TO: Honorable City Council
FROM: City Manager
SUBJECT: Consideration of a Resolution proclaiming a Local Emergency, ratifying the Proclamation of a State of Emergency by Governor Newsom, finding that the proclaimed State of Emergency Continues to impact the ability to meet safely in person, and declaring that the City Council, City Commissions and Committees could continue to meet remotely in adherence with AB 361 and AB 2449 in order to ensure the health and safety of the public MEETING DATE: February 21, 2023
RECOMMENDATION:
Staff is recommending that the City Council adopt a Resolution entitled: “A Resolution Proclaiming a Local Emergency, Ratifying the Proclamation of a State of Emergency by Governor Newsom, Finding that the Proclaimed State of Emergency Continues to Impact the Ability to Meet Safely in Person, and declaring that the City Council, City Commissions and Committees could continue to meet remotely in adherence with AB 361 and AB 2449 in order to ensure the health and safety of the public.” ANALYSIS:
While members of the public have been able to attend City Council meetings in person while adhering to social distancing for several months, re-authorizing the resolution allows for councilmembers and members of the public to participate remotely should they need to do so. Approving the Resolution would permit some members of the City Council (as well as staff) to participate remotely based on their specific situation. This could include a positive COVID case or exposure, and/or other health concerns. This Resolution would ensure that members of the City Council are not prevented from participating safely in the meetings, if circumstances require that they do so remotely.
Beginning in March 2020, Governor Newsom issued a series of Executive Orders aimed at containing the novel coronavirus (COVID-19). Among these were several Executive Orders N-25-20, N-29-20, N-35-20 (collectively, the Brown Act Orders) that waived requirements in the Brown Act expressly or impliedly requiring the physical presence of city councilmembers, staff, or the public at local agency meetings.
On September 16, 2021, Governor Newsom signed Assembly Bill AB 361, which allows cities to continue to meet remotely during proclaimed states of emergency under modified Brown Act requirements that are similar, but not identical to the rules and procedures established by the Brown Act Orders. AB 361 allowed local and state legislative bodies to temporarily hold meetings remotely so long as notice of the meeting is given, agendas are posted and members of the public are able to address the legislative body directly telephonically or by otherwise electronic means.
On October 17, 2022, Governor Gavin Newsom announced that the COVID-19 State of Emergency will end on February 28, 2023. Under Government Code section 45953(e)(3), in order to continue to teleconference without compliance with Brown Act teleconferencing requirements, the legislative body must make certain findings every thirty (30) days that either: (a) a state of emergency remains active, or (b) state or local officials have imposed or recommended measures to promote social distancing.
Therefore, even if there is no active state of emergency, cities may continue to use remote meeting provisions under AB 361 so long as state or local officials impose or recommend measures to promote social distancing. However, please note that AB 361’s abbreviated teleconferencing provisions will remain active until January 1, 2024, unless repealed sooner.
ASSEMBLY BILL 2449
On September 13, 2022, Governor Newsom signed into law Assembly Bill 2449 (“AB”) which further revised teleconferencing provisions under the Brown Act. This bill authorizes members of the local legislative body to participate remotely in meetings under specified circumstances, including just cause or emergency circumstances. (1) Just Cause
“Just cause” means any of the following: (a) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner; (b) a contagious illness; (c) a need related to a physical or mental disability; or (d) travel while on official business of a state or local agency. A member of the legislative body must, at the earliest opportunity including the start of a regular meeting, notify the legislative body of their need to participate remotely for just cause and provide a general description of the circumstances relating to their need to appear remotely.
Limitation: A member may not appear remotely for more than two meetings per calendar year under this “just cause” provision. (2) Emergency Circumstance
“Emergency circumstance” means a physical or family medical emergency. A member of the legislative body must, at their earliest opportunity, request from the legislative body to participate in the meeting remotely due to emergency circumstance, for which the member must provide a general description. This request should be placed on the agenda and the legislative body must take action to approve the request. However, if there is insufficient time to place the request on the agenda, the legislative body must take action at the beginning of the meeting to vote on the request. A majority vote is needed for approval.
Limitation: A member may not appear remotely for more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year. If the legislative body meets fewer than ten times per calendar year, the limit will be a total of two remote meetings.
Should the City Council wish to continue offering the opportunity to meet remotely pursuant to AB 361 and AB 2449, the City Council would be required to adopt the attached resolution. This action would allow the City to continue using the remote meeting procedures it has been using throughout the COVID-19 pandemic, subject to certain requirements that must be considered as part of the initial determination to adopt remote meeting protocols. Once adopted, the initial authorizing resolution is effective for no more than thirty (30) days.
It is recommended that the City Council authorize the attached resolution extending the emergency resolution for another 30 days. Adopting the resolution will provide the City the flexibility to have in-person meetings while preserving the right to allow members of the City Council and public to participate in person and remotely should the City and region experience spikes in COVID-19 cases or any other health or safety issues.
Those Councilmembers that would provide “Just Cause” or the “Emergency Circumstance to the City Council will be able to participate remotely without following standard Brown Act Teleconferencing Requirements (posting of agendas at a teleconferencing location will not be required and not making teleconferencing location available to the public). These exemptions would stay in place until January 2024, and the City Council would need to extend emergency resolution every 30 days in accordance with AB 631 and AB 24498. Beginning in January 2024, the following provisions of the Brown Act will come to effect as before the Covid-19.
STANDARD BROWN ACT TELECONFERENCING –BROWN ACT
The Ralph M. Brown Act (“Brown Act”) sets forth standard provisions for the legislative body of a local agency to use teleconferencing for the benefit of the public and legislative body in connection with meetings or proceedings authorized by law. The teleconferenced meeting or proceeding must comply with all the following standard requirements of the Brown Act:
(a) The local agency must post agendas at all teleconference locations; (b) The local agency must conduct teleconference meetings in a manner that protects the right of the public appearing before the legislative body of a local agency; (c) The local agency must identify in the notice and agenda of the meeting or proceeding each teleconferencing location; (d) Each teleconference location shall be accessible to the public; (e) At least a quorum of the members of the legislative body must participate from locations within the boundaries of the city; (f) The agenda must provide an opportunity for members of the public at each teleconference location to address the legislative body directly.
ALTERNATIVES:
Authorize the resolution as prescribed; and/or
2) Other approach as directed by the City Council.
FISCAL IMPACT:
There is no fiscal impact associated with the recommendations in this report.
RELATIONSHIP TO STRATEGIC PLAN:
This matter is applicable to the following Strategic Focus Area and Guiding Principle: Community Quality of Life – Guiding Principle 5: Foster environmentally conscious initiatives and continue to identify and develop city codes that support a clean, well-maintained, sustainable community.
Respectfully submitted by: Edgar P. Cisneros, City Manager Recommended by: Lena Shumway, Director of Administrative Services and City Clerk Approved as to form: Noel Tapia, City Attorney
ATTACHMENTS:
Resolution
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AGENDA REPORT