Q&A: An in-depth look at AB 361 and virtual board meetings

On Sept. 17, 2021, CSBA sent out an email blast containing a summary of recently signed legislation, Assembly Bill 361. Since then, CSBA has received questions from members regarding AB 361’s revisions to the Brown Act regarding teleconferenced meetings held during a proclaimed state of emergency. Teleconference, as defined in the Brown Act, “means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both” (this includes telephone, video conference such as Zoom and Teams, from any device, including cell phone, tablet, or laptop). The following questions and answers are intended to provide an update in response to questions we have received.

AB 361 provides that boards need not follow the Brown Act’s strict teleconferencing rules if there is a proclaimed state of emergency, and the board makes a finding that there is a proclaimed state of emergency and either state or local officials have imposed or recommended social distancing measures or that meeting in person would present imminent risks to the health or safety of attendees due to the emergency. AB 361 also provides additional requirements for its use that you may review in CSBA’s email blast.

  1. Are local educational agencies required to implement teleconferenced meetings, including remote or virtual public comment, pursuant to the provisions of AB 361?

No. AB 361 provides an option for teleconferenced meetings during a proclaimed state of emergency, but boards are not required to utilize that option. (Note: If a local public health authority requires virtual meetings, then LEAs should follow that directive. This publication only addresses the Brown Act.) Under AB 361, LEAs are not obligated to provide remote meeting access or remote public comment options if they hold their meetings in person and allow members of the public to comment in person. However, this generally requires that all participating board members participate in person. If any board member plans to attend a meeting remotely, the board must either comply with the previously existing teleconferenced meeting requirements of the Brown Act at Government Code §54953, subdivision (b) or  follow the new virtual meeting requirements in AB 361.

  1. May boards that utilize AB 361’s provisions prohibit remote public comment if the meeting is in person and public comment is allowed in person but one or more board members will participate remotely?

No. In order to utilize AB 361’s provisions, boards must allow public comment by call-in or internet-based service (e.g., Zoom).

If a board member wishes to participate remotely, but the board does not want to have remote public comment, then the board must follow the previously existing teleconference requirements of the Brown Act at Government Code § 54953, subdivision (b). This requires, among other things, that the agenda be posted at the remote location from which the member is participating, that the agenda list all locations from which board members will participate, that the remote location from which the member is participating is made accessible to the public, and that at least a majority of the board be present within the LEA’s boundaries.

  1. May boards stream their meetings one-way (e.g., via YouTube) without allowing remote public comment?

Yes, but only if the board holds its meetings in person with all participating board members present in person and allows in-person public comment, then it may stream the meeting without allowing remote public comment. However, if the board holds its meetings pursuant to the terms of AB 361, it must provide for remote public comments via call-in or internet-based service option (e.g., Zoom).

  1. May a board hold a meeting with board members and staff in person, but with the public participating electronically?

Yes, but the board would have to follow AB 361, allowing remote participation by the public, and follow all other requirements of AB 361. (The previously existing teleconferencing option would not work here because the board would have to make the board meeting room available to members of the public under those provisions.)

  1. May a board continue to allow remote public comment even if its meetings are in person and in-person public comment is allowed?

Yes. Boards may always provide more public access than is required by the Brown Act. The Brown Act provides a floor for public access to meetings, not a ceiling.

  1. If a board proceeds with teleconferenced meetings under AB 361, may it require members of the public to submit comments in writing, rather than participating by a remote call-in or internet-based service option?

No. AB 361 specifically prohibits this. Boards may accept such comments at the option of the commenter but may not require advance, written comments.

  1. Must the board pass a resolution finding the need to utilize AB 361 before conducting meetings under the terms of AB 361?

Not necessarily. AB 361 does not specifically require the board to pass a resolution, just to take action. However, in order to use the teleconferencing provisions under AB 361, the board has to make certain findings. A resolution is a good way to document that the board has made these findings.

  1. If a board makes a finding for the need to use AB 361, as discussed above, may the board also make use of the established teleconference provisions in the Brown Act, under Government Code § 54953, subdivision (b) during the time period for which the AB 361 findings are in place?

Technically yes. However, it would be a risk for a board to determine that it needs to hold teleconferenced meetings under AB 361 because of imminent risk to the safety and health of attendees of meetings, but then hold an in-person meeting with a member(s) attending remotely after making such a finding. This could undermine the board’s original findings of imminent risk.

  1. AB 361 provides that if there is a disruption that prevents the board from broadcasting the meeting to members of the public using the call-in option or internet-based service option, the board “shall take no further action on the items appearing on the agenda” until the public access is restored. May the board continue the meeting while refraining from taking action on any agenda items, or should the board stop all meeting activity until the disruption to the call-in or internet-based service option is resolved?

The board can continue the meeting, so long as the board does not take action on any agenda item. However, we recommend taking a recess until the connection is restored.

Note: Under Gov. Gavin Newsom’s Executive Order N-15-21, AB 361 goes into effect on Oct. 1, 2021. Gov. Newsom’s previous executive orders suspending provisions of the Brown Act remain in effect through and including Sept.30, 2021.