Q: Our city council meetings have recently moved to Zoom sessions due to COVID. I’m curious about possible Brown Act violations due to the way the council has been conducting the meetings. The hot topic has been the current proposed city budget which they’ve had for the past three months and finally released to the community three weeks before the supposed deadline. Now that they’ve been using Zoom for the meetings, the public comments that were initially two minutes, have been cut to 45 seconds, and they regularly change the cut-off time for accepting the last comment. In addition to that, they have people reading the comments and the pace varies based on what each comment says. Thank you in advance for any input you may be able to give on this inquiry.
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, providing an online option fulfills 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 city council can provide the same amount of time allocated for public comments as it did before it moved its meetings online, then it should do 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 city council’s efforts to hold open meetings, and the city council’s option here appears to comply with the letter of the Governor’s executive orders by enabling the public to address the proceedings “otherwise electronically.”
Note that the Brown Act permits local bodies to impose reasonable regulations, including limits on speaking time, to ensure that proceedings can unfold in an efficient and orderly manner. Cal. Gov. Code section 54953.3(b). Courts have upheld limits of as short as three minutes per speaker. Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150 (2018). We are unaware of any cases addressing whether an even shorter period, such as 45 seconds, would also be “reasonable,” but a court might find that limit to be reasonable for a heavily-attended online meeting.
Note that the enforcement procedures in the Brown Act were not suspended by the Governor’s executive orders and may still be used to challenge agency action during the COVID crisis. More information about the Brown Act, including your options for enforcement, can be found 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.