I hope that you are all doing well after a very rainy beginning to 2023. I know that many of you have had damage to your homes and/or downtown infrastructure. The CDA Board sends support and good wishes to you and your stakeholders as you recover from the damage.
We have an important update on the options for remote Board meetings. The Brown Act continues to allow board members to attend a board meeting by teleconference (audio or video) if the teleconference location is open and accessible to the public and identified on the agenda. Of course, the agenda must be posted at each teleconference location and public comment must be allowed at all locations. But, this option is not always a great one because a board member may not be in an accessible location or does not want to publicize their location. In other words, if your board member is at home, they must post their location and allow the public to attend at their home. During the declaration of the State of Emergency, AB361, Emergency Remote Meetings, was passed. AB 361 allowed all board members to meet remotely without complying with the traditional teleconferencing requirements of allowing the public access to individual board member locations and/or publishing those locations. This option will go away on February 23, 2023 after the State of Emergency ends. Any teleconferencing will go back to requiring publishing all locations and allowing the public to attend any of those locations.
On January 1, 2023, the CA legislature passed AB 2449, Remote Participation, which provides Boards subject to the Brown Act another option for attending board meetings remotely. AB 2449 is similar to AB 361 in that there must be an opportunity for the public to comment, but adds some new requirements:
- A quorum of the board must attend the meeting in person at a location open to the public within district boundaries.
- The public must have access to the meeting via a two-way audiovisual platform or a two-way audio service and a live webcast.
- Public comment must be allowed via the remote platform as well as in person and the public must be able to offer comments in real time.
- Agendas must provide notice to the public of how to access the platform.
Importantly, AB 2449 also imposes requirements on when a board member may participate remotely. It only allows a board member to participate remotely under its provisions if:
- There is “just cause,” including need to provide care to a family member, an illness, or a disability, or traveling on government business. The member must notify the board of the “just cause,” by providing a general description, as early as possible.
- There are “emergency circumstances,” such as a physical or family medical emergency that prevents a member from attending in person. The member may only participate remotely upon approval by the governing board after the board is provided with a general description of the circumstances.
- A member may only participate remotely for “just cause” for two meetings per calendar year; a member may not participate remotely for “just cause” or “emergency circumstances” for more than three consecutive months or at 20% of regular meetings in a calendar year if the board meets fewer than 10 times per year.
I hope that this summary is helpful to you. As we get used to another “new normal”, please reach out to your own legal counsel to determine which option, if any, is best for your organization.
Rena Masten Leddy, LPM
Urban Place Consulting Group