VIA EMAIL ONLY

March 19, 2018

PR 18-07

Brian Fernandes

Dear Mr. Fernandes:

The investigation into your Open Meetings Act (“OMA”) and Access to Public Records Act (“APRA”) complaint filed against the Foster Center Volunteer Fire Company (“FCVFC”) is complete.[1]

You allege that the FCVFC violated the OMA and the APRA in the following ways, in relevant part:

“My client, who applied to work for Defendant [FCVFC], had a specific interest in its meetings, minutes, and executive practices, and was specifically disadvantaged by Defendant’s multiple violations, as follows:

1.      Defendant failed to respond to the attached APRA request from my client, Brian Fernandes, violating RIGL [§] 38-2-7.

2.      Defendant posted no yearly notice of meetings, violating RIGL [§] 42-46-6(a) for 2014 and 2015.

3.      All Defendant’s notices, for all its meetings, including specifically meetings on 1/12/15, 2/9/15[,] 3/9/15, 4/22/15, 5/11/15, 6/8/15, 7/13/15, 8/18/15 and 9/14/15, violates RIGL [§] 42-46-6(b) for failure to state notice posting (and location) date, date time and place of meeting, and nature of business to be discussed.

4.      All Defendant’s notices, for all its meetings, including specifically meetings on 1/12/15, 2/9/15[,] 3/9/15, 4/22/15, 5/11/15, 6/8/15, 7/13/15, 8/18/15 and 9/14/15, violates RIGL [§] 42-46-6(c) for failure to state in the notice the place of posting

5.      All Defendant’s meeting minutes, specifically meetings on 1/12/15, 2/9/15[,] 3/9/15, 4/22/15, 5/11/15, 6/8/15 and 7/13/15, violate RIGL [§] 42-46-7(a) 1-4.

6.      All Defendant’s meeting minutes, specifically meetings on 1/12/15, 2/9/15[,] 3/9/15, 4/22/15, 5/11/15, 6/8/15 and 7/13/15, violate RIGL [§] 42-46-7(b)(1) for failure to record votes by individual.

7.      Defendant fire company violated RIGL [§] 42-46-7(b)(2) for its late filing of minutes for its meeting on 5/11/15.

8.      Defendant fire company violated RIGL [§] 42-46-7(b)(2) for its late filing of minutes for its meeting on 7/13/15.

9.      Defendant fire company violated RIGL [§] 42-46-7(b)(2) for its late filing of minutes for its meeting on 8/18/15.

10.  Defendant fire company violated RIGL [§] 42-46-7(b)(2) for its late filing of minutes for its meeting on 9/14/15.

11.  Defendant violated RIGL [§] 42-46-7(d) for its late filing of minutes for its meeting on 5/11/15.

12.  Defendant violated RIGL [§] 42-46-7(d) for its late filing of minutes for its meeting on 8/18/15.”

In response to a prompt from this Department as to whether the FCVFC was subject to the OMA and/or the APRA, you provided the following:

“[T]he [FCVFC] is a fire district. It provides fire protection (a governmental function) on behalf of Foster to a portion of Foster residents. It charges a fire tax for that service. Its vehicles are registered with the State of RI as Fire Apparatus vehicles. Its members attend RI State Fire Academy training. The FCVFC already regularly reports its meeting notices and minutes on the SOS’s website. It is no different from any other rural RI fire district[.]”

The FCVFC filed a substantive response through its counsel, Frank Lombardi, Esquire. Attorney Lombardi responded to your allegations, in pertinent part, as follows:

“It [is] our position that the FCVFC is not a ‘public body’ under the OMA. Specifically, authority for this position has amply been set forth in an advisory opinion prepared by [the Department of Attorney General] pursuant to a request made by the Prudence Island Volunteer Fire Department, a similarly situated entity as the FCVFC. * * * [F]or the purpose of this initial discussion, there is ample evidence as set forth in Schmidt v. Ashaway Volunteer Fire Association, OM 98-33, Montiero v. Providence School Board Nominating Commission, OM 02-25, and the contents in the advisory opinion in Prudence Island Volunteer Fire Department more particularly identified as ADV OM 16-03. In the collective analysis of all of these cases, the requisite factual determination for finding that OMA does not apply to such fire districts equally applies to my client.

Specifically, my client, like these other volunteer associations is a non-business, non-profit corporation duly incorporated with the State of Rhode Island. Moreover, the members of this group do not receive a salary, medical benefits or a pension for services performed. Additionally the officers are not elected by the public nor are they appointed by the subdivision of the State or the Town of Foster. Instead, all members are elected by the Fire Association and by the FCVFC itself. Moreover, the FCVFC was not created by the Town and has and continues to remain a separate entity from the Town of Foster. Nothing in the bylaws of the FCVFC requires any governmental or public approval process including but not limited to ordinances or mayoral executive orders. While the Town of Foster does appropriate funds to the FCVFC, as you have opined in the past, particularly in Schmidt v. Ashaway Volunteer Fire Association, PR 97-09, you state ‘while the PIVFD does receive some financial support from the Town, among other entities, we have previously observed ‘that that fact alone does not alone does not [sic] render them subject to the Act[.]” More importantly, the agreement with the Town does not create any sort of partnership between the parties and the Town. Additionally, the funding by the Town is insufficient to maintain the upkeep of the Fire District. In fact, the FCVFC privately owns the building, the brush truck, Humvee, a Crown Victoria (Chief’s Car), trailer, radio system and radio tower. My client pays its own bills including but not limited to National Grid, oil heat, Verizon, building insurance, truck and vehicle insurance, fuel, repair to all trucks, fire gear, fire equipment, blue bug, medical supplies and vehicle inspection and equipment. There is no fire tax collected by the Town of Foster. Lastly, the FCVFC writes its own grants and seeks to be a recipient of various Forestry, Radio Equipment, Rhode Island Senate, AFG and factory mutual grants. While three trucks owned by the Town are utilized by my client, all expenses associated with those trucks are born exclusively by my client. For these reasons, it is abundantly clear that the FCVFC is not a public body for the purposes of the complaints made by Brian Fernandes.

* * *

In essence this is a small, privately run volunteer fire company that has no legislative authority and is thus a non-public body.” [Emphasis supplied by the FCVFC].

You did not provide a rebuttal.[2]

At the outset, we note that in examining whether a violation of the OMA or the APRA has occurred, we are mindful that our mandate is not to substitute this Department’s independent judgment concerning whether an infraction has occurred, but instead, to interpret and enforce the OMA and the APRA as the General Assembly has written the laws and as the Rhode Island Supreme Court has interpreted their provisions. Furthermore, our statutory mandate is limited to determining whether the FCVFC violated the OMA and the APRA. See R.I. Gen. Laws §§ 42-46-8; 38-2-8(b). In other words, we do not write on a blank slate.

Your complaint alleges that the FCVFC failed to post sufficient notice and failed to post sufficient and/or timely meeting minutes for numerous meetings occurring in 2015. However, before this Department can address these allegations raised in your complaint, we must determine as a threshold matter whether you are an aggrieved party and have legal standing to bring these OMA complaints. See Grieb v. Aquidneck Island Planning Commission, OM 15-16.

The OMA provides that “[a]ny citizen or entity of the state who is aggrieved as a result of violations of the provisions of this chapter may file a complaint with the attorney general.” R.I. Gen. Laws § 42-46-8(a). In Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215 (R.I. 2002), the Rhode Island Supreme Court examined the “aggrieved” provision of the OMA. There, an OMA lawsuit was filed concerning notice for the Lottery Commission’s March 25, 1996 meeting wherein its Director, John Hawkins, was terminated. At the Lottery Commission’s March 25, 1996 meeting, Mr. Hawkins, as well as his attorney, Ms. Graziano, were both present. Finding that the Lottery Commission’s notice was deficient, the trial justice determined that the Lottery Commission violated the OMA and an appeal ensued.

On appeal, the Rhode Island Supreme Court found that it was unnecessary to address the merits of the OMA lawsuit because “the plaintiffs Graziano and Hawkins have no standing to raise this issue” since “both plaintiffs were present at the meeting and therefore were not aggrieved by any defect in the notice.” Id. at 221. The Court continued that it:

“has held on numerous occasions that actual appearance before a tribunal constitutes a waiver of the right of such person to object to a real or perceived defect in the notice of the meeting. * * * It is not unreasonable to require that the person who raises the issue of the defect in notices be in some way disadvantaged or aggrieved by such defect. While attendance at the meeting would not prevent a showing of grievance or disadvantage, such as lack of preparation or ability to respond to the issue, no such contention has been set forth in the case at bar. The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice.” Id. at 221–22.

Here, pursuant to R.I. Gen. Laws § 42-46-8(a), and the standard established in Graziano, you must demonstrate that you are “in some way disadvantaged or aggrieved by such defect” in the notice and postings. Id. at 221. Importantly, the test is not whether the public is aggrieved, but whether you, as an individual are aggrieved. See Riggs v. East Bay Energy Consortium, PR 13-25, OM 13-30.

Respectfully, a review of the undisputed evidence provides no indication that you are aggrieved by any of these alleged defects in notices or meeting minutes. Although you alleged “a specific interest” in the notices and minutes and were “specifically disadvantaged” by the alleged insufficiencies, you provide no other facts to corroborate these conclusory claims. Bare assertions of interest are insufficient means to demonstrate that you are aggrieved pursuant to the OMA; indeed, a finding to the contrary would render the OMA’s aggrieved requirement a meaningless pleading standard. Because you have failed to articulate any such explanation, and because we fail to find any evidence indicating otherwise, this Department finds that you are not an “aggrieved” party and therefore have no standing to object to the notices or meeting minutes described supra. See Curt-Hoard v. Woonsocket School Board, OM 14-20. Accordingly, we find no violations.

We next turn to your sole remaining allegation of violation, that the FCVFC failed to respond to your APRA request. The FCVFC demurs upon the contention that they are not a “public body” under the APRA and that, therefore, we should find no violation. Accordingly, we must determine whether the FCVFC is subject to the APRA.

The APRA defines a “public body” as:

“any executive, legislative, judicial, regulatory; or administrative body of the state, or any political subdivision thereof; including but not limited to any department, division, agency, commission, board, office, bureau, authority; any school, fire, or water district. . . or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1) (emphasis added).

In Reilly & Olneyville Neighborhood Association v. Providence Department of Planning and Development and/or Providence Redevelopment Agency, PR 09-07B, this office considered the scope and interpretation of the last clause of R.I. Gen. Laws § 38-2-2(1) as set forth above. After researching this issue, we were unable to discover a decision from a Rhode Island court that addressed this clause, and, consequently, we reviewed the plain language of this provision. In doing so we were struck with the similarity of the above language and the definition of an “agent.”

As we explained in Reilly,

“[f]or example, an ‘agent’ is defined as:

‘[a] person authorized by another (principal) to act for or in place of him; one entrusted with another’s business. One who represents and acts for another under the contract or relation of agency. A business representative, whose function is to bring about, modify, affect, accept performance of, or terminate contractual obligations between principal and third persons. One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it. One who acts for or in place of another by authority from him; a substitute, a deputy, appointed by principal with power to do the things which principal may do. One who deals not only with things, as does a servant, but with persons, using his own discretion as to means, and frequently establishing contractual relations between his principal and third persons.

One authorized to transact all business of principal, or all of principal’s business of some particular kind, or all business at some particular place.’ Black’s Law Dictionary, p. 63 (6^th Edition) (internal citation omitted) (emphases in original).

Similarly, the Restatement (Third) defines agency as “the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.’ Restatement (Third) Agency § 1.01. (Emphasis in original).

Having reviewed the above definitions of ‘agency,’ we conclude that the last clause of R.I. Gen. Laws § 38-2-2(1), which states that a ‘public body’ includes any ‘public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency,’ concerns other persons or entities that enter into an agency-type relationship with a governmental entity. Such an interpretation is consistent with the plain language set forth in R.I. Gen. Laws §38-2-2(1).” Reilly & Olneyville Neighborhood Association v. Providence Department of Planning and Development and/or Providence Redevelopment Agency, PR 09-07B.

In Schmidt v. Ashaway Fire District & Volunteer Fire Association, PR 97-09, we found that the Ashaway Volunteer Fire Association, Inc., was a “public body” under the APRA. In making this conclusion, we noted that “the determining factor [] is whether or not such private entity is acting on behalf of a public agency. To make such a determination, one must look at the nature of the functions of the private entity [] and the governmental entity[.]” (Emphasis in original). Because the Association had been delegated fire protection services by the Fire District, we found that the Association was “acting on behalf of” the Fire District and was, therefore, a “public body” under the APRA.

Here, based on the evidence presented, we find that the FCVFC is not “acting on behalf of and/or in place of’ a governmental entity, and, accordingly, conclude that the FCVFC is not a “public body” under the APRA. Dispositive to our conclusion is the fact that, unlike the Fire District in Schmidt, no evidence has been presented that the Town of Foster (“Town”) has delegated fire protection services to the FCVFC. There is no indication that the FCVFC has any formal connection or partnership with the Town. Indeed, in response to an inquiry from this Department, the Town noted that there was no contract between the Town and the FCVFC. We also note that the Town does not assess a fire tax. A review of the Town’s and the FCVFC’s respective websites reveals no connection or reference between the two entities.[3] The evidence demonstrates that, as a 501(c)(3) nonprofit corporation who elects its own members and maintains control of its equipment and finances, the FCVFC operates completely independent from the Town. As such, we find no evidence that the FCVFC is “acting on behalf of” or has an agency relationship with the Town. Respectfully, the indicia you reference to support your position is contradicted by the FCVFC’s arguments and/or do not evidence the agency type relationship required by the APRA. See e.g., Prudence Island Volunteer Fire Department, ADV OM 16-03. Therefore, based on the evidence before us, we conclude that the FCVFC is not a “public body” under the APRA. Accordingly, we find no violation.

Although the Attorney General will not file suit in this matter, nothing within the OMA or the APRA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws §§ 38-2-8; 42-46-8(c). The complainant may do so within ninety (90) days from the date of the Attorney General’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. R.I. Gen. Laws § 42-46-8. We are closing this file as of the date of this correspondence.

We thank you for your interest in keeping government open and accountable to the public.

Very truly yours,

Sean Lyness

Special Assistant Attorney General

SL/kr

Cc:          Frank S. Lombardi, Esq.