A&A: Has the public comment requirement changed due to Gov. Newsom’s executive order amid the COVID-19 pandemic?

SUBMITTED | MAY 5, 2020

Q: Has the public comment requirement (Gov. Code, § 54954.3 subd. (a).) changed after Governor Newsom’s executive order?

A: In March, Governor Newsom issued executive orders N-25-20 and N-29-20, which temporarily suspended any Brown Act requirements “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” during the COVID-19 crisis. Order N-29-20 also states:  “A local . . . body . . . that holds a meeting via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically…shall have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment.” As such, the public comment requirement was not suspended. Instead, the order specified that local legislative bodies can fulfill the requirement by affording the public the chance to address the meeting via telephone or other electronic means.

Note that the Governor’s orders also provide that all “local bodies are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of … the Brown Act” (emphasis added). This would include the Brown Act’s requirement that members of the public be allowed to speak at meetings.

If you believe your City Council has acted inappropriately, note that the ordinary procedures to challenge practices or actions of local bodies set forth in the Brown Act were not suspended by Governor Newsom’s executive orders. More information about those options for enforcement can be found at the First Amendment Coalition’s website here.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.

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