Assembly Bill 361 Allows Public Employers to Continue to Hold Virtual Meetings

On September 16, Governor Newson signed Assembly Bill (AB) 361 into law, amending the Ralph M. Brown Act (Brown Act) and allowing legislative bodies to continue to meet virtually during the present public health emergency. This legislative enactment was timely as the Executive Orders that previously provided legislative bodies such authority will expire on September 30, 2021.

The bill is urgency legislation, meaning that it went into effect immediately upon enactment.[1]  However, the prior Executive Orders will continue to apply through September 30, 2021 instead of AB 361 under certain circumstances explained below.

The purpose of this bulletin is to explain the operation of the new statutory authority and public agencies’ obligations related to the provision of virtual public meetings.

Teleconference Meetings Under the Brown Act

The 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.[2]

Specifically, the Brown Act allows for legislative bodies to hold meetings by teleconference, but imposes very specific requirements for doing so.[3] In order to hold a meeting by teleconference, the Brown Act requires that the legislative body satisfy the following requirements: (1) provide to the 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.[4]

Executive Order Allowed for Virtual Meetings

On March 17, 2020, in order to address the need for public meetings during the present public health emergency, Governor Newsom issued Executive Order No. N-29-20, suspending the Brown Act’s teleconferencing requirements.[5]  On June 11, 2021, Governor Newsom issued Executive Order No. N-8-21, continuing the suspension of the Brown Act’s teleconferencing requirements through September 30, 2021.[6]

These Executive Orders allowed 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.[7]

Adoption of AB 361 to Provide for Continuation of Virtual Meetings

On September 16, 2021, AB 361 became law, allowing legislative bodies to meet virtually during a proclaimed state of emergency if any of the following apply:[8]

1. State or local officials have imposed or recommended measures to promote social distancing,[9]
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,[10] 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.[11]

If an agency’s legislative body may meet virtually, it must provide for the following in order to ensure that members of the public may access and participate in such meetings: [12]

1. Provide notice and post agendas;[13]
2. Conduct the virtual meetings in a manner that protects the statutory and constitutional rights of the parties and the public;[14]
3. Provide members of the public access to the meeting and an opportunity to address the body directly;[15]
4. Provide members of the public the opportunity to comment in real time;[16]
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;[17]
6. Avoid closing any timed public comment period until such time has lapsed.[18]

It is important to note that in the event of an ongoing proclaimed state of emergency, in order to continue to meet virtually, no later than 30 days after meeting virtually for the first time and every 30 days thereafter, the legislative body must make findings by majority vote on the circumstances of the applicable state of emergency and find either:

1. The state of emergency continues to directly impact the ability of its members to safely meet in person; or
2. That state or local officials continue to impose or recommend social distancing measures.[19][20]

Prior to September 30, 2021, AB 361 Applies If A Legislative Body Holds A Meeting To Determine By Majority Vote Whether Meeting In Person Presents Risk

On September 20, 2021, Governor Newsom signed Executive Order No. N-15-21, to clarify the interaction of his prior Executive Orders which expire on September 30, 2021 and the newly enacted AB 361.  This order clarifies that if a legislative body holds a meeting during a proclaimed state of emergency, to determine by majority vote whether meeting in person would present imminent risks to the health or safety of attendees, then it must comply with AB 361.  If a legislative body does not hold such meeting, then the prior Executive Orders suspending the teleconference requirement through September 30, 2021 will continue to apply and AB 361 will become effective for those legislative bodies on October 1, 2021.

Liebert Cassidy Whitmore attorneys are well versed in the changes to the Brown Act and are able to provide public agency clients assistance as needed in order to ensure compliance with these changes.

[1] AB 361 section (8).

[2] Gov. Code, § 54953 subd. (a).

[3] Gov. Code, § 54953 subd. (b)(1), (3).

[4] Gov. Code, § 54953 subd. (b)(3).

[5] Executive Order No. N-29-20, https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-N-29-20-EO.pdf

[6] Executive Order No. N-8-21.

[7] Executive Order No. N-29-20, ¶ 3.

[8] Gov. Code, § 54953 subd. (e).

[9] Gov. Code, § 54953 subd. (e)(1)(A).

[10] Gov. Code, § 54953 subd. (e)(1)(B).

[11] Gov. Code, § 54953 subd. (e)(1)(C).

[12] Gov. Code, § 54953 subd. (e)(2).

[13] Gov. Code, § 54953 subd. (e)(2)(A).

[14] Gov. Code, § 54953 subd. (e)(2)(C).

[15] Gov. Code, § 54953 subd. (e)(2)(B).

[16] Gov. Code, § 54953 subd. (e)(2)(E).

[17] Gov. Code, § 54953 subd. (e)(2)(D).

[18] Gov. Code, § 54953 subd. (e)(2)(G)

[19] Gov. Code, § 54953 subd. (e)(3).

[20] These findings should be made in open session.

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.