California Governor Gavin Newsom has issued multiple orders affecting how and under what conditions state and local agencies may meet and discuss and/or approve of contracts for services and products during the coronavirus (COVID-19) pandemic.
California has among the nation’s strictest open-meeting laws in place, requiring advance public notice, access to the public, and strict rules on what may be discussed in closed sessions. State and local public agencies, ranging from state energy boards to local school districts, are all subject to these laws, and must comply with them when procuring services or products, approving contracts with outside vendors and engaging in similar activity.
Since compliance with these laws under the current COVID-19 conditions could endanger decisionmakers and the public, it has become necessary to modify these laws for state and local governments to continue to make decisions during the crisis while preserving opportunities for public involvement by teleconference or electronic means. This LawFlash summarizes the relevant laws and the significant relaxation of those laws under executive orders issued by Governor Gavin Newsom in March 2020.
All state boards and commissions are subject to the Bagley-Keene Open Meeting Act, California Government Code Sections 11120–32. The act is a comprehensive set of restrictions on the ability of state boards, commissions, committees, panels, and councils to meet and conduct business. Generally, advisory bodies of more than two persons are also subject to the act.
The act defines a meeting to include instances when a body merely receives information and makes no decision. The act specifically prohibits “serial meetings,” where a series of communications occur between members of the covered body or in numbers less than a quorum, or when those members exchange information, directly or through intermediaries, relevant to the business of the body.
The Bagley-Keene Act sets forth specific notice and agenda requirements. Bodies subject to the act must prepare and publish, at least 10 days in advance of the meeting, an agenda of all items to be discussed or acted upon at the meeting, with the time and place of the meeting. This applies to both open and closed meetings scheduled for the body. Importantly, for the purposes of this LawFlash, the physical location of the meeting must be identified, and the meeting must be accessible to the disabled and not subject to a fee for attendance.
The Ralph M. Brown Act, California Government Code Sections 54950 et seq., governs the meetings of local government bodies. The legislative bodies covered by the act include the governing body of a local agency (e.g., city council, school board, county board of supervisors) and any commission, committee, board, or other body of the agency, including standing committees and subcommittees, created by formal action of the body. Like the Bagley-Keene Act, the Brown Act provides strict notice and agenda requirements. With limited exceptions, no action or discussion may occur on items or subjects not listed on the posted agenda, which must identify each business item to be discussed or transacted at that meeting. For “regular” meetings, an agenda must be posted 72 hours in advance of the meeting.
Effective January 1, 2019, additional on-line posting requirements were added. The legislative body of a city, county, city and county, special district, school or college district, or political subdivision established by the state is now required to post a prominent, direct link of its current agenda for meetings “on the primary Internet Web site homepage” of that body. Such agendas must be posted in an open format that is retrievable, downloadable, indexable, and electronically searchable by commonly used internet search applications; be platform independent and machine readable; and be available to the public free of charge and without any restriction that would impede the reuse or redistribution of the agenda.
Both the Bagley-Keene Act and the Brown Act permit teleconference meetings under specific rules. Brown Act Section 54953(b) permits any type of teleconferencing in connection with any meeting. However, the following restrictions apply:
This normally has meant that a physical location must be identified and noticed for the public to appear, must be accessible to the public, and must allow the public to provide comments at the appropriate time in the meeting.
The Bagley-Keene Act includes the same basic requirements of the Brown Act for teleconferences, with one additional requirement:
The teleconferencing restrictions have been understood to permit one or more members to “phone in” or use another audio-visual connection to appear in the meeting, with a physical meeting location in place. Typically, this has meant staff and the public gather in the publicly noticed physical location, e.g., city council chambers, school board meeting room, state commission hearing room, and members may appear in person or remotely. The public must be notified of the physical address of the remotely participating member, and the agenda must be physically posted at that location as well.
These remote location notice and accessibility requirements are sometimes considered burdensome, as members dialing in remotely may be in their work office or at home. Nonetheless, in order to meet the teleconference requirements, these rules are mandatory.
On March 17, Governor Newsom issued Executive Order (EO) N-29-20, which followed an earlier order issued March 12, EO N-25-20, addressing the relaxation of teleconferencing rules for public agency meetings under both the Brown and Bagley-Keene acts. These orders rest on the governor’s authority under the Emergency Services Act, California Government Code Section 8571, to suspend strict compliance with various statutes and regulations, where that compliance would “prevent, hinder or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.” EO N-25-20.
To avoid confusion, readers examining the teleconferencing rules should focus solely on EO N-29-20, which corrected a gap left by EO N-25-20, relating to whether each state or local body must notice at least one publicly accessible physical location from which members of the public shall have the right to observe and offer public comments at the public meeting. In order to eliminate the physical location requirement, EO N-29-20 withdrew Paragraph 11 of EO N-25-20, and substituted a new paragraph, which provides:
Notwithstanding any other provision of state or local law (including, but not limited to the Bagley-Keene Act or the Brown Act), and subject to the notice and accessibility requirements set forth below, a local legislative body or state body is authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeing to observe and to address the local legislative body or state body. All requirements in both the Bagley-Keene Act and 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 EO suspends the “otherwise applicable” requirements that
Under this EO, the governor makes clear that a local legislative body or state body may hold its meetings via teleconferencing, and the order allows members of the public to observe and address the meeting telephonically or electronically, consistent with the advance notice and accessibility requirements, discussed below: “Such a body need not make available any physical location from which members of the public may observe the meeting and offer public comment.” EO N-29-20 ¶ 11.
The EO additionally recites various accessibility requirements, namely, that the agency or body receive and resolve requests for reasonable accommodation. The order also requires advertising the procedure in the agency’s notice, by which members of the public may observe the meeting and offer public comment. The notice of the means by which members of the public may observe the meeting and offer public comment may be accomplished by using “the most rapid means of communication available at the time,” which may include “posting such means on the body’s Internet website.”
EO N-29-20 is limited to the period in which state or local public health authorities have imposed or recommended “social distancing” measures.
On March 19, Governor Newsom ordered Executive Order N-33-20, widely referred to as the stay-at-home order, allowing only those working to maintain continuity of operations of federal critical infrastructure sectors to continue their work. This order puts into question whether a city council, school board, or state agency that may have regular business, including approval of contracts for products, services, or construction, may in fact hold a meeting to conduct business.
On the one hand, if all the information technology arrangements and internet or telephonic connections are accomplished by staff and members working from their residences, and the meeting can be properly noticed and conducted virtually, it would seem permissible under EO N-29-20. On the other hand, EO N-33-20 implies that only work that is within one or more of the federal critical infrastructure sectors is permissible.
Each California public agency will have to decide whether to proceed with public business that conforms to these executive orders.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers.
William D. Kissinger
Monica A. Schwebs