Three members of Berkeley’s Commission on Disability are suing the city, alleging that its policies for returning to in-person commission meetings violate federal disability laws.
Berkeley-based Disability Rights Advocates filed the suit Tuesday on behalf of Rena Fischer, Kathi Pugh and Helen Walsh, who say city staff have refused to make reasonable accommodations that would allow them to safely participate in commission meetings from home.
According to the group’s complaint, city staff told the commissioners that if they wanted to join meetings remotely — which each of them must do because of their disabilities — the address from which they planned to participate would be listed in a public agenda, and they would be required to allow members of the public to access the space. That means publicizing the commissioners’ addresses, Disability Rights Advocates wrote, and letting the public into their homes or even bedrooms.
While Berkeley has long been a center for the disability rights movement, the lawsuit filed in U.S. District Court for the Northern District of California alleges the city’s requirements violate the Americans with Disabilities Act and the Rehabilitation Act of 1973.
“When I needed to participate remotely — from bed — in a Commission on Disability meeting, I was shocked that the city of Berkeley required me to open my one-bedroom apartment to the public, even while I can’t independently get out of bed,” Fischer wrote in a statement. “The policy is unsafe and it puts me, and other disabled commissioners, at risk.”
The city has not yet responded to the group’s complaint, and did not provide a statement in response to an inquiry about the lawsuit from Berkeleyside.
At issue in the case is the city’s interpretation of California’s open meetings law, known as the Brown Act, and a 2022 state law that allowed government entities to continue meeting remotely as pandemic emergency rules ended.
The Berkeley City Council meets in a hybrid format that gives council members and the public the option of attending an in-person meeting or watching and participating via Zoom; the same format is used for council committees and the Zoning Adjustments Board. Meetings of Berkeley’s other boards and commissions, including the Commission on Disability, are primarily held in-person.
The city allows council, board and commission members to attend meetings remotely — but doing so makes the place they’re joining from a “meeting location” under the Brown Act, meaning it must be listed on the meeting agenda, and the public must have access to it. Those requirements were paused at the outset of the pandemic, when city meetings moved entirely online, and are now back in effect; for instance, the agenda for a July City Council meeting that two members attended remotely listed one councilmember’s home address and that of a Mendocino County cabin as locations.
The Disability Rights Advocates lawsuit contends Fischer, Pugh and Walsh should not be subjected to the public access mandates because their disabilities require them to attend meetings remotely — Fischer and Pugh are unable to sit for long periods, while Walsh must limit her exposure to people because she is immunocompromised.
DRA attorney Jinny Kim said no one has tried to attend a commission meeting from the plaintiffs’ homes. Still, the lawsuit argues that the requirements are “burdensome, dangerous and invasive,” and in Walsh’s case defeat the purpose of attending meetings remotely.
Requirements under federal law for government entities to make reasonable accommodations for people with disabilities trump the noticing and access mandates in state law, according to Kim.
“We think that the city should accommodate our clients under the federal law,” Kim said.
The lawsuit asks a judge to order the city to “provide reasonable modifications … to permit remote attendance as needed for Commission meetings,” and for attorney’s fees.
