Title
Adoption of Urgency Uncodified Ordinance to Suspend During the Local Emergency due to the COVID-19 Pandemic Certain Provisions of the City’s Sunshine Ordinance to the Extent Inconsistent with, or Impose Requirements Beyond Those Explicitly Waived or Waivable by, Executive Orders of the Governor. (City Attorney)
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To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
Due to the COVID-19 pandemic, Governor Newsom has issued a number of Executive Orders, two of which are relevant to this agenda report. One Executive Order suspends certain provisions of the State’s Open Meeting Law (the Brown Act) and thereby allows all members of the City Council to conduct a meeting by teleconference so long as there are procedures in place that allow members of the public to observe the meeting and comment on agenda items. The other Executive Order permits City staff to meet with the full City Council without complying with the Brown Act in order keep the Council informed about the local emergency arising out of the COVID-19 pandemic. In this latter situation, Council may ask questions of staff but Council may not deliberate or take action. Certain provisions of the City of Alameda’s (City) Sunshine Ordinance may be inconsistent with, or impose requirements beyond those explicitly waived or waivable by, these Executive Orders. In order to support the City’s and the State’s efforts to combat COVID-19, to keep the public safe, and to avoid any potential inconsistencies, staff is recommending such provisions be suspended until the City Council rescinds the local emergency.
BACKGROUND
Due to the COVID-19 pandemic, the President of the United States has declared a national emergency, the Governor of the State of California has declared a State of Emergency for the State and issued numerous Executive Orders to protect the public, County Health Officers throughout the State, including the County of Alameda, have also issued orders and directives in an effort to protect the public, and, on March 17, 2020, in response the COVID-19 pandemic, the City Council of the City of Alameda declared a local emergency as set forth in Ordinance No. 3267.
International, national, state-wide, regional and local health authorities all agree that reducing human interactions, especially public interactions, is vital to reducing the spread of COVID-19. Such social distancing efforts, are critical so that our health care system has a fighting chance to replenish critically short supplies, ramp-up preparations, and maintain adequate capacity to treat afflicted patients.
Executive Order N-29-20, issued by Governor Newsom on March 17, 2020 suspended certain provisions of the State’s Open Meeting Law (the Brown Act) so that all members of a local legislative body may conduct a meetings by teleconference, rather than in person, so long as certain notice requirement are met, such as giving notice of the time of, and posting the agenda for, public meetings according to the timeframes prescribed by the Brown Act, and giving notice of the means by which members of the public may observe the meeting and offer public comment. In that City Hall is not open to the public during the Council meeting, the agenda now provides that the public may view the meeting via livestream and address the City Council during the meeting via email, with comments submitted during the meeting read into the record.
Executive Order N-35-20, issued by Governor Newsom on March 21, 2020 permits City staff to meet with the full City Council, without complying with the Brown Act, in order to “provide updates relevant to the declared emergency (including, but not limited to, updates concerning the impacts of COVID-19), the government’s response to COVID-19, and any other aspects relevant to the declared emergency) from federal, state, and local officials”, provided that Council not deliberate or take action without compliance with the Brown Act (for example, City staff could do a conference call with all Council members for the purpose of providing updates on COVID-19, Council may ask questions, but Council would not deliberate or take action.
The City is taking actions to implement these Executive Orders, during these extraordinary times, to keep the public safe, reduce community transmissions and support the City’s and the State’s overall efforts to combat COVID-19.
The City’s Sunshine Ordinance, codified in the Alameda Municipal Code beginning at Section 2-90, provides that all meetings of the City Council (as a “policy body”) shall be open and public, and governed by the provisions of the Brown Act and the Ordinance. In case of inconsistent requirements under the Brown Act and the Ordinance, the requirements which would result in greater or more public access shall apply. Section 2-91.3, Alameda Municipal Code. Accordingly, given the terms of the Executive Orders set forth above which suspend certain portions of the Brown Act and permit the City to take actions to create social distancing, protect public safety and combat COVID-19, there may be provisions in the Sunshine Ordinance that “would result in greater or more public access” than those in the Brown Act.
DISCUSSION
During these unprecedented times and state of local emergency, to avoid a complaint that the Council acted in violation of the Sunshine Ordinance, notwithstanding that it acted in compliance with the Executive Orders, and doing so to protect public safety, staff recommends that for the duration of the local emergency and while such Executive Orders are in effect, any provisions of the Sunshine Ordinance that are inconsistent with, or impose requirements beyond those explicitly waived or waivable by, the Executive Orders be suspended. An urgency ordinance to accomplish that is attached.
ALTERNATIVES
Staff recommends that the City Council adopt the urgency ordinance as described above.
The City Council could:
• Decline to adopt the ordinance and instead rely solely on the Executive Orders
FINANCIAL IMPACT
There is no impact to the General Fund from adopting the urgency ordinance described herein.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This ordinance is proposed and drafted pursuant to the City of Alameda’s general police powers, Section 3-12 of the Charter of the City of Alameda, Article XI of the California Constitution, and Government Code Section 36937.
ENVIRONMENTAL REVIEW
Adoption of the Ordinance is exempt from review under the CEQA Guidelines, Section 15378 (not a project) and Section 15061 (b) (3) [no significant environmental impact].
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CLIMATE IMPACTS
There are no climate impact to adopting this ordinance.
RECOMMENDATION
Adopt an urgency uncodified Ordinance to suspend during the Local Emergency due to the COVID-19 Pandemic certain provisions of the City’s Sunshine Ordinance to the extent inconsistent with, or impose requirements beyond those explicitly waived or waivable by, Executive Orders of the Governor.
CITY MANAGER RECOMMENDATION
Due to the declaration of an emergency situation the City is under, I recommend that the City Council adopt the urgency Ordinance to suspend certain provisions of the City’s Sunshine Ordinance during COVID-19 Pandemic. Emergency.
Respectfully submitted,
Michael Roush, Chief Assistant City Attorney