Unbelievably, it was March 17, 2020 when California Governor Gavin Newsom issued Executive Order N-29-20 (amending Executive Order N-25-20 in part) as part of a series of emergency measures in response to the COVID-19 pandemic. EO N-29-20 allows local or state legislative bodies to hold meetings via teleconference and to make meetings accessible electronically without violating the open meeting laws found in the Bagley-Keene Act or the Brown Act. This order waived certain provisions of the Brown Act, including requirements that meetings be conducted in physical locations; that a majority of teleconferencing board members are physically present within the agency’s jurisdictional boundaries; and that the agenda identifies the locations from which board members participate. We have certainly all been through a lot of changes since March 2020, but one thing that will not be changing on June 15th when California reopens following the myriad of COVID-19 restrictions is Executive Order N-29-20.
On June 15th, many of the COVID-19 safety provisions will be lifted in California, but given ongoing lack of clarity on certain items such as when and where to wear masks, vaccination requirements and remaining travel concerns, many constituencies have sought clarification from Governor Newsom’s office regarding guidelines for specific aspects of the Emergency Proclamation. With Governor Newsom’s announcement that he intends to terminate California’s “Blueprint for a Safer Economy” to permit a re-opening of the State, many questions arose as to whether Executive Order N-29-20 would expire as well. For this reason, earlier this month, the Governor responded to a coalition of local government entities in a letter confirming that the provisions of N-29-20 will remain in effect until further notice. The Governor has not set a new expiration date for N-29-20; however, the Governor committed to provide advance notice of rescission of the order to provide the agencies the time necessary to meet statutory and logistical requirements.
On June 11th, Governor Newsom’s office issued a statement further clarifying the plan and timeline for opening up California from June 15th forward. As part of Governor Newsom’s “Beyond the Blueprint” plan to fully reopen the State on June 15, as well as a new Executive Order N-08-21, Governor Newsom established a timeline to lift the COVID-19 pandemic Executive Orders. Under the Governor's reopening plan, the Brown Act provisions within Executive Order N-29-20, as well as California Environmental Quality Act (CEQA) provisions within Executive Order N-54-20 (and as extended by N-80-20, paragraph 6), will expire on September 30. Any local agency meetings taking place after that time must ensure physical public access to all meeting locations.
However, lifting Executive Order N-29-20 does not mean that public agencies will be precluded from allowing the public to participate in meetings by telephone or through online systems like Zoom. During the COVID-19 pandemic, many public agencies experienced both an increased comfort level with virtual meetings and an increase in public participation. Many local agencies are expected to continue to offer some form of virtual attendance option in addition to the in-person option. In the June 11, 2021 Executive Order N-08-21, there is additional clarifying language concerning N-29-20 which states:
“Notwithstanding any other provision of state or local law (including, but not limited to, the Bagley-Keene Act or the Brown Act), and subject to the notice and accessibility requirements set forth below, a local legislative body or state body is authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and to address the local legislative body or state body. All requirements in both the Bagley-Keene Act and the Brown Act expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting are hereby waived.”
We will continue to follow all developments regarding Executive Order N-29-20 and other updated regulations affecting public agencies. Please stay tuned to our Nossaman blogs for the latest news as California emerges from the COVID-19 pandemic.
Alfred Smith, Chair of Nossaman's Water Group, is a recognized expert in water, environmental, transportation and public agency law. A graduate of the Harvard Law School, he has successfully litigated multiple water right ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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