In 1856 North Carolina became the last state to eliminate the requirement of real estate property ownership from the right to vote.
There has been discussion whether Napa County by holding public hearings exclusively over the internet was still in compliance with the provisions of the Brown Act which guarantee free access to such hearings to every citizen in the county.
The governor’s recent Executive Order N-25-20 states that local or state legislative bodies are “authorized to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address the local legislative body or state body, during the period in which state and local public officials impose or recommend measures to promote social distancing including but not limited to limitations on public events… are hereby waived.”
The very need for this Executive Order establishes once and for all that during normal times, the exclusive conduct of public hearings electronically would be in violation of the plain language provisions of the Brown Act. At the same time, had this order not been issued, legislative bodies would have been unable to deliberate even on emergency matters.
Further, this order urges local and state bodies “to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Bagley-Keene Act and the Brown Act … regulating the conduct of public meetings.”
What constitutes “reasonable adherence” for Napa County must take into consideration the following factors even after “social distancing and limitations to public events” have been lifted:
In the same way people who didn’t own real estate property were excluded from participation in our democracy, access to the internet requires the ownership of a computer or a cellphone. Not everyone owns such devices, nor is their use free, making participation at a cost.
Without their use, physical access to the agendized underlying documents is impossible because they risk infection to and from county personnel as well as to and from their physical handling to subsequent persons accessing them.
It follows that while the danger of the virus infection is still prevalent, physical public participation is fraught with inordinate health risks.
To its credit, the county has made extraordinary efforts to increase public participation by allowing the use of interpreters to persons who are deficient in English. Yet it would bar a large segment of the population which does not own electronic devices or are not proficient in their use.
The above notwithstanding, as early as November 2018, the county supervisors were aware of poor internet coverage in many sections of the county. To identify its extent, they appropriated up to $100,000 for a survey by Magellan Advisors. To my knowledge, the county has yet to publish the findings of this survey.
In the absence of such data, the Comcast service interruption complaints site showed (April 4, 2020) outage reports of 8 and 4 hours by 20 subscribers, many more hours for 10 and fewer. These are only filed complaints; not representing the total number of affected people and by only one provider.
An August 2018 cell coverage survey in Napa County by cell reception rated Verizon with 3 out of 5 stars, AT&T with 2, Sprint and T-Mobile with 1 each.
At the same time, it is unclear how much of the telecommunications network destroyed during the October 2017 fires has been restored.
Electronic coverage is still not available to large segments of Napa County to ensure wide enough public participation.
In order for the county to make a credible “reasonable adherence” to the Brown Act provisions as mandated by the governor, it must limit public hearings to emergency issues or to ensure the health and safety of the public and to the function of essential government services until such time as the COVID-19 infection danger has been declared safe enough as to eliminate all recommended prophylactic measures.
Only then will participation to public hearings become accessible to every citizen in this county as the legislation intended. Failure to do so – especially by not suspending Planning Commission hearings, all of which are non-essential -- will question the integrity of any decisions which have not benefited from public input or scrutiny. At the same time, it may flood the county with subsequent costly appeals.
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