Governor’s Latest Executive Order further Suspends Portions of Brown Act
by Derek P. Cole on March 22, 2020
posted in Meetings,
On March 21, 2020, the Governor issued the latest of many executive orders concerning the COVID-19 public-health emergency. This most recent order addresses a number of subjects, including local agency meetings under the Brown Act. As to these meetings, the order suspends the Act’s prohibition against taking action on “off-agenda” business items under limited circumstances.
More specifically, the order confirms that, during public meetings, local agencies may receive updates about the COVID-19 emergency even if that subject is not specified on their agendas. Ordinarily, agencies are precluded for taking action on items not posted on their agenda (i.e., “off-agenda” items) except when (1) an emergency exists, or (2) there is an immediate need to take action that arose attention after an agenda was posted. This latest executive order suspends these provisions of the Brown Act to allow agencies to receive updates “relevant to the declared emergency (including, but not limited to, updates concerning the impacts of COVID-19, the government response to COVID-19, and other aspects relevant to the declared emergency)” even if those subjects are not specified on the agenda.
The update must, however, be (1) provided by federal, state, or local officials, and (2) the purpose of the discussion must be for purpose of allowing “members of the legislative body to stay apprised of emergency operations and the impact of the emergency on their constituents.”
This latest suspension of Brown Act provisions may have little practical significance. Given the severity of the COVID-19 emergency, most agencies are now holding meetings specifically to address the latest developments and are including appropriate business-item descriptions on their agendas. Nonetheless, the authority provided by this latest executive order does reassure that timely and necessary discussions about the emergency can occur even when there is concern that the agenda may not provide notice of the discussion.
If agencies do take advantage of the suspension of this Brown Act mandate, they should be cognizant of two things.
First, the executive order does not allow them to take any specific action in response to the COVID-19 emergency. It allows them to receive an update from federal, state, or local officials. If agencies believe action should be taken in response to the updates they receive, they will need to either consider the desired item at their next agenda or they will need to schedule a special or emergency meeting to consider it.
Second, the order does not relax the Brown Act’s prohibitions against “serial meetings” (discussions by more than a quorum of a governing body outside of public meetings). Local officials still should be vigilant about not discussing — either directly or indirectly — anticipated or potential agenda items about COVID-19 with a quorum of their boards or councils.