On September 13, 2022, California Governor Gavin Newsom signed Assembly Bill 2449 (“AB 2449”) into law. Effective January 1, 2023, AB 2449 establishes four periods with differing options for remote access to, and member attendance of, local agency public meetings under the Ralph M. Brown Act (“Brown Act”).
- From the present to January 1, 2023, public agencies may choose between traditional, pre-COVID teleconferencing rules or, to the extent there is an ongoing declared state of emergency, the significantly relaxed rules afforded under AB 361.
- From January 1, 2023 to January 1, 2024, public agencies may also avail themselves of a set of new procedures established under AB 2449 which do not require a declared state of emergency but which are subject to certain requirements and restrictions, including limitations on the number of times a member may participate remotely and limitations on the types of circumstances under which a member is allowed to participate remotely. During this period, public agencies may continue to avail themselves of traditional pre-COVID teleconferencing rules and, to the extent there is an ongoing declared state of emergency, the relaxed rules of AB 361.
- From January 1, 2024 to January 1, 2026, public agencies may avail themselves of the traditional, pre-COVID procedures and the new procedures of AB 2449 only. The procedures of AB 361 will cease to be effective by this time.
- After January 1, 2026, public agencies will only be able to avail themselves of the traditional, pre-COVID teleconferencing rules.
This alert focuses on the rules unique to AB 2449 which more or less constitute a procedural middle-ground between what is required under traditional teleconferencing procedures and the significantly relaxed procedures permitted under AB 361 during a declared state of emergency.
Overview of AB 2449 Remote Participation Procedures
To avail itself of the teleconferencing rules established under AB 2449, a public agency must comply with the following meeting requirements:
- A quorum of the members of the agency’s legislative body must participate in person from a singular physical location identified on the agenda;
- The legislative body must provide either (i) a two-way audiovisual platform, such as Zoom or WebEx, which allows the meeting to be viewed and heard from a remote location, or (ii) a two-way telephonic service and a live webcasting of the meeting, this requirement may be satisfied with any combination of platforms that allows the meeting to be viewed and heard from a remote location;
- The agenda must give notice of the means by which members of the public may access the meeting and offer public comment; and
- The meeting must be paused (and no action may be taken), if the broadcasting platform, either audio or visual, is interrupted.
If a member of a legislative body wishes to participate remotely under the new procedures, all of the following requirements, (1) through (4) below, must apply:
1. The request to remotely participate must be on the basis of a circumstance that qualifies as a “just cause” or “emergency” circumstance within the meaning of AB 2449:
(i) Just Cause Circumstance: At the earliest opportunity possible (including at the start of a regular meeting), the requesting member must notify the legislative body that he/she has a “just cause” reason for participating remotely. The request must generally describe the specific circumstances that prevent in person participation. Under AB 2449, “just cause” is specifically defined to mean any of the following circumstances:
a. A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely;
b. A contagious illness that prevents a member from attending in person;
c. A need related to certain statutorily defined forms of physical or mental disability; or
d. Travel while on official business of the public agency or for another state or local agency.
It is important to note that under AB 2449, members are limited to a maximum of two (2) times per calendar year to invoke the “just cause” exception to in-person participation.
(ii) Emergency Circumstance: An “emergency circumstance” is defined to mean a “physical or family medical emergency that prevents a member from attending a meeting in person.” To invoke the “emergency circumstance” exception, the requesting member, as soon as possible, must request that the legislative body allow him/her to participate remotely due to some specified “emergency circumstance.” In turn, the member’s legislative body must take action to approve the request at the earliest opportunity. The legislative body shall also request a general description (not exceeding 20 words) that describes the circumstances relating to the requesting members “emergency.” The requesting member is not, however, required to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law. The member must also make a separate request for each meeting in which he/she seeks to participate remotely under the “emergency circumstance” exception.
Participation via teleconference under the “emergency circumstance” exception does not count toward the two-meeting limitation applicable to the “just cause” exception to in-person participation.
2. The member must publicly disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals.
3. The member must participate through both audio and visual technology.
4. A member’s remote participation may not exceed (i) three consecutive months, or (ii) 20% of a legislative body’s regular meetings within a single calendar year. Also, if the legislative body regularly meets fewer than 10 times per calendar year, a member’s participation from a remote location cannot be for more than two meetings total.
Conclusion and Recommendations
AB 2449 establishes teleconferencing procedures that are not as stringent or involved as traditional, pre-COVID procedures but not as relaxed as those afforded under AB 361 when a declared state of emergency and other requirements of AB 361 are in place. It should be noted that AB 2449 does not do away with traditional teleconferencing procedures which survive all four phases of AB 2449 as summarized above. AB 2449 does seem intended to eventually take the place of the procedures established under AB 361 but only until AB 361 expires under its own terms on January 1, 2024.
AB 2449 does not spell out how to resolve instances when multiple members wish to avail themselves of the “just cause” or “emergency circumstance” exceptions at the same time and in excess of the number members who may participate remotely at any one meeting. Accordingly, it may be advisable to establish polices for resolving these situations (e.g., establishing a “first come first serve” policy etc.).
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.