency,” and must provide notice of the new location to local media by the “most rapid means of communication available.”  (See Gov. Code § 54954(e).)  This authority allows a Board President to change the location of future meetings, including those already noticed.

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 presentation/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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