Special Notice / Hearing: None__
Vote Required: Majority
To: Honorable Board of Supervisors
From: Michael P. Callagy, County Executive
Subject: Resolution to make findings relating to remote meetings under the Brown Act
RECOMMENDATION:
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Adopt a resolution finding that the ongoing COVID-19 pandemic state of emergency presents 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 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 in a particular location as a condition of participation in, or to constitute a quorum for, a public meeting.
The waivers set forth in the Executive Order expired on October 1, 2021, and absent any further State action, local agency legislative bodies subject to the Brown Act would have been required to fully comply with the Brown Act’s meeting requirements as they existed prior to March 2020, including the Brown Act’s various restrictions and requirements related to teleconferences.
On September 16, 2021, the Governor signed into law 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.
As noted, 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 findings prescribed by AB 361 related to the existing state of emergency. At its meeting of September 28, 2021, the Board of Supervisors unanimously adopted Resolution No. 078447, wherein the Board 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.
At its meetings of October 19, 2021, November 16, 2021, December 14, 2021, January 11, 2022, February 8, 2022, March 8, 2022, April 5, 2022, May 3, 2022, June 14, 2022, and July 12, 2022, the Board unanimously adopted resolutions pursuant to AB 361 (Nos. 078482, 078550, 078609, 078653, 078701, 078752, 078803, 078859, 078920, and 079026 respectively) finding that the existing COVID-19 state of emergency continues to directly impact the ability the Board to meet safely in person and that meeting in person would present imminent risks to the health or safety of meeting attendees.
DISCUSSION:
As described below, the circumstances, though improved, remain materially similar to those in existence on September 28, 2021 when the Board adopted Resolution No. 078447 first invoking the provisions of AB 361, as well as at the meetings thereafter when the Board reconsidered the circumstances of the COVID-19 state of emergency.
As noted at those times, the County’s high vaccination rate, successfully implemented local health measures, and best practices by the public have proven effective, in combination, at controlling the local spread of COVID-19.
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 two-plus years have proven that holding such meetings in person is often not essential.
The Board most recently found in Resolution No.079026, 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, while some of the safety measures used by private businesses to control these risks may be less effective for public agencies.
Persons experiencing any potential symptoms of COVID-19, or who test positive but are asymptomatic, or who are exposed to someone with COVID-19, should follow medical advice regarding self-isolation or self-quarantine and avoiding public gatherings such as in-person meetings of the Board. Such persons should be able to do so without sacrificing their right to participate in public business during periods of self-isolation or self-quarantine. Accordingly, an option to attend the meeting remotely should continue to be provided, even if the majority of meeting participants can attend safely in the Board Chambers.
Moreover, because the onset of symptoms of COVID-19 or a positive test may occur too close to the start of a meeting for alternative arrangements for attendance to be made consistently with the Brown Act, providing a remote attendance option for Board meetings should be maintained for as long as COVID transmission remains a potential risk of in-person meetings. Providing an option of remote participation requires the adoption of AB 361 findings even if most of the attendees are capable of attending the meeting in-person, and do so.
Staff therefore recommends that the Board reinvoke the provisions of AB 361 related to teleconferencing for meetings by adopting findings to confirm that the Board has reconsidered the circumstances of the ongoing 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 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, such that all attendees (Board members, staff, and the public) can make decisions about in-person attendance or remote attendance based on their personal circumstances and risk assessments.
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 with this memorandum. The proposed resolution, which has been approved as to form by the County Attorney, also encourages other County legislative bodies to consider continuing to make similar findings and directs the County Executive to assist those legislative bodies in providing remote meeting options whenever possible.
FISCAL IMPACT:
None.