On February 28, 2023, Governor Gavin Newsom issued a Proclamation declaring the end of the COVID-19 State of Emergency. With this action, flexibility regarding the ability of public agencies to conduct remote meetings has been reduced significantly, but not completely. Assembly Bill (AB) 2449, which became operative January 1, 2023, allows members of a public agency’s legislative body to participate remotely under limited circumstances. Here is what you need to know.

AB 361 Application Limited to Declared States of Emergency

As previously mentioned, Governor Newsom recently lifted the COVID-19 State of Emergency. This termination affects the ability of public agencies to utilize Assembly Bill (AB) 361, which allows agencies to engage in remote teleconferencing despite the provisions of the Brown Act requiring in person attendance. These provisions can only be utilized during declared States of Emergency where the public agency has determined that as a result of the emergency, meeting in person would present imminent risks to the health and safety of attendees. However, in the event the Governor declares a State of Emergency for other major events, such as natural disasters, the provisions of AB 361 could again become applicable to public agencies. For more information on AB 361, follow the link provided here.

AB 2449 Provides Remote Options for Public Agencies

Despite the end of the COVID-19 pandemic, public agencies still have options available to them if they need to exercise remote participation for members of their legislative bodies. AB 2449 provides that if a quorum of the legislative body participates in person, a member of a legislative body may participate remotely so long as the member provides prompt notice and the need for remote participation falls under one of the statutorily defined exceptions. The member does not need to identify their location nor ensure it is accessible to the public.

Members of legislative bodies can use AB 2449 to participate remotely if there is “just cause” or if “emergency circumstances” exist. “Just cause” is defined as any of the following:

• Providing childcare or caregiving of a parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires the member to participate remotely.
• A contagious illness that prevents attendance in person.
• Tending to a need related to a physical or mental disability.
• Travelling for business of the legislative body or another state or local agency.

“Emergency circumstances” are defined as follows:

• A physical or family medical emergency that prevents a member of a legislative body from attending in person.

Notice Must be Provided to Utilize AB 2449’s Provisions

In order to utilize the provisions of AB 2449, members of a legislative body must inform their public agency at the earliest possible opportunity of their need to participate remotely, which can include before the start of the meeting. The member must also provide a general description of the circumstances that require remote participation. In the case of emergency circumstances, the member must actually request that the legislative body allow them to participate remotely and the legislative body has to take action on this request.

Members and Public Must have Option to Participate in Meetings both Audibly and Visually

When a member participates remotely, he/she must utilize both audio and visual capabilities to effectuate compliance with the statute. Therefore, members of public agencies cannot use a call in only option to attend meetings, they must be on camera. Additionally, the legislative body is responsible for ensuring that the public can also participate in meetings remotely. This includes providing a way for the public to remotely hear, visually observe, and remotely address the legislative body. Furthermore, members of the public can no longer be required to submit their comments prior to the meeting but instead must be allowed to give comments in real time.

Utilizing the AB 2449 Remote Participation Option is Limited

The remote participation option is limited. A member of a legislative body cannot participate remotely for more than three consecutive months or 20 percent of the agency’s regular meetings within a calendar year. If the legislative body meets less than ten times in a calendar year, then a member can only utilize the remote option twice.

While the COVID-19 State of Emergency may be over, remote participation under the Brown Act may continue. The remote options that are available provide members of legislative bodies with much needed flexibility in times of personal hardship or crisis.

If your agency has any further questions about AB 2449 or how it may affect your agency, please contact:

• Kelly M. Doyle, kdoyle@somachlaw.com
• Alexis K. Stevens, astevens@somachlaw.com

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.