Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Michael Callagy, County Manager
Subject: Resolution to make continuing findings relating to remote meetings under the Brown Act
RECOMMENDATION:
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Adopt a resolution finding that the COVID-19 pandemic state of emergency continues to present imminent risks to the health or safety of attendees and that it continues to directly impact the ability of members of the Board of Supervisors to meet safely in person.
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BACKGROUND:
On June 11, 2021, Governor Newsom issued Executive Order N-08-21, which rescinded his prior Executive Order N-29-20 and which waived, through September 30, 2021, certain provisions of the Brown Act relating to teleconferences/remote meetings by local agency legislative bodies. The Executive Order waived, among other things, the provisions of the Brown Act that otherwise required the physical presence of members of local agency legislative bodies or other personnel in a particular location as a condition of participation or as a quorum for a public meeting.
If these waivers set forth in the Executive Order were to fully sunset on October 1, 2021, and absent any further State action, local agency legislative bodies subject to the Brown Act would be required to fully comply with the Brown Act’s meeting requirements as they existed prior to March 2020, including the requirement that the public be afforded physical access to all teleconference locations from which board members were participating.
On September 16, 2021, the Governor signed Assembly Bill (AB) 361, a bill that came into effect immediately and that codifies certain of the teleconference procedures that local agencies have adopted in response to the Governor’s Brown Act-related Executive Orders. Specifically, AB 361 allows a local agency to continue to use teleconferencing under the same basic rules as provided in the Executive Orders as long as there is a proclaimed state of emergency, in combination with either (1) local health official recommendations for social distancing or (2) findings adopted by majority vote of the local agency legislative body that meeting in person would present imminent risks to the health or safety of meeting attendees.
AB 361 also requires that, if the state of emergency lasts for more than 30 days, the local agency legislative body must make findings every 30 days to continue using the bill’s exemption to the otherwise-applicable Brown Act teleconferencing rules. Specifically, the legislative body must reconsider the circumstances of the state of emergency and find that the state of emergency continues to directly impact the ability of members of the local agency legislative body to meet safely in person.
As noted above, under AB 361, local agency legislative bodies were required to return to in-person meetings on October 1, 2021, unless they chose to continue with fully teleconferenced meetings and made the prescribed findings related to the existing state of emergency. At its meeting of September 28, 2021, the San Mateo County Board of Supervisors unanimously adopted Resolution No. 078447, wherein the Board of Supervisors found, among other things, that as a result of the continuing COVID-19 state of emergency, meeting in person would present imminent risks to the health or safety of attendees.
Resolution No. 078447 also directed staff to bring an item to the Board of Supervisors within 30 days after adoption of that resolution to allow the Board to consider whether to make appropriate findings to continue meeting remotely pursuant to the provisions of AB 361.
DISCUSSION:
If the Board of Supervisors desires to continue meeting remotely pursuant to the provisions of AB 361, the Board must reconsider the circumstances of the state of emergency. As described at length below, the circumstances remain materially similar to those in existence on September 28, 2021, when the Board adopted Resolution No. 078447.
As noted at that time, the County’s high vaccination rate, successfully implemented local health measures (such as indoor masking), and best practices by the public (such as voluntary social distancing) have proven effective, in combination, at controlling the local spread of COVID-19.
However, as the Board of Supervisors found, the California Department of Public Health and the federal Centers for Disease Control and Prevention have cautioned that the Delta variant of COVID-19, currently the dominant strain in the country, is more transmissible than prior variants of the virus, that it may cause more severe illness, and that even fully vaccinated individuals can spread the virus to others, resulting in rapid and alarming rates of COVID-19 cases and hospitalizations (<https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html>).
Reducing the circumstances under which people come into close contact remains a vital component of the County’s COVID-19 response strategy. While local agency public meetings are an essential government function, the last 18 months have proven that holding such meetings in person is often not essential.
The Board of Supervisors found in Resolution No. 078447, and it remains the case that public meetings pose high risks for COVID-19 spread for several reasons. These meetings may bring together people from throughout a geographic region, increasing the opportunity for COVID-19 transmission. Further, the open nature of public meetings makes it is difficult to enforce compliance with vaccination, physical distancing, masking, cough and sneeze etiquette, or other safety measures. Moreover, some of the safety measures used by private businesses to control these risks may be less effective for public agencies.
Finally, as found in Resolution No. 078447, the Board of Supervisors shares the Hall of Justice building with the Courts and other County offices and staff who perform essential government functions that cannot be conducted online. The social distancing measures currently in place to maintain the safe occupancy of the building could be undermined by periodically introducing many members of the public at the building’s entrances and in its elevators, cafeteria and restrooms.
These factors combine to continue to directly impact the ability of members of the Board of Supervisors to meet safely in person and to make in-person public meetings imminently risky to health and safety.
We therefore recommend that the Board of Supervisors adopt findings to confirm that the Board has reconsidered the circumstances of the state of emergency caused by the spread of COVID-19; that the state of emergency caused by the spread of COVID-19 continues to directly impact the ability of members of the Board of Supervisors to meet safely in person; and that conducting in-person meetings at the present time would present an imminent risk to the health and safety of attendees.
A resolution to that effect and directing staff to return within 30 days to afford the Board the opportunity to reconsider such findings, is included herewith.
The proposed resolution also encourages other County legislative bodies to consider making similar findings and directs the County Manager to assist those legislative bodies in continuing to meet remotely.
FISCAL IMPACT:
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