AGENDA ITEM #4
TOWN OF FAIRFAX
STAFF REPORT
February 2, 2022
TO: Mayor and Town Council
FROM: Michele Gardner, Town Clerk
SUBJECT: Adoption of a Resolution Making Findings and Determinations under AB 361 for the Continuation of Virtual Meetings
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RECOMMENDATION
Adopt the attached Resolution Making Findings and Determinations under AB 361 for the Continuation of Virtual Meetings.
BACKGROUND
On March 17, 2020, in the face of the COVID-19 pandemic, Governor Gavin Newsom issued Executive Order N-29-20 suspending certain provisions of the Ralph M. Brown Act in order to allow for local legislative bodies to conduct their meetings completely telephonically or by other electronic means.
The provisions in the Brown Act that were suspended by the Governor’s Executive Order are contained at Government Code Section 54953(b)(3) and require that when teleconferencing is used, outside of a statewide emergency, that the following occur:
• An agenda is required to be posted at all locations, including any teleconference locations
• Each teleconference location must be identified on the actual agenda • Each teleconference location shall be accessible to the public • A quorum of the legislative body must be in the jurisdiction With the Governor’s Executive Order, the four above requirements were suspended, allowing councilmembers to not have to post an agenda at their teleconference location, not have to identify their location on the meeting agenda, not have to ensure public accessibility at the teleconference location, and the legislative body did not need a quorum in the jurisdiction. As the Town Council is well aware, this allowed Town Council and all other meetings of legislative bodies of the Town to be conducted by Zoom with councilmembers, commission members, committee members, and staff all joining from remote virtual locations.
The suspension of certain provisions of the Brown Act was further extended by the Governor on June 11, 2021 by the issuance of Executive Order N-08-21, which continued to allow for complete virtual meetings until September 30, 2021.
With the expiration of the Governor’s Executive Order, the State Legislature took the remote meeting issue into its own hands through the adoption of Assembly Bill 361. On September 16, 2021, the Governor signed AB 361, which allows legislative bodies to meet virtually provided there is a state of emergency declared by the Governor, and either (1) state or local 2 officials have imposed or recommended measures to promote social distancing; or (2) the legislative body determines by majority vote that meeting in person would present imminent risks to the health and safety of attendees. AB 361 took effect October 1, 2021. As a result, to have virtual meetings on or after October 1, 2021, the Town must do so consistent with the requirements of AB 361.
DISCUSSION
AB 361 preserves many of the provisions of the earlier executive orders, including the suspension of the four teleconferencing requirements noted above, while also adding new requirements to the management of remote and teleconference public meetings in order to better achieve the levels of transparency that the Brown Act demands. Specifically, AB 361 imposes two new rules on remote public meetings:
1. Local governments and agencies hosting teleconference meetings in lieu of traditional in-person public meetings must permit direct public comment during the teleconference, and must leave open the opportunity for public comment until the comment period for a given item is closed during the ordinary course of the meeting. The opportunity to make public comment must be of a sufficient duration so as to allow actual public participation.
2. Any action by the governing body during a public teleconference meeting must occur while the agency is actively and successfully broadcasting to members of the public through a call-in option or an internet-based service option. If a technical disruption within the agency’s control prevents members of the public from either viewing the meeting of the public agency, or prevents members of the public from offering public comment, the agency must cease all action on the meeting agenda until the disruption ends and the broadcast is restored. Action taken during an agency-caused disruption may be challenged as a violation of the Brown Act.
In order to continue to qualify for AB 361’s waiver of in-person meeting requirements, the Town Council must, within thirty (30) days of its first meeting under AB 361, and every thirty (30) days thereafter, make findings that (a) state or local officials continue to recommend measures to promote social distancing, or that (b) an in-person meeting would constitute an imminent risk to the safety of attendees. The resolution before the Council tonight is for the next 30-day period, to cover the month of February 2022.
Lastly, it is important to note that AB 361 is optional. If the Town Council wishes, it may meet in person. In addition, hybrid meetings are permissible. However, Town Management is recommending adoption of the resolution to ensure all other Commission, Committee, and Task Force meetings can continue to meet and allow the public to meet remotely without risking public health.
FISCAL IMPACT
The Town Council’s adoption of the resolution to continue with virtual meetings will maintain the status quo and no financial impact is anticipated by the adoption of the resolution.
CALIFORNIA ENVIRONMENTAL QUALITY ACT
The Town Council’s adoption of the resolution is not a project under the California Environmental Quality Act (CEQA) Guideline 15378(b)(5) as it constitutes an organizational 3 or administrative activity of the government that will not result in direct or indirect physical changes in the environment. Further, virtual meetings are likely to reduce certain impacts associated with vehicular travel related to in-person public meetings.
ATTACHMENT
Proposed Resolution
1 RESOLUTION 22-__
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX MAKING FINDINGS AND DETERMINATIONS UNDER AB 361 FOR
THE CONTINUATION OF VIRTUAL MEETINGS
WHEREAS, the Ralph M. Brown Act (Gov. Code § 54950 et seq.) generally requires local agencies meeting via teleconference, including through other virtual or electronic means, to, among other things, provide public access at each location in which members of the legislative body are teleconferencing; and WHEREAS, the Legislature recently enacted Assembly Bill 361 (AB 361), which amended Government Code section 54953 to allow local agencies to meet fully virtually, without fully adhering to the rules otherwise applicable to teleconferencing, during a proclaimed state of emergency if state or local officials have imposed or recommended measures to promote social distancing; and
WHEREAS, the Governor issued a proclamation declaring a state of emergency on March 4, 2020 due to the COVID-19 pandemic, pursuant to section 8625 of the California Emergency Services Act, and this proclaimed state of emergency currently remains in effect; and
WHEREAS, the Town Council of the Town of Fairfax has considered the circumstances of the state of emergency; and
WHEREAS, state officials continue to recommend measures to promote social distancing to prevent the spread of COVID-19, and in particular, Cal-OSHA regulation 3205 recommends physical distancing in the workplace generally and regulates a “close contact,” defined as being within 6 feet of another under certain circumstances; and WHEREAS, local officials continue to recommend measures to promote social distancing to prevent the spread of COVID-19, and in particular, Marin County Health and Human Services Director Benita McLarin in her September 22, 2021, letter to the Marin County Board of Supervisors, recommended an “…emphasis on social distancing measures as much as possible to make public meetings as safe as possible” until further notice and no such notice has been given; and
WHEREAS, in order to continue to impose social distancing while holding in-person meetings there is a high likelihood that members of the public would not all be able to be present in the meetings spaces; and
WHEREAS, the continuation of virtual meetings will allow for full participation by members of the public until social distancing recommendations are no longer necessary; and
WHEREAS, the Town Council of the Town of Fairfax desires that all Town legislative bodies continue to hold virtual meetings pursuant to AB 361 and Government Code section 54953(e).
NOW, THEREFORE, the Town Council of the Town of Fairfax hereby finds, determines, and resolves as follows:
1. The Town Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
2. The Town Council and all other legislative bodies of the Town of Fairfax who are required to hold public meetings shall continue to meet virtually in accordance with Government Code section 54953(e) and without compliance with section 54953(b)(3), based upon the findings and determinations hereby made by the Town Council.
The foregoing resolution was passed and adopted at a regular meeting of the Town Council of the Town of Fairfax held in said Town on the 2nd day of February 2022 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
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Stephanie Hellman, Mayor
Attest:
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Michele Gardner, Town Clerk