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Home My WebLink About04 COUNCIL AND COMMISSION TELECONFERENCINGI. Agenda Item 4 Reviewed: City Manager Finance Director N/A MEETING DATE: FEBRUARY 21, 2023 TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL FROM: MATTHEW S. WEST, CITY MANAGER SUBJECT: COUNCIL AND COMMISSION TELECONFERENCING SUMMARY: Consider authorizing individual Council members and members of the City’s Commissions1 to use teleconferencing consistent with the amended requirements of the Brown Act. RECOMMENDATION: 1. Authorize the use by members of the City Council and City Commissions of teleconferencing in accordance with the Ralph M. Brown Act; and 2. Authorize each City Commission the option to disallow teleconferencing by majority vote of that Commission. FISCAL IMPACT: Posting agendas in advance at remote locations as required by “traditional” teleconferencing options could involve unknown costs. Tracking of the Brown Act requirements for teleconferencing to comply with new requirements will involve additional staff, but is not expected to require the addition of new staff. BACKGROUND: On September 16, 2021, in the context of the pandemic, Assembly Bill 361 was approved by the Legislature and signed into law by the Governor. Since then, AB 361 has allowed significant flexibility to public agencies including the City to conduct their public meetings via Zoom and similar electronic meeting systems. However, the Governor has announced that the state of emergency he declared in connection with the pandemic will terminate on February 28, 2023. As a result of the end of the state of emergency, the legal options 1 As used in this staff report, “Commissions” refers to the Planning Commission, Community Services Commission, Audit Commission, Building Board of Appeals, and any future “legislative body” (as defined in the Brown Act) established by the City Council. AGENDA REPORT DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 Council And Commission Teleconferencing February 21, 2023 for City Council members and Commissions to teleconference into a meeting will be changing to allow two options, discussed in greater detail below: • Traditional Brown Act Teleconferences, which have been allowed by the Brown Act for decades; and • AB 2449 Teleconference, which were authorized effective January 1, 2023. For either or both of these options to be available to individual Council members and Commissioners, the Council must authorize their use. Staff recommends that the Council authorize the use of either option by an individual Council member or Commissioner provided the requirements of the Brown Act are met, as summarized in detail below. Traditional Brown Act Teleconferences Under the Traditional Brown Act Teleconference option, the Brown Act allows legislative bodies like the City Council to allow individual Council members and Commissioners to participate in meetings via teleconference2, but only if all of the following requirements are met: • The meeting agenda must identify the remote location from which each Council member or Commissioner will participate. • The meeting agenda must be posted at each remote location at least 72 hours before the meeting (or 24 hours for special meetings).3 • The remote location (meaning the room where the remote attendance will take place) must be ADA accessible and accessible to all members of the public. • Because the remote location must be identified in the agenda and open to the public during the entire meeting, a remote attendee may not participate while driving or in a locked room. • Members of the public must be allowed to attend and participate in the meeting from the remote location. And 2 Under the Brown Act, “…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.” Cal. Gov’t Code § 54953(b)(1). 3 For instance, if a Council member plans to participate from a hotel in Washington D.C., the regular meeting agenda must be posted on that hotel in Washington D.C. 72 hours before the meeting, whether or not the Council member is in Washington 72 hours in advance. DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 Council And Commission Teleconferencing February 21, 2023 • All votes must be conducted by roll call vote. These procedures are obviously cumbersome for both the member of the legislative body and often for the clerk of the agency involved, so this alternative was rarely used by agencies in general. New Legislation: AB 2449 Last year, the Governor signed new legislation that amends the Brown Act to allow another method for individual Council members and Commissioners to teleconference, if the Council decides to authorize it. The new AB 2449 option became available on January 1, 2023. For an individual Board member to utilize the new AB 2449 form of teleconferencing, all of the following requirements must be met: • A quorum of the Council or Commission must attend from a single location. o For the Council, this means at least 3 Council members must attend the meeting in person at the same location. • All votes during the meeting must be conducted via roll call vote. • The public must be permitted to monitor and participate in the meetings via phone or other electronic means. • To attend remotely, the member must give notice as early as possible of a proper justification for attending remotely. The proper justifications are either: o “Just cause” as defined,4 or o An “emergency”, as defined.5 • Each Council member or Commissioner is limited to two (2) “just cause” teleconferences per calendar year. • A request that is based on an emergency must be approved by a majority of the Council or the Commission, or the individual will not be allowed to participate remotely. • The Council member or Commissioner who attends remotely must participate via audio and video. 4 “Just cause” is defined as any of the following: (A) A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (B) A contagious illness that prevents a member from attending in person; (C) A need related to a physical or mental disability; or (D) Travel while on official business of the legislative body or another state or local agency. 5 “Emergency circumstances” are defined as “a physical or family medical emergency that prevents a member from attending in person.” DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 Council And Commission Teleconferencing February 21, 2023 o This requirement probably requires the remote member’s video camera to remain on for the duration of the meeting. • No member may attend meetings remotely for more than three (3) consecutive months; • No member may teleconference for more than 20% of regular meetings per calendar year. And, • If a legislative body regularly meets fewer than 10 times per calendar year, a member of that body may not participate remotely more than twice per calendar year. Comparison of Key Requirements by Teleconference Option To facilitate a comparison of the key differences among the statutory requirements that apply to teleconference meetings under the two options summarized above, and in comparison to the AB 361 meetings that have been utilized over the past two years, staff has provided a detailed summary of the teleconference options as Attachment 1. Burdens of Teleconferencing. Although staff is recommending that teleconferencing options be authorized for Council members and Commissioners in case the need arises, it should be noted that actually utilizing teleconference options comes with significant burdens, including but not limited to: • Coordinating proper agenda postings in remote locations, and ensuring public accessibility, as required for Traditional Brown Act Teleconferences involves significant coordination with facilities in distant locations. • For “just cause” and “emergency” teleconferencing, Council members and Commissioners will be required to give as much advance notice as possible of qualifing reasons for teleconferencing, and the reasons will be made public. • The camera on the remote attendee will need to remain on, and a public disclosure will need to be made whether anyone over 18 years old is in the room with the remote member. • Tracking whether individuals have used up their allotted “just cause” teleconferences and/or exceeded the cap on emergency teleconferences will require tracking by staff and the individual members of the Council and Commissions. • Voting on every item must be conducted via roll call during a teleconference meeting. DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 Council And Commission Teleconferencing February 21, 2023 • Risk of error (technology glitches, human error, etc.) is reduced by eliminating the requirements to connect, disconnect, and reconnect to live-streaming. Public Participation Via Zoom is Not Affected by this Decision This agenda item pertains only to the question whether members of the City Council or Commissioners should be allowed to participate in meetings via teleconference. The City will continue to allow the public to participate in meetings of the Council and Commissions via Zoom unless directed otherwise. Attachments 1. Summary of Teleconference Options Under the Brown Act DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 1 Summary of Teleconference Options Under the Brown Act AB 2449 was signed by the Governor so it took effect on January 1st. Until the end of February, AB 361 will remain in effect, so until then there are three alternative methods available for teleconferencing individual members of a legislative body during public meetings that are subject to the Brown Act: 1. Traditional: Section 54953(b) - The traditional method that requires the public to have access at all teleconference locations. These provisions have some minor tweaks. 2. State of Emergency: Section 54953(e) – The AB 361 method allows all members of a legislative body to participate remotely. This alternative only applies during a Governor-proclaimed state of emergency, while local officials have recommended social distancing. The Governor has declared that his proclamation of emergency will expire at the end of February, 2023, so this option will no longer be available effective March 1, 2023 unless a subsequent state of emergency is declared by the Governor. 3. Justification Required: Section 54953(f) – This is the newest method of teleconferencing that comes with different requirements/limitations. These provisions will sunset on January 1, 2026. Comparing the Teleconference Options Traditional State of Emergency (AB 361) Justification Required (AB 2449) SUNSET DATE None January 1, 2024 January 1, 2026 PERMISSIVE USE OF TELECONFERENCING May a legislative body elect to use or not use teleconferencing under this method? Yes. The legislative body may decide whether to allow teleconferencing for the benefit of the public and the legislative body. 54953(b)(1) & (b)(2) Yes, findings are required by 54953(e)(3). So the legislative body controls whether to allow teleconferencing. Legislative body approval is required to teleconference due to a member’s “emergency circumstances”. No approval is required when a member notifies the legislative body of the need to teleconference due to “just cause”. Compare 54953(f)(2)(A)(i) to (f)(2)(A)(ii). ROLL CALL VOTES Roll call votes required when teleconferencing? Yes. 54953(b)(2)(A) Yes 54953(b)(2)(A) Yes. 54953(b)(2)(A) POSTING AGENDAS AT REMOTE LOCATIONS Post agendas at all teleconference locations? Yes. 54953(b)(3) No. No. IDENTIFICATION OF REMOTE LOCATIONS Must the teleconference location(s) be identified? Yes. Each teleconference location must be identified in the meeting notice and agenda. 54953(b)(3). No. No. ACCESSIBILITY Must each teleconference location be accessible to the public? Yes. 54953(b)(3) No. 54953(e)(4) “This subdivision shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.” No. “Remote locations need not be accessible to the public.” 54953(j)(3) DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 2 PUBLIC PARTICIPATION FROM TELECONFERENCE LOCATIONS Must the public be allowed to address the legislative body from each teleconference location? Unclear. This former requirement is deleted from amended section 54953(b)(3). However, a new provision is added that meetings must “be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body…” 54953(b)(2)(B) No. No. QUORUM LOCATIONS Must a quorum of the legislative body meet in particular location(s)? Yes. At least a quorum of the legislative body must participate from locations (plural) within the boundaries of the agency. 54953(b)(3) No. Yes. At least a quorum of the members of the legislative body must participate in person from a singular physical location 54953(f)(1) STATE OF EMERGENCY Is a Governor-proclaimed state of emergency a pre-requisite? No. Yes. 54953(e)(1) & (j)(5) No. FINDINGS Are findings required by majority vote related to state of emergency? No. Yes. At least every 30 days, findings are required by 54953(e)(3): “(A) The legislative body has reconsidered the circumstances of the state of emergency. AND (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. (OR) (ii) State or local officials continue to impose or recommend measures to promote social distancing.” No. PUBLIC ATTENDANCE IN PERSON Must the public be allowed to attend the meetings in person? Yes, and “each teleconference location shall be accessible to the public” as well. 54953(b)(3) No. “This subdivision shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment.” 54953(e)(4) Yes. The singular location where at least a quorum of the body meets meeting “shall be open to the public.” 54953(f)(1) CALL-IN/INTERNET Must the legislative body provide the opportunity for all persons to attend via a call-in option or an internet-based service option? No. Yes. 54953(e)(2)(A) See below DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 3 TWO-WAY AUDIOVISUAL PLATFORM OR TELEPHONIC PLUS LIVE WEBCASTING Must the legislative body provide at least one of the following as a means by which the public may remotely hear and visually observe the meeting, and remotely address the legislative body: (i) A two-way audiovisual platform,1 OR (ii) A two-way telephonic service2 and a live webcasting3 of the meeting. No. See above. Yes. 54953(f)(1)(A) SPECIAL AGENDA NOTICES Must special notice of the means by which the public may access the meeting and offer public comment be included in all notices of the meeting and all agendas posted? No. Standard agenda requirements apply. 54953(b)(2)(C) & (D) Yes. 54953(e)(2)(A) Yes. 54953(f)(1)(B) REAL TIME COMMENTS Must the legislative body provide an opportunity for the public to address the body “in real time”? Members of the public must be allowed “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.” 54953(b)(2)(D). Yes. The legislative body must 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.” 54953(e)(2)(C) Yes. The legislative body must 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.” 54953(f)(1)(E) INTERRUPTIONS IN ELECTRONIC ACCESS May action be taken during interruptions the public’s electronic access to the meetings or public’s opportunity to comment using the electronic means? Yes. (Note: public electronic access to the meeting is not required under the traditional option.) No. No action may be taken during disruptions of broadcasting via phone- in or internet service, or disruption that prevents public from offering comments via phone-in or internet. 54953(e)(2)(B) No. No action may be taken during disruptions of broadcasting via phone- in or internet service, or disruption that prevents public from offering comments via phone-in or internet. 54953(f)(1)(D) TIME FOR COMMENTS Are there special time requirements for registering and recognizing members of the public and taking public comments? No similar timing provision. Yes. If the legislative body 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 register… or otherwise be recognized for the purpose of providing public comment.” 54953(e)(2)(E)(ii) No similar timing provision. 1 “Two-way audiovisual platform” is defined as “an online platform that provides participants with the ability to participate in a meeting via both an interactive video conference and a two-way telephonic function.” 54953(j)(7). 2 “Two-way telephonic service” is defined as “a telephone service that does not require internet access, is not provided as part of a two-way audiovisual platform, and allows participants to dial a telephone number to listen and verbally participate.” 54953(j)(8). 3 “Webcasting” is defined as “a streaming video broadcast online or on television, using streaming media technology to distribute a single content source to many simultaneous listeners and viewers.” 54953(j)(9). DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 4 JUSTIFICATIONS REQUIRED? Is a justification required for remote attendance by a member of the legislative body? None. None. Either: (1) member notifies the legislative body of their need to participate remotely for just cause;4 or (2) member requests legislative body to allow them to participate in the meeting remotely due to emergency circumstances5 and the legislative body takes action to approve the request. 54953(f)(2)(A). TIMING OF NOTICE/REQUEST When must the notice or request be provided to the legislative body? Sufficiently in advance to allow information to be included in the agenda and agenda to be posted at all remote locations. No notice or requests are required to participate remotely. For “just cause”, “at the earliest opportunity possible, including at the start of a regular meeting…” 54953(f)(2)(A)(i). For “emergency circumstances”, the request must be made “as soon as possible”, and the member must make a separate request for each meeting in which they seek to participate remotely. 54953(f)(2)(A)(ii)(I) CONTENT OF NOTICE/REQUEST. What must the member include in her/his notice or request to participate remotely? Address of each teleconference location for inclusion in the agenda, and for posting agenda at each location. No requests are required. For “just cause” the member must notify the legislative body of the “need to participate remotely for just cause, including a general description of the circumstances relating to their need to appear remotely at the given meeting.” 54953(f)(2)(A)(i). For “emergency circumstances”, the request must include “a general description of the circumstances relating to their need to appear remotely at the given meeting. A general description of an item generally need not exceed 20 words and shall not require the member to disclose any medical diagnosis or disability, or any personal medical 4 “Just cause” is defined as any of the following: (A) A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely. “Child,” “parent,” “grandparent,” “grandchild,” and “sibling” have the same meaning as those terms do in Section 12945.2; (B) A contagious illness that prevents a member from attending in person; (C) A need related to a physical or mental disability as defined in Sections 12926 and 12926.1 not otherwise accommodated by subdivision (g); or (D) Travel while on official business of the legislative body or another state or local agency. 54953(j)(2). 5 “Emergency circumstances” are defined as “a physical or family medical emergency that prevents a member from attending in person.” 54953(j)(1). DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 5 information that is already exempt under existing law, such as the Confidentiality of Medical Information Act…” 54953(f)(2)(A)(ii) ACTION ON A REQUEST TO TELECONFERENCE When may the legislative body act on a request for to teleconference based on emergency circumstances? Must the request be on the agenda for the legislative body to act on it? The legislative body may decide whether to allow teleconferencing for the benefit of the public and the legislative body. 54953(b)(1) Once the body elects to use teleconferencing for the benefit of the public and the legislative body, no additional permission from the legislative body is required. Agenda posting and other accessibility requirements apply, though. No requests are required “The legislative body may take action on a request to participate remotely at the earliest opportunity.” “If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the legislative body may take action at the beginning of the meeting in accordance with paragraph (4) of subdivision (b) of Section 54954.2.6” 54953(f)(2)(A)(ii)(II) MAXIMUM NUMBER OF TELECONFERENCES Is there a maximum number of teleconference meetings permitted for each member of the legislative body? No maximum. No maximum. No more than two (2) “just cause” teleconferences per member per calendar year. 54953(f)(2)(A)(i). Also, any member may not teleconference “from a remote location”i: (1) for a period of more than three consecutive months; or (2) for 20 percent of the regular meetings for the local agency within a calendar year, or (3) more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year. 54953(f)(3) 6 AB 2449 also amends section 54954.2 to add a new subsection (b)(4). In pertinent part, the revision would provide as follows: “(b) … [T]he legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item. … (4) To consider action on a request from a member to participate in a meeting remotely due to emergency circumstances, pursuant to Section 54953, if the request does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. The legislative body may approve such a request by a majority vote of the legislative body.” 54954.2(b)(4). DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2 1715506.1 Page 6 REQUIREMENTS FOR REMOTE ATTENDEES Other requirements for members attending remotely Remote attendee(s) must attend from the designated teleconference location. None. (1) The member must “participate through both audio and visual technology” 54953(f)(2)(C), AND (2) the member must publicly disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with the individuals. 54953(f)(2)(B) PROTECT CONSTITUTIONAL RIGHTS Teleconferenced meetings must “be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body…” Yes. 54953(b)(2)(B) Yes. 54953(b)(2)(B) Yes. 54953(b)(2)(B) CIVIL RIGHTS/NON-DISCRIMINATION “The legislative body shall conduct meetings subject to this chapter consistent with applicable civil rights and nondiscrimination laws.” (Note: this requirement appears to apply to all Brown Act meetings, not just teleconference meetings.) (Query – does this require closed captioning for teleconference or other meetings?) Yes. 54953(h) Yes. 54953(h) Yes. 54953(h) ACCOMMODATING DISABILITIES/NOTICE. The legislative body must “have and implement a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and resolving any doubt in favor of accessibility.” The posted agendas and notices of any meetings of the legislative body “shall also give notice of the procedure for receiving and resolving requests for accommodation.” 54953(g) [emphasis added]. Yes. 54953(g) Yes. 54953(g) Yes. 54953(g) i Note that “remote location” is defined as “a location from which a member of a legislative body participates in a meeting pursuant to subdivision (f), other than any physical meeting location designated in the notice of the meeting. Remote locations need not be accessible to the public.” 54953(j)(3). DocuSign Envelope ID: FAB227FB-44B1-423E-A891-5F993A47E6D2