20-030{00389071.3 306-9001821} S:\CA\Ordinances\ORD 20-030 CMT Meetings (00389071-3xc4b6a)(Rev For 2nd Read) Clean.Docx
ORDINANCE NO. 20-030
AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING THE CITY MANAGER AND CITY CLERK 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 COMMISSION DETERMINES AND
DECLARES A LOCAL PUBLIC HEALTH EMERGENCY OR OTHER
CIRCUMSTANCES WHICH THE COMMISSION DETERMINES
NECESSARY TO PROTECT THE HEALTH AND SAFETY OF CITY
OFFICIALS, CITY STAFF, AND THE PUBLIC; PROVIDING FOR THIS
ORDINANCE TO CONTROL IN THE EVENT OF CONFLICT WITH OTHER
ORDINANCES; 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 other circumstances in which the City
Manager 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 true and correct and is hereby made a part of this 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
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(“CMT”) during local public health emergencies, as determined by the City Manager. The
City Commission finds:
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 accord 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 rise and current
data is available at:
https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429.
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
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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 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 further extension is justified but has no authority to compel
the Governor to so 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.
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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” meeting 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.
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 (emphasis added) , 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.
Additionally, Sec. 8 of the Charter provides:
… All regular and special meetings of the City Commission shall be open
to the public. The City Commission shall determine its own rules and
order of business (emphasis added).
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
physical or CMT attendance. This same rule of attendance applies to 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 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.
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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 States, 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 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. 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 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.
FIRST READING this Oday of August, 2020.
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SECOND, FINAL READING AND PASSAGE this4ay ofae4e4c2020.
CITY OF BOYNTON BEACH, FLORIDA
YES
NO
Mayor—Steven B. Grant t/
Vice-Mayor—Ty Penserga ✓
Commissioner—Justin Katz ✓
Commissioner—Woodrow L. Hay ✓
Commissioner—Christina L. Romelus ✓
VOTE
ATTEST:
C stal Gibson, MMC
City Clerk
(Corporate Seal)
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