A City Council’s COVID-19 Ordinance Allows Only email or Pre-Recorded Telephonic Comments

Answer

Yes, a local city government satisfies Executive Order N-29-20 (which suspends certain requirements under the Brown Act) by allowing written comments to be submitted via email or in the form of pre-recorded telephonic comments. Executive Order N-29-20 suspended the requirement that “members of the public may address the body of each teleconference location” and “[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. . . shall have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment. Such a body need not make available any physical location from which members of the public may observe the meeting and offer public comment.” Cal. Exec. Order No. N-29-20.

In Immigrant Legal Res. Ctr. v. City of McFarland, No. 1:20-CV-00966-TLN-AC, 2020 WL 4012786 (E.D. Cal. July 14, 2020), the petitioners argued that the Planning Commission and City Council impermissibly restricted public participation during public meetings because “the City capped videoconference attendance for the City Council meeting at 100 participants even though the Zoom platform permits up to 1,000 attendees and between 200–300 members of the public had attended the previous Planning Commission meetings on the issue. Petitioners also file[d] declarations from attendees who claim[ed] they were wrongly prohibited from commenting or were unable to connect either through dial-in or videoconference.”City of McFarland, 2020 WL 4012786, at *3. In dicta, the Court cited to Executive Order N-29-20 and stated “it is arguable that the City Council’s use of dial-in and videoconferencing – specifically the alleged cap on attendance/comment and connection issues – was inadequate in these unprecedented times where new measures for public participation have suddenly become necessary.”Id. However, that does not appear to be the case in the scenario you describe below.

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