By Eric E. Stevens, Attorney At Law
With passage of Assembly Bill 2449, public agency board members will soon be able to join in-person board meetings by videoconference without having to publicly disclose their remote locations. However, individual board members will be limited in how often they can attend remotely without disclosing their location. Board members may appear remotely once or twice per calendar year for “just cause.” They may also appear remotely due to “emergency circumstances” with the approval of their boards. A quorum of the board’s members must still attend the in-person meeting site, and additional procedures apply to protect the public’s right to observe and participate in public meetings when a board member appears remotely without disclosing their location.
Before COVID-19, board members rarely participated in meetings by telephone or video conference.
The Brown Act (Cal. Gov’t. Code sections 54950 to 54963) has long allowed board members to join board meetings by telephone or videoconference, but the requirement to post a board member’s location and make that location open to the public had been a major deterrent. For example, a sick board member may want to participate in their public agency’s board meeting by phone, but is less likely to want to post their home address and open their living room to anyone who knocks on their front door during their board meeting.
With the outbreak of COVID-19, Governor Newsom suspended many of the Brown Act’s requirements from March 2020 through September 2021 to allow remote board meetings. The Legislature subsequently amended the Brown Act to allow public agencies to continue running remote board meetings so long as they made monthly findings that remote meetings were warranted by a state of emergency.
The Legislature passed AB 2449 with near unanimity and the Governor is expected to sign the bill into law shortly to allow board members to participate remotely without disclosing their location even when not in a state of emergency.
Beginning January 1, 2023, AB 2449 will permit individual board members to participate in their public agencies’ in-person board meetings by videoconference without disclosing their remote locations if certain conditions are met:
(1) During the meeting, at least a quorum of the board members must participate from a single physical location within the agency’s jurisdiction, that location must be clearly identified on the meeting agenda, and it must be open to the public.
(2) The board must provide at least one of these means for members of the public to remotely observe and address the board:
a. A two-way audiovisual platform, or
b. A two-way telephonic service and a live webcast of the meeting.
(3) The meeting agenda must provide clear notice of the ways that members of the public may physically or remotely participate in the meeting and offer public comment.
(4) The meeting agenda must identify and include an opportunity for all persons to attend and address the board directly via a call-in option, via an internet-based service option, and at the in-person location of the meeting.
(5) If the meeting’s broadcast is disrupted, the board cannot take any further action until the broadcast is restored.
(6) The board cannot require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the board and offer comment in real time.
(7) The board member appearing remotely must “disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals.”
(8) The board member appearing remotely must participate through both audio and visual technology.
(9) All votes must be taken by rollcall.
Additionally, individual board members are limited in the reasons and frequency with which they may remotely participate in a meeting without disclosing their location.
Remote participation for “just cause” short of an “emergency”:
Once or twice per calendar year, a board member may use this option if they notify their board “at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause, including a general description of the circumstances relating to their need to appear remotely at the given meeting.”
Remote participation due to “emergency circumstances”:
A board member may also participate remotely if they request that their board “allow them to participate in the meeting remotely due to emergency circumstances and the legislative body takes action to approve the request. The legislative body shall request a general description of the circumstances relating to their need to appear remotely at the given meeting. A general description of an item generally need not exceed 20 words and shall not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law . . . .”
When requesting to attend remotely due to emergency circumstances, additional requirements apply:
(1) The board member “shall make a request to participate remotely at a meeting . . . as soon as possible. The member shall make a separate request for each meeting in which they seek to participate remotely.”
(2) The board may take action on a request to participate remotely at the earliest opportunity. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the board may identify the action at the start of its meeting and take action to approve the request by a majority vote even though there was insufficient time to place the item on the posted meeting agenda.
In no case may a board member appear remotely under these provisions for more than three consecutive months or 20% of the regular board meetings in a calendar year.
Remember that these requirements and limitations apply only when a board member wishes to appear by videoconference without disclosing their location and opening that location to the general public.
If the remote board member’s location is disclosed on the agenda and made public, a quorum of the board participates from a physical location within the public agency’s boundaries, and votes are taken by rollcall, then the board can conduct its in-person meeting largely as normal and need not offer telephonic or video options for members of the public to observe or address the board.
For assistance or follow-up questions, please contact Eric Stevens at email@example.com.