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HomeMy WebLinkAbout01 PC AGENDA REPORT AB 361 • AGENDA REPORT ITEM 41 MEETING DATE: FEBRUARY 16, 2023 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: FINDINGS REQUIRED BY AB 361 FOR THE CONTINUED USE OF TELECONFERENCING FOR MEETINGS SUMMARY: In order for the Planning Commission to continue to have the option to meet via teleconference during the pandemic, AB 361 requires the Planning Commission to make specific findings at least every thirty (30) days. RECOMMENDATION: Make the following findings by a majority vote of the Planning Commission: a. A state of emergency has been proclaimed by California's Governor due to the COVID-19 pandemic, and continues to be in effect; b. The Planning Commission has reconsidered the circumstances of the state of emergency; and c. Local health officials continue to recommend measures to promote social distancing. BACKGROUND AND DISCUSSION: Assembly Bill 361 (AB 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. 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. 1 A"teleconference" occurs for purposes of AB 361 whenever one or more members of the Commission connect to a Commission meeting via electronic means.Thus, even if four members of the Commission 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. z 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 8265 of CESA in turn refers to a state of emergency proclaimed by the Governor. Findings Required by AB 361 for Continued Use of Teleconferencing February 16, 2023 Page 2 A new requirement in AB 361 requires specific findings be reaffirmed at least every thirty (30) days in order for the Planning Commission to continue to have the option for one (1) 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 Planning Commission must make the following findings by majority vote every thirty (30) days: (A) The Planning Commission 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 distancing3. To comply with that requirement, the recommended action would have the Planning Commission 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 to be in effect; b. The Planning Commission has reconsidered the circumstances of the state of emergency; and c. State and local officials continue to recommend measures to promote social distancing. The "Every 30 Days Thereafter" Requirement: A "teleconference" occurs for purposes of AB 361 whenever one or more members of the Commission connect to a Commission meeting via electronic means.' Thus, even if four members of the Commission 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. z 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). 3 Cal Gov't Code Sec. 54953(e)(3) Findings Required by AB 361 for Continued Use of Teleconferencing February 16, 2023 Page 3 As noted above, AB 361 findings must be made "no later than 30 days after teleconferencing for the first time pursuant to [AB 361], and every 30 days thereafter..." In order to preserve the option for the Planning Commission or individual members of the Planning Commission to participate in meetings during the pandemic via teleconference in the future, the Planning Commission would need to adopt the required findings at least every thirty (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, AB 361 expressly requires the timely re-approval of the findings "in order to continue to teleconference" in the manner that AB 361 authorizes. As a result, if the Planning Commission does not adopt the required findings every thirty (30) days, then the Planning Commission could be precluded from continuing to teleconference thereafter, perhaps even if the Planning Commission was later willing to adopt the findings ata later date. For this reason, the City Attorney recommends that the Planning Commission adopt the required findings at this time and at least every thirty (30) days thereafter, unless the Planning Commission 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 Meetinqs AB 361 contains several new requirements for the conduct of teleconference meetings with which the 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 Planning Commission 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."