Brown Act reveals need for clarity in state directives
Update: This article was updated to include additional information about Gov. Newsom’s executive orders.
As Gov. Gavin Newsom hands down executive orders to local jurisdictions in response to the COVID-19 pandemic, local officials look for clarity in putting those directives into action.
This has led local authorities to move cautiously on some issues, such as implementing a rent moratorium, while moving forward without hesitation on other directives, like the suspension of some provisions in the Brown Act, which regulates the transparency of governing bodies’ meetings.
On March 12, in an executive order Newsom authorized governing bodies to hold meetings electronically and waived requirements for a board, clerk or the public to be physically present as a condition of participation or in meeting the board’s quorum.
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The order also exempts six specific requirements having to do with board members’ locations during teleconferencing on the conditions that that governing board give advance notice of the meeting in the same timeframe as in-person meetings and that the board provide a publicly accessible space for people to observe and participate.
A few days later, another executive order rescinded those two conditions and spelled out that no public space for participation is required.
Over the weekend an additional order allowed legislative bodies to meet in order to receive updates relevant to the COVID-19 state of emergency, which they normally could not do unless it was an official meeting.
According to the Brown Act, a meeting includes any congregation of a majority members of a legislative body to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.
Officials across each local jurisdiction said the governor has suspended public comment and they are following that order.
“We are following the directions of the governor and he has temporarily suspended sections of the Brown Act in order to keep people separate and keep them at home and not congregating together in a meeting room,” Board Clerk Julie Patterson Hunter said. “It’s for public safety and as soon as it’s over they will go back to their normal meeting procedures.”
However, despite the rolling clarifications, gray areas still exist.
One potential Brown Act violation stems from whether the public participating in electronic meetings will be able to comment on agenda items in real-time. Nevada City and Grass Valley will take comments throughout the meeting, while the Board of Supervisors will only admit comments into the administrative record if they are received by 8 a.m. Tuesday. According to county officials if a member of the public wants to pull an item on the consent calendar in order to learn more about it they’ll have to contact the board ahead of time.
Barsotti said the ability for the public to participate while the meeting is actually occurring is an important component of the Brown Act. She also said the ability for the public to see each other’s comments falls within the spirit of the law, though there is no specific provision of law requiring it.
“We absolutely believe the public should be able to see what other members of the public are commenting on any agenda item if they’re using an online forum to conduct meetings,” Barsotti said.
Grass Valley will take comments via email and voicemail, Nevada City will take comments via email and the Board of Supervisors will take via email, mail and within their online meeting portal.
“Overall our concern in times like these is that government really needs to protect the public trust, and transparency is the spirit encompassing the Brown Act,” Barsotti said. “We know these are unprecedented times and challenges we’re facing but that’s why transparency is so important right now.”
To contact Staff Writer John Orona, email email@example.com or call 530-477-4229.
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