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ORD NO. 2020-18 PROVIDING FLEXIBILITY FOR REMOTE MEETINGS OF CERTAIN CITY ADVISORY GROUPS (2) Page 1 of 7 ORDINANCE NO. 2020-18 AN ORDINANCE of the City of Bainbridge Island, Washington, relating to open public meetings held by City Advisory Groups; providing flexibility for certain City Advisory Groups to continue to meet remotely to reduce the potential spread of COVID-19 on Bainbridge Island. WHEREAS, on January 21, 2020, the first case of novel coronavirus disease (“COVID-19”) was confirmed in a person in Washington State and that person had traveled through King County, and King County is the most populous county in Washington State and is adjacent to Bainbridge Island and Kitsap County; and WHEREAS, throughout February 2020, the number of cases of COVID-19 increased significantly in the local region and throughout Washington State, with the first COVID-19 related death in the United States announced on February 29, 2020; and WHEREAS, the Kitsap Public Health District has been responding to the COVID-19 outbreak since approximately February 3, 2020; and WHEREAS, on February 29, 2020, Governor Jay Inslee declared a state of emergency in response to the spread of COVID-19 in Washington State; and WHEREAS, on March 2, 2020, the City of Bainbridge Island’s Emergency Operations Center (“EOC”) was activated and remains operational in response to the COVID-19 outbreak and continues to actively monitor the situation and coordinate with City staff, community partners, the general public, and local, county, regional, and state governmental partners; and WHEREAS, on March 3, 2020, the Kitsap Public Health District moved to full activation of their Emergency Coordination Center (“ECC”) and the ECC has received significant resource requests from across Kitsap County; and WHEREAS, on March 8, 2020, the Kitsap Public Health District was notified of the first Kitsap County resident testing positive for COVID-19, an individual residing on Bainbridge Island; and WHEREAS, on March 9, 2020, the Bainbridge Island City Manager issued a Proclamation of Emergency in accordance with Chapter 2.44 of the Bainbridge Island Municipal Code, proclaiming the existence, or imminent threat, of an emergency threatening the public health, safety, and welfare; and WHEREAS, on March 10, 2020, the Bainbridge Island City Council enacted Resolution No. 2020-06, which recognized the existence of the public health emergency, affirmed the Proclamation of Emergency issued by the City Manager, and authorized the emergency procurement of goods and services to address the emergency; and Page 2 of 7 WHEREAS, on March 11, 2020, the World Health Organization declared a state of pandemic due to COVID-19; and WHEREAS, on March 13, 2020, President Donald Trump declared a National Emergency due to COVID-19, and on March 22, 2020, a Major Disaster was declared for the State of Washington; and WHEREAS, on March 23, 2020, Governor Inslee imposed a “Stay Home – Stay Healthy” Order throughout Washington State prohibiting all people in Washington State from leaving their homes or participating in social, spiritual, and recreational gatherings of any kind regardless of the number of participants, and related to all non-essential businesses in Washington State; and WHEREAS, on March 24, 2020, Governor Inslee issued Proclamation 20-28, which, among other things, waived certain provisions of Chapter 42.30 RCW, the Open Public Meetings Act (“OPMA”), that required in-person contact by individuals and also prohibited all public agencies subject to the OPMA from conducting any “meeting” subject to the OPMA in person; and WHEREAS, since March 24, 2020, Proclamation 20-28 has been modified and extended seven times, most recently on July 8, 2020 by Proclamation 20-28.7; and WHEREAS, since March 24, 2020, the City Council and several City Advisory Groups have met remotely using a remote meeting platform that allows members of the public to attend and participate in such meetings remotely, via phone or internet connection, in a manner that allows all persons attending the meetings to hear each other at the same time; and WHEREAS, Chapter 42.30 RCW requires that all “meetings” of the “governing body” of a “public agency” be open to the public; and WHEREAS, the City of Bainbridge Island is a “public agency” within the meaning of Chapter 42.30 RCW; and WHEREAS, pursuant to Citizens Alliance v. San Juan County, 184 Wn.2d 428 (2015), and AGO 1986 No. 16, City Advisory Groups that do not “act on behalf” of the City Council or otherwise take testimony or public comment are therefore not a “governing body” of a “public agency” independently subject to the requirements of Chapter 42.30 RCW; and WHEREAS, as recognized in AGO 2017 No. 4, meetings held remotely through a conference call or remote meeting platform can comply with the requirements of Chapter 42.30 RCW if all individuals in attendance can hear all discussion and actions taken at the meeting; and Page 3 of 7 WHEREAS, in the interest of transparency and public participation, the City Council through policy and practice requires that all City Advisory Groups comply with the requirements of Chapter 42.30 RCW, regardless of whether they would each otherwise be so required under state law; and WHEREAS, the age, condition, and health of a significant portion of the population of Bainbridge Island, Kitsap County, and other local cities and counties places that population at risk for serious health complications, including death, from COVID-19; and WHEREAS, a large surge in the number of persons with serious infections can compromise the ability of the regional healthcare system to deliver necessary healthcare to the public; and WHEREAS, according to the COVID-19 epidemiologic curve maintained by the Washington State Department of Health, the number of confirmed cases of COVID-19 in Washington State is increasing again after having fallen following the initial actions taken by the Governor, state agencies, and local governments; and WHEREAS, individuals can be infected and contagious before or even without developing symptoms (pre-symptomatic and asymptomatic), and the evidence suggests a significant number of infections may be transmitted in this manner; and WHEREAS, the United States Centers for Disease Control and Prevention (“CDC”) has confirmed that a significant number of individuals who are infected remain asymptomatic and that as many as 25 percent of these individuals may contribute to transmission of the virus that causes COVID-19; and WHEREAS, one key transmission method for COVID-19 is respiratory droplets that individuals expel when they breathe, talk, cough, or sneeze; and WHEREAS, one of the most effective ways of avoiding transmission of COVID- 19 is to minimize large gatherings of people; and WHEREAS, the City currently has 17 City Advisory Groups created by the City Council, consisting of over 100 appointed members, that regularly meet to conduct City business; and WHEREAS, under usual circumstances, members of the public often physically attend meetings of City Advisory Groups; and WHEREAS, in the interest of continued public safety during the COVID-19 public health emergency, the City Council desires to facilitate remote meetings of City Advisory Groups in a manner that maximizes transparency while protecting the public health, safety, and welfare by minimizing large gatherings of people; and Page 4 of 7 WHEREAS, as above described, Governor Inslee’s Proclamation 20-28 and the subsequent proclamations that have extended it, including, most recently, Proclamation 20-28.7 (effective July 8, 2020), have waived certain provisions of Chapter 42.30 RCW, the Open Public Meetings Act (“OPMA”), that required in-person contact by individuals and also prohibited all public agencies subject to the OPMA from conducting any “meeting” subject to the OPMA in person, and it is uncertain the extent to which such waivers will continue to be extended in the future; and WHEREAS, given such uncertainty, the City Council believes it is in the best interest of the City to adopt this ordinance to ensure that OPMA requirements that have been waived by Proclamation 20-28, et seq, will continue to be waived by the City in relation to certain City Advisory Groups that are not independently subject to the OPMA (i.e., such groups that are subject to OPMA requirements by City policy and practice, but are not otherwise subject to the OPMA by state law requirements), even if Proclamation 20-28, et seq, is not extended further; and WHEREAS, a public health emergency, as defined in Chapter 38.52 RCW, RCW 43.06.010(12), RCW 39.04.280(3), and Chapter 2.44 BIMC, or imminent threat of such an emergency, continues to exist on Bainbridge Island; and WHEREAS, the City of Bainbridge Island, as a code city, has broad emergency authority under Article 11, Section 11 of the Washington State Constitution, including an affirmative grant of authority to make and enforce within the City’s limits all such local police, sanitary, and other regulations as are not in conflict with general laws; and WHEREAS, pursuant to Article 11, Section 11 of the Washington State Constitution, as well as Chapter 35A.13 and Chapter 35A.11 RCW, the City of Bainbridge Island is authorized to exercise local police powers so long as the subject matter is local, the City is acting in a reasonable way, and the action is consistent with state law, and all of those criteria are met in this situation; and WHEREAS, based upon the findings set forth above, the City Council has a clear basis to declare, pursuant to RCW 35A.13.190, a public emergency requiring this ordinance to take effect immediately. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. Purpose. The purpose of this ordinance is to provide flexibility to certain City Advisory Groups to continue to meet remotely to reduce the spread of COVID-19 that may otherwise occur due to in-person meetings. Section 2. Definitions. As used in this ordinance, the term “City Advisory Groups” means all advisory boards, commissions, committees, and task forces created or Page 5 of 7 appointed by the City Council. “City Advisory Groups” does not include formal or ad hoc committees consisting entirely of Councilmembers. Section 3. Findings. The recitals set forth above are hereby adopted as findings of fact for this ordinance. For the reasons set forth in those recitals, the City Council finds that this ordinance is necessary to protect the public health, safety, and welfare by reducing the spread of COVID-19 within the City of Bainbridge Island. As such, a public emergency exists requiring that this ordinance take effect immediately upon passage. Section 4. Compliance with the Open Public Meetings Act. All City Advisory Groups shall comply with the requirements of Chapter 42.30 RCW, the Open Public Meetings Act, except as otherwise provided in this ordinance. Section 5. Remote Meetings Required. All City Advisory Groups may conduct any “meeting,” as defined by Chapter 42.30 RCW, remotely using a remote meeting platform that provides an option for members of the public to attend and participate in meetings through phone, internet, or other electronic means of remote access and provides the ability for all persons attending the meeting to hear each other at the same time. Section 6. Exceptions – Minimization of In-Person Contact. When meeting remotely, the specified text of each provision of Chapter 42.30 RCW listed below shall not apply to any City Advisory Group, except those listed in Section 7 below: • RCW 42.30.030 – the following words only, but only to the extent that the following words require a physical location for the meeting (i.e., all persons shall continue to be permitted to attend any open public meeting, but must do so electronically): o “and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” • RCW 42.30.040 – in its entirety; however, the only condition on attendance that may be imposed is whatever information is required, by normal operation of a remote meeting platform, to be submitted to connect to the remote meeting platform to attend a meeting. • RCW 42.30.050 – as to the following word only: “room” in the first sentence. • RCW 42.30.070 – as to the following word only: the first usage of “site” in the fourth sentence. • RCW 42.30.080(2)(c) – as to the following words only: Page 6 of 7 o “Prominently displayed at the main entrance of the agency’s principal location and the meeting site if it is not held at the agency’s principal location.” • RCW 42.30.090 – as to the following words only: o “on or near the door of the place where the regular, adjourned regular, special, or adjourned special meeting was held.” Section 7. Section 6 of this ordinance does not apply to the following City Advisory Groups: Planning Commission, Design Review Board, Environmental Technical Advisory Committee, Historic Preservation Commission, Salary Commission, LEOFF 1 Disability Board, Lodging Tax Advisory Committee, Ethics Board, Civil Service Commission, and the Island Center Subarea Planning Process Steering Committee. Section 8. Relationship to Other Laws and Regulations. Nothing in this ordinance reduces or eliminates requirements or restrictions imposed by Directives and Orders from the Local Health Officer, Governor, or other regulatory state or federal agency. In the event of a conflict between the requirements of this ordinance and any provision of the Bainbridge Island Municipal Code, this ordinance shall control. Section 9. Declaration of Emergency; Effective Date; Expiration Date. Based upon the findings set forth above, the City Council hereby declares, pursuant to RCW 35A.13.190, a public emergency requiring this ordinance to take effect immediately. The City Council is also exercising the City’s authority in this matter, as above described in the recitals and findings, pursuant to Article 11, Section 11 of the Washington State Constitution, as well as Chapter 35A.13 and Chapter 35A.11 RCW. This ordinance shall accordingly be in full force and effect immediately upon passage and shall remain in full force and effect until the termination of the Proclamation of Emergency issued by the City Manager on March 9, 2020, and ratified by the City Council through the passage of Resolution No. 2020-06, after which this ordinance shall immediately expire and no longer be in full force or effect. Section 10. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Page 7 of 7 PASSED by the City Council this 28th day of July, 2020. APPROVED by the Mayor this 28th day July, 2020. ATTEST/AUTHENTICATE: FILED WITH THE CITY CLERK: July 24, 2020 PASSED BY THE CITY COUNCIL: July 28, 2020 PUBLISHED: July 31, 2020 EFFECTIVE DATE: July 28, 2020 ORDINANCE NUMBER: 2020-18