AB 361 – Allows Governing Bodies To Meet Virtually During A State Of Emergency Or Public Health Emergency

AB 361 was enacted on September 16, 2021, to allow legislative bodies to continue to meet virtually during the ongoing public health emergency. The law was designated as urgency legislation and therefore went into effect immediately as of September 16, before existing executive orders providing similar authority expired.

Generally, the Ralph M. Brown Act (Brown Act) requires that all meetings of a legislative body of a local agency be open and public and that all persons be permitted to attend and participate in such meetings, except in limited circumstances. The Brown Act allows for legislative bodies to hold meetings by teleconference, but imposes very specific requirements for doing so, including that the legislative body (1) provide public notice of the teleconference location of each member participating remotely; and (2) allow the public to access each teleconference location and address the legislative body from such a location. In March 2020, and again in June 2021, the Governor issued Executive Orders suspending some of these requirements, and allowing legislative bodies to meet virtually without providing members of the public the right to access the locations from which members of such legislative bodies participated.

Under AB 361, legislative bodies are allowed to meet virtually during a proclaimed state of emergency if any of the following apply:

1. State or local officials have imposed or recommended measures to promote social distancing;
2. The purpose of the meeting is to determine whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees; or
3. The legislative body has already determined that as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

If those criteria are met, the legislative body may meet virtually, so long as it provides for all of the following in order to protect the rights of the public to access and participate in the meeting:

1. Give public notice of the meeting and post agendas;
2. Conduct the virtual meetings in a manner that protects the statutory and constitutional rights of the parties and the public;
3. Provide members of the public access to the meeting and an opportunity to address the body directly;
4. Provide members of the public the opportunity to comment in real time, without a requirement to submit comments in advance;
5. Suspend further action on items in the meeting agenda in the event that there is a disruption in the ability of the meeting to be broadcast to members of the public or in the ability for members of the public to comment;
6. Avoid closing any timed public comment period until such time has lapsed.

When there is a continuing state of emergency, in order for the legislative body to continue to meet virtually, it must reconsider the need for virtual meetings at least every 30 days and find, by a majority vote, that (a) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (b) state or local officials continue to impose or recommend measures to promote social distancing.

For local agencies, the provisions of AB 361 remain in effect until January 1, 2024.

(SB 361 amends Section 54953 of, and adds Section 11133 to, the Government Code, and adds Section 89305.6 to the Education Code.)