Member Article

• AB 2449 provides complex and restrictive alternative teleconference procedures:
  • At least a quorum of the members of the legislative body must participate in person from a singular physical location identified on the agenda, which location will be open to the public and within the boundaries of the local agency;
  • A member may only teleconference for publicly disclosed "just cause" or in "emergency circumstances" approved by the legislative body; and
  • A member may only teleconference for a limited number of meetings.
• The new provisions are in addition to those allowed by AB 361 (so long as there is a state of emergency) and those allowed by traditional teleconferencing rules.
• The new provisions are likely so onerous that they may not be a practical alternative for most local agency officials or for agencies that would like to meet virtually as a matter of practice.

On September 13, 2022, California Governor Gavin Newsom signed into law Assembly Bill (AB) 2449 (Rubio), marking the latest development of the Brown Act in a post-pandemic world. The new amendments to the Brown Act go into effect on January 1, 2023. AB 2449 provides complex alternative teleconference procedures to allow members of a legislative body to participate remotely, the application of which turns on individual facts and circumstances. Notably, the bill sets rules for a Board member's remote participation, but agencies may continue to hold zoom meetings at which the public participates remotely.

AB 2449 allows the legislative body of a local agency to use teleconferencing without complying with the traditional Brown Act teleconferencing rules or the modified AB 361 rules in certain circumstances. To do so, however, at least a quorum of the members of the legislative body must participate in person from a singular physical location identified on the agenda, which location will be open to the public and within the boundaries of the local agency. The legislative body must also provide either a two-way audiovisual platform or two-way telephonic service and a live webcasting of the meeting to allow the public to remotely hear and visually observe the meeting, and remotely address the legislative body. The agenda must identify and include an opportunity for all persons to attend via a call-in option, internet-based service option, and at the in-person location of the meeting.

In addition to the above prerequisites, AB 2449 also contains a number of provisions that may make the ability to participate remotely difficult for many public officials. The new provisions only allow a member of the legislative body to participate remotely if one of the following are met:

1. the member notifies the legislative body at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for "just cause" (as defined by AB 2449), including a general description of the circumstances relating to their need to appear remotely at the given meeting; or
2. the member requests the legislative body to allow them to participate in the meeting remotely due to "emergency circumstances" and the legislative body takes action to approve the request. The legislative body must request a general description (generally not exceeding 20 words) of the circumstances relating to their need to appear remotely at the given meeting.

The bill defines "just cause" and "emergency circumstances" for the purposes of teleconferencing. "Just cause" is limited to one or more of the following: (i) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (ii) a contagious illness that prevents a member from attending in person; (iii) a need related to a physical or mental disability as defined by statute; or (iv) travel while on official business of the legislative body or another state or local agency. "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending in person.

In practice, the similarities between "just cause" and "emergency circumstances" makes it difficult to determine when each category should be used and which facts lead to one or the other. These practical implications are further obscured by AB 2449's limitations on how frequently a member can teleconference under the statute.

AB 2449's teleconference procedures may not be used by a member of the legislative body to teleconference for a period of more than three consecutive months or 20% of the regular meetings within a calendar year, or more than two meetings if the legislative body meets fewer than 10 times per calendar year. Members participating remotely must do so through both audio and visual technology and must publicly disclose whether any individual over the age of 18 is present at the remote location with the member.

AB 2449 also adds new requirements for legislative bodies. Legislative bodies must implement procedures for receiving and swiftly resolving requests for reasonable accommodations for individuals with disabilities, consistent with applicable civil rights and nondiscrimination laws. Further, no action can be taken if a disruption event prevents the legislative body from broadcasting the meeting. Lastly, a legislative body may take action on items of business not appearing on the posted agenda if the request to consider action was for a member to participate in a meeting remotely due to emergency circumstances and the request does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. The legislative body may approve such a request by a majority vote.

AB 2449 does not amend the Brown Act's emergency teleconference procedures under AB 361. Rather, it offers an alternative teleconferencing option that allows a legislative body to use teleconferencing procedures without complying with the traditional teleconference agenda requirements in certain circumstances. However, the complexity of AB 2449's teleconference scheme will make it difficult to administer.

The remote meeting rules enacted in AB 361 will expire on January 1, 2024. AB 2449's rules remain in effect through 2025. After January 1, 2026, unless further legislation is adopted, only the pre-pandemic, traditional Brown Act rules will remain in effect.