[Editor’s Note: This article has been updated to reflect Governor Gavin Newsom’s Executive Order N-35-20 from March 21, 2020.]
On March 12, 2020, Governor Newsom issued Executive Order N-25-20, which included provisions to give state and local legislative bodies flexibility from certain Brown Act and Bagley-Keene Act requirements. Specifically, the Executive Order allowed agencies to hold public meetings telephonically, or otherwise electronically, and waived requirements for the physical presence of members in order to participate or establish quorum (see “Governor Eases Public Meeting Requirements for School Boards,” in the current issue of the Fiscal Report).
Much has changed since this Executive Order was issued as the whole state is now subject to a stay-at-home order. Accordingly, Brown Act and Bagley-Keene Act requirements have been further loosened by subsequent Executive Order N-29-20, issued on March 17, 2020, which no longer requires that a physical location be made available for members of the public to observe the meeting and offer public comment. Consistent with the earlier Executive Order, meetings held electronically must continue to allow members of the public to observe and address the meeting electronically. Additionally, advance notice of the time and agenda for the meeting must include the means by which members of the public may join the meeting, in accordance with the standard timeframes under the Bagley-Keene or Brown Acts. To meet accessibility requirements, the body also must implement a procedure for receiving and swiftly resolving requests from individuals with disabilities for reasonable modification or accommodation, and this procedure must also be included in the advance notice for the electronic meeting.
In addition, on March 21, 2020, the Governor issued Executive Order N-35-20, which allows local legislative bodies to receive updates from federal, state, and local officials related to the COVID-19 declared emergency. The body may receive simultaneous updates and may ask questions of the federal, state, and local officials in order to stay apprised of emergency operations and the impact on their constituents. However, the legislative body still must abide by applicable requirements of the Brown Act or Bagley-Keene Act in order to take action or to discuss amongst themselves any item of business.
These flexibilities for meeting the Brown Act and Bagley-Keene Act remain in place while public health officials have imposed social distancing measures. Legislative bodies are expected to continue to maximize transparency and provide the public access to their meetings during this time.