2020-27ORDINANCE NO. 2020-27
AN AMENDED ORDINANCE TO ENSURE THE CONTINUITY OF CITY GOVERNMENT,
IMPLEMENTING EMERGENCY PROCEDURES, MODIFYING PUBLIC MEETING
REQUIREMENTS AND PUBLIC PRACTICES AND PROCEDURES IN ORDER TO ADDRESS
CONTINUITY OF OPERATIONS ASSOCIATED WITH THE COVID-19 PANDEMIC
DISASTER
WHEREAS, on March 12, 2020, Governor Ralph S. Northam issued Executive Order Fifty -One
declaring a state of emergency for the Commonwealth of Virginia arising from the novel Coronavirus
(COVID-19) pandemic; and
WHEREAS, Executive Order Fifty -One acknowledged the existence of a public health
emergency which constitutes a disaster as defined by Virginia Code § 44-146.16 arising from the public
health threat presented by a communicable disease anticipated to spread; and
WHEREAS, Executive Order Fifty -One ordered implementation of the Commonwealth of
Virginia Emergency Operations Plan, activation of the Virginia Emergency Operations Center to provide
assistance to local governments, and authorization for executive branch agencies to waive "any state
requirement or regulation' as appropriate; and
WHEREAS• _Go_v_em Northam has issued several_subsequent Executi_v_e Orders _addressin the
manchallenefsejLthe_ OVID-19 andemic; and
WHEREAS, on March 13, 2020, the President of the United States declared a national
emergency, beginning March 1, 2020, in response to the spread of COVID-19; and
WHEREAS, on March 11, 2020, the World Health Organization declared the COVID-19
outbreak a pandemic; and
WHEREAS, the City Manager, in his capacity of Director of Emergency Management, issued
a Declaration of Local Emergency COVID-19 on March 16, 2020, and subsequently amended the
same by issuing a First Amended and Restated Declaration of Local Emergency on June 5, 2020 and a
Second _Amended -and -Restated Declaration of Local Emergency_on SeptembeL 22,_2020 (collectiyel_y
teget-hef, the "City Declaration"), to run through the expiration of the Emergency Period (as --defined
therein, as the Same may be further,amended by_separate_action); and
WHEREAS, the City Declaration is applicable throughout the entire City of Fairfax, Virginia
(the "City"), pursuant to authority granted pursuant to City Code § 33-11, and Virgina Code §§ 44-
146.21 and 15.2-1413, which City Declaration was unanimously consented to by the City Council on
March 17, 2020, pursuant to City Resolution No. R-20-07, which_cotfsent_wa5 reaffirmed on June 9,
2Q20,pursuant to CityResolution No. 2020-22. and further reaffirmed on —September 22 2020
pursuant tp �ity_Resolution No. R_20_52_ in_each case as re uired b applicable law; and
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WHEREAS, the City Council has previously found, and continues to find, that COVID-19
constitutes a real and substantial threat to public health and safety and constitutes a "disaster" as defined
by Virginia Code §44-146.16 being a "communicable disease of public health threat;" and
WHEREAS, Virginia Code § 15.2-1413 provides that, notwithstanding any contrary provision of
law, a locality may, by ordinance, provide a method to assure continuity of government in the event of a
disaster for a period not to exceed six months; and
WHEREAS, Virginia Code § 44-146.21(C) further provides that a local director of emergency
management or any member of a governing body in his absence may upon the declaration of a local
emergency "proceed without regard to time-consuming procedures and formalities prescribed by law
(except mandatory constitutional requirements) pertaining to performance of public work;" and
WHEREAS, Virginia Code § 2.2-3708.2(A)(3) allows, under certain procedural requirements
including public notice and access, that members of the City Council may convene solely by electronic
means "to address the emergency;" and
WHEREAS, the open public meeting requirements of the Virginia Freedom of Information Act
("FOIA") are limited only by a properly claimed exemption provided under that Act or "any other
statute;" and
WHEREAS, the Governor and Health Commissioner of the Commonwealth of Virginia and the
President of the United States have recommended suspension of public gatherings of more than a certain
size; and
WHEREAS, the Attorney General of Virginia issued an opinion dated March 20, 2020 stating
that localities have the authority during disasters to adopt ordinances to ensure the continuity of
government; and
WHEREAS, this emer-gen ordinance in response to the disaster caused by the COVID-19
pandemic promotes public health, safety and welfare and is consistent with the law of the Commonwealth
of Virginia, the Constitution of Virginia and the Constitution of the United States of America; and
WHEREAS, the City Council in emergency meeting on March 20, 2020 enacted, pursuant to
applicable law, an emergency ordinance (Ordinance No. 2020-02) implementing emergency procedures;
subsequently, on March 24, 2020, enacted a successor emergency ordinance (Ordinance No. 2020-03);
subsequently, on April 14, 2020, enacted a successor ordinance (Ordinance No. 2020-07) under normal
ordinance procedures; ate subsequently, on June 9, 2020, enacted a successor ordinance (Ordinance No.
2020-13) under emergency procedures; and subssequently enacted a -successor ordinance -(Ordinance No.
2020-16) under normal ordinancejprocedures.
WHEREAS, the City Council now desires to enact this replacement emergency procedures
ordinance
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FAIRFAX, VIRGINIA,
HEREBY ORDAINS:
1. That the COVID-19 pandemic makes it unsafe to assemble in one location a quorum for public
bodies including the City Council, the School Board, the Planning Commission and all local and
regional boards, commissions, committees and authorities created by the City Council, or on
which the City Council has a member (or on which the Mayor is a member), or to which the City
Council appoints all or a portion of its members (collectively "Public Entities" and individually
"Public Entity"), or for such Public Entities to conduct meetings in accordance with normal
practices and procedures.
2. That in accordance with Virginia Code § 15.2-1413, and notwithstanding any contrary provision
of law, general or special, the following emergency procedures are adopted to ensure the
continuity of government during this emergency and disaster:
a. Any meeting or activities which require the physical presence of members of the Public
Entities may be held through real time electronic means (including audio, telephonic, video
or other practical electronic medium) without a quorum physically present in one location,
and any City appointee, designee, or representative to such Public Entities is authorized to
participate in such meeting or activities electronically; and
b. The docket items to be discussed at such electronic meetings shall be limited to those topics;
W reasonably necessary for the continuity of the government; .(2) authorized_pursuant to
Section.2.2_370$.2.(A}_(3� of the_Code of_Virginia�and/or {3)authorized pursuant to any other
authorit the_Commonwealth mawprovide, _or has provided�to localities for electronic
meetings with_or without a_ uorum _hysicall�assembled, either before or after the_date of
enactment of this ordinance; and
c. Prior to holding any such electronic meeting, except for emergency meetings, the Public
Entity shall provide public notice at least three days in advance of the electronic meeting
identifying how the public may participate or otherwise offer comment; and
d. Any such electronic meeting of Public Entities shall state on its agenda and at the beginning
of such meeting that it is being held pursuant to and in compliance with this Ordinance and
any other applicable authority; identify Public Entity members physically and/or
electronically present; identify the persons responsible for receiving public comment; and
identify notice of the opportunities for the public to access and participate in such electronic
meeting; and
e. Any such electronic meeting of the Public Entities shall be open to electronic participation by
the public and may be closed to in -person participation by the public; and
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f. For any matters requiring a public hearing, public comment may be solicited by electronic
means in advance and shall also be solicited through telephonic or other electronic means
during the course of the electronic meeting. All such public comments will be provided to
members of the Public Entity at or before the electronic meeting and made part of the record
for such meeting; and
g. The minutes of all electronic meeting shall conform to the requirements of law, identify how
the meeting was conducted, members participating, and specify what actions were taken at
the meeting. The Public Entities may approve minutes of an electronic meeting at a
subsequent electronic meeting and shall later approve all such minutes at a regular or special
meeting after the emergency and disaster has ended.
IT IS FURTHER ORDAINED that notwithstanding any provision of law, regulation or policy
to the contrary, any deadlines requiring action by a Public Entity, its officers (including Constitutional
Officers) and employees of its organization shall be suspended during this emergency and disaster,
however, the Public Entities, officers and employees thereof are encouraged to take such action as is
practical and appropriate to meet those deadlines. Failure to meet any such deadlines shall not constitute a
default, violation, approval, recommendation or otherwise.
IT IS FURTHER ORDAINED, that non -emergency public hearings and action items of Public
Entities may be postponed to a date certain provided that public notice is given so that the public are
aware of how and when to present their views.
IT IS FURTHER ORDAINED, that for any appointments made by the City Council to boards
and commissions to which it makes appointments that may expire during the Emergency Period, the
current appointee in the expiring position shall continue to hold office until his/her successor is appointed
and duly qualified.
IT IS FURTHER ORDAINED, that the City's Director of Emergency Management may take
any of the following actions on a temporary basis in order to properly allocate City resources and ensure
the safety of the public: (1) waive enforcement, in whole or in part, of any City ordinance; or (2) modify,
limit, waive, suspend, or amend any City program, service, function, process, or procedure, unless
otherwise prohibited by applicable state or federal law. The Director of Emergency Management must
apply the action uniformly for similar situations and not on a case -by -case basis. The Director of
Emergency Management's actions taken pursuant to this paragraph will be effective only until the next
regular meeting of the City Council, at which time the Council may ratify and extend the time for which
the Director of Emergency Management's action(s) remains in effect; and
IT IS FURTHER ORDAINED, that the provisions of this ordinance shall remain in full force
and effect for six b months f
-.Q!!Qwing the date of the termination the of the Emergency Period,
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unless soonerjw4heF amended, rescinded or readopted by the City Council, but in no event shall such
ordinance be effective for more than six months following the date of enactment. Upon rescission by the
City Council or automatic expiration as described herein, this emergency ordinance shall terminate and
normal practices and procedures of government shall resume. Nothing in this ordinance shall prohibit
Public Entities from holding in -person public meetings provided that public health and safety measures as
well as social distancing are taken into consideration.
IT IS FURTHER ORDAINED, that Ordinance No._2020L-16 hereby ism and hereby stands
r pealed _in -its -entirety torn -and -aft the o erati-v-e_date _of this ordinance.
This Ordinance shall become effective as provided by law.
INTRODUCED: October 13, 2020
PUBLIC HEARING: October 27, 2020
ENACTED: October 27, 2020
wityClerk
VOTE:
Mayor Meyer
Aye
Councilmember Harmon
Aye
Councilmember Lim
Aye
Councilmember Miller
Aye
Councilmember Ross
Aye
Councilmember Stehle
Aye
Councilmember Yi
Absent
Mayor
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ate
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