DATE:
March 7, 2023
TO:
Paul Buddenhagen, City Manager
FROM:
April Richardson, City Clerk
SUBJECT:
Discussion Of Implementation Of AB 2449 Relating To Teleconference Participation By City Council Members Recommendation
Staff recommends the City Council review and discuss the provisions for teleconferencing under AB 2449 and provide direction to staff for procedures to implement teleconferencing for City Council Members.
Background
Since March 2020, the Emeryville legislative body meetings (City Council, MESA, Successor Agency, the Community Development Commission, Public Finance Authority, Planning Commission and all Advisory Bodies) have been held as teleconference (virtual) meetings, with the first hybrid City Council (in-person/Zoom) meetings expected to begin on February 21, 2023. Several changes made during the COVID-19 pandemic, including the emergency teleconferencing regulations codified in AB 361, allowed any combination of Council Members, staff, and members of the public to join the meetings virtually. There has been no limitation on the number of meetings a legislative body member may attend remotely, or on the reasons for remote attendance. Governor Newsom intends to terminate the State of Emergency on February 28, 2023, ending the ability to meet in a virtual-only format.
The provisions of Assembly Bill 2449 became effective January 1, 2023. This bill amends the Brown Act with respect to the remote (teleconference) participation in legislative meetings by legislative body members. The provisions of the bill apply to all legislative and advisory body meetings.
Traditional Teleconference Regulations – The Brown Act
While the Brown Act continues to allow legislative body members to participate in meetings remotely (known as participation by “teleconference”), the Act contains stringent noticing requirements for members who wish to participate remotely, including the publication of the member’s physical address on the agenda, posting of the agenda, allowing public access, calling for public comment, and ensuring ADA access at the remote location.
Discussion
New Teleconference Regulations / AB 2449
Beginning January 1, 2023, AB 2449 further amends the Brown Act to regulate teleconference participation in legislative meetings, offering a complex alternative to traditional teleconferencing regulations. This bill will significantly limit the use of remote teleconferencing compared to that permitted under emergency teleconference regulations enacted during the COVID-19 pandemic. AB 2449 regulates only the teleconference attendance by legislative body members and does not regulate attendance by staff or the public. AB 2449 will sunset on January 1, 2026.
Provisions of AB 2449 for Legislative Body Members
AB 2449 authorizes legislative body members to use teleconferencing without complying with traditional teleconference requirements under the following conditions:
Limitations on use: Under AB 2449, legislative body members may participate remotely a limited number of times per year. The maximum for each member is calculated based on the number of meetings held by their legislative body in a year.
A member may participate in meetings by teleconference for no more than three consecutive months, and no more than 20% of the regular meetings for the legislative body within a calendar year (capped at 2 meetings per year for bodies that meet fewer than 10 times per year). Based on this formula, in Emeryville, the overall maximum number of times a member may participate remotely is as follows:
City Council/Successor Agency (21 regular meetings): 4 meetings per year A member of a legislative body wishing to participate remotely under AB 2449 may do so either for “just cause” or under “emergency circumstances,” as those exceptions are defined under state law. The individual legislative body member must choose which exception to pursue.
Use of the “just cause” exception is capped at 2 meetings per year regardless of the meeting schedule.
Exception #1: “Just Cause”
• Circumstances permitting use of “just cause” exception are limited to:
o Caregiving of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires a member to participate remotely. o A contagious illness that prevents the member from attending in person. o A need related to a physical or mental disability.
o Travel while on business of the legislative body or another state or local agency. • Notification to Council: In order to participate remotely under the “just cause” exception, staff recommends the member notify the City Manager, City Clerk, or Presiding Officer at the earliest possible opportunity of their need to participate remotely. The notification must include a description of the circumstances relating to the member’s need to appear remotely. Under state law, the description does not have to be more than 20 words and the member does not have to disclose any personal medical information. • Action Taken at the Meeting: The member must 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 the individual. The Presiding Officer will ask the virtual participant to disclose this information following roll call.
Exception #2: Emergency Circumstances
• Circumstances permitting use of “emergency circumstances” exception are limited to: A physical or family medical emergency that prevents a member from attending in person. • Request and Council Approval: The member’s ability to participate remotely under the “emergency circumstances” exception is contingent upon making a request to the legislative body, which must take action by majority vote to approve the request. Staff recommends that the member notify the City Manager, City Clerk, or Presiding Officer at the earliest possible opportunity of their need to participate remotely. The notification must include a description of the circumstances relating to the member’s need to appear remotely. Under state law, the description does not have to be more than 20 words and the member does not have to disclose any personal medical information. • Action Taken at the Meeting: This item will be added as an urgency Item by the Presiding Officer, City Manager, or City Attorney at the beginning of the meeting and action taken following roll call. The member must also 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 the individual.
Under either exception, at least a quorum of the members of the legislative body must participate at a single physical meeting location identified on the agenda, situated within the local agency’s jurisdiction, and open to the public. For this reason, no more than two members of a legislative body may utilize these teleconference provisions at any one time. Members participating remotely must have both audio and video capabilities.
Enforcement of AB 2449
While members will be responsible for their own conduct in terms of complying with AB 2449, failure to comply with the new state law constitutes a violation of the Brown Act, potentially jeopardizing the validity of these meetings. Staff recommends that any legislative body member who attempts to join a meeting virtually in excess of the number of meetings allowed per year, or whose request to virtually attend a meeting under the “Emergency Circumstances” exception is not approved, be marked as absent. They will be able to join the meeting as a member of the public.
Fiscal Impact
There is no fiscal impact related to this item.
Staff Communication with the Public
Staff has had no communication with the public.
Conflict of Interest
There is no conflict of interest related to this report.
Conclusion
Staff recommends Council review the provisions for teleconferencing under AB 2449 and provide direction to staff for adding updated teleconferencing procedures to the City Council Rules of Procedure.
PREPARED BY: April Richardson, City Clerk
Approved and Forwarded to the
City Council of the City of Emeryville:
Paul Buddenhagen, City Manager
AB 2449 Procedures for City Council
City Council Meeting | March 7, 2023
City of Emeryville
CALIFORNIA
MEMORANDUM