Title
Adoption of Resolution Terminating the Declaration of the Existence of a Local Emergency in Response to the COVID-19 Pandemic, Consistent with Government Code Section 8630(d);
Adoption of an Urgency Uncodified Ordinance Repealing Ordinance Nos. 3267 and 3272 to Effectuate the Termination of the Local Emergency While Continuing to Preserve Certain Administrative Authorities of the City Manager Such as Remote Work for Employees and Amending Ordinance No. 3271 Continuing to Suspend Provisions of the City’s Sunshine Ordinance that are Inconsistent with Assembly Bill 361 and Any Further Legislation to Allow Public Meeting to Be Held Remotely; and
Introduction of Ordinance Amending Alameda Municipal Code Article XVIV (Third Party Food Delivery Services) of Chapter VI (Businesses, Occupations and Industries) to Modify the Sunset Provision Such that the Cap on Food Delivery Service Fees Will Remain in Place Until the State Emergency is Rescinded. (City Manager 10021030)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
Throughout the pandemic, the City Council has implemented immediate actions to protect the physical and mental health of Alameda residents, especially the most vulnerable populations, and to address the economic hardships faced by residents and businesses. Additionally, the City Council approved actions to ensure City of Alameda (City) operations continued, sick and quarantined employees and those impacted by the closure of schools and childcare facilities were supported, and all steps were taken to reduce employees’ exposure to COVID-19 in the workplace.
As new tools are available to help manage COVID-19, many of these actions have been phased out, including:
• awarding emergency grants to retailers, restaurants, and other small businesses;
• creating the Alameda Strong program to raise money for businesses, nonprofits, and residents; and
• deferring payment for business license taxes and fees.
Other actions remain as long as the City continues its local emergency, including:
• rent-related protections, including eviction protections;
• a cap on third-party delivery fees imposed on local businesses;
• granting certain powers to the City Manager to ensure effective operations;
• expanding the use of sick leave by employees for any COVID-19 related reason; and
• providing the City Manager and City Attorney authority to take actions necessary to support City services concerning employees reporting to the City Attorney, including allowing remote and/or flexible work schedules.
While the City will be managing COVID-19 for years to come, the days of managing it as an emergency is beginning to wane. This report provides information on the impacts of terminating the declaration of the existence of a local emergency including the rent related protections currently in place.
Further, it introduces a new Ordinance that continues the cap on third-party delivery services until the sunset of the State’s emergency declaration.
Staff are also recommending as part of this report to adopt a new ordinance, on an urgency or nonurgency basis, that will repeal Ordinance Nos. 3267 and 3272 and amend Ordinance No. 3271 to allow the City to preserve administrative authorities for the City Manager to allow the continuation of remote work and to continue suspending the provisions of the Sunshine Ordinance that are inconsistent with Assembly Bill 361 and any further legislation to allow public meetings to be held remotely.
BACKGROUND
COVID-19 was first detected late in 2019 and is a serious public health threat, according to the Center for Disease Control and Prevention (CDC). On March 4, 2020, Governor Newsom declared a State of Emergency in the State of California to help prepare for the broader spread of COVID-19. On March 10, 2020, the Alameda County Board of Supervisors ratified the earlier declarations of the County Health Officer of a Local Health Emergency. On March 17, 2020, City Council declared a local emergency through an urgency ordinance to respond expeditiously to emergency circumstances.
As of September 29, 2022, more than 900 days after the City declared a state of emergency, the City recorded a total of 12,911 COVID-19 cumulative reported cases and 1,33 deaths.
While COVID-19 is an infectious disease that can require medical attention, the tools we have and will develop in the ensuing years to manage our COVID response (for example, protection, or immunity, against COVID-19 due to vaccination and boosters, previous infection, or both; availability of tests, treatments, and hospital and ICU beds; and guidance to isolate if you have suspected or confirmed COVID and wear a mask indoors, especially as COVID levels increase in the community) eventually will lessen the need for a local emergency declaration as COVID-19 transitions to its endemic phase. At the City Council’s regular meeting on September 6, 2022, the City Council voted (3-2) to continue the declaration of local emergency. City Council, however, also directed that when the extension the local emergency declaration in October is reconsidered that staff provide information concerning the effects/impacts that would likely result if City Council were to terminate the declaration of local emergency. This report responds to City Council’s direction.
DISCUSSION
As the City Council deliberates whether to terminate the declaration of local emergency, a number of factors should drive City Council’s decision, including (1) the conditions warranting terminating or continuing the local emergency, (2) the effects/impacts of terminating the local emergency declaration on landlords, tenants, food delivery services, etc., (3) the status of other emergency declarations and the protections thereunder, and (4) if the local emergency is terminated, City Council, in the absence of amending uncodified Ordinance 3271, will no longer have the authority under the Sunshine Ordinance to meet remotely.
Conditions Warranting Terminating or Continuing the Local Emergency Declaration
Generally, Government Code Section 8630 governs the proclamation of a local emergency. It allows for declaration of a local emergency, review of the need to continue said declaration every 60 days, and provides for its termination if the conditions so warrant. In March and April 2020, City Council adopted Ordinance 3267 and 3271 proclaiming a local emergency based on the COVID-19 pandemic. Every 60 days thereafter, City Council made the necessary findings to continue the local emergency. City Council last considered this matter on September 6, 2022. (A Governor’s Executive Order waived the requirement that a local emergency be reviewed every 60 days; accordingly, City Council’s review thereof was optional, not mandatory.)
As it has since March 2020, staff continues to assess the need to continue to keep the emergency declaration in place as a way to better protect the community.
At the present time, COVID-19 cases are declining after significant winter and summer waves of the virus. While another wave is anticipated this winter, it is not clear that the protections under the City’s local emergency remain necessary to protect the health of Alameda residents. Instead, COVID-19 is going to be with us for some time, and the city may be better served following Alameda County (County) and State emergency declarations and continuing to share information from County and State health officers with Alameda residents and businesses. This includes the importance of continuing to use the tools we have to fight against COVID-19, including vaccines, boosters, testing, masking, quarantine and isolation when testing positive.
The Effects/Impacts of Terminating or Continuing Local Emergency Declaration
If the City Council decides to continue the local emergency declaration, in some sense it would be business as usual. Specifically, the protections that the City Council has adopted since March 2020 will remain in place, including rent related protections and those for local food businesses. Continuing these protections should be considered in light of other statewide protections or, in the case of protections adopted by the County, whether those protections apply in the City. In addition, the City Council may well want to consider the impact of terminating the local emergency on the authority of the Interim City Manager under certain circumstances, employer/employee relations, and, not insignificantly, whether remote meetings would be prohibited in the absence of an amendment to Ordinance 3271.
Rent Related Protections
Below are the most significant City rent related protections that would be impacted by termination of the local emergency. (It’s worth noting up front that because Alameda’s local protections exist within the larger context of similar state and county protections, all such laws must be read together such that Alameda’s local laws may be required to give way if a court determines that local law is preempted by state law, for example. See discussion below.)
• Eviction Protection Under Local Law. Under local law (Ords. 3275 and 3284), tenants currently have an affirmative defense to an eviction action for nonpayment of rent if the non-payment of rent was due to a “substantial loss of income” arising out of the COVID-19 pandemic. If the City Council terminates the local emergency, the City’s affirmative defense protections would sunset no earlier than seven (7) months later (if state law preempted), and 13 months thereafter (if not state law preempted). (Ord. 3284, Section 2, amending paragraph 3, subsection A, Section 2, of Ord. 3275). In addition, 30 days after the local emergency is terminated, if a tenant fails to pay rent for any reason, a tenant will no longer be able to avail themselves of the affirmative defense for failing to pay ongoing rent. (Ord. 3284, Section 2, amending paragraph 3, subsection A, Section 2 or Ord. 3275).
Landlords have also been prevented from terminating a tenancy based on two “no fault” grounds normally allowed by the City’s Rent Control Ordinance, comprehensively restated in September 2019 (“Ord. 3250”): Owner Move-In and to implement an approved Capital Improvement Plan. (Ord. 3275, subparagraph A, paragraph 2, subsection A of Section 2). These protections would sunset 30 days after the termination of the local emergency. In addition, landlords will be able to displace tenants temporarily to make repairs that do not constitute an immediate health or safety concern if proper notice is provided to the tenant including that the tenant is entitled to temporary relocation payments.
• Limits on Use of “Banked” Rent Increases. Following a two-year moratorium on all rent increases for rental units subject to rent control, landlords were permitted to begin serving notices to increase rents as of May 1, 2022 in order to impose rent increases as of June 1, 2022 (Ord. 3315); however, these increases could not exceed the Annual General Adjustment (AGA), which as of May/June 2022 was 2.7%. (For rent increases on or after September 1, 2022, the AGA is 3.5%.) Normally, Ord. 3250 permits landlords who do not implement the maximum increase allowed by the AGA to “bank” the unused portion and impose it in a later year, subject to numerous limitations. If the City Council terminates the local emergency, 60 days thereafter landlords who have not taken rent increases could provide notice to tenants that they will take “banked” amounts, as limited, they were unable to implement due to the declaration of the local emergency. For example, for rent increases beginning September 1, 2022, Ord. 3250 limits “banked” increases to no more than 6.5% (the current AGA of 3.5% plus an additional 3.0%) regardless of how much a landlord has banked. Landlords who already imposed an AGA increase since June 1, 2022, may not impose another increase (including banked amounts) for a 12-month period. Additionally, landlords may not issue notices that utilize “banked” amounts in consecutive years or more than three times during any one tenancy. Through Regulations and notice to the landlords and tenants, Rent Program staff will provide a comprehensive list of limitations on the use of banked rent increases.
Rent Payment Deferral. The time periods during which a tenant could defer paying rent and not be subject to an eviction action are far from clear because those time periods vary depending on whether local law, state law or county law applies. Assuming no state law preemption and putting County law aside, under local law, a tenant could defer rent if the failure to pay rent was due to a substantial loss of income due to COVID-19 related reasons from March 2020 to 30 days after City Council terminates the local emergency. In that case (i.e., no state law preemption), tenants would have 13 months from the time the local emergency is terminated to raise the City’s affirmative defense to an eviction action that the failure to pay rent was due to a substantial loss of income due to COVID-19.
• Deferred Payment Agreements. Landlords must elect as their sole remedy for breach of any deferred rent agreements money damages, thereby waiving their right to evict the tenant for nonpayment of rent. Staff does not believe that many of these agreements exist and, again, City Council’s termination of the local emergency has no bearing on this issue.
• Utility Shutoffs. A landlord is required to refrain from shutting off a tenant’s utilities while the local emergency remains in place except for emergency repairs. Ord. 3275, at Section 6. Nevertheless, landlord tenant law provides a landlord must provide reasonable notice to a tenant before a utility is shut off (except in emergencies) and certainly never for retaliatory or harassment purposes.
State and County Eviction Moratorium and Protections
The State’s eviction moratorium ended on June 30, 2022. As discussed above, State law does provide protection to tenants from eviction under some circumstances. For example, for unpaid rent from March 1, 2020 through August 31, 2020, a landlord may not evict a tenant for such rent if the tenant has provided to the landlord a “financial distress” declaration in response to a notice to quit or pay rent. Such unpaid rent becomes “consumer debt” and must be repaid but may not be grounds for eviction. For unpaid rent from September 1, 2020 through June 30, 2022, a landlord may not evict a tenant if the tenant has provided the landlord a financial distress declaration in response to a notice to quit or pay rent and if the tenant pays at least 25% of the rent that was due. If those requirements are met, the unpaid rent must be collected as consumer debt and not used as ground for eviction. In addition, a landlord may not evict a tenant for failing to pay rent unless the landlord by March 31, 2022 has applied for rental assistance through the CA COVID-19 Rent Relief Program. Those protections, however, ended June 30, 2022 and under State law landlords may evict for rent unpaid after that date. In addition, as discussed above and assuming State law preemption, all unpaid rent accrued between March 1, 2020 and September 30, 2021 must be repaid by August 31, 2023, but cannot form the basis for an eviction if it has been converted to consumer debt
The County has adopted a COVID-19 eviction moratorium that remains in effect today. By its terms, it would sunset 60 days after the Public Health Emergency Order terminates. County law prohibits all evictions with few exceptions, such as Ellis Act evictions (withdrawing a rental unit from the rental market permanently), compliance with a governmental order, e.g., an order to vacate due to conditions that render the unit uninhabitable, and where continued occupancy poses imminent threat to health/safety, e.g., where a tenant has engaged in criminal conduct that threatens other tenants. Here are important facts about the Order:
• Violations of the County Moratorium are punishable by $1,000 fine and constitute an “absolute” affirmative defense to eviction.
• It allows tenants to repay overdue rent within 12 months but even if the overdue rent is not paid in full, it becomes consumer debt and not grounds for eviction.
• It prohibits late fees, fines, or interest on unpaid rent due after March 24, 2020.
• It is the subject of a legal challenge brought by landlords and the Housing Providers of America (Williams v. Alameda County Board of Supervisors et al. (3:22-cv-01274-LB). The City of Oakland is also named in this lawsuit.
Although the County Ordinance states that it applies to unincorporated as well as incorporated cities within the County, the applicability to incorporated cities is subject to ongoing litigation.
Business Protections (Delivery Fee Cap)
On October 6, 2020, the City Council adopted Ordinance No. 3289 (Third-Party Food Delivery Services Ordinance, or “Delivery Fee Cap”). Alameda Municipal Code (“AMC”) Section 6-62.1 et seq. It prohibits any “third-party food delivery service from charging a retail food establishment a service fee that totals more than fifteen (15%) percent of the purchase price of each online order.” AMC, Section 6-62.1.a. It further prevents a third-party food delivery service from increasing any fee, cost, or commission, or establish any new fee, cost or commission, with respect to customers beyond those established on September 3, 2020. AMC, Section 6-62.1.b. Under existing local law, these protections would sunset with the termination of the local emergency. Consistent with earlier Council direction, staff has prepared an amendment to the Delivery Fee Cap Ordinance to tie the sunset provisions to the State’s termination of the emergency, which remains active.
Powers of the City Manager and Other Issues
Under Ordinance Nos. 3267 and 3272 declaring the local emergency, the City Council granted the City Manager certain powers for its duration (which have been rarely if ever used), including the power to: (1) suspend competitive bidding; and (2) spend up to $2 million to address local and operational impacts. Ordinance 3267 also provided for revisions to employee’s use of sick, allowed for remote work or flexible schedules and provided COVID-19 administrative leave in response to the pandemic. While staff are recommending repealing these ordinances, if the local emergency is terminated, staff are recommending the City Manager, and the City Attorney for City Attorney staff, be authorized to continue permitting remote and/or flexible work schedules and redeployment of affected staff, consistent with applicable laws, Council directions, and labor agreements.
Additionally, consistent with the original authorization set forth in Ordinance 3267, any unused the COVID-19 administrative leave authorized by Ordinance 3267 shall be moved to an administrative leave bank for each applicable employee. Such leave may be used in the same manner as floating holiday or vacation leave, and must be used by November 1, 2024. Any such leave not used by November 1, 2024 shall be forfeit. Such leave shall have zero cash-value.
Remote Meetings
Under Ordinance No. 3271, at Section 2, and consistent with the Governor’s Executive Orders concerning certain Brown Act provisions, the City Council suspended any provisions of the City’s Sunshine Ordinance inconsistent with the City Council’s (and other “legislative body’s) authority to meet remotely during meetings or with staff for informational purposes without violating its provisions. Ordinance 3271 remains in effect today.
On September 16, 2021, Governor Newsom signed Assembly Bill 361 (AB 361) into law which allows public agencies to continue to conduct meetings remotely during the COVID-19 pandemic and other proclaimed emergencies. AB 361 extends the suspension of certain requirements regarding the ability to meet remotely under the Brown Act.
If the City Council votes to terminate the local emergency, for clarity, staff recommends making a conforming amendment to Ordinance 3271 to continue permitting the City Council to meet remotely, or in a hybrid fashion, consistent with state law authorizations, including AB 361.
ALTERNATIVES
• Adopt the resolution terminating the declaration of the local emergency, consistent with Government Code Section 8630(d), adopt on an urgency basis an ordinance repealing Ordinance Nos. 3267 and 3272, with modifications, and amending Ordinance No. 3271 to allow the City Council to meet remotely or in a hybrid fashion (consistent with AB 361), and introduce an Ordinance to amend the Delivery Fee Cap Ordinance such that its sunset provisions are tied to the State’s terminating the emergency.
• Do not adopt the resolution terminating the emergency declaration, and modify the resolution to continue the declaration of the local emergency, consistent with Government Code Section 8630(c). In that event, provide direction to staff whether to return this item for further consideration in January 2023 after the new City Council has been seated or in April 2023.
FINANCIAL IMPACT
There is no direct financial impact to the City from continuing the local emergency in response to the COVID-19 pandemic. If City Council adopts an ordinance to meet in a hybrid fashion, the cost of the equipment upgrade will be approximately $40,000. This cost would be covered by the existing Fiscal Year 2022-23 budget for the Cable Equipment Fund (609). No additional appropriations are required.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The Alameda Municipal Code Chapter 2-24 defines a local emergency as “the actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and property within the jurisdiction.” Government Code Section 8630 allows the City to declare, continue or terminate a local emergency. Section 3-12 of the City Charter authorizes the City Council with a 4/5 vote to adopt, as an urgency measure, an ordinance for the immediate preservation of the public health or safety without following the procedure otherwise required prior to adoption of an ordinance. Government Code section 36937 allows a city, including a charter city, to adopt an urgency ordinance to take effect immediately upon its adoption for the preservation of the public peace, health or safety upon a finding of facts constituting the urgency thereof. City Council adopted several ordinances on an urgency basis in declaring a local emergency in response to the COVID-19 pandemic. In that City Council has adopted a resolution terminating the local emergency, several of those ordinances adopted in response to the emergency on an urgency basis should likewise be repealed or amended on an urgency basis and an ordinance to that effect is attached. Government Code Section 8630(c), as modified by the Governor’s Executive Order, permits but does not require, the governing body to review the need for continuing the local emergency at least once every 60 days until the governing body terminates the local emergency. Government Code, Section 8630(d) provides the City Council may declare the termination of a local emergency.
CLIMATE IMPACTS
There are no identifiable climate impacts or climate action opportunities associated with the subject of this report.
ENVIRONMENTAL REVIEW
This activity is not a project and is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines, Section 15378(b)(2), because it involves general policy and procedure making, which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.
RECOMMENDATION
Adopt a resolution terminating the declaration of the existence of a local emergency in response to the COVID-19 pandemic, consistent with Government Code Section 8630(d);
Adopt an uncodified Ordinance on an urgency or nonurgency basis repealing Ordinances 3267 and 3272 to effectuate the termination of the local emergency while continuing to preserve certain administrative authorities of the City Manager such as remote work for employees and amend uncodified Ordinance 3271 to modify the sunset provisions such that the Ordinance remain in effect until the AB 361 (and any further legislation) is rescinded; and
Introduce an Ordinance amending Article XVIV (Third Party Food Delivery Services) of Chapter VI (Businesses, Occupations and Industries) of the Alameda Municipal Code to tie the Ordinance’s sunset provision to the State’s termination of the emergency
Respectfully submitted,
Sarah Henry, Communications and Legislative Affairs Officer
Bill Chapin, Director Rent Program
John Le, Assistant City Attorney
Michael Roush, Special Counsel
Financial Impact section reviewed,
Margaret L. O’Brien, Finance Director
cc: Nancy Bronstein, Interim City Manager