By Lisa Awbrey, HANC President
The most important sentence in the Brown Act is: “all meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency except as otherwise provided.”
Now more than ever, especially during a global pandemic, transparency and accountability to the Public by our decision makers is essential. The People’s business and policy making must be done in the open air and sunlight. And the Public’s access to government meetings where decisions regarding complex quality of life issues (like local public transit, public space, street use, land use, and future development) are made and implemented is critical. Recently, when the SFMTA and its directors revealed a plan for the termination of local neighborhood serving bus lines, HANC joined with residents, numerous neighborhood organizations and community leaders to push for full restoration of ALL MUNI lines. At public hearings, through public comment, emails and demonstrations, the People called on the SFMTA to fully restore MUNI to pre pandemic levels. As of this writing, it appears SFMTA is changing course and listening because the public organized and spoke against the plan; none of this would have been possible without the Brown Act or without public engagement and public comment. The same could be said regarding recent public hearings on the controversial expansion of the UCSF Parnassus Campus, on various local D5 projects before the SF Planning Department and Commission and on decisions that impact our unhoused neighbors.
The COVID-19 global pandemic has resulted in many changes to how local governments conduct business, including significant changes to open meeting rules and the Public’s access to local officials.
The Brown Act
Two key parts of California’s Brown Act have not changed since its adoption in 1953; one of its initial sections declaring the Legislature’s intent:
1) “In enacting this chapter, the Legislature finds and declares that the public commissions, boards, and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”
2) “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly-elected members of a legislative body, even before they take office.
Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference.
Certain communication technologies present some Brown Act challenges. For example, common e-mail practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an Internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, personal digital assistants, or cellphones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.
The Pandemic and AB361
At the start of the global pandemic in March 2020, California’s state wide mandatory shelter in place order, Executive Order N- 29–20 authorized exemptions to certain requirements under the Brown Act and the Bagley-Keene Open Meeting Act relating to teleconferencing rules. These exemptions facilitated virtual meetings while social distancing orders were in place so that state and local agencies could continue to provide services with a remote workforce and elected officials. Executive Order N-08-21extended the previous order until September 30, 2021. With the deadline fast approaching, the Legislature stepped in to formally amend open meeting laws to account for a new reality where a persistent global pandemic and extreme wildfires stoked by climate change existed.
On September 10, 2021, both houses of the California Legislature voted to approve AB 361 (Rivas), “Open Meetings: State and Local Agencies: Teleconferences.” AB 361 maintained wide bipartisan support as many local agencies have had success with remote meetings throughout the pandemic. The California Newspaper Publishers Association and the ACLU, which oppose the erosion of longstanding protections for the public’s right to access and oversee state government both strongly opposed the legislation. Sponsored by the California Special District’s Association, the bill’s coalition of support from local government included the California State Association of Counties and the League of California Cities. Given such broad support, the bill passed 66 to 4 in the Assembly and 28 to 7 in the Senate.
Once invoked, legislative bodies may continue to use AB 361 if the following criteria are met:
- There is still an active state of emergency or local measures or recommendations for social distancing.
- Every 30 days, the legislative body must make finding by majority vote that “The state of emergency continues to directly impact the ability of the members to meet safely in person.”
Other key points in AB 361:
- Requires a public comment period where the public can address the legislative body directly
- Prohibits legislative bodies from limiting public comments to only comments submitted in advance, and specifies that the legislative body “must provide an opportunity for the public to offer comment in real-time."
- The body must allow for public comment up until the public comment period is closed at the meetings.
- Meeting agendas must include access information for the public to attend the meeting and provide comments remotely.
- If technical problems occur which impacts the broadcast of the virtual meeting or prevents public comments, the legislative body may not take any vote or official action until the issue is corrected and public access restored.
In these unprecedented and uncertain times, transparency and accountability to the public by electeds and appointees is imperative, and that can only occur when the People have access to all legislative body meetings in order to engage and participate in the decision making.