Brown Act suspension survives end of most Executive Orders

By Michael G. Colantuono, Ephraim Margolin & Ryan A. Reed on July 2, 2021

On June 11, 2021, Governor Newsom issued Executive Order N-08-21^[1] to clarify the continued applicability of his previous Executive Orders related to the COVID-19 pandemic. Most notably, Executive Order N-08-21 extends application of Executive Order N-29-20, which allows public agencies to hold teleconference meetings until September 30, 2021.^[2] This provides some assurance of the timeline to transition back to entirely in-person meetings as the Legislature considers permanent relaxation of the impractical pre-COVID requirements for electronic participation in meetings. Executive Order N-08-21 also scheduled the repeal of other prior Executive Orders relevant to the City on June 30th, 2021 and September 30, 2021.

As many public agencies have referenced Executive Order N-29-20 in agenda formats over the last year, it is now time to update that reference to Order number N-08-21.

BROWN ACT REQUIREMENTS

Executive Order N-08-21 extends Paragraph 3 of Executive Order N-29-20, which allows public meetings to be conducted by teleconference without full compliance with the Brown Act. Specifically, under Executive Order N-08-21, the following Brown Act provisions continue to be suspended until September 30, 2021:

Each teleconference location from which a member will be participating in a public meeting must be noticed;
Each teleconference location must be accessible to the public;
Members of the public may address the body at each teleconference location;
Agendas must be posted at each teleconference location;
During teleconference meetings, at least a quorum of the members of the local body must participate from locations within the agency’s territory.

While an agency holds teleconference meetings, it must continue to allow the public to observe and to address the meeting telephonically or otherwise electronically (as by email or via a website or app). It must also maintain a system to accept requests from individuals with disabilities for modification of access requirements. An agency need not make a physical location available for members of the public to observe and to offer public comment. Agencies must comply with all provisions of the Brown Act other than those listed above for teleconferencing and personal attendance including, but not limited to, timely posting agendas.

Finally, Executive Order N-08-21 extends a previous Executive Order^[3] which allowed all members of a Brown Act body to receive updates (including simultaneous updates) on the COVID-19 emergency from federal, state and local officials until September 30, 2021.

Other Changes to Local Government Operations

In addition to the Brown Act requirements described above, Executive Order N-08-21 extends and repeals provisions of other Executive Orders relevant to local government. The following provisions expire as of June 30, 2021:

Executive Order N-25-20, Paragraph 7: Reinstatement and work hour limitations for retired annuitants in Government Code section 21220 and 21224(a), and in Government Code sections 7522.56(b), (d), (f), and (g) remain suspended until June 30, 2021.
Executive Order N-35-20, Paragraphs 4 and 11:^[4] Executive Order No. N-35-20, Paragraph 4 provided that all local ordinances are suspended to the extent they restrict, delay or otherwise inhibit the “delivery of food products, pharmaceuticals, and other emergency necessities.”^[5] The Executive Order cited noise ordinances as an example of local regulation that may restrict such deliveries. Such provisions remain suspended until June 30, 2021.
Executive Order N-35-20, Paragraph 11: extended the period for people to file claims under the Government Claims Act by 60 days.^[6] This was then extended an additional 60 days by Executive Order N-71-20.^[7] Claims accruing before June 30, 2021 will remain subject to the 120-day extension granted by the prior Executive Orders. However, claims accruing after June 30 will not be subject to any extension except as provided by the Government Claims Act.
Executive Order N-63-20, Paragraph 10:^[8] Under Executive Order N-63-20, any notice required by State law to be posted on an “employee bulletin board” was required to be provided electronically. This requirement exists only until June 30, 2021.

Under Executive Order N-08-21, the following provisions relevant to public agencies expire as of September 30, 2021:

Executive Order N-32-20, Paragraphs 1, 2 and 3,^[9] which suspended enforcement of Health & Safety Code and Public Resources Code sections prohibiting cities from using Homeless Emergency Aid Program funds to house and purchase sanitizing supplies for homeless individuals. This suspension concludes on September 30, 2021.
Executive Order N-42-20,^[10] which restricted urban and community water systems from discontinuing water service due to non‑payment. This means the City can begin to terminate water service for non-payment as of September 30, 2021. Requirements of Senate Bill No. 998 for disconnection of water service will continue to apply.
Executive Order N-03-21, Paragraph 3,^[11] which extended the time period for waiver of State law provisions preempting local ordinances that ban or restrict commercial evictions. In other words, local agencies may continue to halt commercial evictions under authority granted by the Governor until September 30, 2021.

N-07-21: Revocation of Stay-at-Home Order

On June 11, 2021, the Governor also issued Executive Order N-07-21^[12] which rescinded the Governor’s Stay-at-Home Order.^[13] Executive Order N-07-21 also rescinded the Executive Order^[14] directing the State’s Public Health Officer to create a framework for reopening the economy and impose restrictions on businesses and activities based on that framework. The State’s Stay-at-Home Order and the color-coded county-based framework for COVID-19 restrictions are no longer in place as of June 15, 2021. That means that restrictions on physical distancing, capacity limits on businesses, and the county-tier system have ended.^[15] Mask requirements for the public will be set by the California Department of Public Health and by Cal/OSHA for employees. Counties may also set more restrictive public health guidelines than does the State.^[16]

Conclusion

Executive Order N-08-21 allows local governments to continue its public meetings by teleconference until September 30, 2021, at which time we expect a return to general requirements of the Brown Act. Local agencies should plan to transition to in-person meetings by September 30, 2021.

[1] Governor’s Exec. Order N-08-21 (June 11, 2021).

[2] Governor’s Exec. Order N-29-20 (March 17, 2020).

[3] Governor’s Exec. Order N-35-20 (Mar. 21, 2020).

[4] Governor’s Exec. Order No. N-35-20 (Mar. 21, 2020).

[5] Id., ¶ 4.

[6] Government Code, § 810 et seq.

[7] Governor’s Exec. Order N-71-20 (June 30, 2020), ¶ 6.

[8] Governor’s Exec. Order N-63-20 (May 7, 2020), ¶ 10.

[9] Governor’s Exec. Order N-32-20 (Mar. 18, 2020).

[10] Governor’s Exec. Order N-42-20 (Apr. 2, 2020).

[11] Governor’s Exec. Order N-03-21 (Mar. 4, 2021).

[12] Governor’s Exec. Order N-07-21 (June 11, 2021).