In Response to Concerns Regarding COVID-19, Governor Newsom Suspends Some Requirements applicable to Public Agency Teleconference Meetings

Public Agency  

March 12, 2020

Downey Brand COVID-19 News and Updates

Please note that Governor Newsom in a subsequent Executive Order N-29-20, issued on March 18, 2020, granted additional flexibility for public agency teleconference meetings. See updated Legal Alert here.

In response to the developing concern regarding the spread of Coronavirus Disease 2019 (“COVID-19”), on March 12, 2020 Governor Gavin Newsom issued Executive Order N-25-20 (the “Order”). Among other things, the Order provides that state and local agencies are immediately encouraged to hold public meetings by teleconference, and that many of the usual statutory requirements under the Brown Act and Bagley-Keene Act for holding meetings by teleconference are waived.

The Order specifically provides that Brown Act requirements for agencies to conduct public meetings by teleconference under Government Code section 54953 subdivision (b) are hereby suspended, expressly including the requirements that:

  • state and local bodies notice each teleconference location from which a member will be participating in a public meeting;
  • each teleconference location be accessible to the public;
  • members of the public may address the body at each teleconference location;
  • state and local bodies post agendas at all teleconference locations;
  • at least one member of the state body be physically present at the location specified in the notice of the meeting; and
  • during teleconference meetings, at least a quorum of the members of the local body participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.

In order to properly hold a public meeting by teleconference under the Order, public agencies must do two things. First, agencies must notice public meetings pursuant to the traditional timeframes prescribed by the Brown Act (e.g. at least 72 hours in advance of regular meetings, and at least 24 hours in advance of special meetings). This includes ensuring the agenda is posted—perhaps now more than ever—to the local agencies’ website as required by Government Code section 54954.2. Second, agencies must notice at least one publicly accessible location from which members of the public shall have the right to observe and offer public comment at the teleconferenced meeting. Such access must be in conformity with public access requirements including the Americans with Disabilities Act. Practical locations for such public access may include the normal location of the public agency’s meetings, such as an agency office, with a phone that has a speakerphone function and staff on hand to dial-in.

Public agencies should give further consideration to the mechanics of teleconferenced meetings, including how voting will be conducted. Notably on this point, the Brown Act requirement that voting during teleconferenced meetings be conducted by roll call is not suspended, and roll call voting must therefore be conducted on actionable items. Further consideration should be given to how agencies will conduct closed sessions, and reasonable efforts should be made to ensure that eavesdropping on closed session discussions is not permitted. For example, agencies may want to consider holding closed session at the conclusion of the meeting, and have staff at the publically accessible location terminate the call for the duration of the closed session and then dial back in for any reportable action. Timing for dialing back in could be relayed to staff at the publically accessible location by email or text. Public agencies may also want to consider potential claims of liability in the event a public agency continues to hold its meetings in-person, and COVID-19 is transmitted at the meeting.

Additional considerations for public agencies—and employers in general— include human resources issues such as updating leave policies, when employees may be sent home, what rules apply to non-exempt employees working from home, and what employers may or may not require regarding employee testing or screening. As agencies and businesses adapt to the new social distancing environment, Downey Brand’s attorneys are available to assist.