DATE: November 9, 2021
SUBJECT:
Title
RESOLUTION REGARDING DISTRICT VIRTUAL MEETINGS IN ACCORDANCE WITH THE RALPH M. BROWN ACT AND ASSEMBLY BILL 361
Body
EXECUTIVE SUMMARY:
California Assembly Bill 361 enacted certain exceptions to the Ralph M. Brown Act (Brown Act) to allow virtual and hybrid meetings of the public agencies when there is a proclaimed state of emergency and state or local officials are recommending measures to promote social distancing. On March 4, 2020, the Governor declared a state of emergency related to COVID-19, and the District similarly declared a state of emergency on March 18, 2020. Both state of emergencies remain in force. In addition to other social distancing recommendations by state, federal, and local agencies, on September 23, 2021, Wilma J. Wooten, the Public Health Officer for the County of San Diego, issued a Health Officer Teleconference Recommendation which recommends continued virtual Brown Act meetings to help prevent the spread of COVID-19.
Staff recommends the Board adopt a resolution making the finding that, based on continued state, federal, and local recommendations for social distancing, the Brown Act meetings of the District, including meetings of the Board of Port Commissioners and other District meetings held in accordance with the Brown Act are permitted to use the exceptions to Brown Act rules set forth in AB 361. And further, that this authorization expires if not renewed at the December 2021 regular meeting of the Board of Port Commissioners.
RECOMMENDATION:
Recommendation
Adopt a resolution that District virtual meetings may be held in accordance with the Ralph M. Brown Act and Assembly Bill 361.
Body
FISCAL IMPACT:
This action has no fiscal impact.
Compass Strategic Goals:
This agenda item supports the following Strategic Goal(s).
• A Port that the public understands and trusts.
• A Port that is a safe place to visit, work and play.
DISCUSSION:
California Assembly Bill 361 enacted certain exceptions to the Ralph M. Brown Act (Brown Act) to allow virtual and hybrid meetings of the public agencies when there is a proclaimed state of emergency and state or local officials are recommending measures to promote social distancing. On March 4, 2020, the Governor declared a state of emergency related to COVID-19, and the District similarly declared a state of emergency on March 18, 2020. Both state of emergencies remain in force.
Several state, federal, and local agencies continue to recommend social distancing to prevent the spread of COVID-19. For example:
• On September 23, 2021, Wilma J. Wooten, the Public Health Officer for the County of San Diego, issued a Health Officer Teleconference Recommendation which recommends continued virtual Brown Act meetings to help prevent the spread of COVID-19.
• The State’s COVID-19 resource website, www.covid19.ca.gov <http://www.covid19.ca.gov>, details the state’s “Current Safety Measures,” which links to the Center for Disease Control’s “How to Protect Yourself and Others” containing measures to promote social distancing.
[Available at https://covid19.ca.gov/safely-reopening/ <https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcovid19.ca.gov%2Fsafely-reopening%2F&data=04%7C01%7Cskann%40portofsandiego.org%7Cc72149b49e974d9293de08d9875c7f3b%7Cb3ce7f6bbd3f49e7bb2463bed67d2a28%7C0%7C0%7C637689653618698370%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=4OF2%2FEpmFsVk9hNkSJTbwA249nT8GCR0OneV6Xf%2BStE%3D&reserved=0>]
• Cal-OSHA adopted temporary emergency standards for workplaces that do not require social distancing but do require employers to provide effective training and instruction to employees that includes “The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing, face coverings, increased ventilation indoors, and respiratory protection decrease the spread of COVID-19, but are most effective when used in combination.”
[Available at: https://www.dir.ca.gov/dosh/coronavirus/ETS.html <https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.dir.ca.gov%2Fdosh%2Fcoronavirus%2FETS.html&data=04%7C01%7Cskann%40portofsandiego.org%7Cc72149b49e974d9293de08d9875c7f3b%7Cb3ce7f6bbd3f49e7bb2463bed67d2a28%7C0%7C0%7C637689653618708362%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=miZGh6zi1PqVQmRPNccJzN0xnxsI2LHpccTS0e8CYN0%3D&reserved=0>.]
• The California Department of Healthcare Services, which administers the state’s Medi-Cal program provides the following in its Frequently Asked Questions for Medi-Cal beneficiaries: “Even after being vaccinated, people will still need to practice other precautions, like wearing a mask, social distancing, handwashing, and other hygiene measures, until public health officials say otherwise.”
[Available at https://www.dhcs.ca.gov/Pages/COVID-19-Vaccines.aspx <https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.dhcs.ca.gov%2FPages%2FCOVID-19-Vaccines.aspx&data=04%7C01%7Cskann%40portofsandiego.org%7Cc72149b49e974d9293de08d9875c7f3b%7Cb3ce7f6bbd3f49e7bb2463bed67d2a28%7C0%7C0%7C637689653618718357%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=67Vvrg1FVQ0cW%2F6Pbr008m5vZWeP1eCAb04fd6sL8Uw%3D&reserved=0>.]
• The California Department of Public Health has issued guidance about additional vaccine doses for persons who are immunocompromised. The guidance contains the following: “As a person with a weak immune system, once I get an additional dose, can I reduce the use of other precautions such as masking, distancing, and avoiding groups and crowds.” A: “No, because even with an extra dose of mRNA vaccine, not everyone with a compromised immune system appears to mount a normal immune response. We are still learning about this, but at this time, we consider it prudent to continue taking extra precautions.”
[Available at:
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/ThirdVaccineDoseQandA.aspx <https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cdph.ca.gov%2FPrograms%2FCID%2FDCDC%2FPages%2FCOVID-19%2FThirdVaccineDoseQandA.aspx&data=04%7C01%7Cskann%40portofsandiego.org%7Cc72149b49e974d9293de08d9875c7f3b%7Cb3ce7f6bbd3f49e7bb2463bed67d2a28%7C0%7C0%7C637689653618728355%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=uwiLIdxouFQ9QREbP%2F7G0MY98QfG%2FlZziTVHDHRh4EE%3D&reserved=0>.]
Therefore, staff recommends the Board adopt a resolution making the finding that, based on continued state, federal, and local recommendations for social distancing, the Brown Act meetings of the District, including meetings of the Board of Port Commissioners and other District meetings held in accordance with the Brown Act are permitted to use the exceptions to Brown Act rules set forth in AB 361. And further, that this authorization expires if not renewed at the December 2021 regular meeting of the Board of Port Commissioners.
General Counsel’s Comments:
The Office of the General Counsel has reviewed and approved this agenda and proposed resolution as to form and legality.
Environmental Review:
The proposed Board action, including without limitation, a resolution that District virtual meetings may be held in accordance with the Ralph M. Brown Act and Assembly Bill 361, does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
The proposed Board action complies with Section 35 of the Port Act, which allows the Board to do all acts necessary and convenient for the exercise of its powers. The Port Act was enacted by the California Legislature and is consistent with the Public Trust Doctrine. Consequently, the proposed Board action is consistent with the Public Trust Doctrine.
The proposed Board action does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit Regulations. Therefore, issuance of a Coastal Development Permit or exclusion is not required.
Diversity, Equity, and Inclusion Program:
This agenda sheet has no direct DEI impact.
PREPARED BY:
Simon M. Kann
Senior Deputy General Counsel