City Council
Report
City Council Meeting: June 14, 2022
Agenda Item: 3.K
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To: Mayor and City Council
From: Douglas Sloan, City Attorney, City Attorney's Office, Administration Subject: Adoption of Resolution for AB 361 Findings Regarding Teleconference Meetings
Recommended Action
Staff recommends that Council adopt a resolution making the findings required by AB 361 to continue teleconference meetings of the City Council and City Boards, Commissions, and Task Forces through July 14, 2022.
Discussion
AB 361 authorizes public agencies to conduct meetings by teleconference, including video conference, without compliance with all of the Brown Act’s limitations on such meetings, while a state of emergency resulting from the COVID-19 pandemic remains active and state or local officials have imposed or recommended measures to promote social distancing.
Initial reliance on AB 361 required the following: (1) there must be a proclaimed state of emergency; and (2) one of the following circumstances exist – (a) state or local officials have imposed or recommended measures to promote social distancing; or (b) the legislative body has determined by majority vote that, as a result of the emergency, meeting in person would present imminent risk to the health or safety of attendees. See Government Code Section 54953(e)(1) (all citations herein are to the Government Code). Once the initial invocation of AB 361 is made, continued reliance on AB 361 for subsequent meetings requires the following: (1) either the proclaimed state of emergency remains active or state or local officials have imposed or recommended measures to promote social 2 of 5
distancing; and (2) not later than 30 days after teleconferencing for the first time under the AB 361 rules, and every 30 days thereafter, the legislative body, by majority vote, finds that it has reconsidered the circumstances of the emergency and at least one of the following circumstances exists – (a) the state of emergency continues to directly impact the ability of the members to meet safely in person or (b) state or local officials continue to impose or recommend measures to promote social distancing. See Section 54953(e)(3). Both of the conditions to continue to rely on AB 361 are presently satisfied. The Governor’s State of Emergency Declaration, issued on March 4, 2020, and the City’s declaration of a local emergency issued March 13, 2020, as supplemented and modified through the 42nd Supplement, remain in place and have not been lifted. And, the most recent Los Angeles County Department of Public Health Order of the Health Officer, issued April 21, 2022, (“Health Officer Order” or “HOO”), continues to recommend social distancing as one measure to reduce the spread of COVID-19.
The Requirements of AB 361.
If a public agency invokes AB 361, the notice and participation requirements for teleconferenced meetings are as follows: (1) each notice of the meeting and agenda must identify the means by which members of the public may access the meeting and offer public comment by either a call-in option or an internet-based service option; (2) teleconferenced meetings must be conducted in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body; (3) public comments cannot be required to be submitted in advance of the meeting (though this may remain an option); (4) the public must be able to attend the meeting via call-in option or internet-based service option; (5) the public must have an opportunity to address the legislative body directly and offer comment in real time via call-in option or internet-based service option; (6) if there is a disruption that prevents the public agency from broadcasting the meeting using the call-in option or internet-based service option, or if there is a disruption within the public agency’s control that prevents members of the public from offering public comments using the call-in option or internet- 3 of 5
based service option, the legislative body shall take no further action on items appearing on the agenda until public access to the meeting via the call-in option or internet-based service option is restored; and (7) where, as in Santa Monica, the legislative body does not provide a timed public comment period but takes public comment separately on each agenda item, it shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to be recognized for the purpose of providing public comment. See Section 54953(e)(2).
The Current Findings Post-Winter Surge.
While not experiencing the high case levels and positivity rates as seen during the height of the winter surge, the most recent Health Officer Order indicates that Los Angeles County is currently experiencing increases in COVID-19 cases and test positivity rates and that related hospitalizations are no longer in decline, which may be attributed to the more transmissible BA.2 subvariant spreading in LA County. Indeed, the testing positivity rate in LA County has been increasing in May 2022, and, as of June 3, 2022, LA County reported 5,051 new positive cases.
The HOO continues to focus the public health response to COVID-19 in Los Angeles County, among other things, to protect the most vulnerable among us and strongly recommends masks, regardless of vaccination status, in indoor public settings. In particular, the HOO explains that “[m]asks are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings.” A recent LA County Department of Public Health press release further explains that “masking is an essential safety measure that residents can use to help protect themselves and others in all indoor settings” while the highly transmissible Omicron subvariant continues to spread in LA County.
Members of Boards and Commissions previously voiced concern about being required to return to in-person meetings given that, as validated by the Health Officer Order, many people, including those with identified underlying medical conditions, unvaccinated older adults, people from ethnic and racial minority groups, remain at risk for severe illness from COVID-19 (more likely to be 4 of 5
hospitalized, need intensive care, require a ventilator to help them breathe, or die).
Accordingly, on March 22, April 12, May 10, and May 24, 2022, the City Council adopted findings under AB 361 to allow Boards and Commissions to elect to continue meeting remotely. The findings proposed by the attached resolution will allow Boards and Commissions to continue to elect to meet remotely through July 14, 2022.
In light of AB 361, the continuing COVID-19 emergency, the continuing recommendations by the Los Angeles County Department of Public Health of social distancing as one mechanism for preventing the spread of COVID-19, and the continued threats to health and safety posed by indoor public meetings with large attendance, staff recommends that Council adopt the proposed resolution making the findings required to continue to invoke AB 361. Doing so will allow City Council and City Board, Commission, and Task Force meetings to continue to occur by teleconference after June 23, 2022 (which is when the AB 361 resolution adopted on May 24, 2022 will expire) without compliance with the teleconferencing requirements set out in Section 54953(b)(3) that would otherwise apply. An additional resolution will be required to be adopted at the Council meeting on July 12, 2022 to ensure continued compliance with the 30-day findings requirement for Board and Commission meetings to be held after July 14, 2022.
The procedures that were set up for City Council meetings when it held meetings remotely, providing for public attendance and comment through a call-in or internet-based service option, satisfy the requirements of AB 361. The City Clerk will work with City Boards, Commissions, and Task Forces to ensure that their meeting procedures for all meetings conducted after June 14, 2022 similarly comply with the requirements of AB 361.
As indicated above, although the attached AB 361 Resolution authorizes all Boards and Commissions to continue to meet remotely, a Board or Commission can affirmatively decide to meet in person, just as the City Council recently decided for itself. In other words, for Boards and Commissions, the default will be remote meetings unless and until any decision to meet in person. As indicated 5 of 5
above, the Council will need to make AB 361 findings anew every 30 days to permit this option to continue.
Fiscal Impacts
Budget for conduct of Council and City Board, Commission, and Task Force meetings is included in the FY 2021-22 budget.
Prepared By: Douglas Sloan, City Attorney
Approved Forwarded to Council
Attachments:
A. RESO-reso-AB361 Findings