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HomeMy WebLinkAbout07 RESOLUTION MAKING FINDINGS FOR COMPLIANCE WITH AB 361 DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B AGENDA REPORT Agenda Item DS Reviewed: City Manager Finance Director N MEETING DATE: OCTOBER 5, 2021 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: MATTHEW S. WEST, CITY MANAGER SUBJECT: RESOLUTION MAKING FINDINGS REQUIRED FOR THE USE OF TELECONFERENCING IN COMPLIANCE WITH ASSEMBLY BILL 361 FOR MEETINGS OF THE TUSTIN CITY COUNCIL. SUMMARY: Consider adoption of Resolution 21-89 to make findings that would be required for the City Council, or individual members of the City Council, to use teleconferencing during Council meetings, as required by recently enacted Assembly Bill 361 . RECOMMENDATION: Adopt Resolution No. 21-89 Making Findings Required For the Use of Teleconferencing as Defined and In Compliance With Assembly Bill 361 For Meetings of the Tustin City Council. FINANCIAL IMPACT: None. The City plans to continue to stream and allow public access to the City Council meetings via Zoom, so the electronic systems necessary to comply with AB 361 will continue to operate whether or not one or more City Council members participate from remote locations. BACKGROUND AND DISCUSSION: Assembly Bill 361 was signed into law by the Governor on September 16, 2021 . A portion of AB 361 enacted amendments to California Government Code section 54953 regarding teleconference meetings. (The relevant amendments to section 54953 that are in effect today are attached hereto as Attachment 1). Those amendments authorize local agencies like the City to continue to conduct meetings by teleconference during a Governor-proclaimed state of emergencyl provided that certain 1 For purposes of AB 361 "...'state of emergency' means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act..." Cal. Gov't Code sec. 54953(e)(4). Section 8625 of CESA in turn refers to a state of emergency proclaimed by the Governor. DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 2 findings are made by the legislative body, and provided that certain procedural requirements are met regarding public access to the meetings. A "teleconference" will occur whenever one or more members of the City Council connect to a Council meeting via electronic means.2 Thus, even if four members of the Council meet in person, if the fifth joins the meeting via Zoom, the meeting will be a teleconference meeting that must be conducted in accordance with the requirements of AB 361 . A new requirement in AB 361 requires particular findings be made by the City Council, and requires that the new findings must be reaffirmed at least every thirty (30) days thereafter in order to continue to use teleconferencing. The Required Findings The teleconference provisions in AB 361 may only be utilized as long as a Governor- proclaimed state of emergency remains active, or while state or local officials have recommended measures to promote social distancing. When either of those is the case (both are true at this time), then in order to continue to teleconference using the new provisions of AB 361 , the City Council must make the following findings by majority vote every 30 days: (A) City Council has reconsidered the circumstances of the state of emergency; and (B) Either of the following circumstances exist: (i) The state of emergency continues to directly impact the ability of the members to meet safely in person; or (ii) State or local officials continue to impose or recommend measures to promote social distancing.3 To comply with that requirement, the proposed Resolution 21-89 (Attachment 2) would find each of the following: 1 . The City Council has reconsidered the circumstances of the state of emergency; and 2. At the time this Resolution is adopted, a state of emergency proclaimed by California's Governor due to the COVID-19 pandemic continues to exist; and 3. At the time that this Resolution is adopted, both the County of Orange and State health officials continue to recommend measures to promote social distancing to slow the spread of COVID-19. 2 "Teleconference means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both." Cal. Gov't Code sec. 54953(b)(4). 3 Cal. Gov't Code sec. 54953(e)(3). DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 3 The "Every 30 Days Thereafter" Requirement: As noted above, AB 361 findings must be made "not later than 30 days after teleconferencing for the first time pursuant to [AB 361], and every 30 days thereafter..." AB 361 was enacted on September 16, 2021 , and the City Council conducted a public hearing in connection with the district election process via teleconference the next day, on September 17, 2021 . Out of an abundance of caution, if the Council wishes to preserve the option for the Council or individual Council members to meet via teleconference in the future, the City Attorney recommends that the Council adopt the required findings on or before Sunday, October 17th to eliminate any doubt whether the Council has complied with the new requirement. In addition, the Council should be aware that, in order to preserve the option for the Council or individual members of the Council to participate in meetings via teleconference in the future, the Council will have to adopt the required findings at least every 30 days. From time to time this may require the Council to meet for a special meeting when the Council's regular meetings would otherwise be scheduled more than 30 days apart. These meetings may themselves be conducted via teleconference, provided the requirements of AB 361 have been previously addressed. Potential Consequence of Not Making the Findings Every 30 Days AB 361 does not expressly state what happens if a legislative body fails to make the required findings "every 30 days." However, it expressly requires the timely reapproval of the findings "in order to continue to teleconference" in the manner that AB 361 authorizes. As a result, if the Council does not adopt the required findings every 30 days, then the Council could be precluded from continuing to teleconference thereafter, perhaps even if the Council was later willing to adopt the findings at a later date. For this reason, the City Attorney recommends that the City Council adopt the findings at this time and at least every 30 days thereafter, unless the Council decides as a permanent matter that it will no longer permit teleconferencing at all. Procedural Requirements for The Conduct of Teleconference Meetings AB 361 contains several modest new requirements for the conduct of teleconference meetings with which the City Council has already been complying. Specifically, the City Council must: 1 . Allow members of the public to attend and comment at the meeting via call-in option or internet-based service option; 2. Protect the statutory and constitutional rights of the parties and the public appearing before the legislative body; 3. In the event of disruption which prevents broadcasting the meeting or which prevents members of the public from offering public comments via the call-in or DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 4 internet-based option, the Council must take no further action until the disrupted public access is restored; 4. The City may not require public comments to be submitted in advance, and must offer the opportunity for the public to offer comments "in real time" during the meeting; and 5. The public must be allowed "a reasonable amount of time per agenda item to allow members of the public to provide public comment, including time for members of the public to register [to log into the teleconference], or otherwise be recognized for the purpose of providing public comment." CONCLUSION: For the reasons summarized above, it is recommended that the City Council approve Resolution 21-89 (Attachment 2) ATTACHMENT: 1 . Excerpt of AB 361 —Amendments to Government Code section 54953 in effect now. 2. Proposed Resolution 21-89 DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 5 ATTACHMENT 1 Excerpts of AB 361 —Amendments to Government Code section 54953 54953. (a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. (b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding. (2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall. (3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e). The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location. (4) For the purposes of this section, "teleconference" means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations. (c) (1) No legislative body shall take action by secret ballot, whether preliminary or final. (2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action. (3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules, or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1, during the open meeting in which the final action is to be taken. This paragraph shall not affect the public's right under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) to inspect or copy records created or received in the process of developing the recommendation. DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 6 (d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number, and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting. (2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section. (3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38, and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code, and any advisory committee to a county-sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members. (e) (1) A local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances: (A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing. (B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. (2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following: (A) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter. (B) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 7 for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (C) The legislative body shall conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body of a local agency. (D) In the event of a disruption which prevents the public agency from broadcasting the meeting to members of the public using the call-in option or internet-based service option, or in the event of a disruption within the local agency's control which prevents members of the public from offering public comments using the call-in option or internet-based service option, the body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call-in option or internet-based service option is restored. Actions taken on agenda items during a disruption which prevents the public agency from broadcasting the meeting may be challenged pursuant to Section 54960.1. (E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. This subparagraph shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. (G) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed. (ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, 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 register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment. (iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed. (3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION MAKING FINDINGS FOR TELECONFERENCE MEETINGS October 5, 2021 Page 8 body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote: (A) The legislative body has reconsidered the circumstances of the state of emergency. (B) Any of the following circumstances exist: (i) The state of emergency continues to directly impact the ability of the members to meet safely in person. (ii) State or local officials continue to impose or recommend measures to promote social distancing. (4) For the purposes of this subdivision, "state of emergency" means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2). (f) This section shall remain in effect only until January 1, 2024, and as of that date is repealed. DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B RESOLUTION NO. 21-89 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, MAKING FINDINGS REQUIRED FOR THE USE OF TELECONFERENCING AS DEFINED AND IN COMPLIANCE WITH ASSEMBLY BILL 361 FOR MEETINGS OF THE TUSTIN CITY COUNCIL. WHEREAS, existing California law, the Ralph M. Brown Act("Brown Act") requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public, that a physical location for such meetings be provided, and that the public be permitted to provide public comment during the meetings; and WHEREAS, on March 4, 2020, California Governor Newsom declared a State of Emergency in response to the COVID-19 pandemic; and WHEREAS, on March 12, 2020, to address the impacts of COVID-19, Governor Newsom issued Executive Orders that required, among other things, residents of California to follow orders and guidance of local public health officials, including social distancing and masking requirements; and WHEREAS, Governor Newsom's Executive Orders suspended certain teleconferencing provisions of the Brown Act as they applied to members of a legislative body to provide local agencies with greater flexibility to hold meetings via teleconferencing in recognition that such public gatherings could accelerate the spread of COVID-19; and WHEREAS, pursuant to the Emergency Services Act (Government Code sections 8550 et seq.), and Chapter 2 of Article 5 of the Tustin City Code, the City Council of the proclaimed the continued existence of a local emergency resulting from the COVID-19 pandemic; and WHEREAS, as of September 30, 2021 , the Governor's Executive Order suspending the Brown Act's teleconferencing requirements expired; and WHEREAS, on September 16, 2021 , Governor Newsom signed Assembly Bill 361, which authorizes a local agency to use teleconferencing without complying with certain teleconferencing requirements imposed by the Brown Act when: (1) the legislative body of a local agency holds a meeting during a declared state of emergency; (2) when state or local health officials have imposed or recommended measures to promote social distancing; and/or (3) when a local agency has determined that meeting in person would present imminent risks to the health or safety of attendees; and WHEREAS, both Orange County and state health officials continue to recommend social distancing due to recent increases in COVID-19 cases including those caused by the so-called Delta Variant; and 1625386.1 DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B Resolution No. 2021-89 WHEREAS, the Tustin City Council must approve a Resolution reaffirming that the requirements set forth in Assembly Bill 361 exist at least every 30 days in order to allow members of the City Council to utilize the provisions of Assembly Bill 361 when attending public meetings via teleconferencing; and WHEREAS, notwithstanding that the City's legislative bodies, as defined by the Brown Act, may hold some of their public meetings in person, there may be situations in which a member of one of these legislative bodies decides not to attend in person due to a particular health or safety risk posed by such attendance and as such, it is the City Council's desire to permit members of its legislative bodies to attend by way of teleconference due to health and safety concerns associated with COVID-19. NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Tustin as follows: 1 . The City Council has reconsidered the circumstances of the state of emergency. 2. At the time this Resolution is adopted, a state of emergency proclaimed by California's Governor due to the COVID-19 pandemic continues to exist. 3. At the time that this Resolution is adopted, both the County of Orange and State health officials continue to recommend measures to promote social distancing to slow the spread of COVID-19. 4. Members of the City Council may participate in meetings subject to the Brown Act by way of teleconference until such teleconferences are no longer permitted in accordance with AB 361 , and provided the City and the City Council comply with the requirements of AB 361 . 5. That if a member of the City Council or another legislative body of the City of Tustin teleconferences into a meeting subject to the Brown Act, the meeting shall be held in accordance with the requirements of Government Code section 54953(e) as modified by AB 361 by, among other things, providing notice to the public how it can access the meeting and provide public comment, providing an opportunity for the public to attend via a call-in or an internet-based service option, conducting the meeting in a manner which protects the statutory and constitutional rights of the public, and stopping the meeting until public access is restored in the event of a service disruption. 6. The requirements of Government Code section 54953(e) as modified by AB 361 shall only apply to a meeting that is otherwise subject to the Brown Act and shall only apply in the event that a member of the City Council or a legislative body of the City of Tustin desires to attend that meeting by way of teleconference. DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B Resolution No. 2021-89 IT IS FURTHER RESOLVED that this Resolution is effective immediately upon its adoption date but the findings required by Government Code section 54953(e)(3) must be made at least every 30 days in order for the provisions of Assembly Bill 361 to continue to apply to teleconferencing by members the City Council. Future findings may be made with or without a Resolution of the Council. IT IS FURTHER RESOLVED that the legislative bodies of the City of Tustin are authorized to consider and reconsider the circumstances of the state of emergency and whether to adopt the findings required by Government Code section 54953(e)(3). IT IS FURTHER RESOLVED that this Resolution shall expire and be of no further force or effect upon the expiration or revocation of the requirements of Government Code section 54953(e). PASSED, APPROVED AND ADOPTED this 5t" day of October, 2021 . LETITIA CLARK, Mayor ATTEST: ERICA N. YASUDA, City Clerk DocuSign Envelope ID:454E6C71-B770-49D5-9377-069E6227353B Resolution No. 2021-89 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council is five; that the above and foregoing Resolution No. 21-89 was duly and regularly passed and adopted at a regular meeting of the City Council held on the 5t" day of October, 2021 by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: ERICA N. YASUDA, City Clerk