Magnifying Glass
csba at issue
By mike ambrose
COVID-19, board meetings and Brown Act requirements

he following update provides guidance on the Brown Act provisions waived under Gov. Gavin Newsom’s executive orders, and information about the procedures your governing board can use to conduct board meetings during this unique time.

Gov. Newsom’s Executive Orders:

Gov. Newsom has issued multiple executive orders in recent weeks impacting school district and county office of education board meetings. On March 17, 2020, Gov. Newsom issued Executive Order N-29-20. The order superseded paragraph 11 of the previous March 12, 2020, Executive Order N-25-20, which required school districts to provide a physical location from where members of the public could participate in a board meeting.

This overriding Executive Order N-29-20 provides that boards no longer need to make space available for the public to appear at any physical location. Board members and staff may attend regular, special and emergency meetings by telephone or video conference, and members of the public may observe and address the board by telephone or electronic means. The order helps ensure public safety and continued public participation in board meetings while the state’s stay-at-home policy remains in effect.

Under the order, a governing board may hold public meetings that are accessible by telephone or otherwise electronically to all members of the public seeking to observe and address the board. The requirements of the Brown Act that would normally require the physical presence of members, the clerk and other personnel are waived.

Boards should note that under the order, they do not need to have a quorum of members participate from locations within the boundaries of the district, do not need to publicly notice each teleconference location or allow members of the public to access each teleconference location, and do not need to have any members of the board be physically present at a location specified in the notice of the meeting.

Under the order, the public must be able to observe and address the meeting by telephone or other electronic means. Governing boards must implement a procedure for receiving and resolving requests for reasonable accommodations from individuals with disabilities. The agenda and notice must include the procedure by which the public may observe the meeting and offer public comment.

Other pre-existing Brown Act notice and agenda requirements not waived by the order remain in effect.

COVID-19, board meetings and Brown Act requirements
Convening regular, special and emergency meetings:

Regular meetings: Under Government Code section 54954.2, the agenda for a regular school board meeting must still be posted at least 72 hours prior to the meeting in a location that is freely accessible to the public and on the district’s website, if the district has a website.

Special meetings: Under Government Code section 54956, special meetings of the board may be called at any time by the presiding officer or a majority of the board members. Written notice of the special meeting shall be posted at least 24 hours before the meeting in a location freely accessible to the public. The notice shall specify the time and place of the meeting and the business to be transacted or discussed. No other business shall be considered at this meeting.

Emergency meetings: In the case of an emergency situation for which prompt action is necessary due to the disruption or threatened disruption of public facilities and services, the board may hold an emergency meeting without complying with the 24-hour notice requirement for special meetings. The board must comply with all other requirements for special meetings during an emergency meeting.

Boards should work with their district counsel to determine whether the COVID-19 related items in need of discussion meet the definition of an emergency under the Brown Act. Under Government Code section 54956.5, an emergency meeting or situation means either of the following: (1) an emergency, which is defined as a work stoppage, crippling activity, or other activity that severely impairs public health and/or safety as determined by a majority of the members of the board; or (2) a dire emergency, which is defined as a crippling disaster, mass destruction, terrorist activity, or threatened terrorist act that poses peril so immediate and significant that requiring the board to provide one-hour notice before holding an emergency meeting may endanger the public health and/or safety as determined by a majority of the members of the board. Except in the case of a dire emergency, the board president or designee shall give notice of the emergency meeting by telephone at least one hour before the meeting to the local media that have requested notice of special meetings. In the case of a dire emergency, the board president or designee shall give such notice at or near the time the other members of the board are notified about the meeting.

Non-agenda items during regular meetings:

While generally a board may not discuss any item that does not appear on the agenda posted for a regular meeting, the following exceptions allow the board to discuss and take actions on items that are not on the regular agenda:

A two-thirds vote: An action may be taken on an item that does not appear on the posted agenda if two-thirds of the members of the governing board vote that there is a need to take immediate action and that the need for action came to the attention of the board subsequent to the agenda being posted. If less than two-thirds of members of a board are present, then the vote must be unanimous.

An emergency situation: Boards that have already posted an agenda for a regular meeting may wish to discuss an emergency situation at the regular meeting, instead of scheduling a separate emergency meeting. Under the emergency situation exception, boards may discuss and take action on a non-agenda item during a regular meeting upon a determination by a majority vote of the board that an emergency situation exists, as defined in Government Code section 54956.5.

For more information, please refer to your district’s Board Bylaw 9320 – Meetings and Notices, BB 9322 – Agenda/Meeting Materials, and BB 9323.2 – Actions By The Board.

Mike Ambrose is associate general counsel for CSBA.
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.