CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
2/13/2023
1 SUBJECT:
Consideration of a Resolution Making Findings as Required by AB 361 to Continue to Permit the City Council and City Commissions and Committees to Conduct Teleconferenced Meetings Due to Health and Safety Concerns Relating to COVID-19
RECOMMENDED ACTION:
Move to adopt a Resolution making findings pursuant to AB 361 to authorize the City Council and City Commissions and Committees to conduct teleconferenced meetings due to health and safety concerns relating to COVID-19.
STAFF CONTACT:
Kevin Woodhouse, City Manager
650-738-7409
[email protected]
Sarah Coffey, City Clerk
650-738-7307
[email protected]
BACKGROUND:
On March 4, 2020, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the State prepare for broader spread of COVID-19. On March 16, 2020, the City Manager, acting in his capacity as Director of Emergency Services, proclaimed the existence of a local emergency pursuant to PMC 4-2.05(a) and executed the "Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19")" ("Proclamation"). On March 18, 2020, the City Council of the City of Pacifica adopted Resolution No. 18-2020 to ratify the Proclamation of local emergency due to COVID-19 and continues to affirm the existence of the local emergency.
From the Special City Council Meeting held on March 18, 2020, for the purpose of adopting Resolution No. 18-2020 ratifying the City Manager’s Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus (“COVID-19”), through the Special City Council Meeting held on October 10, 2022, all City Council, Committee and Commission meetings were held via videoconference using a Zoom Meeting or Zoom Webinar platform with no physical meeting location open to the public. The Governor’s Executive Orders N-25-20 and N-29-20 suspended certain requirements of the Brown Act to allow for public meetings to be held via teleconferenced meetings, either via audio or video or both, for all members of the body to participate from remote locations with no physical meeting location open to the public.
The Governor’s Executive Order N-08-21 issued on June 11, 2021, provided local jurisdictions a basis upon which to continue conducting public meetings via videoconference without a physical Pacifica City Council 2
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location open to the public under the relaxed provisions of the Brown Act until September 30, 2021.
On August 2, 2021, the Health Officer of the County of San Mateo issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions. This Order was issued due to evidence of the SARS-CoV-2 B.1.617.2 (Delta) variant circulating in San Mateo County. This variant is highly transmissible in indoor settings. San Mateo County Health Order No. C19-12 was ordered effective at 12:01 am on August 3, 2021.
Assembly Bill 361 (AB 361) was signed by the Governor on September 16, 2021, and went into effect immediately upon signature as urgency legislation (codified under Government Code § 54953). AB 361 amends the Brown Act to provide additional provisions that allow meetings of legislative bodies to be conducted via teleconference. Its provisions allow a local agency legislative body to meet without complying with the standard teleconferencing requirements of the Brown Act if the Governor has proclaimed a State of Emergency and any of the following occurs:
1) State or local officials have imposed or recommended measures to promote social distancing,
2) the meeting is being held for the purposes of determining, by a majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health and safety of attendees;
3) the legislative body has determined that as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
In addition, AB 361 adds new procedures and clarifies the requirements for conducting remote meetings, including the following:
• Public Comment Opportunities in Real Time - a legislative body that meets remotely pursuant to AB 361 must allow members of the public to access the meeting via a call-in option or an internet-based service option, and the agenda for the remote meeting must provide an opportunity for members of the public to directly address the body in real time. A legislative body cannot require public comments to be submitted in advance of the meeting.
• No Action During Disruptions - in the event of a disruption that prevents the local agency from broadcasting the remote meeting, 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, AB 361 prohibits the legislative body from taking any further action on items appearing on the meeting agenda until public access is restored.
• Periodic Findings - Government Code § 54953(e)(B) requires the legislative body to hold a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risk to the health or safety of attendees.
AB 361 will sunset on January 1, 2024.
DISCUSSION:
At the regular meeting of the City Council held on October 11, 2021, the City Council adopted Pacifica City Council 3
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Resolution No. 63-2021 making findings as required by AB 361 to permit the City Council and City Committees and Commissions to conduct teleconferenced meetings due to the health and safety concerns relating to COVID-19. The resolution also directed staff to agendize for Council consideration no less than every 30 days the need to continue to utilize teleconferenced meetings pursuant to AB 361. The City Council subsequently adopted the following resolution numbers, re-affirming the findings required by AB 361 to continue to conduct teleconferenced public meetings due to COVID-19 risk:
• Resolution No. 63-2021 on October 11, 2021
• Resolution No. 69-2021 on November 8, 2021
• Resolution No. 80-2021 on December 13, 2021
• Resolution No. 01-2022 on January 10, 2022
• Resolution No. 07-2022 on February 14, 2022
With the COVID-19 update provided at the City Council meeting held on February 28, 2022, it was reported that although the Omicron variant spread rapidly during and after the December 2021 holiday season, with positive case rates spiking in mid-January 2022, there had been a dramatic decrease in positive cases in the third week of February, the health effects of the Omicron variant generally much less severe for vaccinated persons, and San Mateo County has a 93.9% vaccination rate for ages 5+. Effective February 16, 2022, the County of San Mateo Health Officer announced that Health Officer Order No. C19-12 (For The Wearing of Face Coverings In Workplaces And Public Settings issued on August 2, 2021) was rescinded in full.
As a result of the decrease in case rates, lower health risks and higher vaccination rates, at the City Council meeting held on February 28, 2022, the City Manager had recommended the return to in-person City Council and City Committee and Commission meetings beginning March 14, 2022. The City Council approved of the return to in-person meetings beginning March 14, 2022, by majority vote at the February 28, 2022 City Council meeting.
At the City Council meeting held on May 23, 2022, with the increase in COVID-19 incidence and transmission and the vulnerability of certain segments of the population, the City Council authorized public meetings of the City Council and City Commissions and Committees to return to teleconferenced meetings with no physical location open to the public due to the health and safety concerns relating to COVID-19. The City Council subsequently adopted the following resolution numbers, re-affirming the findings required by AB 361 to continue to conduct teleconferenced public meetings due to COVID-19 risk:
• Resolution No. 23-2022 on May 23, 2022
• Resolution No. 26-2022 on June 13, 2022
• Resolution No. 41-2022 on July 11, 2022
• Resolution No. 46-2022 on August 8, 2022
• Resolution No. 56-2022 on September 12, 2022
• Resolution No. 66-2022 on October 10, 2022
• Resolution No. 76-2022 on November 14, 2022
• Resolution No. 84-2022 on December 12, 2022
• Resolution No. 02-2023 on January 9, 2023
CURRENT ANALYSIS:
The following updates have occurred since the January 9, 2023 regular City Council meeting.
The state of emergency regarding COVID-19 issued by the Governor remains in place, as do the COVID-19 Community Levels (low, medium, and high) for masking recommendations. CDC recommendations continue to emphasize staying up to date with vaccination, improving Pacifica City Council 4
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ventilation, testing persons who are symptomatic and those who have been exposed, and isolating infected persons. Persons can use information about the current level of COVID-19 impact on their community to decide which prevention behaviors to use and when (at all times or at specific times), based on their own risk for severe illness and that of members of their household, their risk tolerance, and setting-specific factors. At the low CDC COVID-19 Community Level, the CDPH recommends that vulnerable people consider taking additional precautions, including wearing a mask in crowded indoor public places.
The number of reported cases and hospitalizations categorize San Mateo County in the CDC’s Low COVID-19 Community Level per the San Mateo County Health Officer’s update as of February 6, 2023. In San Mateo County the updated COVID-19 bivalent booster vaccines effective against the original strain of the virus and the Omicron variants are readily available at primary care practices and pharmacies across the county, and these updated boosters are recommended and currently available for those ages 5 and older (Pfizer Bivalent Booster) or ages 6 and older (Moderna Bivalent Booster).
The enclosed Resolution continues to make the required findings under AB 361, and if adopted, it will allow the City the option to continue to conduct City Council and City Commission and Committee meetings via teleconference with no physical location open to the public, to help mitigate the spread of COVID-19, as well as during other state-proclaimed emergencies, such as earthquakes or wildfires, where physical attendance may present a risk.
The resolution also directs staff to agendize for Council consideration no less than every 30 days the need to continue to utilize teleconferenced meetings pursuant to AB 361 if found that there is a continued risk to public health and safety.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
“An Engaged Community” - includes taking actions to restore trust in city government, expanding communication, and building community.
“Maintaining a Safe Community” - includes support our first responders (police, fire, public works), responding to emergencies, protecting people, property, businesses, and our infrastructure (streets, sidewalks, storm and waste water), and engaging in emergency preparedness and prevention activities.
FISCAL IMPACT:
There is no fiscal impact associated with this action.
ORIGINATED BY:
City Clerk
ATTACHMENT LIST:
Attachment A: Full text of AB 361 (PDF)
Attachment B: Resolution No. 18-2020 - Ratifying Local Emergency Due to COVID-19 (PDF) Pacifica City Council 5
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RESOLUTION NO. __-2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA MAKING FINDINGS AS REQUIRED BY AB 361 TO PERMIT THE CITY COUNCIL AND CITY
COMMITTEES AND COMMISSIONS ESTABLISHED BY THE COUNCIL TO CONDUCT
TELECONFERENCED MEETINGS DUE TO THE HEALTH AND SAFETY CONCERNS RELATING TO COVID-19
WHEREAS, on March 4, 2020, as part of the State of California’s response to address the global COVID-19 outbreak, Governor Gavin Newsom declared a State of Emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for broader spread of COVID-19; and
WHEREAS, on March 16, 2020, at 12:11 p.m., the City Manager, in his capacity as Director of Emergency Services, proclaimed the existence of local emergency in the City of Pacifica, after determining that the rapidly widespread of COVID-19 is likely to create conditions of disaster or extreme peril which will be beyond the services, personnel and equipment and facilities of the City and executed the “Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”)” (“Proclamation”); and WHEREAS, on March 18, 2020, the City Council of the City of Pacifica adopted Resolution No. 18-2020 ratifying the “Proclamation of the Existence of a Local Emergency Regarding Novel (new) Coronavirus ("COVID-19”)”, which continues to remain in place; and WHEREAS, on March 17, 2020, the Governor of California executed Executive Order N-29-20 which suspended and modified specified provisions in the Ralph M. Brown Act (Government Code Section § 54950 et seq.) and authorized local legislative bodies to hold public meetings via teleconferencing and to make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe and address the local legislative body; and
WHEREAS, on June 11, 2021, the Governor of California executed Executive Order N-08-21 which extended the provisions of Executive Order N-29-20 concerning teleconference accommodations for public meetings through September 30, 2021; and WHEREAS, on August 2, 2021, the Health Officer of the County of San Mateo issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions due to the COVID-19 Delta variant circulating in San Mateo County and evidence of the Delta variant being highly transmissible in indoor settings; and
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WHEREAS, on September 16, 2021, the Governor of California signed into law Assembly Bill 361 (AB 361, Rivas) (Stats. 2021, ch. 165) amending Government Code § 54953 and providing alternative teleconferencing requirements to conduct public meetings during a proclaimed state of emergency; and
WHEREAS, the City of Pacifica has conducted public meetings of City Council and City Committees and Commissions via teleconference from March 18, 2020, through October 10, 2022, under the modified provisions of the Brown Act as allowed for by Governor’s Orders N-29-20, N-08-21 and/or N-15-21 in effect at the time; and WHEREAS, AB 361 (Stats. 2021, ch. 165) imposes requirements to ensure members of the public are able to attend and participate in public meetings conducted via teleconference, including:
• Notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option;
• The legislative body shall take no further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency’s control which prevents members of the public from offering public comments, until public access is restored; • Prohibits the legislative body from requiring public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for members of the public to address the legislative body and offer comments in real time;
• Prohibits the legislative body from closing the public comment period until the public comment period has elapsed or until a reasonable amount of time has elapsed; and WHEREAS, the City has already implemented and is in full compliance with the requirements listed above when conducting public meetings via teleconference, which are now codified in Government Code § 54953(e)(2)(B-G); and WHEREAS, pursuant to Government Code § 54953(e)(B), the legislative body shall hold a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health and safety of attendees. The City Council must make these findings no later than 30 days after the first teleconferenced meeting is held pursuant to AB 361 (Stats. 2021, ch. 165) after September 30, 2021, and must also make these findings every 30 days thereafter, in order to continue to allow teleconference accessibility for conducing public meetings; and
WHEREAS, on August 2, 2021, the Health Officer of the County of San Mateo Pacifica City Council 7
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issued Order No. C19-12 mandating the wearing of face coverings when indoors in workplaces and public settings, with limited exceptions. This Order was issued due to evidence of the SARS-CoV-2 B.1.617.2 (Delta) variant circulating in San Mateo County.
This variant is highly transmissible in indoor settings. San Mateo County Health Order No.
C19-12 was ordered effective at 12:01 am on August 3, 2021; and WHEREAS, in December 2021 and January 2022 the COVID-19 Omicron variant had been observed by scientists and medical professionals to spread rapidly amongst some vaccinated individuals and continues to present a health and safety risk to the public; and WHEREAS, effective February 16, 2022, the County of San Mateo Health Officer announced that Health Officer Order No. C19-12 (For The Wearing of Face Coverings In Workplaces And Public Settings issued on August 2, 2021) was rescinded in full; and WHEREAS, the County of San Mateo Health Officer strongly recommends getting vaccinated or boosters for COVID-19, improve ventilation throughout indoor spaces as much as possible, wear a well-fitting mask in crowded indoor public places, and continue to follow State isolation and quarantine guidance to prevent the spread of COVID-19; and WHEREAS, as of the week of February 6, 2023, the County of San Mateo Health Officer and the Centers for Disease Control (CDC) continue to strongly recommend that all persons, regardless of vaccine status, continue to mask in indoor public settings; and WHEREAS, the Centers for Disease Control (CDC) has cautioned that some people and communities, such as our oldest citizens, people who are immunocompromised, and people with disabilities, are at higher risk for serious illness due to COVID-19 and should take additional precautions such as avoiding crowded indoor activities with poor ventilation; and
WHEREAS, on May 23, 2022; June 13, 2022; July 11, 2022; August 8, 2022; September 12, 2022; October 10, 2022; November 14, 2022; December 12, 2022; and January 9, 2023; the City Council of the City of Pacifica adopted Resolution Nos. 23-2022, 26-2022, 41-2022, 46-2022, 56-2022, 66-2022, 76-2022, 84-2022, and 02-2023, respectively, making findings as required by AB 361 to permit the City Council and City Committees and Commissions to conduct teleconferenced meetings to due to public health and safety concerns related to COVID-19; and
WHEREAS, the City cannot ensure that social distancing can be maintained by Councilmembers, Commissioners, Committee members and/or members of the public in Council Chambers or at other locations where City Committees and Commissions regularly meet for the duration of meetings in order to safeguard the most vulnerable populations, and COVID-19 variants when transmission rates pose an imminent and serious risk to public health.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Pacifica, California, as follows:
SECTION 1. The City Council hereby declares that the recitals set forth above are true and correct, and incorporated into this resolution as findings of the City Council.
SECTION 2. The City Council hereby declares that a state of emergency as a result of the threat of COVID-19 still exists and continues to impact the ability of members of the public, the City Council, Council appointed Commissions and Committees, City staff and consultants to meet safely in person and would present imminent risks to the health and safety of attendees.
SECTION 3. The State of California and the City of Pacifica continue to follow safety measures in response to COVID-19 as ordered or recommended by the Centers for Disease Control and Prevention (CDC), California Department of Public Health (DPH), and/or County of San Mateo, as applicable, including facial coverings when required. Based upon that guidance, in person attendance indoors at public meetings continues to present a health risk for certain segments of the population, necessitating teleconferencing to allow for meaningful public participation options for all Pacifica constituents.
SECTION 4. The City Council hereby declares that, pursuant to the findings listed in this Resolution, the City Council and Council appointed Commissions and Committees are authorized to utilize teleconferencing to conduct public meetings pursuant to AB 361 and Government Code § 54953, as amended thereby.
SECTION 5. The City Council determines that, every 30 days, it will reconsider the circumstances of the emergency and review whether it continues to directly impact the ability of the Council and appointed Committees and Commissions members to meet safely in person.
SECTION 6. Severability: If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Resolution is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have adopted this Resolution and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared unconstitutional.
SECTION 7. Effective Date: This Resolution shall become effective immediately upon adoption.
• • • • •
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the 13th day of February, 2023, by the following vote:
AYES, Councilmembers:
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NOES, Councilmembers:
ABSENT, Councilmembers:
ABSTAIN, Councilmembers:
_________________________________
Tygarjas Twyrls Bigstyck, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ _________________________________ Sarah Coffey, City Clerk Michelle Kenyon, City Attorney