EAST PALO ALTO
CITY COUNCIL
STAFF REPORT
DATE: December 15, 2022
TO: Honorable Mayor and Members of the City Council
VIA: Patrick Heisinger, Interim City Manager
BY: James Colin, City Clerk
SUBJECT: Public Meetings Options Post-February 2023
Recommendation
Begin consideration of how the City Council and City Advisory Bodies shall proceed once the pandemic state of emergency officially terminates.
Alignment with City Council Strategic Plan
This recommendation is primarily aligned with:
Priority No. 3: Increase Organizational Effectiveness and Efficiency Priority No. 6: Create a Healthy and Safe Community
Background
The California Brown Act has long-established requirements for local agencies to use teleconferencing to conduct meetings. In March 2020, Governor Newsom issued Executive Order N-29-20 authorizing exemptions to the then-existing Brown Act teleconferencing requirements. Those requirements were suspended during the COVID-19 pandemic to promote social distancing and to facilitate remote work and meetings. Executive Order N-08- 21 extended Executive Order N-29-20until September 30, 2021.
On September 16, 2021, the Governor signed AB 361 into law to allow the continued use of virtual public meetings during a declared state of emergency when certain conditions are met.
AB 361 took effect immediately as an urgency statute and is effective through December 31, 2023. AB361 requires findings be made periodically to substantiate the rationale for continued virtual meetings, and the City Council has been making the findings on a monthly basis. One key requirement for making the AB 361 findings is that there be a proclaimed state of emergency.
Governor Newsom recently announced that the State of Emergency he declared on March 4, 2020 will end on February 28, 2023. Assuming there is no major resurgence of COVID-19 or the occurrence of other conditions leading to a new state of emergency, a key component for making AB 361 findings will not be available, so virtual participation in meetings will not be available on that basis.
New Legal Provisions
On September 13, 2022, AB 2449 was signed into law, effective January 1, 2023. It will remain in effect through December 31, 2025. AB 2449 revised Section 54953 (as set forth above) to clarify teleconferencing requirements and, for a two-year period, to provide additional exceptions to the original Brown Act teleconference rules. The two new exceptions allow teleconferencing absent a declared state of emergency when a member of the legislative body is unable to attend in person due to “just cause” or due to an “emergency circumstance.” These new provisions are not as flexible as the AB 361 provisions people have become accustomed to.
AB 2449 revises the applicable Government Code section in relevant part to read:
Government Code Section 54953.
(b) (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. If the legislative body of a local agency elects to use teleconferencing, the legislative body of a local agency shall comply with all of the following:
(A) All votes taken during a teleconferenced meeting shall be by rollcall. (B) The teleconferenced meetings shall be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency.
(C) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(D) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3.
(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivision (d). (e) (1) The legislative body of a local agency may use teleconferencing without complying with paragraph (3) of subdivision (b) if, during the teleconference meeting, at least a quorum of the members of the legislative body participates in person from a singular physical location clearly identified on the agenda, which location shall be open to the public and situated within the boundaries of the territory over which the local agency exercises jurisdiction and the legislative body complies with all of the following:
(A) The legislative body shall provide at least one of the following as a means by which the public may remotely hear and visually observe the meeting, and remotely address the legislative body:
(i) A two-way audiovisual platform.
(ii) A two-way telephonic service and a live webcasting of the meeting. (B) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment.
(C) The agenda shall identify and include an opportunity for all persons to attend and address the legislative body directly pursuant to Section 54954.3 via a call-in option, via an internetbased service option, and at the in-person location of the meeting. (D) In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency’s control that prevents members of the public from offering public comments using the call-in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored.
Actions taken on agenda items during a disruption that prevents the legislative body from broadcasting the meeting may be challenged pursuant to Section 54960.1. (E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time.
(F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (2) A member of the legislative body shall only participate in the meeting remotely pursuant to this subdivision, if all of the following requirements are met:
(A) One of the following circumstances applies:
(i) The member notifies the legislative body at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause, including a general description of the circumstances relating to their need to appear remotely at the given meeting. The provisions of this clause shall not be used by any member of the legislative body for more than two meetings per calendar year. (ii) The member requests the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body takes action to approve the request. The legislative body shall request a general description of the circumstances relating to their need to appear remotely at the given meeting. A general description of an item generally need not exceed 20 words and shall not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law, such as the Confidentiality of Medical Information Act (Chapter 1 (commencing with Section 56) of Part 2.6 of Division 1 of the Civil Code).
For the purposes of this clause, the following requirements apply:
(I) A member shall make a request to participate remotely at a meeting pursuant to this clause as soon as possible. The member shall make a separate request for each meeting in which they seek to participate remotely. (II) The legislative body may take action on a request to participate remotely at the earliest opportunity. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the legislative body may take action at the beginning of the meeting in accordance with paragraph (4) of subdivision (b) of Section 54954.2.
(B) The member shall publicly disclose at the meeting before any action is taken whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals. (C) The member shall participate through both audio and visual technology. (3) The provisions of this subdivision shall not serve as a means for any member of a legislative body to participate in meetings of the legislative body solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year. (f) The legislative body shall have and implement a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and resolving any doubt in favor of accessibility. In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the procedure for receiving and resolving requests for accommodation. (g) The legislative body shall conduct meetings subject to this chapter consistent with applicable civil rights and nondiscrimination laws.
(h) (1) Nothing in this section shall prohibit a legislative body from providing the public with additional teleconference locations.
(2) Nothing in this section shall prohibit a legislative body from providing members of the public with additional physical locations in which the public may observe and address the legislative body by electronic means.
Analysis
How public meetings should be conducted once the State of Emergency is terminated is a decision for the City Council.
Post-February 28, 2023 Options for Council as a Whole (and Boards and Commissions)
1. Return to in-person meetings as the general method of conducting business.
2. Hold hybrid meetings, with some members of the Council present and others participating remotely, allowing public participation as has been occurring during the pandemic and using a roll call for voting. For those participating remotely, (1) the location of the off-site participation must be listed on the agenda (2) the agenda must be posted at each off-site location, (3) the off-site location must be made available to the public.
3. Hold hybrid meetings, with at least a quorum of the members of the Council physically present and either a two-way audio-visual platform or a two-way telephonic service and live webcasting. Members of the Council not present may be absent pursuant to the just cause or emergency exceptions. a. In limited circumstances, not more than twice per calendar year, a member could participate under the just cause provisions. b. In specified circumstances, a Council member could participate under the emergency circumstances provisions for no more than 3 consecutive months or 20% of the regular meetings within a calendar year.
Depending upon what the City Council decides overall, individual members have some participation options as well.
Post-February 28, 2023 Options for Individual Council Members (also Board and Commission Members)
Absence Planned in Advance and Quorum of Members Meeting at City Hall GC 54953(b)(2) and (e)(1)
1. Quorum of body meets in Council Chambers as noted on agenda meeting is open to public.
2. Agenda includes information on how public may participate in person or virtually.
3. Public may hear/see meeting and participate virtually.
4. If there is any type of broadcast interruption or the public cannot participate virtually, action on items must cease until connectivity is restored.
5. All votes must be by roll call.
No limit on number of times this type of remote participation.
Absence Planned in Advance and Quorum of Members Not at City Hall GC 54953(b)(2) and (3)
1. At least a quorum of body must participate from within the boundaries of the City.
Address members are participating from virtually must be included in agenda notice and agenda must be posted at that location.
2. Members of the public must be allowed to participate from the teleconference location.
3. All votes must be by roll call.
No limit on number of times this type of remote participation. “Just Cause” Participation GC 54953(e)(2)(A)(1)
The Brown Act defines “just cause” as any of the following:
(1) childcare or caregiving of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely, (2) a contagious illness that prevents them from attending in person, (3) a need related to a disability not otherwise accommodated, or (4) travel while on official business of the legislative body or another state or local agency.
Member notifies rest of body (as a group) at earliest opportunity, including start of meeting, of need to participate remotely for just cause, including general description of circumstances. “Just cause” is defined above.
Participation under this provision is limited to two times in a calendar year. The body does not have to take action to approve just cause participation. “Emergency” Participation GC 54953(e)(2)(A)(2)
The Brown Act defines “emergency circumstances” as a physical or family medical emergency that prevents a member from attending in person.
Member notifies rest of body (as a group) at earliest opportunity of need to participate remotely due to an emergency, including general description of circumstances (need not exceed 20 words and no personal medical disclosure) and body must take action to approve request.
1. Separate request required for each meeting for which individual seeks to participate remotely.
2. If persons 18 or older are present in remote meeting room, presence must be disclosed and general nature of member’s relationship must be noted.
3. Virtual participation must be both audio and visual.
Burden of Managing Hybrid Meetings
City staff has gotten more comfortable with coordinating the hybrid meeting format over the past few City Council meetings. However, it is worth noting that the administrative burden on staff to effectively manage a hybrid format is extensive. The Council should be aware that if the City is to offer a hybrid format moving forward, there will be an impact on staffing levels especially if the hybrid format is extended to City advisory bodies.
Questions for Consideration
Staff is raising this matter for consideration so the City Council has time to think through how would be best for meetings to proceed in the future; below are some questions for consideration:
1. Does the City Council want to consider a hybrid meeting format for City Council meetings after February 2023?
2. If the City Council is open to having hybrid meetings post February 2023, does the City Council have a preference regarding which staff members should attend in person versus those who participate via zoom?
3. Does the City Council want to allow for hybrid meetings for all other City Advisory Bodies?
Staff anticipates returning in January once it receives Council direction.
Fiscal Impact
None
Public Notice
The public was provided notice of this agenda item by posting the City Council agenda on the City’s official bulletin board outside City Hall and making the agenda and report available at the City’s website and at the San Mateo County Library located at 2415 University Avenue, East Palo Alto.