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AB 361 Extends Virtual Board Meetings, With Conditions

By Procopio Partner Greta A. Proctor

California’s Ralph M. Brown Act has been amended to allow fully virtual board meetings during a state of emergency after the Governor signed Assembly Bill 361 into law on September 16, 2021. The new law comes as local public agencies were preparing for the expiration of Executive Orders that currently allow virtual board meetings.  AB 361 goes into effect immediately, and it amends Section 54953 of the Brown Act to allow virtual board meetings through January 1, 2024 in any of the following circumstances:

  1. The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
  2. The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
  3. The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.

These circumstances allow agencies to hold entirely virtual board meetings during the current pandemic, while California is in a proclaimed state of emergency.  The previous teleconference rules under the Brown Act also remain in place, but are not as flexible.  

If a board meeting is held virtually under the new provisions of AB 361, the agenda must still be posted under the appropriate timelines: 72 hours in advance for a regular board meeting, and 24 hours in advance for a special board meeting.  The agenda must include the meeting link or dial-in, so that members of the public may access the meeting.  Members of the public must be allowed to address the board in real-time during the meeting.  Boards can no longer require public comments to be submitted in advance.  When boards use agenda items with timed public comment periods, they must allow those time limits to expire before closing public comment.  When boards take public comment separately on each agenda item, they must allow a reasonable amount of time per agenda item. 

AB 361 also has special provisions for technical glitches.  In the event the meeting broadcast is disrupted, or if a technical issue on the agency’s end disrupts public comment, the board cannot take any further action on the agenda until the technical issue is resolved. 

Most significantly, in order to continue to hold virtual meetings when a state of emergency remains active, the board must make findings every 30 days that 1) the board has reconsidered the circumstances of the state of emergency and 2) the state of emergency continues to directly impact the ability of the members to meet safely in person or state or local officials continue to impose or recommend measures to promote social distancing.

We anticipate these findings may be considered and made at the beginning of each regular board meeting, prior to conducting the agency’s business virtually.  Boards that meet less frequently than every 30 days may choose to hold virtual special board meetings to make these findings in between their regularly scheduled meetings.

As of now, the current Executive Orders that allow fully virtual board meetings are slated to remain in effect until September 30, 2021.  This gives public agencies about two weeks to prepare for virtual meetings under AB 361. 

In addition to the Brown Act, AB 361 also adds virtual meeting flexibilities to the Bagley-Keene Open Meeting Act for state agencies, and the Open Meetings Act for student body organizations on California State University college campuses. 

If you have any questions about AB 361 or your agency’s ability to hold virtual meetings, please do not hesitate to reach out to us. 

Greta A. Proctor is a Partner at Procopio and co-leader of its Education practice group. Based in Los Angeles, Greta represents charter schools and those in the education space, as well as numerous other types of nonprofits with nearly all aspects of their operations. For charter schools, Greta advises on a variety of operational, funding and ever-changing regulatory issues. These include governance, school policies, contracts, authorizer relations, ethical issues, funding restrictions, facility issues, student privacy, admissions and more. Greta provides frequent trainings on topics such as the Brown Act, Public Records Act, avoiding conflicts of interest under the Political Reform Act and Government Code section 1090, and new legislation impacting her clients.