Pandemic Notwithstanding, State and Local Agencies Continue Working, Though in New and Unusual Ways
Life for Californians has been transformed by the threat to public health posed by the COVID-19 pandemic. As efforts to stem infections through “social distancing” have led to widespread disruption of ordinary activities and closure of all but essential businesses, state and local agencies have strived to maintain public services and essential functions of government. In the course of doing so, agencies naturally have adjusted their priorities and procedures to protect their employees and the public. Those interacting with these agencies—permit applicants, targets of investigation or enforcement, and members of the public—face challenges and uncertainties as they learn of and cope with the agencies’ new ways.
Governor Gavin Newsom declared a State of Emergency on March 4, 2020, to make additional resources available, formalize emergency actions already underway across multiple state agencies, and prepare for broader spread of COVID-19. That declaration, and several orders that followed, have important but unsettled implications for government decision making at the state and local level for the foreseeable future.
Governor Newsom ordered “all individuals living in the State of California to stay home or at their place of residence” on March 19, 2020. This order includes state government employees. All non-essential travel for state employees has also been canceled due to the pandemic. The Governor’s stay home order exempts those considered essential critical infrastructure workers—those working in healthcare/public health, emergency services, food and agriculture, energy, water and wastewater, transportation and logistics, communications and information technology, financial services, critical manufacturing, hazardous materials, chemical, defense industrial base, and other local government and essential functions (courts, elections officials, weather forecasters, plumbers, electricians, laundromats, et al.)
County governments have exercised their authority to designate additional businesses as critical, allowing such businesses to stay open. San Francisco Mayor London Breed, for instance, has deemed bicycle repair shops as essential businesses, given that many residents use bicycles as their primary means of transportation.
The shelter-in-place mandate is intended to slow the transmission of the novel virus and reduce the impact on critical healthcare facilities—commonly referred to as ‘flattening the curve.’ Based on initial data from UCSF, the orders appear to have slowed the transmission rate.
The Effect of COVID-19 on Public Meetings in California
Given that Californians are instructed to primarily stay home and government officials are conducting their work through telework, local and state legislative bodies, such as local planning commissions, regional water boards, and the Coastal Commission, are no longer holding in-person meetings.
Such meetings are governed by the Brown Act (Government Code § 54950 et seq.), which guarantees the public’s right to attend and participate in meetings of legislative bodies. In order to ensure transparency in the government’s business, the Act requires legislative bodies to provide public notice of scheduled meetings, post an agenda for meetings in advance (often as a hard copy posted in various locations), and limit discussion at meetings to only those topics that have appeared on the agenda. The pandemic though has rendered posting such hardcopy agendas where members of the public can gather to view them and holding in-person meetings unsafe and impracticable.
The Emergency Services Act (Government Code § 8550 et seq.) authorizes the Governor to exercise extraordinary governmental powers when specified conditions exist. Citing his proclamation of a State of Emergency, Governor Newsom has used his authority under this Act to issue a series of Executive Orders (N-25-20, N-29-20, N-35-20) that suspend some of the procedural rules regarding public meetings and allow local and state legislative bodies to hold meetings via teleconference (rather than gather in person in one place) and make meetings accessible to the public electronically until the State of Emergency ends. The orders allow members of the legislative body to virtually preside over meetings from wherever they are sheltering.
The orders leave intact general requirements for advance notice of a meeting (likely via the body’s website), as well as the posting of an agenda and means by which the public can observe and offer public comment in the meeting. The orders allow the legislative body to receive updates from federal, state, and local officials relevant to the declared emergency (including, but not limited to COVID-19) and allows the members of the body to ask clarifying questions of these officials on how the emergency impacts their constituents.
It is advised to check the website of the legislative body often for the latest updates on whether meetings have been postponed or cancelled and information on how to telephonically attend such meetings.
The Effect of COVID-19 on Public Records in California
Apart from attending public meetings of governmental bodies, Californians also have a right to request copies of governmental records as a means to promote transparency of the government’s operations. The Public Records Act (Government Code § 6250 et seq.) codifies this right. This Act applies equally to state, county, and local public entities within California and requires that such entities respond to a request within ten days. The Act allows members of the public either to inspect public records in person during an agency’s office hours or request copies of the records.
So far, none of the Governor’s Executive Orders address any suspension or waiver of provisions of the Public Records Act. Given that most state and local agencies have required staff to work remotely where possible, members of the public generally will not, as a practical matter, be able to inspect documents in person at government offices at least for the duration of the pandemic. They may though request copies of documents much as before. A number of municipalities have posted notices on their websites, advising that response times to such records requests may be delayed.
Some advocacy groups have anticipated that government entities may struggle to respond to requests during this emergency or may use the emergency as an excuse to reduce transparency during a time in which transparency is all the more important. The League of California Cities, which represents nearly 500 cities, recently sent a letter to Governor Newsom requesting that he suspend or delay numerous state laws, stating that complying with public record laws hinders cities’ abilities to respond to the pandemic. The League asserted that the Public Records Act currently does not include a State of Emergency as an “unusual circumstance” which would extend the response time for the public agency for an additional fourteen days. After the League’s appeal, a coalition of media organizations led by the First Amendment Coalition released a public statement condemning “moves by some government entities to abandon their obligations under the California Public Records Act and the California Constitution.” The Coalition pointed out that the California legislature has never authorized a suspension of the Public Records Act.
When there is a dispute between a member of the public seeking a document and the responding agency, normal procedures allow the requesting member of the public to seek an expedited civil judicial process to resolve the dispute. Through this process, the requester may ask a judge to enforce the right to inspect or to receive a copy of the public record.
The pandemic, however, has severely constrained access to California courts, which can no longer hold proceedings as usual under social distancing recommendations. California Supreme Court Chief Justice Tani Cantil-Sakauye recently signed an order that allows state courts to conduct telephonic judicial proceedings where possible. Individual county superior courts have also issued general orders, many of which have vacated all calendared hearings and have declared a set of dates to be deemed holidays for purposes of computing time for filing papers with the court. Such orders may afford a member of the public wanting to pursue a judicial remedy for a Public Records Act request sufficient time to do so after the courts return to normal operations.
Conclusion
California state leaders have signaled that the state government is open for business and that members of the public still have access to legislative bodies and public records, albeit under revised procedures. However, normal response times from government agencies may be affected by resources being shifted to aid in state public health operations or because employees themselves are affected by the coronavirus. As the situation continues to develop and government resources continue to shift in response to the pandemic, there are likely to be further announcements by the Governor and the Chief Justice on policies affecting the public’s access to public meetings and public records.
Kelsey L. Campbell
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
