Benicia City Council free to meet electronically – Newsom issues new COVID-19 Brown Act Orders

Newsom Issues Three COVID-19 Brown Act Orders: Here’s What He Urgently Changed

Meyers Nave Law Firm, (from an email by Benicia Mayor Elizabeth Patterson)

Governor Newsom recently signed three Executive Orders that changed fundamental limitations and requirements of the Brown Act. He signed Executive Order N-25-20 on March 12, Executive Order N-29-20 on March 17, and Executive Order N-35-20 on March 21. Before everyone had figured out the section of the March 12 order that addressed the Brown Act, parts of that section were withdrawn and superseded by the March 17 order and the remaining parts continued in the March 17 order. And then the March 21 order made more changes – all of which relate to the COVID-19 pandemic. The Executive Orders’ Brown Act changes are outlined below.

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Summary of Brown Act Changes

Executive Order N-29-20, March 17 (incorporates Executive Order N-25-20, March 12)

What’s the Big Change?
  • Waives certain requirements for teleconference meetings
  • Eliminates physical meeting location within the jurisdiction if there is a teleconference meeting
  • Simplifies notice and accessibility requirements
  • Waives numerous Brown Act requirements

N-29-20 allows local legislative or state bodies to hold public meetings via teleconference without having to provide a physical location from which members of the public may observe the meeting and offer public comment, as long as members of the public are allowed to observe and address the meeting telephonically or otherwise electronically, subject to specified notice and accessibility requirements.

Less Restrictive Teleconference Rules:
  • Physical presence of members of the legislative body or of the public are not required as a condition of participation in or quorum for a public meeting
  • Notice is not required of each teleconference location from which a member will be participating in a public meeting
  • Teleconference location does not have to be accessible to the public
  • The possibility of members of the public addressing the body at each teleconference conference location is not required
  • Agendas do not have to be posted at all teleconference locations
  • During teleconference meetings, at least a quorum of the members of the legislative body are not required to participate from locations within the boundaries of the territory over which the legislative body exercises jurisdiction
Notice and Accessibility Requirements:
  • Have and advertise (each time meeting notice is given) a procedure for receiving and swiftly resolving requests for a reasonable accommodation from individuals with disabilities, consistent with the Americans with Disabilities Act.
  • Provide advance notice of the time of, and post the agenda for, each public meeting according to the timeframes prescribed by the Brown Act. Include the means by which members of the public may observe the meeting and offer public comment.

Executive Order N-35-20, March 21

What’s the Big Change?
  • Allows serial or simultaneous updates about a declared emergency
  • Allows members of legislative body to ask questions during updates
  • Allows updates and questions without the public’s access or attendance

N-35-20 allows all members of a legislative body to receive updates (“including, but not limited to, simultaneous updates”) from federal, state and local officials relevant to the declared emergency (“including, but not limited to, updates concerning the impacts of COVID-19, the government response to COVID-19, and other aspects relevant to the declared emergency”).

What’s Allowed:

Members may ask questions of those federal, state and local officials who provide the updates in order to stay apprised of emergency operations and the impact the emergency has on their constituents.

What’s Not Allowed:

Members may not take action on, or discuss amongst themselves, any item of business that is within the subject matter jurisdiction of the legislative body without complying with otherwise-applicable requirements of the Brown Act.

Of Note:

Executive Order N-35-20 states that members of a legislative body may “receive updates” and “ask questions,” but they may not “discuss amongst themselves” nor may they “take action.” While the meaning of taking action is clear, when receiving updates members should be cautious not to discuss information, especially the answers to the questions that they ask. If the topic of a question feels like it will lead to a topic of a discussion then the communication should be deferred to a future Brown Act compliant meeting. Questions that only clarify are likely to be the most appropriate questions. While the update does not have to be brief, it should be conducted similar to a traditional press briefing or task force briefing, which are typically designed only to inform or educate.