A&A: Is it a Brown Act violation to hold a virtual meeting without telephone access for those without the internet?

Q: Our County held an online public meeting as required by the Mental Health Services Act (MHSA), but failed to provide a phone number for anyone who might not have online access. Is this a Brown Act violation?

A: In March, California Governor Newsom issued executive orders N-25-20 and N-29-20, which temporarily suspend 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. In addition, Order N-29-20 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, providing an online option appears to fulfill the open meeting requirements of the Brown Act, at least for the duration of the emergency and the Governor’s executive orders, even though not everyone interested in attending the online meeting will be able to.

However, 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). If the county could have provided more options to observe the meeting, then it arguably should have done so, even though that is not expressly required by the Governor’s orders. Given the unique circumstances created by the COVID-19 outbreak, however, a reviewing court could always disagree on the reasonableness of the Board’s efforts to hold open meetings, and the Board’s option here appears to comply with the letter of the Governor’s executive orders by enabling observation of the proceedings “otherwise electronically.”

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.