Monday, November 26, 2001
ADA Does Not Require Video to Home of Disabled Council Member—Lockyer
By a MetNews Staff Writer
Federal law does not require a city to provide a teleconference hookup so that a disabled council or advisory board member may participate in a meeting from a location not accessible to the general public, Attorney General Bill Lockyer has opined.
Such an accommodation would violate the Ralph M. Brown Act, which specifically requires that when a local legislative body meets by teleconference, each location be accessible to the public, Lockyer said.
Because of the Brown Act provision, the attorney general elaborated, the ability to attend meetings at publicly accessible locations is an “essential function” of membership on a city council or an advisory board. The Americans With Disabilities Act, he noted, permits an employer to impose qualifications that are “job-related and consistent with business necessity” even if the effect is to screen out disabled persons.
“In California, the ability of each member of a local agency board to attend meetings at a location accessible to the public is related to the requisite qualifications for that particular office,” the attorney general wrote. “This criterion cannot be viewed as a pretext for discrimination against an officer with a disability, and nothing other than the presence of such person at a publicly accessible site would serve the state’s legitimate interest in public attendance and participation in the decision-making process.”
The attorney general continued: “While teleconferencing may consist of electronic connection through either audio, video, or both...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 with similar effectiveness serve the public’s interest in ‘curb[ing] misuse of the democratic process.’ “
The attorney general also rejected the suggestion that, at least with respect to advisory board members, a teleconference connection might be required under Title II of the ADA, which generally guarantees that the disabled will have access to “the services, programs, or activities of a public entity.”
Title II does not guarantee the right to serve on an advisory board, Lockyer said. “While the public is invited to participate in the meetings of an advisory board by way of attendance and comment, it is not invited to participate by way of membership on the board,” the attorney general reasoned. “We thus believe that obtaining or retaining a position on an advisory board does not constitute a ‘receipt of services’ or a ‘program’ or ‘activity’ provided by the city for purposes of title 2 of the ADA.”
The opinion, No. 00-1210, was requested by Assemblywoman Dion Aroner, D-Berkeley, and prepared for Lockyer by Deputy Attorney General Anthony S. Da Vigo.
Copyright 2001, Metropolitan News Company