On March 12, 2020, Governor Newsom signed Executive Order N-25-20, a broad, far-reaching order that authorized state and local authorities to impose social distancing measures, to waive the one-week waiting period for unemployment insurance, and to suspend work hour limitations for certain personnel working on the state’s COVID-19 response. Included among the many measures covered in the executive order was a waiver of certain public meeting requirements that will affect how state and local agencies will conduct the government’s business during this period of social distancing. Five days later, on March 17, 2020, the Governor issued Executive Order N-29-20, which further modified and relaxed requirements for meetings with telephonic participants.
These executive orders must also now be read in the context of Executive Order N-33-20, signed by the Governor on March 19, 2020, directing all Californians to stay home. Government facilities are among the 16 critical infrastructure sectors identified by the U.S. Department of Homeland Security. Every city and county is now evaluating how to carry on its essential governmental functions and how public meetings should be conducted to allow for public participation given the stay-at-home directive. The ability to rely more heavily on technological capabilities—videoconferencing, live streaming, teleconferencing—to promote public participation, as authorized by the March 12 and March 17 executive orders, will be critical to keep agency decision making moving forward.
Executive Order N-25-20 waives certain meeting requirements under the Brown Act, which applies to local agencies, and the Bagley-Keene Open Meeting Act, which applies to state bodies. This executive order authorizes local decisionmaking bodies, such as city councils or planning commissions, and state agency bodies to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address the local or state public officials during the period social distancing measures are in place. While many council meetings and state agency meetings are already live streamed, this executive order now allows those agencies to use technology to provide means for the public to provide comments at those meetings.
All requirements of the Brown Act and the Bagley-Keene Act that require the physical presence of members, the clerk, or other personnel of the body or the public as a condition of participation in or of achieving a quorum for a public meeting are waived. Applicants and members of the public wishing to address their local planning commission, city council, or board of supervisors may be doing so in a half-empty chamber, with a majority of members participating via phone.
Additionally, any requirements of those acts that require certain noticing procedures, such as identifying and making available each teleconference location from which a member will be participating, are suspended. In their place, Executive Order N-25-20 required advance notice of each public meeting as required by the applicable statute, and identification of at least one publicly accessible location from which members of the public can observe and offer public comment. Five days later, Executive Order N-29-20 was issued, eliminating the requirement that the public agency provide at least one publicly accessible location to observe and participate in the public hearing. Meeting notices only have to provide information regarding how the public can observe the meeting and offer comments, with no provision for a publicly accessible place to do so. This was done to make it easier for agencies to hold meetings during the period when measures have to be quickly enacted to address the virus.
With public gatherings currently limited to no more than 50 people, and perhaps going even lower with the recommendation from the Centers for Disease Control and Prevention that gatherings of more than 10 people should be avoided, cities, counties and state agencies will all need to consider how they can continue to hold public meetings and conduct business in the public realm but still stay within these attendance numbers and maintain social distance. Of equal concern is whether agencies, city halls and county government offices are technologically equipped to hold meetings that not only allow the decision makers to participate telephonically, but also allow the public and perhaps even staff to participate remotely.
For project applicants and land use and governmental law practitioners, there are also practical and legal considerations to address. As many of us have experienced with our own calls, telephonic participation is difficult even when there are only a few participants, and the degree of difficulty in allowing everyone to speak and hear each other clearly increases exponentially if seven members of a planning commission, multiple speakers from the public and a number of city staff are also telephonically participating. In order to ensure that all statements are captured for the record, it may behoove either the agency or an applicant to not only record the proceedings, but perhaps also hire a court reporter to provide a transcript of whatever was said so that nothing is missing from the record of proceedings. So as to minimize opportunities for error, maintaining strict time limits on public comment—e.g., three minutes per speaker—would also be advisable.
Yet another concern is ensuring that an administrative record with evidence to support the agency’s decision is properly documented. It might be advisable for applicants to not only testify at the hearing, but also provide a written transcript of their presentation in advance so that all decision makers have that information. Ensuring any decision maker participating remotely also has the technological capability to download materials in advance and to watch the hearing through a live stream mechanism is also an important consideration if the applicant wants to give a presentation about a project. The sooner the material is provided to the decision makers in advance of the hearing, the better it will help ensure that those participating remotely have all the information that those in the hearing room are provided.
In conclusion, the waiver of these hearing procedures will certainly help local agencies pivot more quickly to make decisions in real time to respond to the COVID-19 crisis; however, for the remainder of the items on the council or commission agenda, applicants must now consider taking steps to provide as much material in advance and submit all relevant information to the agency for inclusion in the administrative record to ensure that decision makers participating remotely have the materials they need to make critical decisions and that the administrative record is complete and supports the decision being made.