Taking effect January 1, 2023, Assembly Bill No. 2449 (“AB 2449”) will provide members of legislative bodies subject to the Brown Act another option for attending meetings remotely. While maintaining the traditional teleconference requirements previously found in the Brown Act, AB 2449 adds a new option that will allow board members to remotely attend meetings through 2025. However, board members and board meetings must meet several requirements to take advantage of the AB 2449 option which may limit the option’s utility. Initially, AB 2449 will be in addition to the option provided via Assembly Bill No. 361 (“AB 361”); however, the AB 361 option will no longer be available after February 2023.
Three Remote Options Under AB 2449
Following the enactment of AB 2449, the Brown Act provides governing boards with three options to allow board members to participate remotely in meetings. The circumstances under which each may be used, and the associated requirements differ for each option, as follows:
- Traditional Teleconference
The Brown Act continues to allow board members to attend a board meeting by teleconference (audio or audio/video) if the board complies with several requirements. The teleconference location must be open and accessible to the public and be identified on the agenda; the agenda must be posted at the teleconference location, and public comment must be allowed at all locations. While this option may be used at any time, because of the notice/accessibility requirements, this option is not always available to board members. For example, if a member will not be in an accessible location or does not want to publicize their location, the “traditional teleconference” option would not be available.
- AB 361 Emergency Remote Meeting – Ending February 23, 2023
In 2021, by adopting AB 361, the Legislature replaced some of the flexibility for remote meetings allowed during the pandemic by Executive Order. AB 361 currently remains in place. Under AB 361, all board members may meet remotely (i.e., teleconference) without complying with the traditional teleconference meeting requirements. However, this option is only available if there is a proclaimed state of emergency, and if state or local officials have imposed or recommended social distancing measures or if the board has previously determined that it should hold remote meetings for health and safety reasons. If a board seeks to continue to hold remote meetings under AB 361, it must renew these findings every 30 days. Further, meetings held pursuant to AB 361 must provide an opportunity for real-time public comment via a call-in or internet-based service option.
Governor Newsom recently announced he will end the state of emergency on February 28, 2023, so the option provided by AB 361 will no longer be available after that date absent another declared state of emergency.
- AB 2449 Remote Participation – Beginning January 1, 2023
Beginning January 1, 2023, AB 2449 will add a third option for boards to allow remote meeting participation. 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.
However, unlike the traditional teleconference and AB 361 requirements, AB 2449 also imposes requirements on when a board member may participate remotely. Specifically, 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, at the earliest opportunity possible.
- There are “emergency circumstances,” meaning 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.
AB 2449 imposes additional requirements on the board member participating remotely, including that they identify any individual over 18 in the room with the board member and that they participate through both audio and video.
Finally, unlike the traditional teleconference or AB 361 options, the AB 2449 option may only be used a limited number of times: 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 percent of regular meetings in a calendar year if a board meets at least 10 times a year, or no more than two meetings in a calendar year if the body meets fewer than 10 times a year. As with the traditional conference options, the ability of a member to participate in a meeting remotely (under any option) is at the discretion of the board.
When Will Options Be Available?
AB 2449 not only creates a new remote meeting option, but specifies time periods when each option is available:
Which Option Makes Sense For Your Board?
Whether the new option provided by AB 2449 (or the other two options) make sense for a meeting of your board will depend on several factors. These may include the location of the remote board members, the existence of a declared state of emergency, current public health concerns, technology available for board meetings, the reason board members seek to attend remotely, and the members’ history of remote attendance. As districts adjust to the new rules, especially as the rules change over the first few months of 2023, we recommend they work with counsel to determine which option (if any) is best for their situation and the appropriate agenda language.
If you have further questions about these options, please reach out to an attorney in our Board Ethics, Transparency and Accountability (BETA) practice group.