Loading...
2020-16ORDINANCE NO.2020-16 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.I6 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 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 (together, the "City Declaration"), to run through the expiration of the Emergency Period (as defined therein); 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, as required by applicable law; and 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 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; 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; and subsequently, on June 9, 2020, enacted a successor ordinance (Ordinance No. 2020-13) under emergency procedures; and WHEREAS, the City Council now desires to enact this replacement emergency procedures ordinance under regular City ordinance procedures. 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 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 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. 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 further 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 the provisions of this ordinance shall govern over any inconsistent provisions of Ordinance No. 2020-07 (and, to the extent required, that Ordinance No. 2020-07 stands repealed), and further, that emergency Ordinance No. 2020-13 stands repealed. This ordinance shall be effective as provided by law. INTRODUCED. June 9, 2020 PUBLIC HEARING: June 23, 2020 ENACTED: June 23, 2020 ATTEST: "'/ ��W.'Ow City Clerk VOTE: Councilmember DeMarco Aye Councilmember Lim Aye Councilmember Miller Aye Councilmember Passey Aye Councilmember Stehle Aye Councilmember Yi Aye Mayor G �D Zb Date