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SR 10-26-2021 3B City Council Report City Council Meeting: October 26, 2021 Agenda Item: 3.B 1 of 4 To: Mayor and City Council From: Joseph Lawrence, Interim City Attorney, City Attorney's Office, Municipal Law Subject: Adoption of a Resolution Regarding AB 361 Findings to Continue 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 after October 30, 2021. Discussion A series of executive orders, the most recent of which expired on September 30, 2021 (Executive Order N-08-21, issued June 11, 2021), waived all physical presence requirements under the Brown Act as a means of limiting the spread of COVID-19. In September 2021, Governor Gavin Newsom signed into law AB 361, which extends the authority of public agencies to conduct meetings by teleconference, including video conference, without compliance with all of the Brown Act’s limitations on such meetings, while the state of emergency resulting from the COVID-19 pandemic and accompanying recommendations for social distancing remain in place. Initial reliance on AB 361 requires 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). Both these conditions 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, remain in place and have not been lifted. And, 3.B Packet Pg. 474 2 of 4 the Los Angeles County Department of Public Health continues to recommend social distancing as one measure to reduce the spread of COVID-19. 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 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 Government Code Section 54953(e)(3). 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- 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 3.B Packet Pg. 475 3 of 4 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 Government Code Section 54953(e)(2). 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 continuing to make the findings required under AB 361. Doing so will allow City Council and City Board, Commission, and Task Force meetings to continue to occur by teleconference, without compliance with the teleconferencing requirements set out in Government Code Section 54953(b)(3) that would otherwise apply. The procedures currently set up for City Council meetings, which provide for public attendance and comment through a call-in or internet-based service option, satisfy the requirements of AB 361. The City Clerk will continue working with City Boards, Commissions, and Task Forces to ensure that their meeting procedures for all meetings conducted after October 30, 2021 similarly comply with the requirements of AB 361. Continued reliance on AB 361 will require the Council to adopt a new resolution making required findings every 30 days. Fiscal Impacts Budget for conduct of Council and City Board, Commission, and Task Force meetings is included in the FY 2021-22 budget. 3.B Packet Pg. 476 4 of 4 Prepared By: Bradley Michaud, Legal Operations Coordinator Approved Forwarded to Council Attachments: A. RES-Res-AB361Findings-2021026 B. Written Comments 3.B Packet Pg. 477 1 City Council Meeting: October 26, 2021 Santa Monica, California RESOLUTION NUMBER _________ (CCS) (City Council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA MAKING FINDINGS AS REQUIRED BY AB 361 TO PERMIT COUNCIL AND CITY BOARD, COMMISSION, AND TASK FORCE MEETINGS TO CONTINUE TO BE CONDUCTED BY TELECONFERENCE WHILE THE COVID-19 EMERGENCY REMAINS IN PLACE WHEREAS international, national, state, and local health and governmental authorities are responding to an outbreak of respiratory disease caused by a novel coronavirus named “SARS-CoV-2,” and the disease it causes has been named “coronavirus disease 2019,” abbreviated COVID-19, (“COVID-19”); and WHEREAS, on March 4, 2020, the Governor of the State of California 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 4, 2020, the Los Angeles County Board of Supervisors and Department of Public Health declared a local emergency and local public health emergency to aid the regional healthcare and governmental community in responding to COVID-19; and WHEREAS, on March 13, 2020, the President of the United States of America declared a national emergency and announced that the federal government would make 3.B.a Packet Pg. 478 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 2 emergency funding available to assist state and local governments in preventing the spread of and addressing the effects of COVID-19; and WHEREAS, on March 13, 2020, the City Manager, in his role as the Director of Emergency Services, (“Director of Emergency Services”) issued an Executive Order of the Director of Emergency Services of the City of Santa Monica Declaring the Existence of a Local Emergency (“Executive Order”) declaring a local emergency pursuant to Chapter 2.16 of the Santa Monica Municipal Code to ensure the availability of mutual aid and an effective response to COVID-19 and this local emergency was restated on March 14, 2020, through a revised declaration of local emergency to ensure compliance with all digital signature requirements (“Revised Executive Order”); and WHEREAS, the Governor’s March 4, 2021 declaration of a state of emergency based on the COVID-19 pandemic remains in place; and WHEREAS, the Proclamation of Existence of a Local Emergency issued by the Director of Emergency Services on March 13, 2020, has been ratified by the City Council on March 19, April 6, April 14, May 12, May 26, June 9, June 23, July 14, July 28, September 8, October 27, 2020, and December 15, 2020, and January 26, March 23, effective May 22, July 13, and August 24, 2021, with the result that the proclamation of a local emergency based on the COVID-19 pandemic remains in place; and WHEREAS, throughout the emergency resulting from the COVID-19 pandemic, the Los Angeles County Department of Public Health (“LACDPH”) has issued a series of Health Officer Orders containing mandates and recommendations for keeping safe and preventing the spread of COVID-19; the most recent Health Officer Order, issued September 17, 2021, states that all individuals and business are strongly urged to follow 3.B.a Packet Pg. 479 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 3 the LACDPH Best Practice Guidance, containing health and safety recommendations for COVID-19; the LACDPH Best Practice Guidance for individuals titled “COVID-19: Reducing Risk, Keeping Safe & Preventing Spread,” in a section titled “How to Reduce the Risk of COVID-19,” states “Keep your distance. Use two arms lengths as your guide (about 6 feet) for social distancing with people outside your household when you are not sure they are fully vaccinated”; and the LACDPH Best Practices to Prevent COVID-19, Guidance for Businesses and Employers, in a section titled “Maintain healthy business operations,” recommends implementation of policies and practices that support physical distancing, stating, “Whenever possible, take steps to reduce crowding indoors and enable employees and customers to physically distance from each other. Generally, at least 6 feet of distance (2 arm lengths) is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.”; and WHEREAS, the Ralph M. Brown Act, Government Code Sections 54950-54963, allows for meetings of legislative bodies of a local agency, as those terms are defined in the Brown Act, to occur via teleconferencing subject to certain requirements, particularly that the legislative body notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, and that members of the public be allowed to address the legislative body at each teleconference location, see Government Code Section 54953(b)(3); and WEHREAS, Paragraph 3 of Executive Order N-29-20, issued by the Governor on March 17, 2020, among other things, suspended the Brown Act requirements for teleconferencing, provided that notice and accessibility requirements were met, the 3.B.a Packet Pg. 480 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 4 public was allowed to observe and address the legislative body at the meeting, and the legislative body had a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, specifying that this suspension would remain in place during the period in which state or local public health officials have imposed or recommended social distancing measures; and WHEREAS, paragraph 42 of Executive Order N-08-21, issued by the Governor on June 11, 2021, withdrew and replaced paragraph 3 of Executive Order N-29-20’s suspension of the Brown Act requirements for teleconferencing with a similar suspension of those requirements that it specified would remain in place only through September 30, 2021; and WHEREAS, on September 16, 2021, the Governor signed into law Assembly Bill No. 361 (“AB 361”), which, until January 1, 2024, authorizes a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing or when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees; and WHEREAS, AB 361 requires legislative bodies that hold teleconferenced meetings under its abbreviated teleconferencing procedures to give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an 3.B.a Packet Pg. 481 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 5 opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body; and WHEREAS, AB 361 requires the legislative body to 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; and WHEREAS, AB 361 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 the public to address the legislative body and offer comment in real time; and WHEREAS, AB 361 prohibits the legislative body from closing the public comment period and the opportunity to register to provide public comment, until the public comment period has elapsed or until a reasonable amount of time has elapsed, as specified; and WHEREAS, when there is a continuing state of emergency, or when state or local officials have imposed or recommended measures to promote social distancing, AB 361 requires a legislative body to make specified findings not later than 30 days after the first teleconferenced meeting pursuant to these provisions, and to make those findings every 30 days thereafter, in order to continue to meet under AB 361’s abbreviated teleconferencing procedures; and 3.B.a Packet Pg. 482 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 6 WHEREAS, on September 20, 2021, to avoid potential conflict between AB 361 and Executive Order N-08-21, the Governor signed Executive Order N-15-21, which specifies that Executive Order N-08-21 continues to govern meetings of local legislative bodies through September 30, 2021; and WHEREAS, on September 28, 2021, the City Council adopted Resolution Number 11362, which made the findings required by AB 361 to allow the City Council and all City Boards, Commissions, and Task Forces to continue to meet under AB 361’s abbreviated teleconferencing procedures, and authorized the City Council and all City Boards, Commissions, and Task Forces are authorized to conduct meetings under AB 361’s abbreviated teleconferencing procedures, without complying with the requirements set forth in Government Code Section 54953(b)(3), subject to compliance with the requirements set forth in Government Code Section 54953(e)(2); and WHEREAS, in light of the continuing State and local declarations of emergency resulting from the COVID-19 pandemic, the continuing recommendation by Los Angeles County public health officials of measures to promote social distancing, and the imminent risks to the health of safety of attendees at meetings conducted in person, the City Council desires to again make the findings required by AB 361 to allow the City Council and all City Boards, Commissions, and Task Forces to continue to meet under AB 361’s abbreviated teleconferencing procedures. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES RESOLVE AS FOLLOWS: 3.B.a Packet Pg. 483 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 7 SECTION 1. The City Council finds that the State and local declarations of emergency resulting from the COVID-19 pandemic remain in place, and that the state of emergency continues to directly impact the ability to meet safely in person. SECTION 2. The City Council finds that local officials, namely, the Los Angeles County Department of Public Health, has continued to recommend measures to promote social distancing. SECTION 3. The City Council finds that, as a result of the emergency resulting from the COVID-19 pandemic, in-person meetings of the City Council, or City Boards, Commissions, or Task Forces, would present imminent risks to the health and safety of attendees, including in particular, members of the public attending such meetings. SECTION 4. As a result of the findings in Sections 1 through 3 above, the City Council and all City Boards, Commissions, and Task Forces are authorized to conduct meetings under AB 361’s abbreviated teleconferencing procedures, without complying with the requirements set forth in Government Code Section 54953(b)(3), subject to compliance with the requirements set forth in Government Code Section 54953(e)(2). SECTION 5. If any section, subsection, sentence, clause, or phrase of this Resolution is for any reason held to be invalid or unconstitutional by a 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 passed this Resolution and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Resolution would be subsequently declared invalid or unconstitutional. 3.B.a Packet Pg. 484 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 8 SECTION 6. The City Clerk shall certify to the adoption of this Resolution, and thenceforth and thereafter the same shall be in full force and effect. APPROVED AS TO FORM: _________________________ JOSEPH LAWRENCE Interim City Attorney 3.B.a Packet Pg. 485 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings) 1 Vernice Hankins From:Ruthann Lehrer <ruthannpreserves@yahoo.com> Sent:Saturday, October 23, 2021 1:21 PM To:Sue Himmelrich; Kristin McCowan; Christine Parra; Gleam Davis; Lana Negrete; Phil Brock; Oscar de la Torre; councilmtgitems Cc:David White; Christopher J. Smith; David Martin; Joseph Lawrence Subject:Item 3B on Council Agenda EXTERNAL  October 23, 2021  Item 3B on October 28th Agenda  Honorable Mayor Himmelrich and Councilmembers,  The Santa Monica Conservancy is writing in support of the staff report and would like to clarify that the notice  and participation requirements under AB361 will apply to Landmarks Commission meetings; currently they do  not. Public participation in Landmarks Commission meetings has been severely curtailed since virtual meetings  started a year‐and‐a‐half ago, and deviate from the protocols described in the staff report.  Allowing  Landmarks Commission meetings to include the public participation protocols in the staff report would be a  huge improvement over current practice.  During the entire time that meetings have been virtual, public participation in the Landmarks Commission  meetings has been restricted to written communications only.  Comment letters submitted before noon on  the day of the meeting are included in the public record; If a written communication is submitted after noon  on the day of the meeting, clerical staff will read the comments into the record. The public is not allowed to  speak at these meetings (although property owners and applicants are given this right). Because the person  submitting written comments is not provided access to the meeting, there is no opportunity for  Commissioners to ask questions or engage in discussion with the speaker. Typically written comments are not  even acknowledged.  Specifically, current public participation in Landmarks Commission meetings does not conform with this  stipulation on page 2 in the staff report:  (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; The Landmarks Commission is a quasi‐judicial body, and the existing restrictions on public participation are not  acceptable. When we have spoken to staff about this, we’re told that this is a budgetary decision.  That is why we are calling upon you to ensure that the Landmarks Commission is included in the public  participation procedures as described in the staff report, with direct access via either a call‐in option or an  internet‐based service option. Such public access to decision‐making bodies is fundamental to due process in  our democracy.  Thank you for your attention to this important matter.  Item 3.B 10/26/21 1 of 2 Item 3.B 10/26/21 3.B.b Packet Pg. 486 Attachment: Written Comments (4795 : AB 361 Findings Regarding Teleconference Meetings) 2 Sincerely,  Tom Cleys  President, Santa Monica Conservancy     Item 3.B 10/26/21 2 of 2 Item 3.B 10/26/21 3.B.b Packet Pg. 487 Attachment: Written Comments (4795 : AB 361 Findings Regarding Teleconference Meetings)