AB 361 Could Extend Public Meeting Teleconferencing

Keenan Briefings

Briefings

AB 361 Could Extend Public Meeting Teleconferencing

September 08, 2021
  • Legislature has taken action to extend the COVID-19 exceptions to the Brown Act’s teleconference requirements
  • AB 361 would allow a local agency to continue to use teleconferencing without complying with the Brown Act provisions in certain circumstances

Since the enactment of Governor Gavin Newsom’s Executive Order N-29-20, local legislative bodies in California have been able to hold public meetings by “teleconference” (a term which includes videoconferencing) without complying with all the following Brown Act requirements for teleconference meetings.

  • Give notice of each teleconference location from which a member will be participating in a public meeting and each teleconference location must be specifically identified in the meeting notice and agenda, including full address and room number;
  • Each teleconference location must be accessible to the public;
  • Members of the public must be able to address the body at each teleconference location;
  • Post agendas at all teleconference locations; and
  • During teleconference meetings, at least a quorum of the members of the local body must participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.

The waiver of these provisions has been welcomed by local agencies seeking to continue the public’s business while safeguarding board members and the public from exposure to COVID-19.

As reported in our briefing, "Virtual" Brown Act Meetings Will Expire September 30th, on June 11, 2021, Governor Newsom issued Executive Order N-08-21, which among other things rescinded his prior Executive Order N-29-20 and set a date of October 1, 2021 for public agencies to transition back to public meetings held in full compliance with the Brown Act.

But as the Delta variant has surged in California, the legislature has taken action to extend the COVID-19 exceptions to the Brown Act’s teleconference requirements, subject to some additional safeguards. As it is being considered in the Senate this week, AB 361 would allow a local agency to use teleconferencing without complying with the Brown Act provisions above in any of the following circumstances:

  • The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
  • The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
  • The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

A local agency that holds a meeting under these circumstances would be required by AB 361 to do all of the following, in addition to giving notice of the meeting and posting agendas as required under the Brown Act. These additional requirements are intended to protect the public’s right to participate the meetings of local agency legislative bodies

  • Allow the public to access the meeting and require that the agenda provide an opportunity for the public to directly address the legislative body pursuant to the Brown Act’s other teleconferencing provisions;
  • In each instance when the local agency provides notice of the teleconferenced meeting or posts its agenda, give notice for how the public can access the meeting and provide public comment;
  • Identify and include in the agenda an opportunity for all persons to attend via a call-in or an internet-based service option; the legislative body need not provide a physical location for the public to attend or provide comments;
  • Conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the public;
  • Stop the meeting until public access is restored in the event of a service disruption that either prevents the local agency from broadcasting the meeting to the public using the call-in or internet-based service option, or is within the local agency’s control and prevents the public from submitting public comments (any actions taken during such a service disruption can be challenged under the Brown Act’s existing challenge provisions);
  • Not require comments be submitted in advance (though the legislative body may provide that as an option), and provide the opportunity to comment in real time;
  • Provide adequate time for public comment, either by establishing a timed public comment period or by allowing a reasonable amount of time to comment;
  • If the legislative body uses a third-party website or platform to host the teleconference, and the third-party service requires users to register to participate, the legislative body must provide adequate time during the comment period for users to register, and may not close the registration comment period until the comment period has elapsed.

AB 361 also provides that, if the state of emergency remains active for more than 30 days, a local agency must make the following findings by majority vote every 30 days to continue using the bill’s exemption to the Brown Act teleconferencing rules.

  • The legislative body has reconsidered the circumstances of the emergency; and
  • Either of the following circumstances exist: The state of emergency continues to directly impact the ability of members to meet safely in person, or State or local officials continue to impose or recommend social distancing measures.

This will mean that local agencies will have to put an item on the agenda of a Brown Act meeting once every thirty days to make findings regarding the circumstances of the emergency and vote to continue using the law’s exemptions.

The stated aim of AB 361 is “to improve and enhance public access to local agency meetings during the COVID-19 pandemic and future applicable emergencies, by allowing broader access through teleconferencing options” consistent with Executive Order N-29-20. The bill contains an urgency clause which will make the bill effective upon signing. If enacted, the bill would sunset as of January 1, 2024.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.