What will governing board meetings look like after the pandemic?
A case for updating the Brown Act
In March 2020, as many schools were forced to close and begin distance learning in response to the emerging COVID-19 pandemic, Gov. Gavin Newsom signed executive orders suspending portions of the Brown Act to permit governing boards of school districts and county offices of education to meet virtually to conduct the business of the board while allowing the public to observe the deliberations and participate remotely.

The executive orders authorized governing boards to hold public meetings via teleconference during the pandemic without having to comply with restrictive Brown Act requirements such as having at least some members of the board physically present at a specific location.

In response to the executive orders, governing boards had to set up systems for the public to observe the meeting and offer public comment. Many quickly adjusted, accepting public comment via livestream, telephone or email. However, it wasn’t without challenges. Some boards quickly learned what “Zoom-bombing” meant, many weathered technical difficulties, and board members throughout the state were forced to learn to communicate using new mediums. Boards also struggled to keep meetings from turning into forums for debate by or with members of the public, rather than an avenue for the public to observe board discussions, deliberations and decision-making.

Governing boards have risen to meet these challenges. A year into the pandemic, anecdotal data suggest that some boards and communities are reaping the benefits of virtual meetings. Many boards have seen increased attendance and participation at their meetings, as families and community members who otherwise may not have made it to an in-person board meeting have taken advantage of the opportunity to participate from their homes. In many communities, including some where in-person board meetings have been reinstated, there is interest in continuing to have a virtual meeting option available.

To what extent the Brown Act, under its full operation, will allow boards to try to meet this continued desire for virtual meetings remains to be seen.

When the executive orders are rescinded, although the use of teleconferencing will still be allowed, board members will find that the Brown Act is not designed to accommodate this new normal. Once the suspension of the restrictive requirements is lifted, agendas must be posted at each teleconference site, each teleconference location must be identified and be accessible to the public, and at least a quorum of the board must participate from within the district boundaries. (Government Code 54953)

These Brown Act requirements, which are largely meant to address situations where board members cannot attend a meeting in person, will need to be amended to allow members of the public to participate virtually at in-person board meetings. In addition, while there is no requirement to livestream in-person board meetings, boards will likely be expected to provide a teleconference option to community members who would rather attend the meeting virtually. Although the Brown Act does not expressly include a process for the public to comment at a virtual meeting, allow for fully remote teleconference meetings, or provide guidance for livestreaming, Government Code 54953.7 does authorize boards to provide greater access to their meetings than “prescribed by the minimal standards” in the Act.

The pandemic has shown that governing boards can conduct the public’s business effectively in a virtual format and interest in having virtual meetings as an option has risen. Some boards would like to have a virtual option available for their special or committee meetings, while other boards want to retain the increased and broader community participation in meetings seen throughout the pandemic. Going forward, the question will be whether the Legislature sees the need to make permanent through legislation the benefits that the temporary relaxation of the Brown Act’s teleconferencing guardrails have wrought through the Governor’s executive orders. It is reasonable to expect that boards and the public alike will push for that to happen.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.