HomeMy WebLinkAbout02.a. Legal Update re updates to Brown Act meeting requirements Page 1 of 10
Item 2.a.
CENTRALSAN
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CENTRAL CONTRA COSTA SANITARY DISTRICT
February 2, 2023
TO: HONORABLE BOARD OF DIRECTORS
FROM: KENTON L. ALM, DISTRICT COUNSEL
SUBJECT: LEGAL UPDATE: RECENT PUBLIC MEETING REQUIREMENT UPDATES
UNDER THE BROWN ACT
District Counsel will provide a verbal update as it pertains to public meeting requirements under the new
Brown Act rules effective March 1, 2023.
A summary published by Counsel for the Contra Costa Local Agency Formation Commission (LAFCO) is
attached for your review which addresses the changes to the Brown Act Rules for Teleconferencing.
ATTACHMENTS:
1. LAFCO Counsel Summary of Changes dated 01-04-23
February 2, 2023 Special Board Meeting Agenda Packet- Page 8 of 19
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Office of the County Counsel Contra Costa County
1025 Escobar Street, 31d Floor Phone: (925) 655-2200
Martinez, CA 94553 Fax: (925) 655-2263
Date: January 4, 2023
To: LAFCO Commissioners
From: Thomas L. Geiger, LAFCO Counsel
Re: Changes to Brown Act Rules for Teleconferencing
SUMMARY
LAFCO Commissioners may continue attending LAFCO meetings remotely under the
existing Assembly Bill 361 teleconferencing rules until the current state of emergency ends.
Governor Newsom has announced that the state of emergency will end on February 28, 2023.
Once the state of emergency ends, LAFCO Commissioners may participate in meetings
remotely under new Brown Act teleconferencing rules established by Assembly Bill 2449.
These rules allow LAFCO Commissioners to attend remotely for limited reasons and a limited
number of times per year. LAFCO Commissioners may also participate remotely under the
traditional Brown Act teleconference option. The teleconference options are explained below,
and a chart identifying the requirements of each teleconference option is attached.
TELECONFERENCING OPTIONS BEGINNING MARCH 1,2023
Once the AB 361 teleconferencing rules end, LAFCO Commissioners may participate
remotely under new AB 2449 teleconferencing rules. LAFCO Commissioners also may
participate remotely under the traditional Brown Act teleconferencing rules that predate the
enactment of AB 361.
1. AB 2449 Allows Teleconferencing for "Just Cause" Reasons or Under "Emergency
Circumstances"
AB 2449 amends the Brown Act to provide an alternative to the traditional Brown Act
teleconferencing rules. Specifically, AB 2449 amends Government Code section 54953 to
provide for members of a body to attend remotely for limited reasons and a limited number of
times per year. When a member uses one of these remote options, the public must also be
permitted to participate remotely or in person. This teleconference option does not require a
proclaimed state of emergency and is available to individual members (less than a quorum) of a
legislative body, as long as the following requirements are met:
February 2, 2023 Special Board Meeting Agenda Packet- Page 9 of 19
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LAFCO Commissioners
January 4, 2023
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• a quorum of the members of the body participates in person, and
• the quorum meets in a single,physical location clearly identified on the agenda that is
open to the public and situated within the agency's territorial jurisdiction.
If these quorum and location requirements are met, a member who is not physically
present at the in-person meeting location may participate remotely for"just cause" or if
"emergency circumstances" exist. For a seven-person body, this means no more than three
members may participate remotely during the same meeting under the AB 2449 option.
"Just Cause." To attend remotely for a"just cause"reason, the member must notify the
body at the earliest possible opportunity, up to and including the start of a regular meeting, of the
need to participate remotely. The member also must provide a general description of at least one
of the following"just cause" circumstances necessitating the remote appearance:
• There is a childcare or caregiving need for a child, parent, grandparent, grandchild,
sibling, spouse, or domestic partner that requires remote participation.
• A contagious illness that prevents the member from attending in person.
• A need related to a physical or mental disability that is not otherwise accommodated
for.
• Travel while on official business of the legislative body or another state or local
agency.
A member may not use a"just cause"reason to appear remotely for more than two
meetings per calendar year. There is no requirement that the body take action to allow the
member to attend virtually for"just cause."
"Emergency Circumstances." The other circumstance for a remote appearance under
AB 2449 is if a member requests remote participation due to an emergency circumstance.
"Emergency circumstances"means a"physical or family medical emergency that prevents a
member from attending in person."
A member who requests to attend remotely under an emergency circumstance must
provide a general description of the need to appear remotely. The description need not exceed
20 words and need not include any personal medical information. The member must make the
request to participate remotely as soon as possible and must make a separate request for each
meeting for which remote participation under the emergency circumstance option is requested.
The body must take action on the request at a public meeting. If there is insufficient time
to include the item on a posted agenda, the body may take action on the request at the beginning
of the meeting and approval must be by majority vote.
Additional Requirements for Remote Attendance Under AB 2449. If a member
participates remotely for either a just cause reason or under an emergency circumstance, the
member also must:
February 2, 2023 Special Board Meeting Agenda Packet- Page 10 of 19
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LAFCO Commissioners
January 4, 2023
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• Publicly disclose at the meeting before any action is taken whether any other
individuals 18 years or older are in the room at the remote location with the member,
and the general nature of the member's relationship with those individuals, and
• Participate through both audio and visual technology.
Although a member may participate remotely for a just cause reason no more than two
times per calendar year, in total a member may not participate remotely under AB 2449 for more
than three consecutive months or 20 percent of the regular meetings for the local agency within
the calendar year, or for more than two meetings if the body regularly meets less than 10 times
per year.
AB 2449 Technological and Access Requirements. If a member participates remotely
based on just cause or emergency circumstances, the body must also provide either a two-way
audiovisual platform, or a two-way telephonic service and a live webcasting of the meeting, so
that the public may remotely hear and visually observe the meeting, and remotely address the
body.
The body must provide notice and post agendas as otherwise required under the Brown
Act and must indicate on the notice how the public may access the meeting and offer comment.
The agenda must include an opportunity for all persons to attend and address the legislative body
via a call-in option, via an internet-based service option, and at the in-person location of the
meeting.
In practice, for teleconferencing to be an option for members, especially in an emergency
circumstance, the technological and access requirements for members of the public must be in
place for every meeting.
If the broadcasting of the meeting to the public by phone or internet service is disrupted,
or a disruption within the local agency's control prevents members of the public from
commenting using the phone or internet service, the legislative body may not take any action at
the meeting until public access to the meeting via the phone option or the internet service option
is restored. Actions taken on agenda items during a disruption that prevents the legislative body
from broadcasting the meeting may be subject to legal challenge.
When a member appears remotely for a just cause or emergency circumstances reason,
AB 2449 does not require that the agency post an agenda at the remote location, include the
address of the remote location, or provide for public access to the remote location.
The body may not require public comments to be submitted in advance of the meeting
and must allow the public to address the body and comment in real time.
An individual may be required to register for public comment before being allowed to
provide comment, where the body uses a third-party platform(like Zoom) for the meeting.
February 2, 2023 Special Board Meeting Agenda Packet- Page 11 of 19
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LAFCO Commissioners
January 4, 2023
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AB 2449 also requires the body to implement a procedure for receiving and quickly
resolving reasonable accommodation requests for individuals with disabilities. Any doubt
should be resolved in favor of accessibility.
The AB 2449 rules remain in effect through 2025. Beginning January 1, 2026, only the
traditional Brown Act teleconference rules will be available (unless further legislation is adopted
in the meantime).
2. Teleconferencing Under Traditional Brown Act Rules
LAFCO Commissioners also may continue to participate remotely under the traditional
Brown Act teleconferencing rules that predate AB 361. Under these rules:
• At least a quorum of the Commission must participate from locations in Contra
Costa County.
• Each telephone conference location and the meeting location must be shown on the
agenda for the meeting. In addition, the agenda must provide an opportunity for
members of the public to give public comment from each teleconference location.
• In addition to the usual agenda-posting agenda locations and the LAFCO website,
an agenda must be posted at each teleconference location 72 hours in advance of
the meeting.
• Each teleconference location must be open and accessible to members of the
public.
• All votes taken during a teleconference meeting must be by roll call.
TLG:
Attachment: Teleconference Meeting Options Comparison Chart
cc: Lou Ann Texeira,Executive Officer
H:\2023\LAFC0\13rown Act Update for 2023.LAFCO.docx
February 2, 2023 Special Board Meeting Agenda Packet- Page 12 of 19
Teleconference Meeting Participation Options
AB 361-State of Emergency AB 2449 Just Cause/Emergency Traditional Teleconferencing(Gov.Code,§
Teleconferencing(Gov. Code, §54953(e).) Circumstances Teleconferencing(Gov. 54953(b).)
Code, §54953(f); becomes(e) on 1/1/24.)
Applicable • Available until the state of emergency •Available beginning January 1, 2023, and •Available anytime.
Timeframe ends, currently scheduled for February 28, ending December 31, 2025.
2023. In no event may the AB 361 rules
continue past December 31, 2023.
Who May • Any or all board members. • Individual board members if: • Individual board members, if at least a
Appear (1) a quorum of the members participates quorum of the members of the body
Remotely and in person; and participate from locations within the
Quorum (2) the quorum meets in a single, physical jurisdictional boundaries of the body.
Requirements location clearly identified on the agenda
that is open to the public and situated
within the agency's jurisdiction.
Bases for • Must be a proclaimed state of emergency; •A member may appear remotely for"Just •Applies when a board member is unable to
Remote and either: Cause" or"Emergency Circumstances": attend in person.
Appearance (1) State or local officials have imposed or ► "Just cause" is any of the following:
recommended measures to promote (1) A need to care for a child, parent,
social distancing; grandparent, grandchild, sibling, spouse,
(2) The body is holding a meeting to or domestic partner;
determine if meeting in person would (2) A contagious illness that prevents a
present imminent risks to the health or member from attending in person;
safety of attendees; or (3) A need related to a physical or mental
(3) The body finds that meeting in person disability that is not otherwise
would present imminent risks to the accommodated for; or
health or safety of attendees. (4) Travel while on official business of the
body or another state or local agency.
► "Emergency circumstances" is a
physical or family medical emergency that
prevents a member from attending in
person.
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February 2, 2023 Special Board Meeting Agenda Packet- Page 13 of 19
Teleconference Meeting Participation Options
AB 361-State of Emergency AB 2449 Just Cause/Emergency Traditional Teleconferencing(Gov.Code,§
Teleconferencing(Gov. Code, §54953(e).) Circumstances Teleconferencing(Gov. 54953(b).)
Code, §54953(f); becomes(e) on 1/1/24.)
Notification and •The body must reconsider the •To attend remotely for: • No additional requirements.
Approval circumstances of the state of emergency
Requirements every 30 days and find that the emergency ► "Just Cause"
continues to exist and either:
•The member must notify the body at the
(1) it continues to directly impact the earliest possible opportunity, including at
ability of officials and members of the the start of a regular meeting, of the need to
public to meet safely in person; or participate remotely.
(2) state or local officials continue to •The member must provide a general
impose or recommend measures to description of the circumstances
promote social distancing. necessitating the remote appearance.
•The body need not take action in response.
► "Emergency Circumstances"
•The member's request to appear remotely
must include a general description of the
need to appear remotely, which need not
exceed 20 words, and need not include any
personal medical information.
•The member must make the request to
participate remotely as soon as possible and
must make a separate request for each
meeting.
•The body must take action on the request
at a public meeting.
• If there is insufficient time to include the
item on a posted agenda,the body may take
action at the beginning of the meeting.
•Approval must be by majority vote.
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February 2, 2023 Special Board Meeting Agenda Packet- Page 14 of 19
Teleconference Meeting Participation Options
AB 361-State of Emergency AB 2449 Just Cause/Emergency Traditional Teleconferencing(Gov.Code,§
Teleconferencing(Gov. Code, §54953(e).) Circumstances Teleconferencing(Gov. 54953(b).)
Code, §54953(f); becomes(e) on 1/1/24.)
Agenda and •The notice and agenda are required to • Must provide notice and post agendas as •The teleconference location must be open
Public Access state the means by which the public may otherwise required under the Brown Act and to the public.
and Comment access the meeting and provide public must indicate on the notice how the public
Requirements comment. may access the meeting and offer comment. •The agenda must be posted at all meeting
locations, including the teleconference
•The agenda does not need to be posted at •The agenda must include an opportunity location.
each teleconference location or identify for all persons to attend and address the
each teleconference location. body via a call-in option, an internet-based •The agenda must identify all meeting
service option, and at the in-person location. locations, including the teleconference
•The body is not required to provide a location.
physical location from which the public may •The law does not require that the agency
attend or comment. post an agenda at the remote location, •The agenda must provide for public
include the address of the remote location, comment at all meeting locations, including
•The body may not require public or provide for public access to the remote the teleconference location.
comments to be submitted in advance and location.
must allow the public to address the body
and comment in real time. •The body may not require public
comments to be submitted in advance and
• An individual may be required to register must allow the public to address the body
for public comment before being allowed and comment in real time.
to comment,where the body uses a third-
party platform (like Zoom)for the meeting. • An individual may be required to register
for public comment before being allowed to
comment, where the body uses a third-party
platform (like Zoom)for the meeting.
Voting • Members must vote by roll call. • Members must vote by roll call. • Members must vote by roll call.
Requirements
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February 2, 2023 Special Board Meeting Agenda Packet- Page 15 of 19
Teleconference Meeting Participation Options
AB 361-State of Emergency AB 2449 Just Cause/Emergency Traditional Teleconferencing(Gov.Code,§
Teleconferencing(Gov. Code, §54953(e).) Circumstances Teleconferencing(Gov. 54953(b).)
Code, §54953(f); becomes(e) on 1/1/24.)
Technological • Members of the public must be able to •The public must be able to remotely hear
Requirements attend via a call-in option or an internet- and visually observe the meeting, and
based service option. remotely address the body. Thus,the body
must provide either:
(1) a two-way audiovisual platform; or
(2) a two-way telephonic service and a live
webcasting of the meeting.
Other • If the broadcasting of the meeting to the • If a member participates remotely,the
Requirements public by phone or internet service is member must also:
disrupted, or a disruption within the local
agency's control prevents members of the (1) Publicly disclose at the meeting before
public from commenting using the phone any action is taken, whether any other
or internet service,the body shall not take individuals 18 years or older are in the
any action at the meeting, until public room at the remote location with the
access to the meeting via the phone option member and the general nature of the
or the internet service option is restored. member's relationship with such
Actions taken on agenda items during a individuals; and
disruption that prevents the body from (2) Participate through both audio and
broadcasting the meeting may be visual technology.
challenged pursuant to Section 54960.1.
• If the broadcasting of the meeting to the
public by phone or internet service is
disrupted, or a disruption within the local
agency's control prevents members of the
public from commenting using the phone or
internet service,the body shall not take any
action at the meeting, until public access to
the meeting via the phone option or the
internet service option is restored. Actions
taken on agenda items during a disruption
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February 2, 2023 Special Board Meeting Agenda Packet- Page 16 of 19
Teleconference Meeting Participation Options
AB 361-State of Emergency AB 2449 Just Cause/Emergency Traditional Teleconferencing(Gov.Code,§
Teleconferencing(Gov. Code, §54953(e).) Circumstances Teleconferencing(Gov. 54953(b).)
Code, §54953(f); becomes(e) on 1/1/24.)
that prevents the body from broadcasting
the meeting may be challenged pursuant to
Section 54960.1.
•The body must have and implement a
procedure for receiving and quickly resolving
reasonable accommodation requests for
individuals with disabilities. Any doubt
should be resolved in favor of accessibility.
Limitations on • None. •A member may participate remotely for • None.
Frequency of 'just cause" no more than two times per
Remote calendar year.
Appearances
• A member may not participate remotely
for more than three consecutive months or
20 percent of the regular meetings for the
local agency within the calendar year, or
more than two meetings if the body
regularly meets less than 10 times per year.
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February 2, 2023 Special Board Meeting Agenda Packet- Page 17 of 19