A Guide To Brown Act Changes Starting January 1, 2023

The Legislature passed three bills in 2022 that made changes to the Ralph M. Brown Act (“Brown Act”) effective January 1, 2023, summarized below. The Brown Act requires meetings of a local public agency’s governing body to be open and public, including charter schools. The new changes address board members’ remote participation in meetings (Assembly Bill 2449), removal of disruptive individuals from meetings (Senate Bill 1100), and circulation of public meeting materials (Assembly Bill 2647).

In addition, the Governor has announced that California’s current COVID-19 state of emergency will end February 28, 2023. If and when the emergency ends, agencies will no longer be able to trigger Assembly Bill 361’s remote meeting procedures in reliance on that emergency.

The upcoming changes are summarized below, to help schools and public agencies ensure they are prepared.

End of Current State of Emergency, and New Remote Participation Rules (Assembly Bill 2449)

As of December 2022, many local public agency boards continue to hold wholly virtual board meetings as a result of the COVID-19 pandemic. Boards are expressly allowed to do this during a state of emergency by making specific findings under Assembly Bill 361 (2021). However, Governor Newsom announced that the COVID-19 state of emergency will end on February 28, 2023. If and when the state of emergency ends, agencies will no longer be able to trigger AB 361’s remote meeting procedures in reliance on that COVID-19 emergency.

Even after the state of emergency ends, board members may continue to participate remotely by telephone and/or videoconference under the Brown Act teleconference rules that existed before the pandemic. Those teleconference rules are found in Government Code section 54953(b).

Beginning January 1, 2023, Assembly Bill 2449 (AB 2449) also allows individual board members to participate in meetings remotely during “emergency circumstances,” such as physical or family medical emergencies, or for “just cause,” including childcare or caregiving needs, contagious illness, a disability, or travel on official agency business. Unlike the traditional teleconference rules, AB 2449 allows a board member to remotely participate without as much pre-planning. The board member’s teleconference location does not need to be posted on the meeting notice or agenda, and does not have to be open to the public. However, all of the following requirements apply when a board member is using the new AB 2449 rules:

• At least a quorum of the board must participate in the meeting from a single physical location that is identified on the notice and agenda, is open to the public, and is located within the jurisdiction. This is different from the traditional teleconference rules where a quorum of the board must be within the jurisdiction but not necessarily all at one physical location.
• The agenda must provide an option for members of the public to participate in the meeting remotely by phone and internet, e.g. a dial-in number and link, in addition to public participation at the physical location. It is permissible for third-party website or internet platform providers to require the public to register/log-in. The public must be able to comment in real-time, and the board cannot require submission of comments in advance.
• The board member using AB 2449 must notify the agency at the earliest opportunity possible, even at the start of the meeting. A separate request and disclosure is required for each meeting. The disclosure must include a general description of the need to participate remotely, provided that they need not disclose any medical diagnosis or disability, or personal medical information. At the meeting before any action is taken, the board member must publicly disclose whether any adults are present in the room with the board member, and the general nature of the person’s relationship.
• The board member must participate remotely by audio and video.
• A board member may only participate remotely based on “just cause” for two meetings per calendar year.
• In addition, a board member may not participate remotely under AB 2449 for more than three consecutive months, or for 20 percent of the regular meetings within a calendar year. If the governing body meets 10 or fewer times per year, each board member may only use AB 2449 twice per year.
• If the broadcast of the meeting or the public’s ability to comment via call-in or internet-based options is disrupted, the board cannot take further action until restored. Any actions taken during disruption may be challenged.

Because of the many conditions for using AB 2449, we expect the traditional teleconference rules under the Brown Act may continue to be the go-to rules for board members seeking to participate remotely in meetings. AB 2449 sunsets on January 1, 2026.

Distribution of Public Meeting Materials (Assembly Bill 2647)

Assembly Bill 2647 (“AB 2647”) makes small changes to the requirements for agencies distributing board meeting materials to board members within 72 hours of a meeting. Currently, meeting materials distributed during the 72-hour window ahead of a regular meeting must be made available for public inspection at the office or agendized location at the same time they are distributed to a majority of the board, which can raise practical issues when documents are emailed and/or agencies are working remotely. AB 2647 gives agencies flexibility to instead post such materials online, so long as all of the following requirements are met:

• Posting online is only sufficient if the agency had previously posted an initial staff report or similar document with an executive summary and staff recommendation (if any) relating to the agenda item at least 72 hours before the meeting, at the office or meeting location identified on the agenda.
• The meeting materials are immediately posted on the website in a way that makes it clear they relate to the same agenda item for the upcoming meeting.
• The web address is listed on all meeting agendas.
• Physical copies of the meeting materials are made available for public inspection at the next regular business hours, at the office or meeting location designated in the agenda, and only if the next regular business hours commence within 24 hours (i.e., cannot be done from a Friday to a Monday).

Removal of Disruptive Individuals (Senate Bill 1100)

Senate Bill 1100 (“SB 1100”) amends the Brown Act to authorize the presiding board member (e.g., the board chair) to remove disruptive individuals from a board meeting, so long as the individual is first warned by the presiding board member that their behavior is disrupting the meeting and failure to cease such behavior may result in removal. If the behavior does not promptly cease, the individual may be removed.

“Disrupting” is defined as engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting. This includes failure to comply with regulations adopted by the board or engaging in behavior that constitutes the use of force or a true threat of force. “True threat of force” means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat.

SB 1100 is in addition to existing Brown Act procedures for clearing the room when meeting order cannot be restored, as well as existing rights for agencies to adopt reasonable regulations on disruptive conduct.