Due Process Issues Related to Remote Public Hearings

On March 16, 2020, the Bay Area issued shelter-in-place (SIP) orders to slow the spread of the novel coronavirus, with the entire state of California quickly following suit on March 19. With the exception of essential workers, day-to-day business practices had to shift dramatically including how we conduct public hearings. How do you hold a public hearing if the public and parties involved cannot be in the same place?

Guidance was provided in Governor Newsom’s Executive Order N-29-20 (amending Executive Order N-25-20 in part), which authorized legislative bodies to hold public meetings via teleconferencing (Zoom, GoToMeeting, Skype, etc.). In this order, all requirements of the Brown Act expressly or impliedly requiring the physical presence of a member, the clerk or other personnel of the body or of the public as a condition of participation in or quorum for a public meeting are waived. Meetings via teleconference that allows members of the public to observe and address the meeting by telephone or otherwise electronically, consistent with notice and accessibility requirements, satisfy the requirement that a member of the public must attend the meeting and offer public comment.

However convenient this work around is, there are legal issues that arise relating to due process concerns regarding this order.

The Order Only Refers to “Public Meetings” and Not “Public Hearings”

While the order specifically authorizes public meetings, it does not preclude local agencies from holding public hearings on issues within the local agencies’ purview. The Brown Act discusses hearings being held at “meetings,” so the order does not appear to exclude public hearings.

The Brown Act defines “meetings” as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” (Gov. Code, § 54952.2.)

While there is no corresponding definition of “hearing” in the Act, and “hearing” is rarely used throughout, there is nothing in the Act  that indicates a “hearing” may not be part of a meeting.   See for example Government Code S54955.1 referring to continuances which says: “Any hearing being held, or noticed or ordered to be held, by a legislative body of a local agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of the legislative body …” (Gov. Code, § 54955.1.). According to one Court of Appeal decision, “[a] ‘hearing’ is ‘[a] proceeding of relative formality … generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented. (Blacks Law Dict. (6th ed.1990) p. 721, col. 1.).” (Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 574.)

Given the above, Order N-29-20 does not prevent local agencies from holding “hearings” as a part of their meetings that rely on the provisions of the Order. Local agencies should “use sound discretion and make efforts to adhere as closely as reasonably possible to the requirements of the Brown Act in order to maximize transparency and provide public access to meetings.” As such, public hearings are permitted under Order N-29-20.

Can Zoom/YouTube or Alternate Forms of Remote Access Ensure “Due Process”?

Article I, Section 3 (b)(7) of the California Constitution states that, in order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, each local agency is required to comply with the California Public Records Act (commencing with Government Code Section 6250 and the Ralph M. Brown (Government Code Section 54950).

Procedural “due process” is generally defined to require notice and an opportunity to be heard. Therefore, remote access appears to allow for due process so long as the agency provides notice of the public meeting (e.g., posting on the local agency’s website) and an opportunity for comments by interested parties to be heard and considered by public officials during the virtual meeting.

What About Those Without Access to the Required Technology?

All website postings should provide extremely specific instructions on how to access the necessary technology or platforms being used, including details if a download is required. Issues arise when considering those without access to a computer. With public libraries closed due to SIP, members of the public may not have access to public computers. This could result in valid due process challenge inasmuch as members of the public may not have notice of the hearing and may, therefore, not have the opportunity to address the hearing body. Further, individuals who aren’t as tech-savvy may also contend that their efforts to participate in a meaningful way in the hearing were thwarted.

Local agencies should, therefore, continue to post notice of hearings in newspapers and send formal notice of hearings to those who have indicated an interest in the issue (interested party list) to ensure notice has been provided. We have seen a variety of approaches in these last few weeks with more agencies holding remote hearings. Some require members of the public to submit comments in writing in advance of the meeting which are then read into the record (often up to a time limit such as three minutes), and/or limiting the number of words in a public comment read into the record.

These are unprecedented times, and the ways in which public agencies are adapting may have long-term effects on the future of the conduct of public hearings. How courts would respond to a due process objection, given the challenges facing public agencies to continue to hold public hearings without in-person attendance, and how deferential they will be to an agency’s best efforts in light of Governor Newsom’s order, is unknown. Following the relief from SIP orders, we believe there may be greater reliance upon remote hearings and meetings particularly for regional meetings where public officials must travel great distances to attend, as well as meetings that typically draw large numbers of public participants, so continued refinement of both notice procedures and the process of allowing different methods of presenting public comment will be important.