Agencies following the state’s open meeting laws must balance public safety imperatives with advancing critical projects as they determine how to hold public meetings while Californians can’t go out in public.
California’s two open meeting laws — the Brown Act and the Bagley-Keene Open Meeting Act — require that meetings of local agencies’ and state boards’ legislative bodies generally be open to the public. To satisfy this requirement, meetings must be publicly noticed, an agenda must be posted in advance, and the public must be allowed to observe and participate.
However, once the COVID-19 pandemic led to the requirement of physical distancing, these agencies were no longer able to host public meetings consistent with the open meeting laws.
Three Executive Orders
In order to provide for the continued functioning of the state government, Governor Gavin Newsom signed three Executive Orders that exempt local agencies from certain parts of the open meeting laws and set out new standards by which public meetings can be held. They are:
- EO-N-25-20, or the “March 12 Order”
- EO-N-29-20, or the “March 17 Order”
- EO N-33-20, or the “Stay-at-Home Order”
While the March 12 Order suspended the open meeting laws’ in-person requirements for agency members and staff, it still required a publicly accessible location for the public to participate. The March 17 Order removed this requirement, clarifying that the body “need not make available any physical location from which members of the public may observe the meeting and offer public comment” and stating how public agencies may proceed with public meetings while physical distancing measures remain in effect. Specifically, the March 17 Order establishes that, if its temporary accessibility and notice requirements for public meetings are met, agencies may conduct such meetings “telephonically or otherwise electronically” and be deemed to “have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment.”
In order to ensure accessibility for all members of the public, the March 17 Order includes the following requirements for telephonic or electronic meetings:
- The agency must “[i]mplement a procedure for receiving and swiftly resolving requests for reasonable modification or accommodation from individuals with disabilities, consistent with the Americans with Disabilities Act and resolving any doubt whatsoever in favor of accessibility.”
- The agency must include this procedure in the meeting notice.
Thus, even under the March 17 Order’s temporary modifications allowing teleconferenced public meetings to help minimize the spread of COVID-19, “members of the public shall have the right to observe and offer public comment at the public meeting.” These temporary requirements will remain in effect while “state or local public health officials have imposed or recommended social distancing measures.”
The State of Public Meetings Today
In the six weeks since the Stay-at-Home Order was issued, agencies have taken different approaches, from suspending public meetings to continuing to hold public meetings through remote means to directing departments within the agency to develop their own approaches to holding public meetings in conformance with the Orders.
Agencies at the state and local level have transitioned to remote meetings and have posted rules for public participation. Agencies holding remote meetings and hearings range from state agencies, such as the California Energy Commission and the State Water Resources Control Board, to county boards of supervisors like the San Diego County Board of Supervisors and Los Angeles County Board of Supervisors, to city planning commissions like the San Francisco Planning Commission.
The general practices for holding remote meetings appear to be fairly standard across agencies. Community members may participate by: listening through a teleconference or viewing a livestream; submitting written comments through an e-comment service or email; or providing comment via teleconference (for which some agencies require advance registration). The San Diego County Board of Supervisors provided a one-page overview of the various options for remote public participation in their meetings, highlighting steps to call in to public hearings or submit “eComments.” For instance, in order for a member of the public to provide telephonic comments during a San Diego County Board of Supervisors meeting, the commenter must submit a request to the board by 8:30 a.m. the day of the meeting. The commenter then receives instructions for how to call in during the meeting and, once the public comment period begins, is unmuted when it is time for that commenter to speak. During the meeting, any member of the public who wants to listen but not comment may dial in to a conference line, watch on a local TV channel, or watch online.
For agencies that use livestream platforms like Zoom, such as the State Water Resources Control Board, the agency members are generally visible to the public during the meeting, and members of the public who joined via the videoconference are visible to the agency members and the public when commenting.
Controversy has arisen around whether public participation is truly satisfied when public meetings are held remotely. Various stakeholders and national NGOs claim that certain controversial projects should not be allowed to proceed, and their respective public meetings should be paused until the Stay-at-Home Order is lifted. For example, the Delta Counties Coalition requested that the state pause its stakeholder engagement and planning processes for a large water conveyance project during the COVID-19 crisis, claiming that “[p]ublic participation via webcast or telephone cannot provide the robust public input necessary for the controversial Delta Conveyance Project.” However, these same counties are holding their own public meetings remotely.
The Path Forward
Governor Newsom’s newly released phased approach to modifying the Stay-at-Home Order does not appear to allow for public gatherings until the very final phases, after therapeutics are available. Yet, the continued growth and prosperity of the state remain of the upmost concern to many individuals and agencies. Therefore, local agencies are expected to continue adapting to a remote hearing and meeting environment. Agencies that refuse to hold remote meetings on important projects (as some are) may delay much-needed infrastructure, housing, and other construction necessary to restart the economy.