Submitted via email to catherine.bidart@doj.ca.gov

Catherine Bidart
Deputy Attorney General
California Attorney General's Office
1300 I Street
Sacramento, CA 95814

Dear Deputy Attorney General Bidart:

Disability Rights California (DRC) thanks the Attorney General for his consideration of whether public entities must offer remote participation as a reasonable accommodation under the Americans with Disabilities Act to members of boards and commissions regulated by the Brown Act. A legal analysis of the requirements of the ADA and the Brown Act, as well as California’s public policy of inclusion and equity, both point to the same conclusion: Yes, public entitles must offer remote participation as a reasonable accommodation to disabled members of Brown Act bodies.

The issue of remote participation in Brown Act meetings is important because it directly affects the ability of the people we serve—Californians with disabilities—to exercise their right to participate in local government. DRC is a non-profit agency established under federal law to protect, advocate for, and advance the human, legal, and service rights of Californians with disabilities.1 We work in partnership with people with disabilities, striving towards a society that values all people and supports their rights to dignity, freedom, choice, and quality of life. Remote participation in Brown Act meetings furthers these rights by making public meetings accessible to people who cannot attend meetings in person due to their disabilities. 

Remote participation is necessary for disability access and inclusion in local government.

Local governments’ use of virtual meeting platforms during the pandemic proved that remote participation is a feasible and effective strategy to promote inclusion in public activities. When Governor Newsom’s shelter-in-place and teleconferencing flexibility orders were in effect, many disabled people were able to participate in local government activities at unprecedented rates. Remote participation helped control the spread of COVID-19, but it also allowed disabled people to avoid barriers that make it difficult to participate in public meetings in person. These barriers include the unavailability of accessible transportation as well as architectural barriers in the built environment. Of course, remote participation does not absolve local governments of their duty to eliminate architectural and programmatic barriers. But, in situations where a person is better able to manage the effects of their disability by remaining home, the ability to participate remotely is essential to their ability to participate at all. 

The wide impact of remote participation on the disability community became starkly apparent when California transitioned out of shelter-in-place and local governments resumed in-person meetings. When teleconferencing flexibilities expired, DRC received an influx of calls from community members who understood that the return to in-person meetings would mean the end of their participation in local government. By way of example, here are some of the stories our community members shared with us: 

• A community member struggled to participate in in-person meetings because the long commute to the meeting location (about 3 hours) made them carsick, which aggravated their medical conditions. By the time they arrived at the meeting location, they would be too sick to fully participate. It sometimes took days for them to recover. Remote participation allowed them to participate fully in meetings because they could remain home and avoid a sickness-inducing commute.
• A community member who is blind used to attend meetings in person with their guide dog. When their guide dog was no longer able to work, they had to wait several months before a new one could be trained and assigned to them. At the same time, the location of the meetings changed to a building that was not accessible to the community member. The community member wanted to attend meetings remotely until their new guide dog arrived because they were not familiar with the new meeting location and, as a senior with multiple disabilities, did not feel comfortable navigating through the city to an unfamiliar location without a guide dog. Remote participation would allow the community member to remain active on the public body while waiting for their new guide dog.
• A community member who is immunocompromised and has complex medical needs wanted to participate remotely at the recommendation of their doctor, who feared that in-person meetings would expose the community member to an unnecessary risk of contracting COVID-19 or other contagious infection. Those fears intensified when mask mandates and social distancing requirements expired. Remote participation would allow the community member to avoid unnecessary risks to their health.

These experiences represent a small sample of the many ways that remote participation facilitated the inclusion of disabled people in local government activities.

The Brown Act and the Americans with Disabilities Act support remote participation as a reasonable accommodation, but some local governments still refuse to provide it.

In response to the disability community’s concerns, DRC helped people submit requests to continue remote participation as a reasonable accommodation. The legal basis for these requests arose from the ADA and from the Brown Act, which explicitly requires compliance with the ADA. The Brown Act states: “The legislative body shall have and implement a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and resolving any doubt in favor of accessibility.”2 The ADA requires local governments to make reasonable modifications in policies, practices, and procedures unless it would result in a fundamental alteration of the nature of the service, program, or activity.3 Remote participation does not fundamentally alter the nature of what legislative bodies do. In fact, remote participation enhances the work of legislative bodies by facilitating the participation of people who make the legislative bodies more diverse, inclusive, and representative of the community they serve. Therefore, requests to participate remotely as a reasonable accommodation should be granted readily by local governments.

However, the responses DRC received to its reasonable accommodation requests were mixed because of inconsistency in how local governments across the state interpreted the Brown Act and the ADA. Some local governments agreed that public bodies covered by the Brown Act must consider remote participation as a reasonable accommodation under the ADA. Others did not, insisting that remote participation is only permissible under the Brown Act if the participant complies with the traditional pre-pandemic teleconferencing rules, which include disclosing the participant’s location and making the location open to the public. As applied to people seeking to participate from home due to a disability, those rules are unreasonable and outright dangerous. No one with a disability should have to choose between public participation and their own safety.

The range of responses that DRC received from local governments demonstrates the necessity of an opinion from the Attorney General on this matter. Local governments need clarity on how to interpret the application of the ADA’s reasonable accommodation requirements to requests for remote participation under the Brown Act. If the Attorney General does not provide clear direction on this issue, many local governments will continue to deny reasonable accommodation requests for remote participation. 

Remote participation advances the goals of disability rights laws and California’s public policy of inclusion and equity. 

A local government’s refusal to provide a reasonable accommodation violates the civil rights of the individual making the request and also contributes to a broader systemic injustice: the exclusion of disabled people from civic life. That injustice is precisely the type of harm the ADA and California’s civil rights laws were enacted to address. One of the core provisions of the ADA is the right of disabled people to participate in the activities of a public entity.4 In fact, the U.S. Department of Justice’s Title II regulations expressly list the denial of “the opportunity to participate as a member of planning or advisory boards” as a form of disability discrimination under the ADA.5 The ability to participate in government decision-making is foundational to democracy.

California has been a leader in the disability rights movement for decades, and we hope Attorney General Bonta will help continue that legacy by issuing an opinion letter that specifies the obligation of bodies covered by the Brown Act to make remote participation available as a reasonable accommodation. An opinion from the Attorney General will bring much-needed consistency to local governments’ handling of reasonable accommodation requests and allow for the inclusion of the disability community in local governance and decision-making. Local governments must do their part to remove barriers to participation, and allowing remote participation is an essential part of fulfilling that duty. As a reasonable accommodation, remote participation is a practical and effective way to remove access barriers for people with disabilities. Moreover, it is good public policy, consistent with Governor Newsom’s efforts to promote equity and inclusion in government.6

We thank you for your attention to this matter and look forward to an opinion from the Attorney General. If we can provide any additional information that would be helpful regarding this matter, please do not hesitate to contact us.  We may be reached at (510) 267-1225 or zeenat.hassan@disabilityrightsca.org.

Sincerely,
Zeenat Hassan
Staff Attorney II

• 1. Disability Rights California provides services pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15001, PL 106-402; the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. § 10801, PL 106-310; the Rehabilitation Act, 29 U.S.C. § 794e, PL 106-402; the Assistive Technology Act, 29 U.S.C. § 3011,3012, PL 105-394; the Ticket to Work and Work Incentives Improvement Act, 42 U.S.C. § 1320b-20, PL 106-170; the Children’s Health Act of 2000, 42 U.S.C. § 300d-53, PL 106-310; and the Help America Vote Act of 2002, 42 U.S.C. § 15461-62, PL 107-252; as well as under California Welfare and Institutions Code §§ 4900 et seq.
• 2. Government Code Section 54953(g).
• 3. 28 C.F.R. 35.130(b)(7)(i)
• 4. 42 U.S.C. 12132 (“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”)
• 5. 28 C.F.R. 35.130(b)(vi).
• 6. See, e.g. Executive Order N-16-22.