SR 10-26-2021 3B
City Council Report
City Council Meeting: October 26, 2021
Agenda Item: 3.B
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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,
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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
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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.
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Prepared By: Bradley Michaud, Legal Operations Coordinator
Approved
Forwarded to Council
Attachments:
A. RES-Res-AB361Findings-2021026
B. Written Comments
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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
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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
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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
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Packet Pg. 480 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings)
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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
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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
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Packet Pg. 482 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings)
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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:
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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.
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Packet Pg. 484 Attachment: RES-Res-AB361Findings-2021026 (4795 : AB 361 Findings Regarding Teleconference Meetings)
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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
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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
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Sincerely,
Tom Cleys
President, Santa Monica Conservancy
Item 3.B 10/26/21
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Packet Pg. 487 Attachment: Written Comments (4795 : AB 361 Findings Regarding Teleconference Meetings)