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

ADA lawsuit claims Berkeley 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 she 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 Jan. 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.”

Jinny Kim, an attorney with Disability Rights Advocates who is representing the three Berkeley commissioners, said disability accommodations should be addressed through the ADA, regardless of any state laws like the Brown Act. Instead, she said Berkeley — the birthplace of the modern disability rights movement — continues to blindly enforce strict rules about who and how they will accommodate members of a commission that is dedicated to advancing disability rights locally.

“We often assume that Berkeley is going to be sort of leading the charge in terms of making sure that things are accessible within the city, so it’s disappointing that we have to force the city to do things by way of a lawsuit,” Kim said. “This is somewhat akin to closing the door on people with disabilities who are trying to do the right thing, themselves.”

Faiz Brown, Berkeley’s city attorney, did not respond to questions about San Francisco’s memo or federal preemption.

As it stands, Pugh said the policy is so unpopular that it’s complicating efforts to recruit more people to the long-dormant commission, which she joined in April, especially since meetings are often at night. The city has offered to ease these concerns by paying a staffer to help monitor the meeting at their address, but Pugh said she thinks that’s an unnecessary, costly solution for an advisory board such as the Commission on Disability.

When Commissioner Rena Fischer told city officials she had tested positive for COVID earlier this year, the response was the same — if you want to attend the meeting from home, the community and city staff must still be allowed to consider joining you, too.

Fischer, who initially requested accommodations because she cannot sit for extended periods of time in her wheelchair, said filing a lawsuit was their only option to secure a better solution after the city ignored all of their previous letters and pleas. She’d rather the city redirect its time and money from this lawsuit to fixing the city’s sidewalks — the reason she joined Berkeley’s Commission on Disability in the first place.

“I find all of this ethically reprehensible,” Fischer said. “None of us will make a penny off this lawsuit. All we want is the behavior of the city and this policy to change.”