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Brown Act Issues After Governor Newsom’s Executive Order
On March 12, 2020, Governor Gavin Newsome issued Executive Order N-25-20. In addition to other provisions, the Order conditionally suspends certain provisions of the Brown Act, which applies to local agencies. It also conditionally suspends certain provisions of the Bagley-Keene Act, which applies to state entities.
The Executive Order and questions from our clients have prompted us to explore several issues about emergency meeting and special meetings for local agencies under the Brown Act.
1. What is an emergency meeting?
“Emergency meetings” are a limited class of meetings held when an agency must take prompt action due to an actual or threatened emergency. They require little notice. (Gov. Code, § 54956.5.) An emergency means a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. (Gov. Code, § 54956.5 subd. (a)(1).) Emergency also means a dire emergency, which is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting (discussed below) may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.
2. What are the notice requirements for an emergency meeting?
Before the meeting
A legislative body may hold an emergency meeting without complying with either the 72-hour notice and agenda requirement of regular meetings or the 24-hour notice and agenda requirement of special meetings. (Gov. Code, § 54956.5 subd. (b)(1).)
Although the 72 hours’ or 24 hours’ notice is not necessary, the legislative body President or designee should notify each local newspaper of general circulation and radio or television station that has requested notice of special meetings one hour prior to the emergency meeting. In the case of a dire emergency, the legislative body President or designee should provide this notice at or near the time they notify the legislative body members of the emergency meeting. (Gov. Code, § 54956.5 subd. (b)(2).)
The legislative body President or designee should provide this notice by telephone and attempt to provide notice using all telephone numbers provided in the media’s written request. If telephones are not working, the notice requirements do not apply. However, the agency must notify the news media as soon as possible of the holding of the meeting, the purpose of the meeting, and any action taken. (Gov. Code, § 54956.5 subd. (b)(2).)
If news media does not have a written request on file for notification of special or emergency meetings, a legislative body has no legal obligation to notify news media of special or emergency meetings— but consider providing that notice anyway to promote communication and trust in your agency.
After the meeting
As soon as possible after the emergency meeting, the legislative body must post the minutes of the meeting, a list of persons whom the body notified or attempted to notify, a copy of the roll call vote, and any actions taken at the meeting. This information must remain posted for at least 10 days in a public place. (Gov. Code, § 54956.5 subd. (e).)
3. How do you convene an emergency meeting?
When a majority of the legislative body determines that an emergency exists, it may call an emergency meeting. (Gov. Code, § 54956.5.) Thus, the first order of business at an emergency meeting must be declaration of an emergency. The vote must be by a majority of the entire legislative body, not just a majority of those present.
4. What may the legislative body discuss and decide at an emergency meeting?
Agencies should limit the business considered at an emergency meeting to items requiring prompt attention due to the emergency. Further, while a legislative body is relieved of the responsibility to post an agenda prior to an emergency meeting, the agency must still have an agenda for the meeting. A legislative body may not take action on items of business not appearing on the agenda. (Gov. Code, §§ 54956; 54956.5 subd. (d).) Finally, as a rule, a legislative body may not hold a closed session at an emergency meeting. However, the legislative body may meet in closed session, where appropriate under the Brown Act, on a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present. (Gov. Code, § 54956.5 subd. (c).)
- What is a special meeting?
“Special meetings” are meetings called by the legislative body President or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings. (Gov. Code, § 54956 subd. (a).)
2. What are the notice requirements for a special meeting?
At least 24 hours before the meeting, a legislative body must post a notice in a location freely accessible to the public that contains the time and place of the meeting and identifies matters the legislative body will consider or discuss at the meeting. The body must also post the agenda on its Internet website, if it has one. (Gov. Code, § 54956 subd. (a).) The agency should describe items on the agenda in the same way it would for a regular meeting. The legislative body may hold a closed session, and closed sessions follow the same rules as a regular meeting.
3. How do you convene a special meeting?
The legislative body President or a majority of the members of the legislative body may call a special meeting by delivering written notice to each member of the legislative body. The members of the legislative body must receive the notice at least 24 hours before the meeting, unless the member waived notice in writing before the meeting or the member actually appears at the meeting. The legislative body must also provide notice to any newspaper, radio, or television station that requested notice of special meetings in writing. (Gov. Code, § 54956 subd. (a).)
A legislative body may not consider the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive at a special meeting. (Gov. Code, § 3511.1 subd. (d).) This does not apply to a local agency discussion of the agency’s budget.
4. What are the agenda requirements for a special meeting?
There is no specific agenda requirement for special meetings. The legislative body may not consider any other business that does not appear on the agenda. (Gov. Code, § 54956.) The legislative body must allow public comment before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body. (Gov. Code, § 54954.3 subd. (a).)
- What if it is not safe to meet in our regular meeting place?
The Brown Act generally requires the legislative body to meet within the territory over which the local agency exercises jurisdiction. (Gov. Code, § 54954 subd. (b).) However, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the legislative body President may designate another meeting place for the duration of the emergency. The agency must notify news media that have requested notice of special meetings of the new meeting location using the fastest means available. (Gov. Code, § 54954 subd. (e).) This means you may move your legislative body meetings to another public venue within your agency boundaries, or switch to a teleconferenced meeting during the duration of the emergency.
2. May members of the legislative body conduct the meeting by teleconference or videoconference?
Yes. The Brown Act allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session. (Gov. Code, § 54953 subd. (b)(1).)
“Teleconference” is “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.” (63 Ops.Cal.Atty.Gen. 215 (1980).) Teleconference meetings must comply with all requirements of the Brown Act. In addition, there are ordinarily other, extra requirements for a teleconference meeting.
Governor Newsome’s Executive Order N-25-20 conditionally suspended several of these requirements. Under the Executive Order, the remaining requirements for a teleconferenced meeting, including the additional conditions set out in the Executive Order are:
- The agency must give advance notice of each meeting under the time frames set out in the Brown Act;
- Each meeting must have at least one publicly accessible location from which members of the public will have the right to attend and observe the meeting, and offer public comment;
- All votes taken during a teleconferenced meeting must be by roll call;
- During a meeting of a health authority, it is permissible if at least 50% of the quorum are within the boundaries and the health authority provides a teleconference number and access code, if any, in the notice and agenda that allows any person to call in to participate in the meeting; and
- The agency must conduct the meeting in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body.
In addition, in his Executive Order, Governor Newsome urges local legislative bodies to use sound discretion and to adhere as closely as reasonably possible to the Brown Act and other local laws regarding the conduct of public meetings in order to provide the maximum access to the body’s meetings.