SR 09-13-2022 5I
City Council
Report
City Council Meeting: September 13, 2022
Agenda Item: 5.I
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To: Mayor and City Council
From: Douglas Sloan, City Attorney, City Attorney's Office, Administration
Subject: 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 October 24, 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
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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. 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-
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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
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 continues to experience increases in COVID-19 cases and test
positivity rates. As of August 25, 2022, LA County has confirmed 3,390,012 cases
of COVID-19 within the County, with 3,860 new cases reported for August 24,
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,
and August 23, 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 October 24, 2022.
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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 September 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.
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Prepared By: Douglas Sloan, City Attorney
Approved
Forwarded to Council
Attachments:
A. RESO-AB361 Findings
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City Council Meeting: September 13, 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
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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, and August 23, 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
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Packet Pg. 324 Attachment: RESO-AB361 Findings (5340 : AB361 Teleconference Findings)
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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
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Packet Pg. 325 Attachment: RESO-AB361 Findings (5340 : AB361 Teleconference Findings)
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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,
and August 23, 2022, the City Council adopted Resolutions, which made the findings
required by AB 361 to allow the City Council and all City Boards, Commissions, and Task
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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.
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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
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