Legislation – What’s Hot . . . . . . .

Kelly Crouch, CFA Legislative Information Liaison                                                                          Sharon Coleman, CFA Legislative Legal Analyst

May 2020

Legislative Hearings and Government “Lockdown” Orders

Vital for a representative government and individual liberties, government transparency is suffering unprecedented challenges during the COVID-19 pandemic. Government “lockdown” orders are taking a toll on open meeting requirements that ensure the rights of the public and the press to observe, comment, and report on the meetings of legislative bodies. To deal with executive branch orders prohibiting public “gatherings,” legislative bodies are taking actions that would be unacceptable absent an emergency declaration, and orders suspending portions of open meeting laws without very specific guidance. The challenge is how to create public access to public meetings that is at least substantially equivalent to provisions of Orders or the access required when local, open in-person meetings could be held.

Solutions are evolving and after two months, one can start to see progress towards maintaining public access to the meetings of legislative bodies. Different places will be in different stages of development and the ultimate solution for each jurisdiction will be situation dependent. When trying to ensure full access or analyze a government’s progress, you must start with understanding the open meeting law and typical practices. In California, for example, the Brown Act (Government Code §54950-54963) covers the public’s right to attend and participate in meetings of local lawmaking bodies. For state lawmaking bodies, it is the Bagley-Keene Act. We will focus primarily on three of the Brown Act’s mandates. These include notice, location, and access to regular meetings. Note, there are separate requirements for other types of meetings such as special or emergency meetings or determining what is or is not a “legislative body” for purposes of the Act. The public must be given 72 hours notice through the posting of an agenda for regular meetings. With some exceptions, the meetings are to be public and held within the governed jurisdiction. And the public must have the opportunity to address the legislative body, usually in person. When meetings of “legislative bodies” cannot be held in person, accommodations for these requirements are necessary to ensure ultimate legality of actions taken at meetings besides the appearance of propriety and fairness to the public.

To date, California Governor Gavin Newsom has issued three executive orders concerning these requirements. On March 12. 2020, executive order N-25-20 suspended the requirement that the legislative body meets in public. The order allowed for the meetings to be conducted by teleconferencing video or other electronic means. Such meetings must be accessible by the public telephonically or electronically. The physical presence of the body members and its personnel as a condition of participation or establishing a quorum is waived. Executive order N-29-20 clarified that public meetings could be held without a physical location so long as the public could observe and address the meeting telephonically or electronically. The body no longer has to disclose the location, nor do members have to be physically present. The meeting could be held in France with half the members enjoying an Australian beach while the other half scales Mount Everest. The Notice and Americans with Disabilities requirements are still in effect. A few days later, on March 21, 2020, a third executive order relating to the Brown Act was issued. Executive order N-35-20 created a safe harbor for members of the body to seek and receive information relative to the declared emergency without such discourse being construed as a serial meeting that does not meet Brown Act requirements.  Provided the members take no action and do not discuss how they will vote outside of a public meeting; their actions will be within the safe harbor zone (First Amendment Coalition.)

As with California cities and counties, legislative bodies everywhere will encounter implementation issues with any solution applied. There is no substitute for in-person public meetings, but legislative bodies should come as close as possible. With today’s technology, that is a more approachable goal than 50 years ago, but technology is not infallible nor always available to everyone and is not a complete substitute. For example, creating a crowd is an important advocacy tool that is hard to replicate without a physical meeting. From a technology standpoint, multiple platforms and modes of access may be necessary to include real-time comments and responses in the record. Zoom, WebEx, and other software allow for teleconferencing but have cost and bandwidth considerations. They can allow invitees to comment, but the rest of the public watching needs to be allowed real-time access in other ways. Access may include phone-in commenting or emails that are read into the record by the clerk in real-time. Some jurisdictions have held Zoom or other electronic meetings within a Facebook live event. However, the accessibility, anonymity and volume of Facebook comments may present insurmountable problems. Electronic meetings focused solely on the speaker deprives observers of nonverbal clues of council members. In the event of failure or a closed session, how is the public reconnected? Also, with some videoconferencing failures, the public record is may be lost. Fuzzy video, audio, and video that is out of synch, or audio-only feeds lead to confusion and a lack of transparency. Technology may help with language barriers if thought about in advance, but it does not give access to people with no Wi-Fi service. As these issues accumulate, transparency becomes opaque.

The situation creates more problems for journalists. The press plays an essential role in government accountability. Yet even good electrical access can interfere with that role. The inability to follow up with legislators or commenters results in several issues. The journalist cannot corner a politician to obtain an unscripted response to a question. There is no easy way for the journalist to follow up with people or develop a relationship with a commenter. Source building on issues is difficult. And a person whose name cannot be spelled cannot be quoted. All of this translates into less information for the public.

Providing as many methods for the public to fully engage in government and standardizing the form of that interaction across government in a community, is critical to enable the people and the press to perform their watchdog function. How each legislative body accomplishes that transparency will evolve and adapt to their particular needs.

Recent CFA Legislative Group Blog Post:
What’s Hot………… Responding to the COVID-19 Pandemic