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HomeMy WebLinkAbout04 FINDINGS REQUIRED BY AB 361 FOR THE CONTINUED USE OF TELECONFERENCINGDocuSign Envelope ID: B106E509-9343-4E5A-A150-F8B52233E41C AGENDA REPORT GsT MEETING DATE TO FROM DECEMBER 6, 2022 CITY COUNCIL CITY ATTORNEY Agenda Item 4 DS Reviewed: City Manager Finance Director SUBJECT: FINDINGS REQUIRED BY AB 361 FOR THE CONTINUED USE OF TELECONFERENCING FOR MEETINGS. SUMMARY: In order for the Council to continue to have the option to meet via teleconference during the pandemic, AB 361 requires the Council to make specified findings at least every thirty (30) days. RECOMMENDATION: Make the following findings by majority vote of the Council: a. A state of emergency has been proclaimed by California's Governor due to the COVID-19 pandemic and continues in effect; and b. The Council has reconsidered the circumstances of the state of emergency; and c. Local health officials continue to recommend measures to promote social distancing. FINANCIAL IMPACT: None. The City is prepared to allow the public to watch and comment in real time on the public meetings via Zoom in order to comply with AB 361 in the event the Council makes findings to enable one or more Council members to continue to participate via teleconference. BACKGROUND 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. DocuSign Envelope ID: B106E509-9343-4E5A-A150-F8B52233E41C FINDINGS REQUIRED BY AB 361 FOR CONTINUED USE OF TELECONFERENCING December 6, 2022 Page 2 Those amendments authorize local agencies like the City to continue to conduct meetings by teleconference' during a Governor -proclaimed state of emergency2 provided that certain findings are made by the legislative body, and provided that certain procedural requirements are met regarding public access to the meetings. A new requirement in AB 361 requires specific findings be reaffirmed at least every thirty (30) days in order for the Council to continue to have the option for one or more of its members 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 Council must make the following findings by majority vote at least every 30 days: (A) The 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 recommended action would have the Council find each of the following: a. A state of emergency has been proclaimed by California's Governor due to the COVID-19 pandemic and continues in effect; and b. The Council has reconsidered the circumstances of the emergency; and c. State and local officials continue to recommend measures to promote social distancing. 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..." 1 A "teleconference" occurs for purposes of AB 361 whenever one or more members of the Council connect to a Council meeting via electronic means.' 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. 2 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. 3 Cal. Gov't Code sec. 54953(e)(3). DocuSign Envelope ID: B106E509-9343-4E5A-A150-F8B52233E41C FINDINGS REQUIRED BY AB 361 FOR CONTINUED USE OF TELECONFERENCING December 6, 2022 Page 3 In order to preserve the option for the Council or individual members of the Council to participate in meetings during the pandemic via teleconference in the future, the Council would need to adopt the required findings at least every 30 days. 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 Council adopt the required 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 (e.g., regardless of whether the state of emergency worsens). Procedural Requirements for The Conduct of Teleconference Meetings AB 361 contains several new requirements for the conduct of teleconference meetings with which City has prepared to comply. Specifically, each meeting 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 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."