2020-07ORDINANCE NO.2020-07
AN 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, on March I3, 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, on March 16, 2020, effective at 10:00 a.m. and extending through June
10, 2020, at 12:01 a.m. (the "Emergency Period"), the City Manager, in his capacity of
Director of Emergency Management, issued a Declaration of Local Emergency — COVID-19
(the "City Declaration") applicable throughout the entire City of Fairfax, Virginia (the
"City"), pursuant to authority granted pursuant to City Code § 33-I1, and Virgina Code §§
44-I46.21 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, as required by
applicable law; and
WHEREAS, the City Council finds 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 ten attendees; 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 emergency 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, and subsequently, on March 24, 2020, enacted a successor emergency
ordinance (Ordinance No. 2020-03); and
WHEREAS, the City Council now desires to enact this replacement emergency
procedures ordinance under normal ordinance rules.
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 reasonably necessary for the continuity of the government; 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; identify Public Entity members physically andror 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
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 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. 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 the duration of the Emergency Period, unless 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 emergency Ordinance No. 2020-03 is, and hereby
stands, repealed.
This Ordinance shall become effective as provided by law.
INTRODUCED: April 14, 2020
PUBLIC HEARING: April 14, 2020
ADOPTED: April I4, 2020
ATTEST•
4 -
City Clerk
VOTE:
Councilmember DeMarco
Aye
Councilmember Lim
Aye
Councilmember Miller
Aye
Councilmember Passey
Aye
Councilmember Stehle
Aye
Councilmember Yi
Aye
Mayor
d
Date