REPORT TO COUNCIL
SUBJECT
Title
Direction Regarding Returning to In-Person Public City Council Meetings Along With Board and Commission Meetings and Consideration of Various Hybrid In-Person/Teleconference Public Meeting Options
Report
BACKGROUND
Prior to the onset of the COVID-19 Pandemic, all public meetings were held in-person and the City broadcast Council meetings and Planning Commission meetings on television over AT&T Channel 99 and Comcast Channel 15, and web-steamed these meetings to the Legislative Public Meetings webpage. The City audio recorded public meetings of other boards and commissions, posting the audio recording to the Legislative Public Meetings web page within approximately 24 to 48 hours of each meeting’s adjournment.
As outlined in Sunnyvale Charter Section 613 (Place of Meetings) all City Council meetings shall be convened in the Council Chambers of City Hall. The Charter further provides that Council meetings take place in the Council Chambers unless rendered unsafe by nature of an emergency (Attachment 1 to the report). Council Policy 7.2.19 (Boards and Commissions) Section 2.A provides that regular board and commission meetings were held in the Council Chambers, West Conference Room or similar room allowing for public participation.
On March 17, 2020, Governor Gavin Newsom issued Executive Order No. N-29-20, which suspended portions of the Ralph M. Brown Act (California Government Code sections 54950-54963) that limit the use of teleconferencing for public meetings; the Order was scheduled to sunset when the COVID-19 Pandemic ends. The Ralph M. Brown Act places strict requirements on local legislative bodies regarding the posting, access and physical location of voting members during public meetings.
Beginning with the March 31, 2020 Council meeting, the City has conducted public meetings utilizing teleconferencing technology to provide for members of the public, staff, and public officials (Councilmembers and board or commission members) to participate without providing for in-person participation. The City Manager waived the board and commission member prohibition contained in Administrative Policy Manual Chapter 1 - General Management Article 15 (Boards and Commissions) for the duration of the COVID-19 Pandemic. This teleconferencing technology allows the public to watch public meetings via YouTube and beginning with the June 9, 2020 Council meeting, to provide audio public comment over Zoom Video Communications. The City continues to broadcast City Council meetings and Planning Commission meetings on television over AT&T Channel 99 and Comcast Channel 15, and web-steams these meetings to the Legislative Public Meetings webpage.
On June 11, 2021, Governor Gavin Newsom issued Executive Order N-08-21, which among other things rescinds his prior Executive Order N-29-20 and sets a date of October 1, 2021 for local government agencies (local bodies) to transition back to public meetings held in full compliance with the Brown Act. This means that, as of October 1, 2021, the following requirements will return to full force and effect:
• Local bodies must provide for in-person public participation at a physical location;
• Local bodies must notice each teleconference location from which a member will be participating in a public meeting and each teleconference location must be specifically identified in the meeting notice and agenda, including full address and room number;
• Each teleconference location must be accessible to the public;
• Members of the public must be able to address the body at each teleconference location;
• Local bodies must post agendas at all teleconference locations; and
• During teleconference meetings, at least a quorum of the members of the local body must participate from locations within the boundaries of the territory over which the local body exercises jurisdiction.
At their May 4, 2021 meeting, Council directed staff to add a report to a future Council meeting to discuss whether the City should establish a long-term policy regarding modernizing the Ralph M. Brown Act as it pertains to teleconferencing.
At their July 27, 2021 meeting, Council adopted a new long-term advocacy position (Council Policy 7.0 - Long-term Advocacy Positions - Planning and Management, F. Miscellaneous (7):
“Support legislation to modernize the Ralph M. Brown Act as it pertains to teleconferencing during public meetings. Urge the Legislature provide more flexibility for cities and intergovernmental boards to improve and enhance, should the agency choose to do so, remote access for public officials (Councilmembers and board or commission members) in public meetings. Support legislation that allows for broader access and transparency without adding unfunded mandates on local public agencies.”.”
Various legislative efforts at the state level have been introduced to expand the use of virtual participation in a public meeting for councilmembers and members of the public. This report provides Council an opportunity to choose the public meeting format it desires for City Council meetings along with board and commission meetings. Staff will work within the requirements of the Ralph M. Brown Act as may be amended at the state level to facilitate the public meeting format chosen by Council.
EXISTING POLICY
California Government Code sections 54950-54963 (Ralph M. Brown Act)
Sunnyvale Charter Section 613 (Place of Meetings) (Attachment 1)
Council Policy 7.2.19 (Boards and Commissions)
Long-term Advocacy Position 7.0, F. (7)
Administrative Policy Manual Chapter 1 - General Management Article 15 (Boards and Commissions)
There is no existing City policy addressing remote participation during public Council meetings.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378 (a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
DISCUSSION
Providing for remote participation for members of the public, staff, and public officials (Councilmembers and board or commission members) at public meetings has made attendance at public meetings more convenient for participants. Members of the public are able to join teleconference meetings from their home, work or any other location with an Internet connection or telephone service to provide public comment to their elected and/or appointed representatives. This participation option allows the public to follow along with meetings and participate in the agenda items of interest to them without needing to spend multiple hours at City Hall waiting to provide comments on agenda items that interest them. Remote participation for public officials and staff provides convenience for those participants as well.
Remote-only public meetings do lack some of the non-verbal cues and body language communication that exist with in-person public meetings. In the virtual environment members of the public are not provided the option to activate their video feed and are limited to viewing the video feed of the current active speaker. This provides a different experience compared with joining a public meeting in person and being able to see all Councilmembers and members of the public in attendance.
Additional items for Council to consider are Charter Section 613 (Place of Meetings) (Attachment 1) which provides that Council shall meet in the Council Chambers except in the case of an emergency and Council Policy 7.2.19 (Boards and Commissions) providing for boards and commissions to meet in the Council Chambers, West Conference Room or similar room allowing for public participation. When the local COVID-19 emergency ends, this Charter section and Council Policy require the return of in-person public participation in the Council Chambers for Council meetings and other City facilities for boards and commissions.
Due to the increased amount of technology in place and the number of tasks involved with supporting a teleconference-only meeting, Council meetings are now staffed by the City Clerk and Deputy City Clerk instead of just the City Clerk prior to the COVID-19 Pandemic. Board and commission meetings are similarly supported by two staff instead of the one staff member needed to support an in-person only public meeting. Adding in-person public participation to create a hybrid in-person/teleconference meeting increases the complexity of tasks needed throughout a meeting and would require two staff to support each meeting.
If the Ralph M. Brown Act is not Amended
When Governor Gavin Newsom’s Executive Order N-08-21 expires on September 30, 2021 (or a later date if extended) public meetings and their associated meeting agendas will need to comply with the existing provisions of the Ralph M. Brown Act as outlined in the Background section above. The City will need to provide for public comment at a physical location, such as the Council Chambers, and teleconference participation by members of the body (Councilmembers and board or commission members, collectively referred to as Member(s) hereafter) will only be possible under the strict requirements regarding the posting, access and physical location of voting members during public meetings. This means a Member wishing to participate from a teleconference location such as their home or a hotel while traveling would need to disclose the address of their home or hotel on the meeting agenda, allow the public to participate in the meeting from that location and ensure the meeting agenda is posted at the location at least 72 hours before a regular meeting or 24 hours before a special meeting.
The Council Chambers is being set up to accommodate the various virtual and teleconference options outlined below. If Council chooses one of these options, all Council and Commission meetings will need to take place in the Council Chambers. Currently we have regular board and commission meetings scheduled on the same night; some schedule adjustments will be required in order to accommodate all meetings taking place in the Council Chambers. The following options are provided to facilitate Council discussion regarding public meetings going forward if the Brown Act is not amended to ease teleconference participation by Members.
Option A1. Return to All In-person Meetings
At present, COVID-19 restrictions require fully vaccinated individuals to wear a face covering when gathered indoors. City Council along with Board and Commission meetings may return to the pre-pandemic, in-person format with staff able to provide the same broadcasting and audio recording level of service offered prior to the onset of the COVID-19 Pandemic. Public speakers would address the Members in-person.
Option A2. Councilmembers, Board Members and Commissioners Participate in Person with Virtual and In-Person Participation for Community Members and Staff
This option provides for Members to participate in person at all meetings unless they are traveling and then it would follow the Brown Act teleconferencing requirements. In addition, staff could be in-person during the meeting or participate in a teleconference mode. This will require that the Members use laptops in order to see the participation of the staff member who is not attending the meeting in-person. Participation by staff and consultants could be in person or virtually as determined by the City Manager.
Option A3. Councilmembers, Board Members, Commissioners and Staff Participate in Person, But Community Members Can Only Participate Virtually
This option would likely violate the requirement in the Brown Act (Government Code Section 54953(a))) that “all persons shall be permitted to attend any meeting of the legislative body” except as authorized by the teleconferencing rules. As discussed, the teleconferencing rules require that every location where a member of the body is participating by teleconference be open to the public. In this context, the word “attend” in Government Code 54953(a) plainly refers to the right of the public to attend meetings in person.
Option A4. Councilmembers, Board Members, Commissioners, Staff and Members of the Public Participate by Teleconference
This option would require compliance with existing Brown Act requirements for teleconference meetings. These requirements place an administrative burden on the Members and staff. The public must be allowed to attend and participate from each remote location. For example, if a Member body attends a meeting from home, they must allow members of the public into their home and provide a means for members of the public to listen to the meeting and make public comment. The address of the remote location, including room number if appropriate, must be included on the meeting agenda and the agenda must be posted at the remote location in compliance with either the 72-hour regular meeting or 24-hour special meeting noticing requirement proscribed by the Brown Act. If more than one Member participates via teleconference, the location(s) of each Member must be included on the meeting agenda.
If the Ralph M. Brown Act is Amended
In addition to Long-term Advocacy Position 7.0, F. (7) adopted by the City Council on July 27, 2021, Council has the opportunity to provide direction regarding the type of in-person, telepresence or hybrid public meeting model they would like to see pending any modifications to the teleconference requirements in the Brown Act.
Telepresence participation by staff and members of the public is not regulated by the Brown Act except for when a Member participates via teleconference, the public has the right to participate at the same location. Continuing the current practice of allowing staff to participate via teleconference and for the public to provide remote audio public comment after Executive Order N-08-21 expires is permissible without the same requirements for a Member to participate via teleconference. If Council wishes to continue making telepresence participation available to staff and the public, providing a second staff member for each public meeting and adjusting board and commission meetings scheduled on the same night in order to accommodate all meetings taking place in the Council Chambers are the limiting factors.
If Council supports allowing Councilmembers (Alternative 3) along with Board and Commission Members (Alternative 4) to participate in public meetings via teleconference after Executive Order N-08-21 expires, some additional options are available that staff will need further direction on. The format for Council meetings could be different than for Board and Commission meetings.
FISCAL IMPACT
The Fiscal Year 2021/22 Budget includes approximately $79,025 to hire an additional 0.5 FTE Deputy City Clerk to support hybrid public meetings that has funds included in the adopted budget. If Council chooses to return to in-person public meetings without a teleconference component, staff will not initiate a recruitment to fill this part-time position, which would result in an on-going savings to the General Fund.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City's official-notice bulletin board outside City Hall, Sunnyvale Public Library and Department of Public Safety. In addition, the agenda and report are available at the Office of the City Clerk and on the City's website.
ALTERNATIVES
If the Brown Act is Not Amended:
1. Beginning October 1, 20211, return to in-person only public meetings for the City Council and all Board and Commission meetings.
2. Beginning October 1, 2021 return to in-person public meetings for the City Council and all Board and Commission meetings with teleconference participation available to the public and staff.
If the Brown Act is Amended:
If the Brown Act is amended, specific provisions will need to be reviewed to make sure all meetings are in compliance. For the purpose of this report, we have assumed that an amended Brown Act would allow meetings to continue in an all-virtual format. Since the Brown Act establishes minimum
1October 1, 2021 would be the effective date for all options or the date the Executive Order expires
standards, Alternative 1 and 2 outlined above would likely exceed the minimum standards and could be selected if this were Council’s preference.
3. Provide for the option of in-person or teleconference participation by Councilmembers as an individual choice pursuant to the provisions of the Brown Act, as amended. Staff and the public would also have the option to attend virtually or in person after October 1, 2021 at City Council meetings. (This alternative would require further discussion as to how Councilmembers would comply with the Charter provision to meet in the Council Chambers.)
4. Provide for the option of in-person or teleconference participation by Commissioners as an individual choice. Staff and the public would also have the option to attend virtually or in person after October 1, 2021 pursuant to the provisions of the Brown Act, as amended.
5. Continue providing for teleconference only participation by Board and Commission members, staff and the public after October 1, 2021 at Board and Commission meetings pursuant to the provisions of the Brown Act, as amended. Council Policy 7.2.19 (Boards and Commissions) would need to be updated.
6. Other direction as determined by City Council.
STAFF RECOMMENDATION
Recommendation
Staff makes no recommendation. This report is being presented to Council to facilitate a discussion at the public hearing to consider returning to in-person public City Council meetings along with Board and Commission meetings and consideration of various hybrid in-person/teleconference public meeting options
Staff
Prepared by: David Carnahan, City Clerk
Reviewed by: Teri Silva, Assistant City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
1. Sunnyvale Charter Section 613 (Place of Meetings)