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City Quietly Attempts To Avoid Allowing Public's Right Under Newly Enacted AB 361 To Speak At Council Meetings Via Teleconference (Remotely By Computer Or Phone)

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(Oct. 13, 2021, 5:25 p.m.) -- LBREPORT.com has learned that despite newly enacted AB 361, a state statute enabling the public to speak at City Council meetings by teleconference (telephone or computer) and despite a recommendation from LB's Health Officer Dr. Anissa Davis that the Council meet virtually or implement hybrid meetings (i.e. meetings that are both in-person and virtual), and despite last night's (Oct. 12) Council vote citing the Health Officer's recommendation in implementing AB 361, the City Council is quietly letting the City Clerk (who answers to the Council) to continue scheduling in-person Council meetings without providing any hybrid or other procedure allowing remote public testimony.

Asked by LBREPORT.com this morning (Oct. 13) what procedures the City will implement to enable public teleconferenced (remote) testimony under AB 361, Senior City Clerk Analyst Pablo Rubio indicated that the Council will continue in-person meetings and won't include hybrid or other remote public testimony. Mr. Rubio indicated the City Clerk's office is acting based on a Sept. 30 City Attorney memo accompanying the Oct. 12 Council action. But the memo makes no mention of continuing its in-person Council meetings and without the ability of the public to testify remotely on agenda items as provided in AB 361.

Deputy City Attorney Monica Kilaita, who signed the Sept. 30 City Attorney agendizing memo on behalf of City Attorney Charles Parkin, didn't respond to voice mail messages by LBREPORT.com seeking to explain the city's stance.

In reporting the Oct 12 Council action approving a resolution applying AB 361 to its Council meetings, LBREPORT.com forewarned of a possible loophole in the Council-adopted resolution.

The Council resolution included three key actions, the third of which [boldface added for clarity] included verbiage enabling in person meetings to continue "that have already been meeting in person as circumstances have allowed." The Mayor and City Council ended teleconferenced public testimony when the Council resumed in person meetings several weeks ago.

Section 1. Pursuant to Government Code section 54953(e)(3), the City Council hereby reconsiders the state of emergency of the COVID-19 pandemic and finds that the City Health Officer continues to recommend measures to promote social distancing such as remote meetings of legislative bodies. The City Health Officer’s recommendation is attached hereto as Attachment “A”.

Section 2. The City Council authorizes the Council and all City of Long Beach legislative bodies, including all City commissions, committees, and boards, to hold teleconference meetings in accordance with Government Code section 54953(e)(1)-(2).

Section 3. The City Council recognizes that City legislative bodies may have varying circumstances and considerations and, as such, hereby authorizes the Council, and City commissions, committees, boards, or other bodies subject to the Brown Act, to opt for in-person and/or hybrid (a combination of virtual and in-person) meetings to the extent possible, including but not limited to meetings that may be of a quasi-judicial nature or those bodies that have already been meeting in person as circumstances have allowed....

As a matter of basic civics, the City Council -- not the City Clerk, not the City Attorney and not the Mayor -- decide city policy incluuding (subject to state law) rules for conducting their Council meetings. A Council majority could direct in unambiguous terms to implement a hybrid procedure allowing teleconferenced (telephone/computer) public testimony at City Council meetings.

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The Council action quietly spurns a Sept. 30 recommendation by LB Health Officer Dr. Anissa Davis:

[Dr. Davis Sept. 30 memo text]...One condition [of AB 361] to authorize such virtual meetings of legislative bodies is that state or local health officials have imposed or recommended measures to promote physical distancing during a proclaimed state of emergency. Accordingly, I am making the following recommendations for the City’s legislative bodies to meet virtually, to the extent possible, under the relevant provisions of AB 361, and that this recommendation be forwarded to those bodies.

I strongly recommend that physical distancing measures continue to be practiced throughout Long Beach communities, including at meetings of the City Council, including its boards, commissions, and committees (hereafter "the City"), to minimize the spread of COVID-19...

To the extent possible, virtual meetings are strongly recommended as they allow for the participation of the community, City staff, presenters, Council members, commissioners, committee members, and board members with no risk of contagion. As an alternative, the City could implement hybrid meetings (i.e. meetings that are both in-person and virtual) with infection control measures...to minimize the spread of COVID-19 while operating in-person.

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On the Assembly floor, Assemblyman Patrick O'Donnell (D, LB-SP) voted "no" on AB 339 while Assemblyman Mike Gipson (D, NLB-Carson) voted "yes." LB area state Senators Lena Gonzalez and Tom Umberg voted "yes."

In his veto message, Governor Newsom stated:

I am returning Assembly Bill 339 without my signature.

This bill requires, until December 31, 2023, that city councils and boards of supervisors in jurisdictions with over 250,000 residents provide both in-person and teleconference options for the public to attend their meetings. While I appreciate the author's intent to increase transparency and public participation in certain local government meetings, this bill would set a precedent of tying public access requirements to the population of jurisdictions.

This patchwork approach may lead to public confusion. Further, AB 339 limits flexibility and increases costs for the affected local jurisdictions trying to manage their meetings.

Additionally, this bill requires in-person participation during a declared state of emergency unless there is a law prohibiting in-person meetings in those situations. This could put the health and safety of the public and employees at risk depending on the nature of the declared emergency.

I recently signed urgency legislation [AB 361] that provides the authority and procedures for local entities to meet remotely during a declared state of emergency. I remain open to revisions to the Brown Act to modernize and increase public access, while protecting public health and safety. Unfortunately, the approach in this bill may have unintended consequences.

Support really independent news in Long Beach. No one in LBREPORT.com's ownership, reporting or editorial decision-making has ties to development interests, advocacy groups or other special interests; or is seeking or receiving benefits of City development-related decisions; or holds a City Hall appointive position; or has contributed sums to political campaigns for Long Beach incumbents or challengers. LBREPORT.com isn't part of an out of town corporate cluster and no one its ownership, editorial or publishing decisionmaking has been part of the governing board of any City government body or other entity on whose policies we report. LBREPORT.com is reader and advertiser supported. You can help keep really independent news in LB similar to the way people support NPR and PBS stations. We're not non-profit so it's not tax deductible but $49.95 (less than an annual dollar a week) helps keep us online.

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