The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 23-1002
of :
: July 24, 2024
ROB BONTA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
The HONORABLE ELENI KOUNALAKIS, LIEUTENANT GOVERNOR, has
requested an opinion on a question relating to the federal Americans with Disabilities Act
and the California open meetings law known as the Ralph M. Brown Act.
QUESTION PRESENTED AND CONCLUSION
Under the Ralph M. Brown Act, a local agency’s legislative body must generally
conduct its meetings in person at locations open to the public. Does the Americans with
Disabilities Act (ADA) nonetheless require that a local agency’s legislative body allow
remote participation for a member with a qualifying disability that precludes their in-
person attendance at meetings of the body?
Yes. The ADA generally requires a local agency’s legislative body to allow
remote participation as a reasonable accommodation for a member with a qualifying
disability that precludes their in-person attendance at meetings of the body. This duty to
reasonably accommodate is subject, however, to the Brown Act’s requirement that the
remote participation must be conducted in a manner that simulates in-person attendance
at meetings held in person at a location open to the public. To accomplish this, the Act
requires 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
1
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with the member at the remote location. These two requirements should be applied to
members who attend meetings remotely due to a qualifying disability.
BACKGROUND
The question before us involves the ADA, a federal law, and the Brown Act, a
state law. 1 “Congress enacted the ADA in 1990 to remedy widespread discrimination
against” people with disabilities. 2 Congress enacted amendments to the ADA in 2008
that reasserted that purpose. 3 In furtherance of its purpose, the ADA generally requires
“reasonable accommodation” be made in employment, government services, and public
accommodations for individuals with disabilities. 4 In the employment context, for
example, a reasonable accommodation could be a modified work schedule. 5 Determining
what constitutes a reasonable accommodation in any given scenario is a fact-intensive,
individualized, case-by-case inquiry. 6
1
This question is implicated in a pending case in the United States District Court for the
Northern District of California, Fischer v. City of Berkeley, 3:23-cv-04280-TSH. It
appears that no decision will be issued soon, if at all, in that case: the district court
postponed the deadline for responding to the complaint multiple times in anticipation of
possible settlement and referred the case to mediation, which has been completed. As of
the date of publication of this opinion, the case docket reflects that the case settled in
mediation, and a dismissal or status report is due September 20, 2024.
2
PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 674; see Pub.L. 101-336, § 2 (July 26,
1990), 104 Stat. 327; 42 U.S.C. § 12101.
3
Pub.L. 110-325, §§ 1-2 (Sept. 25, 2008), 122 Stat. 3553.
4
See, e.g., 42 U.S.C. §§ 12112(b)(5) (employment), 12182(b)(2)(A)(ii) (public
accommodations); 28 C.F.R. § 35.130(b)(7)(i) (government services); see also Where Do
We Go Berkeley v. Cal. Dept. of Transportation (9th Cir. 2022) 32 F.4th 852, 860 fn. 4
(stating that “reasonable accommodation” in Title I of ADA and “reasonable
modification” in Title II of ADA “create identical standards and may be used
interchangeably,” quoting Payan v. L.A. Cmty. Coll. Dist. (9th Cir. 2021) 11 F.4th 729,
738 fn. 4).
5
See generally 42 U.S.C. § 12111(9) (referring to job restructuring and modifying
facilities, schedules, and equipment, as examples); 29 C.F.R. § 1630.2(o)(2)(ii) (same).
6
McGary v. City of Portland (9th Cir. 2004) 386 F.3d 1259, 1270; Crowder v. Kitagawa
(9th Cir. 1996) 81 F.3d 1480, 1486; see also Zivkovic v. Southern Cal. Edison Co. (9th
Cir. 2002) 302 F.3d 1080, 1089 (“[E]mployer is not obligated to provide” employee’s
preferred accommodation but “need only provide some reasonable accommodation,”
quoting E.E.O.C. v. Yellow Freight Sys. Inc. (7th Cir. 2001) 253 F.3d 943, 951); see, e.g.,
(continued…)
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The Legislature enacted the Ralph M. Brown Act in 1953 “to ensure the public’s
right to attend the meetings of public agencies.” 7 In furtherance of that purpose, the Act
generally requires legislative bodies of local agencies to hold their meetings in person at
locations open to the public. 8
As to the interplay of these laws, the ADA plainly preempts contrary state law. 9
But state law can be relevant to determining what the ADA requires. 10 That means that
Pruett v. Ariz. (D. Ariz. 2009) 606 F.Supp.2d 1065, 1068, 1079 (rejecting plaintiff’s
accommodation claim for chimpanzee as service animal because plaintiff had not shown
it “more adequately meets her disability-related needs than several alternatives,” and had
conceded “even this mild-mannered, affable Chimpanzee could become aggressive” and
is likely to grow too big to be a service animal).
7
Freedom Newsp. Inc. v. Orange Co. Employees Ret. Sys. (1993) 6 Cal.4th 821, 825;
Stats. 1953, ch. 1558, § 1 (initial enactment of statutory scheme); Stats. 1961, ch. 115, § 1
(naming statutory scheme “Ralph M. Brown Act”).
8
See, e.g., Gov. Code, § 54953, subd. (a) (“All meetings of the legislative body of a local
agency shall be open and public, and all persons shall be permitted to attend any meeting
of the legislative body of a local agency, except as otherwise provided in this chapter”);
id., subd. (b)(3) (requiring teleconferencing locations be accessible to public); see also
id., § 54950 (reciting that “agencies in this State exist to aid in the conduct of the
people’s business” and proclaiming “[i]t is the intent of the law that their actions be taken
openly and that their deliberations be conducted openly”). The requirement for agency
meetings to be open to public scrutiny is also enshrined in the California Constitution.
(Cal. Const., art. I, § 3, subd. (b)(1) (“meetings of public bodies . . . shall be open to
public scrutiny”).)
9
Shavelson v. Bonta (N.D. Cal. 2022) 608 F.Supp.3d 919, 926 (stating that ADA
“‘requires preemption of inconsistent state law’ when necessary to comply with its
command—including the ADA’s command that state and local governments provide
‘reasonable modification[s]’ to their programs in certain circumstances,” quoting Mary
Jo C. v. New York State & Local Retirement System (2d Cir. 2013) 707 F.3d 144, 163;
Crowder v. Kitagawa, supra, 81 F.3d 1480, 1485 (“When a state’s policies, practices or
procedures discriminate against [people with disabilities] in violation of the ADA,
Department of Justice regulations require reasonable modifications in such policies,
practices or procedures”).
10
See Cripe v. City of San Jose (9th Cir. 2001) 261 F.3d 877, 884 (“If a disabled person
cannot perform a job’s ‘essential functions’ (even with a reasonable accommodation),
then the ADA’s employment protections do not apply”); 42 U.S.C. §§ 12111
(“[C]onsideration shall be given to the employer’s judgment as to what functions of a job
are essential”), 12131-12132 (prohibiting discrimination against individuals who meet
(continued…)
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the details of the Brown Act’s provisions regarding in-person meeting attendance at
public locations are relevant to a reasonable accommodation analysis under the ADA.
For purposes of the question presented here, the relevant inquiry is whether the Brown
Act considers in-person meeting attendance at public locations to be an “essential
function” or “essential eligibility requirement.”
In 2001, we considered the same substantive question. We concluded that remote
participation could not be a reasonable accommodation under the ADA. 11 Among other
considerations, we discerned from the Brown Act that in-person meeting attendance by a
member of a Brown Act body at a public location was an “essential function” and
“essential eligibility requirement.” At that time, the Brown Act did not allow a member
to participate in a meeting remotely from a nonpublic location in any circumstance
whatsoever. 12 Although the Act did authorize members to participate in meetings by
“teleconferencing” (by audio or visual means), that option was available only if the
teleconferencing location itself was also open to the public. 13
Since then, the Legislature has modified the Brown Act. Intervening amendments
allow remote participation in meetings by members from nonpublic locations in certain
circumstances. 14 As we will explain, those amendments reveal that remote participation
no longer falls outside the realm of what can be a “reasonable accommodation” for
purposes of the ADA.
public entity’s “essential eligibility requirements”); see, e.g., Peden v. City of Detroit
(2004) 470 Mich. 195, 209 (review of state law governing police officers to identify
“essential functions” enabling such officers to perform duties).
11
84 Ops.Cal.Atty.Gen. 181, 185-188 (2001).
12
See ibid.
13
See Stats. 1998, ch. 260, § 1 (providing that “each teleconference location shall be
accessible to the public,” “at least a quorum of the members of the legislative body shall
participate from locations within” the agency’s jurisdiction, and that “agenda shall
provide an opportunity for members of the public to address the legislative body directly
. . . at each teleconference location” (Gov. Code, § 54953, subd. (b)(3)), and defining
“teleconference” to mean a meeting of members “in different locations, connected by
electronic means, through either audio or video, or both” (id., § 54953, subd. (b)(4)).)
14
See, e.g., Stats. 2023, ch. 534, § 1 (Gov. Code, § 54953, subds. (e), (f), (j)(4)); Stats.
2022, ch. 285, § 1 (same); Stats. 2021, ch. 165, § 3 (Gov. Code, § 54953, subd. (e)).
4
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ANALYSIS
Reasonable Accommodation for a “Qualified Individual” with a Disability Under
the ADA
Under the ADA, a person with a disability is someone who has “a physical or
mental impairment that substantially limits one or more” of the person’s “major life
activities.” 15 Before a requirement for a reasonable accommodation applies, it must be
established that the person is a “qualified individual” with a disability. The meaning of a
“qualified individual,” and the factors informing whether an accommodation for such an
individual is “reasonable,” turn on which portion of the ADA applies. 16
The ADA is divided into titles, and the first two are implicated here. 17 Title I
applies to employment by “covered entities” (including local governments), which are
defined in part by whether the entity employs more than a threshold number of
employees in a specified period. 18 Title II applies to participation in state and local
government services, programs, and activities. 19
Whether serving as a member on a board of a local agency governed by the Brown
Act constitutes employment under Title I, or instead participation in a program or activity
under Title II, can depend on the particular board, commission, or body. 20 Thousands of
15
42 U.S.C. § 12102(1)(A); see 29 C.F.R. § 1630.2(i) (defining major life activities to
include various tasks, such as working and “operation of a major bodily function”).
16
See, e.g., 42 U.S.C. §§ 12111(8) (defining “qualified individual” under Title I),
12131(2) (defining “qualified individual with a disability” under Title II).
17
See Pub.L. 101-336 (July 26, 1990), 104 Stat. 327 (enacting five titles).
18
42 U.S.C. § 12111(2) (“covered entity” includes “employer”); id., § (5)(A) (defining
“‘employer’” as one “engaged in an industry affecting commerce” with “15 or more
employees” for “20 or more calendar weeks in the current or preceding calendar year,”
and includes “any agent of such” employer); see Zimmerman v. Oregon Dept. of Justice
(9th Cir. 1999) 170 F.3d 1169, 1177 (“Congress consciously and expressly chose to
include the employment practices of state and local governments in Title I”).
19
42. U.S.C. §§ 12132, 12131(1)(A); see, e.g., Willits v. City of Los Angeles (C.D. Cal.
2013) 925 F.Supp.2d 1089, 1093 (stating that City of Los Angeles is covered by Title II).
20
Compare Zimmerman v. Oregon Dept. of Justice, supra, 170 F.3d at pp. 1174, 1176,
1178-1179 (Title II applies to public agency “outputs,” not “inputs” like employment
which is covered by Title I) with Where Do We Go Berkeley v. California Dept. of
Transportation, supra, 32 F.4th at p. 861 (Title II “bring[s] within its scope anything a
public entity does,” and “whether it is a normal function of a governmental entity,”
quoting Barden v. City of Sacramento (9th Cir. 2002) 292 F.3d 1073, 1076); see, e.g.,
(continued…)
5
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bodies governed by the Brown Act exist. 21 Given the myriad ways in which these bodies
may be formed and operate, it would appear infeasible and imprudent to make a universal
pronouncement about whether board membership falls under Title I versus Title II. But
we need not embark on such an endeavor; in either case, our answer to the question
presented here is the same. To explain why, we must return to the concepts of a
“qualified individual” and a “reasonable accommodation.” Those terms have multiple
meanings under the ADA, but we focus only on those that are relevant to our purposes. 22
Under Title I, a qualified individual with a disability is someone who “can perform
the essential functions” of the job in question—that is, the “fundamental job duties of the
employment position”—with or without reasonable accommodation. 23 A job function
may be essential, for example, “because the reason the position exists is to perform that
function.” 24 Factors that help to identify essential functions may include (among others)
the employer’s judgment on what functions are essential, the employer’s written job
descriptions, how much time is spent performing the function, consequences of not
requiring the function to be performed, work by past employees in the job, and work of
current employees in similar jobs. 25
Mirka v. Langley, City of (9th Cir. 2001) 16 Fed.Appx. 665, 666 (rejecting city hall
volunteer’s Title II claim because her services were “‘input’ rather than ‘output’
functions”); Holmes v. City of Aurora (N.D. Ill., Jan. 18, 1995, No. 93 C 0835) 1995 WL
21606, at *3-4 (stating that city’s pension board of mayoral appointees, current city
employees, and former city employee would be covered by Title I if board “is considered
to be plaintiff’s employer or an agent of the City,” but “should be considered a ‘public
entity’” covered by Title II because of nature and extent of its relationship with city); see
also fns. 60-73, post, and corresponding text in the body discussing members’ reasonable
accommodation claims all brought under Title II.
21
See, e.g., Letter from David Chiu, City Attorney for the City and County of San
Francisco to Deputy Attorney General Catherine Bidart, February 9, 2024, p. 2 (stating
that San Francisco has “well over 100 Brown Act bodies”); see also Gov. Code, § 54952
(broadly defining “legislative body”).
22
See, e.g., 42 U.S.C. §§ 12102(1)(C) (defining “disability” to include individual
“regarded” as having qualifying impairment), 12201(h) (no reasonable accommodation is
required for such individual).
23
42 U.S.C. § 12111(8) (defining “qualified individual” with disability); 29 C.F.R.
§ 1630.2(n)(1) (defining “essential functions” to include “fundamental job duties of the
employment position” and to exclude “marginal functions”).
24
29 C.F.R. § 1630.2(n)(2) (listing examples of reasons why function could be essential).
25
29 C.F.R. § 1630.2(n)(3).
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A covered employer is responsible for providing a reasonable accommodation to a
qualified individual with a disability unless it would cause the employer “undue
hardship.” 26 But no failure to accommodate occurs if an otherwise qualified individual
cannot, even with a reasonable accommodation, meet the employer’s “qualification
standards” that are both “job-related and consistent with business necessity.” 27 The
distinction between “qualification standards” and “essential functions” is that the latter
are basic duties while the former are “personal and professional attributes,” which may
include “skill, experience, education, physical, medical, safety and other requirements.” 28
Under Title II, a qualified individual with a disability is an individual who “meets
the essential eligibility requirements” to “participat[e] in programs or activities provided
by a public entity,” with or without reasonable modification. 29 An accommodation to a
qualified individual is not reasonable under Title II if it would fundamentally alter the
government program or activity or cause an undue financial or administrative burden. 30
An accommodation would fundamentally alter a program if it would compromise the
“essential nature” of the program. 31
For its part, the United States Department of Justice has issued informal guidance
that expresses its view on the availability of remote participation by members at city
council meetings as a reasonable accommodation under the ADA in appropriate
circumstances. 32 The guidance states that:
26
42 U.S.C. § 12112(b)(5)(A); see 42 U.S.C. § 12111(10) (defining “undue hardship” as
“action requiring significant difficulty or expense” in light of certain factors including
cost of the accommodation and entity’s resources).
27
42 U.S.C. § 12113(a).
28
Bates v. United Parcel Service, Inc. (9th Cir. 2007) 511 F.3d 974, 989-990; 29 C.F.R.
§ 1630.2(n)(1) (essential functions) & id. (q) (qualification standards).
29
42 U.S.C. § 12131(2).
30
Tennessee v. Lane (2004) 541 U.S. 509, 532; 28 C.F.R. §§ 35.130(b)(7)(i),
35.150(a)(3).
31
Alexander v. Choate (1985) 469 U.S. 287, 300. For example, “moving a beach
volleyball program into a gymnasium, so a player who uses a wheelchair can participate
on a flat surface without sand, would ‘fundamentally alter’ the nature of the game.”
(U.S. Dept. of Justice Civil Rights Division, “ADA Update: A Primer for State and Local
Governments,” originally issued Jun. 1, 2015, and last updated Feb. 28, 2020, available at
https://www.ada.gov/resources/title-ii-primer/ (as of July 24, 2024), (hereafter, “US DOJ
ADA Primer”).)
32
See 42 U.S.C. § 12206; see also id., §§ 12134 (“Attorney General shall promulgate
(continued…)
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[I]f an elected city council member has a disability that prevents her from
attending council meetings in person, delivering papers to her home and
allowing her to participate by telephone or videoconferencing would enable
her to carry out her duties.[33]
Our independent analysis below reaches a similar conclusion with respect to local
officials subject to the Brown Act. We first explain our conclusion from 2001.
2001 Opinion
Our 2001 opinion concluded that remote participation in a meeting subject to the
Brown Act could not be a reasonable accommodation under either Title I or Title II. 34 As
to Title I, the opinion determined that the Brown Act’s requirement for in-person
attendance at meetings at locations open to the public was an essential function of
holding office on a local agency board. 35 It observed that “[p]ublic attendance facilitates
the people’s right to participate in all phases of local government decision-making and
serves to prevent misuse of the democratic process by secret legislative action at the local
government level.” 36 The opinion also determined that, under the Brown Act, “the ability
to attend scheduled meetings that are accessible to the public is both ‘job-related and
consistent with business necessity,’” and “related to the requisite qualifications” to hold
office at the local level. 37 It explained:
[N]othing other than the presence of such person [that is, a member] at a
publicly accessible site would serve the state’s legitimate interest in public
attendance and participation in the decision-making process. While
teleconferencing may consist of electronic connection through either audio,
video, or both (Gov. Code, § 54953, subd. (b)(4)), no camera focused upon
a member in a remote location closed to the public may detect the presence
of other influences, including persons, within that location, and thus cannot
regulations in an accessible format that implement this part [Title II]”); Fortyune v. City
of Lomita (9th Cir. 2014) 766 F.3d 1098, 1104 (giving manual comprising “DOJ’s
interpretation of its ADA implementing regulations” controlling weight unless plainly
erroneous or inconsistent).
33
US DOJ ADA Primer, ante fn. 31.
34
84 Ops.Cal.Atty.Gen., supra, pp. 185-188.
35
Id., p. 185.
36
Ibid.
37
84 Ops.Cal.Atty.Gen., supra, pp. 185-186.
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with similar effectiveness serve the public’s interest in “curb[ing] misuse of
the democratic process.”[38]
The opinion further determined that even if Title II instead applied, remote
participation could not be a reasonable accommodation, for the same reasons set forth in
the Title I analysis. It concluded that “the ability to attend a meeting of the board at a
location accessible to members of the public, including individuals with disabilities,
would constitute an essential eligibility requirement.” 39 As discussed earlier, Title II
does not require that a reasonable accommodation be made for an individual who does
not meet an “essential eligibility requirement.” 40 The 2001 opinion resolved the Title II
analysis based on that factor alone. 41
Subsequent Amendments to the Brown Act Illustrate That Remote Participation
Can Be a Reasonable Accommodation
Subsequent changes to the Brown Act lead us to a different conclusion from the
one described in the 2001 opinion. As the 2001 opinion observed, the Brown Act at that
time authorized members to participate in meetings by audio or video “teleconferencing”
only if, among other requirements, the teleconferencing location was open to the public. 42
But the Legislature has since amended the Brown Act multiple times to authorize remote
participation by members from nonpublic locations in certain circumstances, using two-
way, real-time video and audio streaming—technology which was not nearly as
developed and widely used in 2001 as it is today. 43 The across-the-board prohibition on
remote participation by members in nonpublic locations has been removed from the Act.
In 2021, during the COVID-19 pandemic, the Legislature amended the Brown
Act to allow remote participation from nonpublic locations by all members (regardless of
any disability), using two-way, real-time video and audio streaming. 44 The authorization
38
Id., p. 186, quoting Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.
39
Id., p. 188.
40
See ante fn. 29 and corresponding text in the body.
41
84 Ops.Cal.Atty.Gen., supra, p. 188. As discussed above, if the essential eligibility
requirements are met, a particular accommodation would still not be owed if the
accommodation would fundamentally alter the nature of the government activity at issue
or would be an undue burden. (See ante fns. 30-31 and corresponding text in the body.)
42
Gov. Code, § 54953, subd. (b), as amended by Stats. 1998, ch. 260, § 1; see ante fn. 13.
43
Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021; Stats. 2022, ch. 285, § 1, eff. Jan. 1, 2023;
Stats. 2023, ch. 534, § 1, eff. Jan. 1, 2024.
44
Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021 (adding Gov. Code, § 54953, subd. (e) to
(continued…)
9
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was predicated on a declared state of emergency and the presence of health- or safety-
related circumstances. 45 In 2022, as those circumstances began to wane, California
started planning for COVID-19 to become an endemic disease. The Governor announced
that the declared state of emergency—one of the prerequisites for members to meet
remotely under the 2021 amendment—would end in February 2023, setting the stage for
in-person meetings to resume. 46
Against this backdrop, the Legislature amended the Act in 2022 to temporarily
authorize (until 2024) an individual member to occasionally participate from a nonpublic
location in certain exceptional circumstances. That authorization was subject to various
requirements, including two-way streaming and a requirement that a quorum of members
participate from a single physical location open to the public. 47 In 2023, the Legislature
extended that limited authorization until 2026. 48 Subject to various requirements, the
allow remote meetings with conditions, such as allowing public to directly address
members, and prohibiting action on agenda when disruption prevents broadcast or
comment). This exception was originally set to expire in 2024 (id., adding Gov. Code,
§ 54953, subd. (f); later the exception was amended, including an amendment for the
exception to last indefinitely (Stats. 2023, ch. 534, § 2, eff. Jan. 1, 2024, operative Jan. 1,
2026).
45
Stats. 2021, ch. 165, § 3, eff. Sept. 16, 2021 (amending Gov. Code, § 54953, subd. (e)
to allow remote meetings during declared state of emergency when social distancing is
officially imposed or recommended, or if meeting’s purpose is to determine whether in-
person meeting would imminently risk attendee health or safety, with periodic related
findings).
46
See Press Release, “Governor Newsom to End the COVID-19 State of Emergency,”
Oct. 17, 2022 (announcing declared state of emergency from COVID-19 to end February
28, 2023), available at https://www.gov.ca.gov/2022/10/17/governor-newsom-to-end-the-
covid-19-state-of-emergency/, as of July 24, 2024; Press Release, “Governor Newsom
Marks End of California’s COVID-19 State of Emergency,” Feb. 28, 2023, available at
https://www.gov.ca.gov/2023/02/28/governor-newsom-marks-end-of-californias-covid-
19-state-of-emergency/, as of July 24, 2024; see also Associated Press, “California
Changes Its COVID Strategy and Announces a Plan to Live with the Virus,” updated
Feb. 18, 2022, available at https://www.npr.org/2022/02/18/1081655623/california-
adopts-nations-first-endemic-virus-policy, as of July 24, 2024 (covering announced
preparations for endemic stage).
47
Stats. 2022, ch. 285, § 1, eff. Jan. 1, 2023 (adding Gov. Code, § 54953, subds. (f), (j),
(k)).
48
Stats. 2023, ch. 534, § 1, eff. Jan. 1, 2024 (amending Gov. Code, § 54953, subd. (k)).
A bill is pending to amend this legislation; as of the date of this opinion, the bill would
(continued…)
10
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new authorization allows a member to participate in a meeting remotely for a limited
number of times, if there is either “just cause” or “emergency circumstances.” 49
The first of those exceptions—the one for “just cause”—explicitly refers to ADA
accommodations. Specifically, “just cause” can be established based on a need related to
a disability that has not been “otherwise accommodated” under the ADA. 50 In other
words, the exception authorizes a member to participate at meetings remotely because of
a need related to a disability, but excludes from its ambit a disability already
accommodated under the ADA. The most logical explanation for that exclusion is that
the Legislature presupposed that a member may already participate remotely for an
unlimited number of sessions as an ADA accommodation. 51
Returning to our chronology, in 2023 the Legislature extended indefinitely the
authorization for all members to meet remotely from nonpublic locations during a
declared state of emergency as specified. 52 We refer to these as “pandemic-like”
provide a more detailed specification for calculating the number of times a member may
participate remotely. (Assem. Bill No. 2302 (2023-2024 Reg. Sess.), § 1, as introduced
Feb. 12, 2024.)
49
Gov. Code, § 54953, subd. (f)(2).
50
“[J]ust cause” includes “[a] need related to a physical or mental disability . . . not
otherwise accommodated by subdivision (g),” and subdivision (g) refers to the ADA.
(Gov. Code, § 54953, subd. (j)(2)(C); see id., subd. (g) (reciting requirement for
legislative body to have procedure for swiftly resolving requests for ADA reasonable
accommodations).) A disability that has not been “otherwise accommodated” could be,
for example, in the midst of an interactive process to identify a reasonable
accommodation. (See Anthony v. Trax Internat. Corp. (9th Cir. 2020) 955 F.3d 1123,
1134 (recounting employer obligation to engage in interactive process with employees to
find reasonable accommodation).)
51
The exception allowing remote participation for “just cause” may also be met by
caregiving needs, a contagious illness, or official travel. (Gov. Code, § 54953, subd.
(j)(2)(A), (B) & (D).) The other exception for an individual member to participate
remotely—in “emergency circumstances”—defines such circumstances as “a physical or
family medical emergency that prevents a member from attending in person.” (Gov.
Code, § 54953, subd. (j)(1).)
52
Stats. 2023, ch. 534, § 2, eff. Jan. 1, 2024 (amending Government Code section 54953
subdivisions (e) and (j), operative January 1, 2026, to amend and preserve authorization
with no sunset date for entire body to meet remotely during declared state of emergency,
if legislative body makes related findings, as specified).
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circumstances. 53 In such circumstances, if a majority of members makes certain health-
or safety-related findings during a declared state of emergency, all members may
participate remotely for an unlimited number of meetings at nonpublic locations. 54 So
even after the limited authorization for individual members to participate remotely for
“just cause” or in “emergency circumstances” expires in 2026, the Act will continue to
allow remote participation by all members in “pandemic-like” circumstances.
These recent changes to the Brown Act point to a conclusion that is different from
the one we reached in 2001. Perhaps most telling is the new “just cause” exception,
allowing remote participation for a need related to a disability—but not a disability that
has been “otherwise accommodated” under the ADA. 55 While this exclusion is currently
set to expire in 2026, it nevertheless reveals a legislative belief upon its enactment that
remote participation was already available for a qualifying individual as an
accommodation under the ADA. 56 We therefore conclude that, in light of the recent
legislative amendments, in-person attendance is no longer an “essential job function” nor
“an essential eligibility requirement” under Title I or Title II, as the Legislature has
determined that remote participation is compatible with membership on a Brown Act
body.
Conditions on Remote Participation
Although the Brown Act now allows remote participation in certain
circumstances, in-person attendance at physical locations open to the public remains the
default under the Act. The Act therefore places multiple conditions on remote
participation. One requires virtual access by the member so the public can address
members directly by video and audio streaming (which again, was not nearly as
developed and used in 2001 as it is today); if such access is disrupted, the body (through
its members) cannot take action on any agenda item until the streaming connection is
53
We do not foreclose the possibility that a declared state of emergency unrelated to a
pandemic could entail circumstances and related findings that would satisfy the exception
allowing all members to participate remotely. (See ibid.)
54
Gov. Code, § 54953, subd. (e); Stats. 2023, ch. 534, § 2 (amending Gov. Code,
§ 54953, subd. (e), operative Jan. 1, 2026).
55
See ante fn. 50.
56
Remote participation on an individual case-by-case basis as a reasonable
accommodation under the ADA is also consistent as a policy matter with the Brown Act
provision allowing all members to participate remotely in pandemic-like circumstances.
In such circumstances, the Act makes remote participation available for the safety of
everyone. Safety concerns also support allowing an individual member to participate
remotely if their particular disability puts them at heightened risk of serious illness or
death due to COVID-19 (or other maladies or conditions).
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restored. 57 Another condition requires the member who is participating remotely in a
non-public location to disclose the identity of any adults who are present in the room with
the member and the nature of their relationship. 58
We do not purport to prescribe here all of the conditions that could or should be
placed on remote meeting attendance as part of a reasonable accommodation. Nor do we
attempt to prescribe all of the ways in which technology can be employed to simulate in-
person meetings to best promote the Act’s purpose of public participation—which will
likely evolve over time. But mindful of the Act’s strong preference for in-person
meetings, we conclude that remote participation as a reasonable accommodation must be
done in a manner that simulates in-person attendance, as the Act requires where it allows
remote participation for other reasons. This would include the Act’s requirements that
remote participants (1) use two-way, real-time video and audio streaming and (2) disclose
the presence of other adults at the remote location. 59
Authority from Other Jurisdictions Supports Our Conclusion
Our answer to the question presented generally accords with cases in other
jurisdictions that have considered whether remote participation could be a reasonable
accommodation despite state open-meeting laws that generally require in-person
attendance. We are aware of three such cases, all decided by district courts. In the first
two cases, the courts upheld remote participation as a reasonable accommodation. In the
third case, the court found a lack of factual support for remote participation as a
reasonable accommodation—but did not rule out the possibility of remote participation in
other, more appropriate factual circumstances.
In Silver v. City of Alexandria, a federal district court in Louisiana granted a 98-
year old city council member a preliminary injunction allowing him to participate
remotely in city council meetings as a reasonable accommodation under Title II of the
ADA because his cardiovascular-related disability and age made him “particularly
57
See Gov. Code, §§ 54953, subds. (e)(2)(A) (public access), (e)(2)(B) (disruption),
(f)(1)(D) (same), subds. (f)(1)(A) (video and audio) & (f)(2)(C) (same).
58
Gov. Code, § 54953, subd. (f)(2)(B); cf. 84 Ops.Cal.Atty.Gen., supra, p. 186.
59
Many commenters pointed to advances in technology—and our collective experience
with that technology during the pandemic—as a basis for concluding that remote
participation is a reasonable accommodation. While we acknowledge that technology has
advanced in this area, we stress that our analysis is not driven by those advances. Our
analysis instead turns on legal changes to the Brown Act, which reveal that a member
may, in appropriate circumstances, attend a meeting remotely from a nonpublic location
as a reasonable accommodation under the ADA.
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susceptible” to succumbing to COVID-19. 60 The court observed that the state’s open
meetings law for many years contained no exception allowing remote participation, but
that a recent amendment allowed such participation (on voting and debating) during
public health emergencies such as the pandemic. 61 The court also noted the prevalence of
video-streaming technology, which was used for the hearing on the injunction. 62 While
“[i]t is true that virtual participation by an individual council member is not exactly the
same as participation by physical presence,” the court ultimately determined there would
be “no substantial negative impact on the operation of city government by the granting of
injunctive relief,” and that the accommodation “would not alter the nature” of the
meetings. 63
Next, in Palmer v. Michigan, a federal district court in Michigan granted a
preliminary injunction allowing a board member of a multi-county mental health agency
to participate in meetings remotely as a Title II ADA reasonable accommodation. 64 An
exception to the Michigan open meetings law had allowed remote participation for
medical conditions. But it expired at the end of 2021, after which the health agency
denied plaintiff’s request to continue to participate remotely. 65 While the agency
mandated social-distancing and mask-wearing protective measures, plaintiff’s cerebral
palsy made him at high risk of illness if exposed to COVID-19, and his disability
interfered with his ability to communicate while wearing a mask. 66 The court observed
that the open meetings law continued to authorize remote participation for a member who
was absent for military duty. 67 The court therefore rejected the agency’s claim that any
decision taken while plaintiff participated remotely could be rendered void for non-
compliance with the law because “military members can already participate remotely.” 68
The court concluded that the plaintiff’s remote participation would cause little or no
60
Silver v. City of Alexandria (W.D. La. 2020) 470 F.Supp.3d 616, 618, 620, 625.
61
Id., at pp. 623-624.
62
Id., at p. 623.
63
Id., at pp. 623-624.
64
Palmer v. Michigan (W.D. Mich., Mar. 29, 2022, No. 1:22-CV-90) 2022 WL 908966,
at **1, 7 (hereafter, Palmer). This case mentions and reaches the same conclusion of
opinions by the Attorney General of Michigan. (See id. at **2, 4, citing Atty. Gen. Op.
7, Atty. Gen. Op. 15-16, ECF No. 11-1.)
65
Palmer, supra, at **1-2.
66
Ibid.
67
Palmer, supra, at *6.
68
Ibid.
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harm, and that it “would not impose an undue burden” on the health agency nor
“fundamentally alter its programs or services.” 69
The last case is Chew v. Legislature of Idaho. 70 Although the Idaho district court
in that case denied a request for a temporary restraining order sought by members with
disabilities seeking a Title II accommodation to participate remotely in sessions of the
Idaho Legislature, that denial casts no doubt on our conclusion. 71 The case instead
illustrates that not every disability is one that necessitates remote participation. In
rejecting the request, the court drew upon Ninth Circuit cases prescribing an
individualized, case-by-case inquiry to determine the reasonableness of a requested
accommodation. 72 The court found nothing to rule out other types of accommodations
such as masks, plexiglass barriers, and choice of seat. 73
For the reasons discussed above, we conclude that the ADA requires a local
agency’s legislative body to allow remote participation from a nonpublic location as a
reasonable accommodation for a qualifying individual whose disability precludes their in-
person attendance, subject to the requirements of the ADA. 74 Under the Brown Act, the
69
Ibid.
70
Chew v. Legislature of Idaho (D. Idaho 2021) 512 F.Supp.3d 1124 (hereafter, Chew).
71
See id., at pp. 1126-1128; see also id., at p. 1127 (explaining that temporary restraining
order, like preliminary injunction, is to preserve status quo, but typically lasts 28 days
while preliminary injunction may extend until lawsuit ends).
72
Id., at p. 1129, citing Wong v. Regents of Univ. of Cal. (9th Cir. 1999) 192 F.3d 807,
818; Crowder v. Kitagawa, supra, 81 F.3d at p. 1486.
73
Chew, supra, at pp. 1130-1131.
74
We acknowledge that the ADA excuses a covered entity from providing an otherwise
required accommodation to an employee where it “can demonstrate that the
accommodation would impose an undue hardship” on its operations, defined as “an
action requiring significant difficulty or expense” when considered in light of certain
factors including cost of the accommodation and the entity’s resources. (See 42 U.S.C.
§§ 12112(b)(5)(A) & 12111 (defining “undue hardship”); see also 28 C.F.R. § 35.164
(public entity not required to make modification for accessible communication “that it
can demonstrate would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative burdens”). While the
accommodation at issue here—remote attendance by a member of a local agency
legislative body—does not appear to be the type of accommodation that would typically
present such financial or technical burdens, we cannot conclude that this would never be
the case. We do not address these hypothetical concerns here. Such concerns, if they
were to arise, would be determined based on the particular facts and circumstances, under
controlling provisions and interpretations of the ADA.
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remote participation must be conducted in a manner that simulates in-person attendance
at meetings held in-person and open to the public. To accomplish this, the Act provides
conditions on how an individual member may participate remotely—namely, by the
member using two-way live video and audio streaming and disclosing the identity of any
adults who are present in the room with them at the remote location.
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