City of Gonzales
CITY ATTORNEY
STAFF REPORT
TO: Honorable Mayor Rios and City Council
DATE: December 5, 2022
FROM: Michael Rodriquez, City Attorney
THROUGH: Carmen Gil, Interim City Manager
SUBJECT: Report on New Brown Act Rules for 2023 Regarding Teleconferencing
RECOMMENDATION
It is recommended that the City Council accept the report on new law adding to existing Brown Act provisions dealing with remote participation via teleconferencing.
BACKGROUND
The California Brown Act provides regulations and procedures to be used by the governing bodies of public entities for conducting open public meetings. The ability of officials to participate in such meetings via teleconferencing, defined as “a meeting of individuals in different locations, connected by electronic means, through either audio, video or both” has been a part of the Brown Act for a significant period of time. However, during the COVID-19 pandemic, the Legislature was compelled to make modifications to the Brown Act to simplify the procedures by which remote participation could be accommodated in an effort to protect the health and safety of both official and public participants at such meetings. As the COVID-19 pandemic slowly comes under control, the Legislature has adopted a new set of laws concerning remote meeting participation that will come into effect in January 2023. This will result in three sets of laws concerning remote meeting participation being in effect at the same time:
Traditional Brown Act Teleconferencing Rules, Emergency Teleconferencing Rules enacted by AB 361, and Limited Specific Scenario Teleconferencing Rules enacted by AB 2449. There are significant differences in the laws, and so a comparison of all three is necessary to ensure compliance with the same.
REVIEW AND ANALYSIS
For ease in presentation and understanding, actions and provisions of the Brown Act dealing with remote participation are set forth in outline form below. I have also attached an AB 2449 Remote Participation Flow Chart hereto as Attachment A for future use and reference.
AGENDA
ITEM
21 Remote Participation (AB 361 & AB 2449)
A. Brown Act Rules pre COVID-19 pandemic:
Pre-pandemic, Govt. Code Section 54953(b) of the Brown Act allows for local agency officials to participate in a public meeting via teleconference, if the following occurs:
• At least a quorum of the legislative body will be participating in person in local agency’s jurisdiction;
• The teleconference location must be specifically identified in the meeting notice and agenda, including the full address and room number (if in a hotel); • Members of the public must be able to participate or address the legislative body at the teleconference location; and
• The meeting agenda is to be posted at the teleconference location.
B. Governor Newsom’s Executive Orders:
• Commencing in March 2020, Governor Newsom issued a series of Executive Orders designed to contain the COVID-19 virus. These Orders (N-25-20, N-29-20 and N35-20) declared that California was under a State of Emergency and collectively modified or suspended the requirements of the Brown Act, including the provisions regulating teleconferencing. During this time, legislative bodies were permitted to conduct their meetings via teleconference without fully complying with the teleconferencing rules of the Brown Act if members of the public were also allowed to observe and participate in the meeting by telephone or other electronic means. • N-08-21 (June 11, 2021): In this Executive Order, Governor Newsom rescinded his previous Order N-29-20 and required that public agencies return to “live” public meetings, held in full compliance with the Brown Act’s teleconferencing rules, by October 1, 2021.
C. AB 361 – effective September 16, 2021 through January 1, 2024:
In response to the Governor’s rescission of Executive Order N-08-21, the state legislature issued AB 361 as an urgency measure. This measure, which sunsets on January 1, 2024, allows legislative bodies to continue to hold public meetings by teleconference – without full compliance of the Brown Act – as long as the following requirements are met:
• There is an existing “state of emergency,” as that term is defined by Govt. Code Section 54953(e)(4); and
• The legislative body can make findings that 1) state or local officials have imposed or recommended measures to promote social distancing; or 2) that meeting in public would present imminent risk to the health and safety of the public meeting attendees.
If the state of emergency remains active for more than 30 days, the legislative agency is required to make the required findings by a majority vote every 30 days to continue to use AB 361’s exemption under the Brown Act.
D. AB 2449 – effective January 1, 2023 through January 1, 2026:
This bill, which amends Gov. Code 54953 and was signed by Governor Newsom on September 13, 2022, provides another mechanism for public officials to participate in public meetings via teleconference without full compliance with the Brown Act.
Note that AB 2449 does not rescind AB 361; public agencies may still invoke the exemptions available under AB 361 until January 1, 2024. However, given that the Governor has announced that the COVID State of Emergency will end on February 28, 2023, one of the requisite findings to proceed under AB 361 will no longer be available and some other local or regional state of emergency would be required to rely on AB 361.
The following are the teleconferencing requirements under AB 2449:
1. Request for Remote Participation: The public official is to provide notice to the legislative body “at the earliest opportunity, including at the start of a regular meeting, of their need to participate remotely.” Gov. Code Section 54953(e)(2)(A)(i) – (ii).
This request is to include a general description (not exceeding 20 words) of the circumstances relating to the need to appear remotely. The official is not required to disclose any medical diagnosis or disability, or personal medical information in the written description. The legislative body may approve the request at the start of the meeting.
a. If Request is Not on Agenda: AB 2449 also allows for the legislative body to consider the request if it does not appear on the 72-hour noticed agenda, as long as the request is due to emergency circumstances and there was not enough time to place the request on the noticed agenda.
The vote to add the item to the agenda must be passed by 2/3 of members, or if less than 2/3 are present, by unanimous vote. Govt. Code Section 54954.2(b)(4).
2. “Just Cause or Emergency Circumstances”: The request shall include one of the two reasons for the request, as set forth in Govt. Code Section 54953(g):
a. “Just Cause,” which means any of the following:
(1) Providing childcare or caregiving of a child, parent, grandparent, grandchild, sibling, spouse or domestic partner that requires the official to participate remotely;
(2) A contagious illness that prevents a member from attending in person;
(3) A need related to a physical or mental disability;
(4) Travel while on official business of the legislative body or another agency;
b. OR “Emergency Circumstances,” which means a physical or family medical emergency that prevents a member from attending in person.
3. Limits on Number of Remote Meetings: There are also limitations on the number of times a public official can use AB 2449 teleconference procedures. a. It may not be used for a period of more than three consecutive months, or 20% of the regular meetings within a calendar year, or more than two meetings if the body only meets fewer than 10 times in a calendar year.
Govt. Code Section 54953(e)(3).
4. Disclosure of Others Present at Remote Location: The remotely participating official must also disclose whether any individual over the age of 18 is “present” at the remote location. Govt. Code Section 54953(e)(2)(B).
5. Quorum Requirement: There also must be a quorum of the other members of the legislative body present at one physical location that is within the local agency’s jurisdiction. Govt. Code Section 54953(b)(3).
6. Other Provisions of AB 2449:
a. AB 2449 also requires that the legislative body provide either a two-way audiovisual platform or a two-way telephonic service and a live webcasting of the meeting to allow the public to remotely hear and visually observe the meeting remotely. The remotely attending official must also participate through both audio and visual technology. Govt.
Code Section 54953(f)(2)(C).
b. The bill also adds new requirements for implementing procedures to receiving and promptly resolving requests for accommodations for individuals with disabilities.
c. No action can be taken if a disruption event prevents the legislative body from broadcasting the meeting remotely. Govt. Code Section 54953(f)(1)(D).
How Recommendation Supports the Vision
Gonzales will continue to be a safe, clean, family-friendly community, diverse in its heritage, and committed to working collaboratively to preserve and retain its small-town charm.
Explain: Gonzales will continue to comply with applicable laws regarding teleconferencing both to accommodate the needs of the City’s officials and to provide transparency to the Council and Agency’s constituents.
Explain how the Recommendation Directly Implements the Mission The City Council and Staff of the City of Gonzales will realize our Vision by providing the leadership, commitment, and resources necessary to provide excellent services that enhance the quality of life of our diverse community. X Yes ____ No____ N/A
Explain: The City’s public meetings, held in accordance with the law, will continue to offer convenience and transparency to both City officials and the public. The new procedures will also be helpful in the event COVID-19 starts to impact the health and safety of said officials and the public.
City services will be delivered in a cost-effective, respectful, and friendly manner to ensure the safety and well-being of the residents and the promotion of business, recreational, housing and employment opportunities in an environmentally sustainable manner. X Yes ____No ____ N/A Explain: See above.
Strong fiscal policies allow us to provide appropriate infrastructure for:
• Public Safety Yes No X N/A
• Housing Yes No X N/A
• Recreation Yes No X N/A
• Environment Yes No X N/A
• Education Yes No X N/A
Explain: N/A.
ALTERNATIVES
Not applicable. The City is required to comply with applicable teleconferencing laws.
BUDGET IMPACT
Not applicable.
CONCLUSION
It is recommended that the City Council accept the report and be familiar with the new process for teleconferencing if and when necessary in 2023.
Attachments:
1. AB 2449 Flow Chart