Governor Newsom Issues Executive Order to Allow State and Local Governments Flexibility to Respond to COVID-19 Pandemic

On March 12, 2020, by Executive Order No. N-25-20 (“Executive Order”), California Governor Gavin Newsom ordered the temporary suspension of certain Ralph M. Brown Act (Gov. Code sec. 54950 et seq.) (“Brown Act”) and Bagley-Keene Open Meeting Act (Gov. Code sec. 11120 et seq.) (“Bagley-Keene Act”) open and public meeting requirements. The suspensions are being temporarily imposed in the interest of public health and safety to address the impacts of COVID-19[1]. Among other things, the Executive Order allows local and state legislative bodies to hold meetings via teleconference and make meetings accessible electronically without having to comply with typical notice and public access requirements.

Background

On March 4, 2020, Governor Newsom issued a proclamation of a State of Emergency in California as a result of the threat of COVID-19. In an effort to minimize the spread of COVID-19 and to mitigate its effects, Governor Newsom later issued the Executive Order, acknowledging that strict compliance with various statutes and regulations identified in the Executive Order, such as the Brown Act and Bagley-Keene Act, may prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.

Temporary Suspension of Certain Open Meeting Requirements

In an attempt to minimize the spread of COVID-19, and to allow state and local governments the flexibility to respond appropriately to the COVID-19 pandemic, paragraph 11 of the Executive Order expressly allows a local legislative body or state body to hold its public meetings via teleconferencing and to make the public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and address the local legislative or state body, during the period in which recommended social distancing measures are in place. Specifically, the Executive Order waives any express or implied requirement for the physical presence of members, clerk or personnel of the body, or of the public as a condition of participation or quorum for a public meeting.

In particular, the Executive Order contains the following temporary changes to existing open meeting requirements:

• Allows state and local bodies to teleconference into a public meeting without providing notice of each location from which a member will be participating in a public meeting;
• Any teleconference location(s) need not necessarily be accessible to the public;
• The public need not necessarily be provided access at each teleconference location to address the body;
• State and local bodies need not post agendas at all teleconference locations;
• No member of the state body need be physically present at the location specified in the notice of the meeting; and
• During teleconferenced meetings, it is not necessary for at least a quorum of the members of the local body to participate from locations within the boundaries over which the local body exercises its jurisdiction.

The Executive Order suspends the open meeting requirements as described above on the conditions that:

• Each state or local body provides advanced notice of each public meeting according to the timeframe and using the means otherwise prescribed by the Bagley-Keene Act or Brown Act, as applicable;
• Each state or local body provides notice of at least one publicly accessible location from which members of the public have the right to observe and offer public comment at the public meeting, consistent with the public’s rights of access and public comment otherwise provided for by the Bagley-Keene Act and the Brown Act (this includes, as applicable, rights of access available in a manner consistent with the Americans with Disabilities Act).

Conclusion

The temporary suspension of the open and public meeting requirements described above are not currently mandatory,[2] however, the Executive Order urges state and local bodies to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Bagley-Keene Act and the Brown Act and other applicable local laws regulating the conduct of public meetings to maximize transparency and provide the public access to meetings.

If you have any questions regarding Executive Order N-25-20 as it applies to open and public meetings, please contact: Janelle S.H. Krattiger

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[1] For more information related to COVID-19, please see the Center for Disease Control and Prevention’s COVID-19 informational webpage (available here) or view live updates from the World Health Organization (available here).

[2] However, please check for any local orders or directives issued by the applicable local jurisdiction (city and/or county). As of the date of this article, at least the City of Los Angeles has issued a public order temporarily limiting access to certain public places such as gyms, bars, and restaurants, and the counties of San Francisco, Marin, Santa Clara, San Mateo, Alameda and Contra Costa have issued a “stay at home order” due to COVID-19. These and other local measures may impose mandatory requirements affecting the conduction of and access to public meetings of local and state bodies.