Updated September 17, 2021: AB 361 has been signed into law by California Governor Gavin Newsom. OMLO will continue to monitor the situation and provide updates as they become available. If you have any questions regarding the implications of AB 361, please contact your OMLO attorney.
As discussed in further detail in our previous legal alert, Assembly Bill 361 (“AB 361”) introduced by Assembly Member Robert Rivas on February 1, 2021, would amend the Ralph M. Brown Act (“Brown Act”) to allow local governments to continue conducting virtual meetings under certain circumstances. AB 361 has now passed in both the State Assembly and Legislature and awaits Governor Newsom’s signature.
Virtual Meetings During the Pandemic
At the beginning of the pandemic, in an effort to control the spread of COVID-19, Governor Newsom issued Executive Order N-29-20, permitting local governments to meet remotely without having to comply with the long-established restrictions on teleconferencing set forth in the Brown Act. Throughout the pandemic, many local governments have used videoconferencing platforms to hold meetings virtually without violating health orders that prevented indoor gatherings. Under Executive Order N-29-20, local legislative bodies conducting meetings virtually were still required to allow for public participation and public comment, but local governments were given the flexibility to determine the specific method for offering public comment.
On June 11, 2021, Governor Newsom issued Executive Order N-08-21, which among other things, provided that the suspension of the Brown Act teleconferencing requirements would continue through September 30, 2021. As the relaxation of the Brown Act’s teleconferencing rules are set to expire, the legislature has adopted AB 361 as an urgency measure, which means that it will go into effect as soon as it is signed by Governor Newsom.
AB 361 Would Allow Remote Meetings to Continue in Limited Circumstances
If Governor Newsom signs AB 361, local legislative bodies will have the ability to continue holding remote meetings without complying with the Brown Act teleconferencing requirements, such as having to disclose their teleconferencing locations or make them accessible to the public, but only under the following circumstances during a state of emergency proclaimed by the Governor:
- State or local officials have imposed or recommended measures to promote social distancing; or
- The legislative body is meeting for the purpose of determining, by a majority vote, that meeting in person would present imminent risks to the health or safety of attendees as a result of the state of emergency; or
- The legislative body has already determined, by a majority vote, that meeting in person would present imminent risks to the health or safety of attendees as a result of the emergency.
To continue using AB 361’s more flexible teleconferencing rules, either the proclaimed state of emergency must remain active, or state or local officials have imposed or recommended measures to promote social distancing, and not later than 30 days after teleconferencing for the first time under AB 361, and every 30 days thereafter, local legislative bodies must make the following findings by majority vote:
- The legislative body has reconsidered the circumstances of the emergency; and
- One of the following circumstances exits:
- The state of emergency continues to directly impact the ability of members to meet safely in person; or
- State or local officials continue to impose or recommend social distancing measures.
AB 361 Imposes Certain Requirements for Public Participation
While virtual meetings will continue to be permissible in the circumstances above, legislative bodies must still ensure that the agenda otherwise complies with the Brown Act’s posting requirements and that agendas include information as to how the public may both access the meeting and provide comments remotely, including in real time.
Unlike the Executive Orders waiving the Brown Act’s teleconferencing rules, AB 361 specifically prohibits legislative bodies from limiting public comments only to those submitted in advance. That is, AB 361 requires local legislative bodies conducting meetings remotely to provide an opportunity for the public to offer comments in real time. The practice of requiring all public comments to be submitted via email in advance of the meeting will no longer be permitted.
Legislative bodies must also ensure they provide adequate time for public comment, either by establishing a timed public comment period or by allowing a reasonable amount of time to comment. Additionally, under AB 361, if a local legislative body is using a third-party website or platform to host a meeting virtually, and the third-party service requires users to register to participate, the legislative body must provide adequate time during the comment period for users to register and may not close the registration comment period until the comment period established by the body has elapsed.
Another important provision of AB 361 that local legislative bodies must be aware of is that should the inevitable technical difficulties cause a disruption in service that either prevents the public from observing the meeting or offering public comment, the meeting cannot continue until public access has been restored.
While AB 361 is part of the legislature’s continued response to the COVID-19 pandemic, it is meant to encompass additional emergencies such as earthquakes or wildfires. AB 361 will sunset on January 1, 2024.
If signed by Governor Newsom, AB 361 will provide local legislative bodies with the continued flexibility to meet remotely without adhering to all the Brown Act’s teleconferencing rules during a proclaimed state of emergency, but with the following key limitations: (1) public comment must be allowed in real-time; and (2) if there are technological issues, the meeting must be stopped and no vote or other official action can be taken until the public can once again participate in the proceedings.