Last week, the California Attorney General opined that the Americans with Disabilities Act (“ADA”) requires local agency legislative bodies to allow remote participation from a non-public location as a reasonable accommodation for board members whose disability precludes in-person attendance. (____ Ops.Cal.Atty.Gen. ___ [July 24, 2024].) The remote participation must be conducted in a manner that simulates in-person attendance. While accommodation would be determined on a case-by-case basis, at a minimum, it would require individual board members who participate remotely: 1) use two-way video and audio streaming in real-time; and 2) disclose the identity of any adults who are present with the member at the remote location.
Opinion
Pursuant to the ADA, “reasonable accommodations” must be made in employment, government services, and public accommodations for “qualified individuals” with disabilities. In the employment context, a qualified individual is one who can “perform the essential functions” of the position with or without reasonable accommodation. With respect to an individual’s participation in government services or activities, a qualified individual is one who meets the “essential eligibility requirements” to participate in programs or activities provided by a public entity with or without reasonable modification. In a 2001 opinion, the Attorney General interpreted the Brown Act to require in-person attendance to be an “essential function” and “essential eligibility requirement” for members of legislative bodies. This meant that remote attendance could not be a “reasonable accommodation” under the ADA. (84 Ops.Cal.Atty.Gen. 181,185-188 (2001).)
The Attorney General revisited its analysis in the recent opinion, describing the evolution of remote meeting options. First, since the 2001 opinion, the Legislature amended the Brown Act to authorize participation in meetings by any board member by teleconference as long as certain requirements were met. Following the end of the expansive (but temporary) remote meeting flexibility resulting from the public health crisis of the COVID pandemic, Brown Act amendments allowed a board member to occasionally participate from a non-public location in limited circumstances via two-way audio/video. This authorization, which expires in 2026, allows any board member to participate remotely for a limited number of times, if there is “just cause” or “emergency circumstances.” Relevant to this question, “just cause” includes a “need related to a physical or mental disability not otherwise accommodated under the ADA.”
The Attorney General noted that by allowing remote participation during and after the pandemic, the most recent Brown Act amendments suggest in-person attendance is not an “essential function” or “essential eligibility requirement” for members of legislative bodies. Further, the fact the “just cause” exemption applies to a “disability not otherwise accommodated under the ADA,” suggests the Legislature otherwise believed disabilities which would be accommodated under the ADA would be so accommodated with remote participation. Thus, contrary to its earlier opinion, the Attorney General concluded that the ADA requires a local agency’s legislative body to allow remote participation from a non-public location as a reasonable accommodation for a qualified individual board member whose disability precludes their in-person attendance.
The Opinion further noted that while this accommodation (e.g., remote participation) would not appear to create an “undue hardship,” it is possible that in some circumstances the accommodation may not be required if it requires “significant difficulty or expense.” Further, the Opinion explained, given the Brown Act’s purpose, at a minimum, remote participation would still require the board member to: 1) participate via two-way, real time video and audio streaming; and 2) disclose any adults present in the room with the member and the nature of their relationship.
Impact
While Attorney General opinions are not binding, they are considered persuasive authority to courts. Thus, school districts and community college districts should anticipate allowing qualified board members with a disability to participate remotely in meetings, if requested. If a member participates remotely for this reason, the district will need to provide two-way, real-time video and audio streaming and consider whether additional steps are appropriate to ensure that their participation simulates in-person attendance.
The Opinion does not alter the current options for any board member to remotely attend meetings under existing provisions of the Brown Act. This includes the “traditional teleconference” option, where the remote board member attends from an accessible, public location disclosed on the agenda, and the AB 2449 option, where a board member attends from a non-public location, but only for limited, specific reasons where the body provides two-way, real-time video and audio streaming for both the board and the public.
Given the fact-specific nature of any ADA analysis needed to support this option for board members with a disability, districts should work with legal counsel if they have questions about application of the option to any specific situation.
If you have any questions about the impact of the Opinion or teleconference/remote meeting requirements in general, please reach out to an attorney in DWK’s Board, Ethics, Transparency & Accountability (“BETA”) Practice Group.