Q: I asked a water agency in California if it planned to continue holding meetings online after the state reopens this month, and it said that would not be legal under the Brown Act. Is that true?
A: The agency’s response that making public participation in agency meetings available online and through Zoom is “currently not legal under the Brown Act” is incorrect.
The agency does acknowledge that online meetings would not comply with the Brown Act “but for the emergency order,” presumably referring to Executive Order N-29-20, attached. The order states, in relevant part, that all requirements in the Brown Act “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 a quorum for a public meeting are expressly waived.” (emphasis added).
The order also states that “[a] local legislative body or state body that holds a meeting via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements set forth below, shall have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment.”
Although the agency is correct that the Brown Act does not contemplate public participation through online measures, it does anticipate that emergency situations may require particular accommodations to facilitate public participation. Gov. Code Section 54954(e) states:
(e) If, by reason of fire, flood, earthquake, or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have requested notice pursuant to Section 54956, by the most rapid means of communication available at the time.
Executive Order N-29-20 was issued under Section 54954(e). Despite many restrictions being lifted on June 15, Governor Newsom’s state of emergency order, as well as Executive Order N-29-20, are expected to continue and not be suspended. Therefore, it will still be lawful to meet the Brown Act’s requirements of public participation through online measures. Conversely, however, there is no requirement in the Brown Act to continue to facilitate public participation online, if in-person participation is available.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, the firm 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.