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SR 10-11-2022 5B City Council Report City Council Meeting: October 11, 2022 Agenda Item: 5.B 1 of 5 To: Mayor and City Council From: Douglas Sloan, City Attorney, City Attorney's Office, Administration Subject: Adoption of a Resolution Making Findings Regarding AB361 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 November 10, 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 5.B Packet Pg. 77 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 required 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 43rd Supplement, remain in place and have not been lifted. 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- 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) the legislative body shall allow a 5.B Packet Pg. 78 3 of 5 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 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 continues to experience increases in COVID-19 cases and test positivity rates. As of September 20, 2022, LA County has confirmed 3,442,653 cases of COVID-19 within the County to date, with 1,520 new cases reported for September 20, 2022 alone, and has continued to advise that public health measures remain required to prevent the further spread of COVID-19. 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. 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 hospitalized, need intensive care, require a ventilator to help them breathe, or die). Accordingly, on March 22, April 12, May 10, May 24, June 14, July 12, July 26, August 23, 2022, and September 13, 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 November 10, 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 5.B Packet Pg. 79 4 of 5 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 October 24, 2022 (which is when the last adopted AB 361 resolution will expire) without compliance with the teleconferencing requirements set out in Section 54953(b)(3) that would otherwise apply. The procedures that were established 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 continue to 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 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 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 2022-23 budget. 5.B Packet Pg. 80 5 of 5 Prepared By: Douglas Sloan, City Attorney Approved Forwarded to Council Attachments: A. CM-reso-AB361 5.B Packet Pg. 81 1 City Council Meeting: October 11, 2022 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 emergency funding available to assist state and local governments in preventing the spread of and addressing the effects of COVID-19; and 5.B.a Packet Pg. 82 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference) 2 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, 2020 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, 2020, April 6, 2020, April 14, 2020, May 12, 2020, May 26, 2020, June 9, 2020, June 23, 2020, July 14, 2020, July 28, 2020, September 8, 2020, October 27, 2020, December 15, 2020, January 26, 2021, March 23, 2021 effective May 22, 2021, July 13, 2021, August 24, 2021, October 26, 2021, December 7, 2021, March 8, 2022 effective May 7, 2022, May 24, 2022, July 12, 2022, July 26, 2022, August 23, 2022, and September 13, 2022, 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; and 5.B.a Packet Pg. 83 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference) 3 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 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 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 5.B.a Packet Pg. 84 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference) 4 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 WHEREAS, on September 28, 2021, October 26, 2021, November 23, 2021, December 14, 2021, January 11, 2022, February 8, 2022, March 8, 2022, March 22, 2022, April 8, 2022, May 10, 2022, May 24, 2022, June 14, 2022, July 12, 2022, July 26, 2022, August 23, 2022, and September 13, 2022, the City Council adopted Resolutions, which made the findings required by AB 361 to allow the City Council and all City Boards, 5.B.a Packet Pg. 85 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference) 5 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 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 most recent Los Angeles County Department of Public Health Order of the Health Officer, issued April 21, 2022, which continues to recommend social distancing as one measure to reduce the spread of COVID-19, and to protect the most vulnerable among us in indoor public settings, 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: 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. 5.B.a Packet Pg. 86 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference) 6 SECTION 3. As a result of the findings in Sections 1 through 2 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 4. 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. SECTION 5. 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: ____________________________ Douglas Sloan, City Attorney 5.B.a Packet Pg. 87 Attachment: CM-reso-AB361 (5230 : AB361 Findings for Teleconference)