REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of January 10, 2023
TO: Mayor Walker-Griffin and Council
SUBMITTED BY: J. Patrick Tang, City Attorney
Dante Hall, City Manager
SUBJECT: AB 2449 Effect on Public Agency Brown Act Meeting Requirements - New Procedures for Remote Participation UPDATE: This Revised Report provides additional options for meeting the Brown Act’s Emergency meeting requirements, and makes recommendations to the Council regarding AB 2449 compliance for the City’s Commissions. Revisions are indicated in BOLD text.
EXECUTIVE SUMMARY:
AB 361 was adopted in September 2021 to relax Brown Act teleconferencing requirements so that members of legislative bodies can more easily participate remotely in public meetings during the Covid pandemic. AB 361 will remain in effect until December 31, 2023; however, once the Covid State of Emergency is lifted by the Governor, which is now expected to occur on February 28, 2023, public agencies will no longer have the necessary authority to hold AB 361 virtual meetings. Once the Covid State of Emergency is lifted, the remote meeting requirements of newly enacted AB 2449 will control.
AB 2449 imposes the requirement that a member of a legislative body seeking to attend a meeting remotely must submit a request to the legislative body at the earliest opportunity possible. The legislative body must then vote to approve a request to attend remotely and must make findings that remote participation is justified as a result of an emergency or other reasons supported by “just cause”. There are a number of additional requirements that must be satisfied in order to participate remotely pursuant to AB 2449; a Flow Chart is provided as Attachment 1 to this Report to aid in understanding the procedural nuances of AB 2449 [NOTE: the Flow Chart does not include the additional option discussed below of using an agenda item placeholder to meet the urgency requirements under the Brown Act].
BACKGROUND:
In response to the Covid-19 pandemic, the California Legislature passed AB 361 to streamline Brown Act requirements for teleconference/virtual meetings during times of local emergency. Before AB 361, the Brown Act’s teleconference rules required physically posting each teleconference location with a meeting notice and making each location open to the public, a process which could not be practically implemented during a global pandemic.
With the relaxed teleconferencing rules under AB 361, public agencies and the general public have become more comfortable with meeting virtually, and many public bodies lobbied to get legislation passed that would extend the remote meeting protections past February 28, 2023, when the Governor is expected to lift the Covid state of emergency which would render AB 361’s relaxed teleconferencing provisions moot. AB 2449 extends the option for members of the legislative body to attend remotely under certain circumstances but imposes onerous procedural and voting requirements that will make it more difficult for members of the City Council to attend meetings remotely. These procedural requirements would be especially burdensome for several of the City’s Commissions that are not typically staffed by the City Clerk or the City Attorney who might otherwise assist Commission Staff Liaisons with meeting the complex procedural requirements of AB 2449.
DISCUSSION:
On September 13, 2022, California Governor Gavin Newsom signed into law HYPERLINK "https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2449" Assembly Bill (AB) 2449 (Rubio). The new amendments to the Brown Act go into effect on January 1, 2023 and will expire on December 31, 2025. AB 2449 imposes much more complex alternative teleconference procedures than AB 361 for members of a legislative body to participate remotely.
AB 2449 Threshold Requirements.
AB 2449 allows the legislative body of a local agency to participate in a meeting remotely without complying with the traditional Brown Act teleconferencing rules only if a quorum or more of the members of the legislative body participate in person from a singular physical location identified on the agenda, which location must be open to the public and within the boundaries of the local agency. The legislative body must also provide either a two-way audiovisual platform or two-way telephonic service and a live webcasting of the meeting to allow the public to remotely hear and visually observe the meeting, and remotely address the legislative body. The agenda must identify and include an opportunity for all persons to attend via a call-in option, internet-based service option, and at the in-person location of the meeting.
AB 2449 Remote Participation Request Procedure.
Assuming all the requirements in the previous paragraph are satisfied, the new AB 2449 provisions require submission of a written description not to exceed 20 words explaining why remote participation is being requested. The request does NOT need to disclose medical or personal information.
A request to participate remotely when submitted by a member of the legislative body prior to the publication of the agenda will be included as an agenda item. However, if the request is received after the publication of the agenda, then as a threshold matter the Council must take action to add the request as an Urgency Item to the agenda by an affirmative 2/3 vote, prior to voting on the actual request to participate remotely. An alternative to the Urgency Item procedure that appears to meet Brown Act noticing requirements is to place on every Council agenda for as long as AB 2449 is in effect a placeholder to read, "Consider and take action on any requests from a Council Member(s) to participate in a meeting remotely due to emergency circumstances or just cause pursuant to AB 2449". This would arguably meet the Brown Act’s agenda noticing requirements and avoid the situation where two separate votes would be needed to approve a request to participate remotely.
AB 2449 Requirements for “Just Cause” and Emergency Circumstances” Findings.
AB 2449 only allows a member of the legislative body to participate remotely for “just cause” or due to an “emergency circumstance” and the legislative body must make findings supporting a just cause or emergency circumstance determination. A simple majority vote is needed to approve remote participation. "Just cause" is limited to one or more of the following: (i) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (ii) a contagious illness that prevents a member from attending in person; (iii) a need related to a physical or mental disability as defined by statute; or (iv) travel while on official business of the legislative body or another state or local agency. "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending in person.
AB 2449 Remote Participation Frequency Limitations.
AB 2449's teleconference procedures may not be used by a member of the legislative body to teleconference 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 legislative body meets fewer than 10 times per calendar year. For the Hercules City Council which typically meets twice a month with cancellations for August recess, Thanksgiving holidays and winter break, this limitation would mean a maximum of four (4) teleconference opportunities per calendar year.
Additional AB 2449 Requirements.
In addition to the requirements discussed above, AB 2449 also mandates that legislative bodies implement procedures for receiving and swiftly resolving requests for reasonable accommodations for individuals with disabilities, consistent with applicable civil rights and nondiscrimination laws.
Staff Recommendations Regarding AB 2449 Remote Participation Option for City Boards and Commissions.
The City’s commissions, appointed by the City Council, are included under the Brown Act’s definition of legislative bodies so that they are subject to the AB 2449 remote meeting provisions. However for the AB 2449 remote participation procedures to apply to a City commission, the commission meeting must provide either: (i) a two-way audiovisual platform, or (ii) a two-way telephonic service and a live webcasting of the meeting. The City Manager after consultation with the commission staff liaisons, recommends that once the Covid emergency is lifted by the Governor on February 28, 2023, that the Finance Commission and the Library and Community Services Commission cease Zoom meetings and revert back to the pre-Covid meeting format so that commissioners for these two commissions would be required to attend in person, with public comment allowed via in-person participation. This would limit teleconferencing for commissioners to the pre-Covid process under the Brown Act, which would require that the remote site be open to the public, and posted in advance of the meeting. This recommendation for the Finance and Library and Community Services Commissions is based on the following factors:
AB 2449 requirements for remote broadcasting are onerous, and the City Attorney and City Clerk do not staff these commission meetings to assist staff liaisons with meeting these procedural requirements.
There has been minimal or no public participation via Zoom during the pandemic for these two commissions.
There is a staff cost associated with convening live Zoom commission meetings.
Regarding the Planning Commission, the Planning Director has indicated that it makes sense to continue to allow remote participation of applicants and consultants, as this will save time and resources for both the applicant and the City by avoiding having participants travel from remote locations to personally attend Commission meetings. Furthermore, there is more staff support provided to the Planning Commission and the City Attorney often attends Planning Commission meetings, so that the AB 2449 procedural requirements can be more easily implemented during Planning Commission meetings.
Staff will return to Council prior to February 28, 2023 in order to obtain Council direction regarding the above noted recommendations for commission remote participation in light of the new AB 2449 requirements.
CONCLUSION:
While AB 2449 is intended to extend the ability of council members to attend council meetings remotely without a State of Emergency being in effect, it unfortunately imposes a number of procedural hurdles that will likely complicate the remote attendance option.
ATTACHMENTS:
AB 2449 Flow Chart
AB 2449 Bill Summary
REVISED
January 5, 2023
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