A&A: The public is severely limited in county meeting participation during the COVID-19 pandemic. Is this a Brown Act violation?

SUBMITTED | APRIL 20, 2020

Q: I am writing on behalf of many people in my community who believe that county government is violating the COVID-19 shelter-in-place directives of California Gov. Newsom and the local county Health officer, and the intent of the Brown Act. We seek any help, resources, or pressure you can provide to remedy the problem, as quickly as possible.

Many of us have requested in writing and in phone-in comments that the county stop all nonessential planning review until the COVID-19 SIPs are lifted. The county has ignored these complaints stating they are “in compliance” with the SIP. The list of exemptions in the Governor’s and health officer orders do not support that.

We believe this also violates the intent of the Brown Act. The public is severely limited from participating in planning review at this time. Normally, we can meet together and attend local council meetings to discuss development projects which impact us. Under the current health orders, we are prevented from legally meeting with our neighbors, and the local council meetings (precursors to county meetings) have been canceled. Again, letters have poured into County officials the past month to request a postponement of all nonessential project review to remedy this situation, without any response back from the county.

County Counsel indicated on April 7 that the county is operating under Brown Act exemptions, which allow them to hold meetings online and provide telephone call-in. That might be an acceptable option, but it isn’t working. With thousands of workers and students now home in this area, the internet is way over-subscribed and unreliable. All carriers are experiencing service failures daily. I have “attended” three virtual county meetings the past month, and during each one, the audio transmission failed and livestream froze up repeatedly. I called into the public comment line, listened to music for 30 minutes, and when the operator finally answered, general public comment was over.

The public has notified officials repeatedly that community internet, as well as the County’s own live stream, is failing to provide public access and thus required transparency. We’ve proposed a simple solution – that the county postpones nonessential plan review until the COVID-19 restrictions are lifted. Instead, the County is moving along with business as usual with no extensions or postponements on the calendar. We believe this is a violation of the Brown Act, notwithstanding the digital provision.

We welcome your thoughts and ideas on any recourse we might have, or pressure you can apply to restrain the County.

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 county’s efforts to make meetings open telephonically appears to fulfill the Brown Act’s public comment requirements, at least for the duration of the emergency and the Governor’s executive order. As such, we cannot say for certain that the county’s actions violate the Brown Act.

We 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). Soliciting telephone comments from the public, but failing to listen to them because the internet is down and phone lines are jammed, could be viewed as a failure to make “reasonable efforts” to comply with the Brown Act’s requirement that members of the public be allowed to speak, especially if postponement of the meeting is possible. Given the unique circumstances created by the COVID-19 outbreak, however, a reviewing court could always disagree on the reasonableness of any particular body’s efforts to hold open meetings.

We are unaware of any exceptional procedure to challenge a local body’s public comment practices during the duration of the Governor’s executive orders, but note that the ordinary procedures to challenge practices or actions of local bodies set forth in the Brown Act have not been suspended. More information about those options for enforcement can be found at the First Amendment Coalition’s website here.

The COVID-19 -SIP directives list Essential and Nonessential work, and exemptions. The exemptions include public works/infrastructure projects, and commercial projects already underway. Your County Planning has interpreted this exemption very broadly, and is continuing planning review for private, discretionary projects — non-public works, non-infrastructure proposals that are still on the drawing board, and should be circulating for public comment and review. But it is not possible for the public to provide that comment and review at this time.

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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