Ensure your staffers have public access
Q: Under most of the county Shelter In Place Orders, members of the media were specifically stated as essential businesses. Are news organizations considered Essential Critical Infrastructure Sectors under the Governor’s Executive Order and under Federal law?
A: In the governor’s initial Executive Order N-33-20, on March 19, he directed all residents to immediately stay at home unless an employee worked in an “essential critical infrastructure sector.” Many were confused about what the term meant. The majority of the local Shelter in Place orders used the term, “essential business,” and clearly stated that members of the media were considered essential.
After CNPA had been advocating for its members to be expressly exempt, on March 22 the governor adopted and published the federal guidelines for Essential Critical Infrastructure Sectors that specifically stated that workers supporting TV, radio and media services, including reporters on the front lines, were exempt from the stay at home order.
The Federal Guidance on what constitutes an Essential Critical Infrastructure during the COVID-19 crisis was further updated on March 28, and “publishing news” was added to the list of essential workers under the communications sector. The governor has not posted the updated version of this guidance yet, but given the change to the federal guidelines there is no reason to think that the federal law would not be followed in California.
CNPA recommends that publications provide employees with a letter (a sample is here) that explains newspaper employees work for a recognized Essential Critical Infrastructure Sector. The letter should be filled in with the name of the publication employees work for, the contact information for their supervisor, and a press pass or identification, just in case enforcement of the stay at home order becomes an issue or they are obstructed from their employment duties.
Q: The Brown Act and Bagley-Keene Act provide the public with safeguards when state or local agencies meet by teleconference. I understand the governor, in two Executive Orders, suspended these safeguards. How can the public participate in an agency’s teleconference meetings during the COVID-19 crisis?
A: CNPA recently published a Legislative Bulletin outlining the basics of the Governor’s Order regarding the teleconference portions of the Brown Act and Bagley-Keene Act. It is important to note that the Brown and Bagley-Keene acts remain in full effect, except for the portions expressly modified or suspended until the State of Emergency has been declared over.
Specifically, the following teleconference requirements are suspended:
- State and local bodies notice each teleconference location from which a member will be participating in a public meeting.
- Members of the public may address the body at the teleconference location.
- State and local bodies post agendas at all teleconference locations.
- At least one member of the state body be physically present at the location specified in the notice of the meeting; and
- During teleconference meetings, at least a quorum of the members of the local body participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.
Additionally, local legislative bodies do not have to provide a place where members of the public can participate in the teleconference, but the Brown Act still requires that the public be able to ask questions and comment during the meeting. Many governments have been using online forums to post agendas and solicit comments or questions from the public prior to the meetings. However, we state again that the public must be able to ask questions or make comment during the meeting.
In addition, the governor issued another executive order that removed the prohibition in the Brown and Bagley-Keene Acts against members of local and state bodies having “serial communications” with a majority of its members and members of the federal, state and local governments specifically related to receiving updates, asking questions and being apprised of emergency operations about COVID-19.
CNPA has taken the position that during this crisis, with the suspension of access safeguards that have decreased transparency, local governments should only consider business related to COVID-19 or other matters that require their most immediate attention, and table consideration of items that are not essential until after the crisis has passed and transparency safeguards are restored.
Brittney Barsotti is CNPA’s staff attorney. Contact her with your legal questions at 916-288-6006.