A&A: The board of supervisors is only accepting written comment before meetings amid COVID-19. Does that violate the Brown Act?

Q: Ostensibly due to the COVID-19 crisis, a Board of Supervisors in California is not allowing public comment during the board meetings, not even on public hearing items. They only allow written comments the day before until 5 p.m. All other public agencies in our area have figured out a way to conduct and allow public comment telephonically or by Zoom meetings. This is especially egregious because we appeared at a March meeting to comment on a public hearing item, which requires a public hearing. After waiting eight hours to speak, it was then delayed, then approved with out allowing public comment except written the day before. We filed a Brown Act Complaint and received a letter back responding that they didn’t have to allow anything but a written comment the day before. This matter was very important to us, so we want to pursue being able to speak on it.

A: In March, 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, the Board’s email 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.

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 Board had the capability of conducting meetings by Zoom or teleconference, then it arguably should have provided a dial-in option, 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.

It appears you are familiar with the enforcement procedures in the Brown Act, which were not suspended by the Governor’s executive orders and may still be used to challenge agency action during the COVID-19 crisis. More information about the Brown Act, including your 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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