A&A: COVID-19 Prohibition On Public Gatherings Prevented Me From Speaking to the Public

Q: I’m a federal whistleblower who’s been shut out of a local board of supervisors public meeting due to the COVID-19 pandemic and new laws disallowing public gatherings. Therefore I was denied the chance to go on the record to the public about county officials polluting millions of gallons of stormwater. How can I redress this wrong?

A: As a general matter, the public must be permitted to attend any meeting governed by the Brown Act. Cal. Gov. Code § 54953(a). However, 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, so long as the public is provided some means of observing and commenting upon the proceedings “telephonically or otherwise electronically.”

The Executive Order did not provide local legislative bodies themselves the authority to block entry to a building in which a meeting was taking place, but it seems likely that a local public health order required authorities to enforce social distancing guidelines, which might have entailed blocking physical access to the meeting.

Note that the Executive Order requires local legislative bodies to provide some means of electronically observing and commenting upon the proceedings, and also to “make reasonable efforts to adhere as closely as reasonably possible to the provisions of … the Brown Act,” so the Board is still required to provide some means of observing and commenting on its proceedings that does not require members of the public to be physically present.

In any event, once the COVID-19 crisis has abated and public health orders have been lifted, you should be able to physically access the next regularly scheduled Board meeting pursuant to the requirements of the Brown Act.

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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