ADA lawsuit claims city policy on virtual meetings is ‘dangerous and invasive’

As in-person meetings return more than three-and-a-half years after COVID forced local city councils, commissions and boards to govern online, virtual options for participation have dwindled.

But in California, officials like Berkeley Councilmember Susan Wengraf have been able to continue remotely tuning into meetings from their homes — a choice the 78-year-old, and many others like her, made amid myriad health concerns.

There’s one problem: Due to Berkeley city officials’ reading of the Ralph M. Brown Act, a 1953 state law written to help ensure the public’s right to attend open meetings, the city’s appointed and elected officials who are approved to attend meetings over Zoom must publicly share the addresses where they will be participating — and allow residents who show up wanting to watch the meetings at their homes to do so, too.

Privacy and safety concerns raised by this policy came to a head last week, when three members of Berkeley’s Commission on Disability filed a lawsuit in U.S. District Court, arguing that the requirement has created new dangers, especially for older, disabled and immunocompromised people — oftentimes the ones who rely on virtual options the most. Plaintiffs Kathi Pugh, Helen Walsh and Rena Fischer are concerned that the city’s interpretation of California open meetings laws unfairly harms disabled residents — a violation of the federal Americans with Disabilities Act (ADA).

Pugh said in an interview that she found the city’s policy so absurd that when she first reached out with concerns several months ago, she initially “just thought this was a mistake.”

“You have to allow [residents] to participate with you, so for me that’s in my bedroom because I’m on a little cellphone,” said Pugh, who often works from bed to treat pressure sores caused by her electric wheelchair. “I feel like we’re going backwards.”

So far, city officials have stood behind their position that their legislative hands are tied and cannot waive the requirement, “even as an accommodation for a person with a disability,” according to the lawsuit. While the plaintiffs say numerous cities across California have meeting stipulations similar to Berkeley’s, this hasn’t been such a difficult problem to solve on the other side of the Bay Bridge.

According to a January 2023 memo, the San Francisco’s City Attorney’s Office has interpreted public meeting requirements differently. Specifically, the idea that “members of the public be allowed to attend meetings remotely” is not reasonable in all situations, they found, especially when dealing with federally protected disability accommodations.

City Attorney Farimah Faiz Brown said in an email that Berkeley staff are “eager” to work collaboratively with Disability Rights Advocates, the national legal nonprofit that helped the commissioners file their lawsuit, to address these concerns.

“The City of Berkeley remains committed to fully accommodating people with disabilities, and to advancing the cause of disability rights,” Faiz Brown wrote. But she continued that, “The State of California has placed certain generally applicable restrictions upon the attendance of members of local legislative bodies at public meetings, including mandatory public notice and open access to any teleconference location.”

Pugh said she doesn’t think the city’s stance passes the sniff test.

“It’s a sad irony that the city of Berkeley is placing roadblocks in our path where the blueprint for full participation and independence started,” Pugh said. “I want to give back to my city and just make it better for people with disabilities, but this policy, frankly, makes me not want to (serve on) the commission.”

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𝗖𝗿𝗲𝗱𝗶𝘁𝘀, 𝗖𝗼𝗽𝘆𝗿𝗶𝗴𝗵𝘁 & 𝗖𝗼𝘂𝗿𝘁𝗲𝘀𝘆:
𝗙𝗼𝗿 𝗮𝗻𝘆 𝗰𝗼𝗺𝗽𝗹𝗮𝗶𝗻𝘁𝘀 𝗿𝗲𝗴𝗮𝗿𝗱𝗶𝗻𝗴 𝗗𝗠𝗖𝗔,
𝗣𝗹𝗲𝗮𝘀𝗲 𝘀𝗲𝗻𝗱 𝘂𝘀 𝗮𝗻 𝗲𝗺𝗮𝗶𝗹 𝗮𝘁

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