ORD NO. 2020-18 PROVIDING FLEXIBILITY FOR REMOTE MEETINGS OF CERTAIN CITY ADVISORY GROUPS (2)
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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
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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
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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
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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
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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:
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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.
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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