20-033 (Emergency Ord.) EMERGENCY ORDINANCE NO. 20-033
AN EMERGENCY ORDINANCE OF THE CITY OF BOYNTON BEACH,
FLORIDA, AUTHORIZING THE CITY MANAGER TO MAKE
PROVISIONS FOR PUBLIC MEETINGS BY USE OF COMMUNICATION
MEDIA TECHNOLOGY AND FOR ATTENDANCE BY USE OF SUCH
TECHNOLOGY BY ELECTED AND APPOINTED OFFICIALS DURING
PERIODS WHEN THE CITY MANAGER DETERMINES AND
DECLARES A LOCAL PUBLIC HEALTH EMERGENCY OR DURING
OTHER CIRCUMSTANCES IN WHICH THE CITY COMMISSION
DETERMINES IT NECESSARY TO PROTECT THE HEALTH AND
SAFETY OF CITY OFFICIALS, CITY STAFF, AND THE PUBLIC;
PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission deems it to be in the best interest of the citizens and
residents of the City of Boynton Beach, to make provisions for public meetings by use of
communication media technology and for attendance by use of such technology by elected and
appointed officials during periods when the City Manager determines and issues a declaration of
local public health emergency or during other circumstances in which the City Commission
determines necessary to protect the health and safety of City Officials, City staff, and the public.
NOW,THEREFORE,BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH,FLORIDA:
SECTION 1. The foregoing whereas clause is hereby ratified and confirmed as being
this and correct and is hereby made a part of th s Ordinance.
SECTION 2. LEGISLATIVE FINDINGS,PURPOSE,AND INTENT.
In adopting this Ordinance, the City Commission of the City of Boynton Beach (the "City
Commission") intends to protect the public health and safety by making provisions for the
occurrence of and attendance at public meetings by use of communication media technology
("CMT") during local public health emergencies, as determined by the City Manager. The City
Commission finds:
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1. The Coronavirus(COVID-19),a respiratory illness caused by a virus that spreads rapidly
from person to person and may result in serious illness or death, constitutes a clear and
present threat to the lives,health, welfare, and safety of the people of Boynton Beach.
2. On March 1, 2020, Ron DeSantis, Governor of the State of Florida, issued Executive
Order No. 20-51, directing the Florida Department of Health to issue a Public Health
Emergency.
3. On March 1, 2020, the State Surgeon General and State Health Officer declared that a
Public Health Emergency exists in the State of Florida as a result of COVID-19.
4. On March 9, 2020, Governor DeSantis declared that a state of emergency exists in the
State of Florida as a result of the continued spread of COVID-19.
5. Since April 21, 2020, either in accordance with Florida Governor Executive Orders or
City Emergency Ordinances 20-008, 20-009 and 20-026 the City has been conducting
public meetings by use of communication media technology (CMT).
6. To reduce the spread of COVID-19, the United States Centers for Disease Control and
Prevention("CDC")recommends implementation of community mitigation strategies to
increase containment of the virus.
7. The current outbreak of COVID-19 has made the City Commission acutely aware that
provisions must be made to ensure that the business of municipal governance can occur
without unnecessarily exposing public officials,City personnel,or members of the public
to a risk of infection,while ensuring public access and open government.
8. As of September 20, 2020,the Florida Department of Health reports a total number of
COVID-19 cases of 685,439 with 13,480 deaths in Florida and 45,425 cases and 1,277
deaths in Palm Beach County. These numbers continue to fluctuate and there is no
indication of a steady downward trend. Current data is available at:
https://experience.arcgis.com/experience/96dd742462124fa0b3 8ddedb9b25 e429.
9. Palm Beach County has recently announced the extension of its facemask requirements
which indicates a continuing public health concern in Palm Beach County. Palm Beach
County Emergency Order 2020-026.
10. Florida law,including Article 1, Section 24(b)Florida Constitution,and Florida Statutes
Sections 286.011 and 166.041, requires that meetings of elected and appointed officials
("Bodies"), for the conduct of public business, must be held following procedures
(notice, access of meetings, opportunity to be heard, the taking of minutes, etc.) that
ensure that the public is able to participate in and be aware of the decision making process
(the"Sunshine Law").
11. Previously, when asked whether a public body complies with the Sunshine Law when
one or more members of the Body wish to participate in a meeting electronically from a
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remote location, the Florida Attorney General ("AG") has opined that a quorum of the
Body must be physically present in order to allow a member, who due to "extraordinary
circumstances" is unable to physically attend the meeting, to appear and participate
electronically.
12. On March 19, 2020, the AG issued an AGO 2020-03 which provides that "unless and
until legislatively or judicially determined otherwise, if a quorum is required to conduct
official business, local government bodies may only conduct meetings by
teleconferencing or other technological means if either a statute permits a quorum to be
present by means other than in-person, or the in-person requirement for constituting a
quorum is lawfully suspended by the Governor during the state of emergency."
13. On March 20, 2020, Governor DeSantis issued Executive Order Number 20-69 which
suspends any Florida Statute that requires a quorum to be present in person or requires a
local government body to meet at a specific public place and permits local government
bodies to utilize CMT such as telephonic and video conferencing, as provided in section
120.54(5)(b)2., Florida Statutes. EO 20-69 has been extended on several occasions
reflecting the continued state of emergency and threat to the public when gathering to
attend public meetings but at this time the extension are scheduled to end September 30,
2020 and there is no indication of additional extension. The City Commission finds that
further extension is justified, but has no authority to compel the Governor to act.
14. Section 4 D of Governor DeSantis' Executive Order 20-52 expressly authorizes the City
Commission to take whatever prudent action is necessary to ensure the health, safety,
and welfare of the community in accordance with section 252.38, Florida Statutes.
15. Chapter 252, Florida Statutes, among other things, confers upon the City Commission
the emergency powers provided for in Chapter 252 in order to protect the public peace,
health, and safety; and to preserve the lives and property of the people of the state; and
to "make, amend, and rescind such orders and rules as are necessary for emergency
management purposes and to supplement the carrying out of the provisions of ss.252.31-
252.90, but which are not inconsistent with any orders or rules adopted by the division
or by any state agency exercising a power delegated to it by the Governor or the division."
Section 252.46(1), Florida Statutes.
16. COVID-19 has created or imminently threatens to create conditions that may severely
affect the public health, safety, welfare, and security of the residents and visitors of the
City of Boynton Beach, Florida.
17. The City Commission finds there is a clear and present danger in holding a public "in
person"meetings for those attending and those who come in contact with those attending.
18. The technology exists to conduct public meetings using technology in which the City can
comply with the provisions of the Sunshine Law while preserving human life.
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19. The City Commission also possesses broad home rule powers that authorize it to protect
the public health, safety, and welfare;, declare emergencies; and protect its citizens.
20. There is no statute, Charter provision, or ordinance that defines "present" as physically
within the walls of the City Hall chambers. Webster's Dictionary includes "in
attendance" as a meaning of"present".
21. Section 4 of the City Charter provides: "The City Commission shall be the judges of the
qualifications, election and returns of its own members: it may enact rules of procedure
and may prescribe penalties for the non-attendance or dis-orderly conduct of its members,
and enforce the same. A majority of the members of the Commission shall be necessary
to constitute a quorum for the transaction of any business; but a smaller number may
adjourn from time to time, and under the provisions of ordinances or rules of procedure
may compel the attendance of the absent members by the imposition of fines or
penalties."
22. The Charter does not prohibit attendance at the meeting of City Commissioners by
electronic media and the City Commission finds that its attendance requirement for the
purpose of establishing a quorum, participating and voting can be satisfied by in-person
physical or CMT attendance. This same rule of attendance applies to any City Board or
Committee meetings and quasi-judicial hearings.
23. There is no intrinsic evil to telephonic or CMT attendance to achieve a quorum.
Consequently, the "preemption" of phone or CMT attendance, if it exists, must be
expressly set forth in the Florida Constitution or general or special law, not vaguely and
ambiguously implied. Thus,the City Commission finds that no preemption exists in state
law.
24. The City Commission finds that it is in the best interests of the City Commission,Boards,
Committees, City personnel, and citizens and residents of the City to authorize the City
Manager to provide for the City Commission and members of the various Boards and
Committees to be able to attend meetings electronically during a declared public health
emergency,pursuant to the City's Charter, Chapter 252, Florida Statutes, Section 4 D of
Governor DeSantis' Executive Order 20-52, and the City's home rule authority,
including that set forth in Article VIII, Section 2(b), Florida Constitution, and Section
166.021, Florida Statutes.
SECTION 3. DECLARATION OF EMERGENCY. Pursuant to its home rule
powers, Chapter 252, Florida Statutes, section 4 D of Governor DeSantis' Executive Order 20-52,
and based upon the Legislative Findings set forth in the above-stated recitals,the City Commission
of the City of Boynton Beach hereby finds and declares that a public health emergency exists
requiring immediate action by the City Commission. By virtue of the threat to public health and
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safety and by virtue of the threat to the City's financial health and home rule powers, it is necessary
for the City to implement this regulation.
SECTION 4. LIMITED AUTHORIZATION FOR PUBLIC MEETINGS
WITHOUT PHYSICAL PRESENCE IN THE SAME ROOM. The City Manager is hereby
authorized, pursuant to the home rule authority of the City Commission, Chapter 252, Florida
Statues,section 4 D of Governor DeSantis' Executive Order 20-52,and based upon the Legislative
Findings set forth in the above-stated recitals, during a declared public health emergency to:
a) arrange for the City Commission, Boards, and Committees to meet electronically ;
b)promulgate rules of procedure that will ensure compliance with the Sunshine
Law;
c)provide technology and administrative support as necessary to fulfill these objectives.
Such a meeting may only be conducted without the physical presence of a quorum of the City
Commissioners, Boards, and Committees, if an emergency is declared based upon an infectious
disease, and only so long as (1) the meeting is properly noticed, (2) minutes are taken, and (3) the
public is permitted to attend via communication media technology (CMT), technology such as
teleconferencing or web-based conferencing.
SECTION 5. SEVERABILITY. If any clause, section, or other part of this Ordinance
shall be held by any court of competent jurisdiction to be unconstitutional or invalid, such
unconstitutional or invalid part shall be considered as eliminated and in no way affecting the
validity of the other provisions of this Ordinance.
SECTION 6. HYBRID MEETING.Nothing herein shall be construed to prohibit hybrid
public meetings in which one or more members of the City Commission (or a City Board)
physically attend at a City Hall location while other Commission (or Board) members attend by
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communication media technology, provided proper notice is provided and all requirements for
conducting a sunshine law compliance meeting are met.
SECTION 7. CONFLICTS. All Ordinances or parts of Ordinances,Resolutions,or parts
of Resolutions in conflict herewith,be and the same are repealed to the extent of such conflict.
SECTION 8. EFFECTIVE DATE. This Ordinance shall take effect immediately. This
Ordinance shall expire on December 31, 2020, but may be extended by Resolution of the City
Commission.
PASSED ON EMERGENCY AND SINGULAR READING BY THE CITY clOMMISSION
OF THE CITY OF BOYNTON BEACH, FLORIDA, THIS DAY OF
,2020.
CITY OF BOYNTON BEACH,FLORIDA
YES NO
Mayor—Steven B. Grant
Vice-Mayor—Ty Penserga ✓
Commissioner—Justin Katz
Commissioner—Woodrow L. Hay ✓
Commissioner—Christina L. Romelus ✓
VOTE
ATTEST:
-4210"11--
Cry tal Gibson,MMC
City Clerk
(Corporate Seal)
fi t920
t
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