Public Agency Legal Updates for 2025 – Part 3
In 2024, the principles of transparency and accountability in public governance remained at the forefront with important updates in open meetings laws and governance practices. These ranged from establishing annual limits on remote participation, to an Attorney General opinion on remote participation as an ADA accommodation. This third post in Baker Manock & Jensen’s Legal Updates Series explores key developments in fostering government transparency.
If you have questions about how any of these updates may impact you, please contact Shareholder Lauren D. Layne at 559-432-5400.
Recasting the Limits to Remote Participation for “Just Cause” or Emergency Circumstances (Assembly Bill 2302)
The Ralph M. Brown Act (the “Brown Act”) requires meetings of local agency legislative bodies to be open to the public, with the exception of closed sessions. When teleconferencing is used, the Brown Act mandates that agendas be posted at all teleconference locations, these locations be identified in meeting notices, and the locations be accessible to the public, with at least a quorum of members participating from within the agency’s jurisdiction, except for specific exemptions (“Basic Teleconferencing Requirements”).
Assembly Bill (“AB”) 2449, enacted in 2022, added subdivision (f) to Government Code section 54953, which also permits alternative teleconferencing methods for “just cause” or emergency circumstances (e.g., family medical emergencies, childcare needs, contagious illnesses, disabilities, official travel); provided that at least a quorum meets in person at a single publicly accessible location within the agency’s jurisdiction and the public is also able to attend and comment on the meeting remotely. Restrictions on remote participation under Assembly Bill 2449 include limits on frequency, consecutive months of teleconferencing, and the total number of meetings a board member attended remotely that year. Assembly Bill 2449 rules expire on January 1, 2026.
The remote participation option under Assembly Bill 2449 remained valuable post-COVID-19 emergency, but its teleconferencing limits for just cause and emergencies were unclear due to calculation and interpretation issues. The percentage-based limit, requiring local agencies to calculate 20% of meetings per year, created confusion about rounding and application, especially for bodies with irregular meeting schedules. Additionally, ambiguity arose when multiple meetings occur in a single day.
Newly adopted Assembly Bill 2302 amends the Assembly Bill 2449 “just cause” or emergency circumstances alternative teleconferencing provisions by establishing specific annual limits on remote participation based on the legislative body’s regular meeting schedule, to wit: (a) two per year for bodies meeting monthly or less; (b) five per year for those meeting twice monthly; or (c) seven per year for those meeting three or more times a month. Assembly Bill 2302 also redefines “meeting” for teleconferencing limits to include all meetings occurring on the same calendar day. These Assembly Bill 2302 restrictions do not apply to the Basic Teleconferencing Requirements, which have no annual limits.
Closed Sessions Related to Cybersecurity (Assembly Bill 2715)
As mentioned, the Brown Act requires that meetings of local legislative bodies generally be open to the public, except for closed sessions. One exception allows closed sessions on matters posing a threat to the security of essential public services. Assembly Bill 2715 now expands those exceptions, allowing closed sessions with additional law enforcement, security personnel, consultants, or operations managers to address threats to critical infrastructure controls or critical infrastructure information relating to cybersecurity. The new law focuses on critical infrastructure controls—networks or systems essential to public health, safety, and economic security—and related information, such as vulnerabilities, operational issues, and incidents of unauthorized access or attacks.
Remote Participation as an ADA Accommodation
On July 24, 2024, the California Attorney General (“AG”) issued an opinion letter (the “Opinion”) in response to a request from Lieutenant Governor Eleni Kounalakis on whether or not the federal Americans with Disabilities Act (“ADA”) requires local agency legislative bodies governed by the Brown Act to allow remote participation as a reasonable accommodation for members with qualifying disabilities. The opinion concludes that the ADA generally requires local agencies to permit such remote participation when a member’s disability precludes in-person attendance, provided that individual members who participate remotely (1) use two-way video and audio streaming in real-time, and (2) disclose the identity of any adults who are present with the member at the remote location.
The Opinion noted the Brown Act, which traditionally mandates in-person meetings open to the public, has undergone significant amendments in recent years. The AG argued these changes, including allowances for remote participation for “just cause,” “emergency circumstances,” or in “pandemic-like” circumstances, demonstrate “legislative belief” that remote attendance can be consistent with the Brown Act’s goals of public access and transparency. Furthermore, the Opinion states that based on the “just cause” exception language (a need not otherwise accommodated under the ADA), the Legislature assumed ADA accommodations already permit unlimited remote participation.
The Opinion notes ADA protection may apply under Titles I and II, depending on whether a legislative member is considered an employee or a participant in government services. However, the Opinion concludes that it is not necessary to determine under which Title board membership falls as the ADA requires a “reasonable accommodation” for “qualified individuals,” and the evolving provisions of the Brown Act show that in-person attendance is no longer an “essential job function” or “an essential eligibility requirement.”
Ultimately, the AG Opinion concludes that the ADA mandates that a local agency’s legislative body accommodates remote participation from a nonpublic location for a qualifying individual whose disability prevents in-person attendance, provided the accommodation aligns with ADA requirements. Under the Brown Act, such remote participation must closely replicate the experience of attending in-person meetings that are open to the public, including the use of (1) two-way live video and audio streaming, and (2) disclosure of the identities of any adults present at the remote location.
The AG’s Opinion Letter applies exclusively to members of legislative bodies and does not require remote participation accommodations for members of the public with disabilities. ADA accommodations for public participation in meetings remain an evolving area. Nevertheless, government agencies do have to provide reasonable accommodations to members of the public with disabilities so that they have the opportunity to participate in the government program, service, or activity. The Brown Act also requires ADA notices on the agendas and that writings distributed during the meetings be made available in alternative formats. So far, the reasonable accommodations requirements appear to only apply to the physical “facilities” and not remote participation, but it’s probably trending towards more remote participation.
LAFCO Indemnification (Senate Bill 1209)
The Cortese-Knox-Hertzberg Local Government Reorganization Act (“CKH”) governs the formation and operation of local agency formation commissions in California counties (each, a “LAFCO”). Existing law authorized LAFCO to charge applicants for only four items: (a) filing and processing applications; (b) proceedings undertaken by the LAFCO; (c) amending or updating a sphere of influence; and (d) reconsidering a resolution making determinations. Nevertheless, most LAFCOs historically required applicants for changes of organizations and reorganizations to sign an agreement indemnifying LAFCO against any lawsuits stemming from its decision on the application and cover LAFCO’s legal fees in any such litigation.
However, a 2022 decision in the California Second District Court of Appeal in San Luis Obispo LAFCO v. Central Coast Development Company held that a LAFCO did not have the authority to require indemnification under CKH. San Luis Obispo LAFCO could not recover its litigation costs from the applicants, even after prevailing in the underlying lawsuit over its denial of an application.
Senate Bill (“SB”) 1209 adds language to CKH specifically authorizing a LAFCO to require an indemnification agreement when accepting an application. The agreement must stipulate that the commission promptly notify the applicant of any such claims or proceedings and cooperate fully in the defense. If the commission fails to provide timely notice or does not fully cooperate, the applicant is not obligated to defend or indemnify the commission. Additionally, the applicant cannot be required to pay or perform any settlement related to the agreement unless the applicant explicitly approves the settlement. Senate Bill 1209 also permits the commission to participate in the defense of claims if it bears its own legal costs and acts in good faith.
Senate Bill 1209 applies exclusively to a LAFCO, and does not address whether or not other agencies, including those issuing permitting, entitlements or taking other types of ministerial or discretionary actions, may condition their approval on an indemnification agreement.
Disclaimer
This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
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