SR 03-22-2022 3E
City Council
Report
City Council Meeting: March 22, 2022
Agenda Item: 3.E
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To: Mayor and City Council
From: Joseph Lawrence, Interim City Attorney, City Attorney's Office, Administration
Subject: Adoption of Resolution for AB 361 Findings Regarding Teleconference
Meetings
Recommended Action
Staff recommends that the City 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 April 22, 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) (citations are to the Government Code). 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, as supplemented and modified through the 42nd Supplement,
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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 March 3, 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.
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 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
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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.
The Health Officer Order recognizes that after the post-winter surge, Los Angeles
County continues to experience consistent declines in COVID-19 cases, test positivity
rates and related hospitalizations. Accordingly, the HOO refocuses the public health
response to COVID-19 in Los Angeles County, among other things, to protect the most
vulnerable among us and masks remain strongly recommended, regardless of
vaccination status, in indoor public settings. Members of many Boards and
Commissions have 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 certain
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).
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 initially invoke AB 361. Doing so will allow City Council and City
Board, Commission, and Task Force meetings to continue to occur by teleconference
after the March 22, 2022, City Council meeting through April 22, 2022, without
compliance with the teleconferencing requirements set out in Section 54953(b)(3) that
would otherwise apply. However, because the second City Council meeting in April
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2022 will be on April 26, 2022, an additional resolution will be required to be adopted at
the Council meeting on April 12, 2022 to ensure compliance with the 30-day findings
requirement for Board and Commission meetings to be held after April 22.
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 work with City Boards, Commissions, and
Task Forces to ensure that their meeting procedures for all meetings conducted after
March 22, 2022, similarly comply with the requirements of AB 361.
In addition, while the attached AB 361 Resolution authorizes all Boards and
Commissions to continue to meet remotely, as the Council recently decided for itself, a
Board or Commission can affirmatively decide to meet in person. In other words, for all
Boards and Commissions, the default will be remote meetings. However, each Board
and Commission can decide for itself if it prefers 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 2021-22 budget.
Prepared By: Joseph Lawrence, Interim City Attorney
Approved
Forwarded to Council
Attachments:
A. RESO-reso-RESO-AB361 Findings for 2022.03.22
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City Council Meeting: March 22, 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
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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, August 24, 2021, October 26, 2021, December 7, 2021,
and March 8, 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-reso-RESO-AB361 Findings for 2022.03.22 (5044 : AB 361 Findings Re: Teleconference)
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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
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
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
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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
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
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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 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, October 26, 2021, November 23, 2021,
December 14, 2021, January 11, 2022, February 8, 2022, and March 8, 2022, the City
Council adopted Resolution Numbers 11362, 11378, 11384, 11390, 11393, 11399, and
11404 respectively, 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
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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 March 3, 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.
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.
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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.
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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Packet Pg. 329 Attachment: RESO-reso-RESO-AB361 Findings for 2022.03.22 (5044 : AB 361 Findings Re: Teleconference)