VIA EMAIL ONLY

November 5, 2018

Christopher M. Cobleigh, Esquire

Dear Mr. Cobleigh:

The investigation into your Open Meetings Act (“OMA”) complaint filed against the Davies Career and Technical High School (“School”) on behalf of a union member, Ms. Pamela Goodness, is complete. By email correspondence dated August 7, 2018, and supplemented on September 2, 2018, you allege the School violated the OMA when it discussed Ms. Goodness’ job performance at its May 14, 2018 executive session meeting without prior notification to her, as you contend is required pursuant to R.I. Gen. Laws § 42-46-5(a)(1). During the May 14, 2018 executive session meeting, the School voted to eliminate Ms. Goodness’ position as librarian at the School.

In response to your complaint, we received a response in affidavit form from the School’s legal counsel, Mr. Vincent F. Ragosta, Esquire, who provided affidavits from eight (8) members of the School’s Board of Trustees, namely Mr. Paul Ouellette, Mr. Harold Burns, Mr. Raymond Chartier, Mr. David Chenevert, Mr. Larry Gemma, Mr. Robert Halkyard, Mr. David Marquis, Mr. John Quinn and from the School’s Principal, Ms. Victoria Gailliard-Garrick.

As the affidavits from the Board members and from Principal Gailliard-Garrick are substantially similar, we set forth the contents of just one affidavit:

“I attended the Board’s meeting of May 14, 2018.

During Executive Session, and after discussions were had about the necessity of the librarian position, Member John Quinn stated something along the lines of ‘there are performance issues as well.’

Other than this one statement, there were no discussions pertaining to Ms. Goodness’s job performance.”

Attorney Ragosta states, in pertinent part:

“The Board’s notice for its May 14, 2018 meeting indicated, among other things, that it would ‘Recess to Executive Session Pursuant to R.I.G.L. 42-46-5(A)(1) and (2) to Discuss Pending Litigation and Personnel Issues.’

However, the mere fact that the Board’s notice indicated that there would be a discussion of ‘personnel issues’ is not itself evidence that anyone’s job performance was actually discussed at the meeting.

Moreover, Ms. Goodness’s allegation does not even allege a violation of the OMA because she was entitled to advance notice only if her ‘job performance, character, or physical or mental health’ was to be discussed but she simply alleged that her ‘nonrenewal would be discussed’ and such nonrenewal does not necessarily implicate her ‘job performance, character, or physical or mental health.’ * * *

[D]uring its executive session Board members discussed whether there was a continuing need for the librarian position, held by Ms. Goodness, at the * * * * School

The Board was also able to consider the potential impact that eliminating the librarian position would have on students because the high school’s director related his approaches to providing access to the library during Ms. Goodness’s absences in the past.

* * *

At the very end of the discussion about the continuing educational necessity of a librarian, in what appears to have been an afterthought, Member Quinn interjected that ‘[t]here are performance issues as well.’

Principal Gailliard-Garrick, who is not a member of the Board, is the only one to respond to this statement and she simply affirms it without any elaboration or comment.

The Board then voted unanimously to eliminate the position of the librarian, which was followed up by a letter sent to Ms. Goodness notifying her of such.”

We acknowledge your rebuttal.

At the outset, we note that in examining whether a violation of the OMA 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 as the General Assembly has written the law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the School violated the OMA. See R.I. Gen. Laws § 42-46-8.

The OMA requires that “[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5.” R.I. Gen. Laws § 42-46-3. One of the exemptions that allows a public body to hold a closed session meeting is R.I. Gen. Laws § 42-46-5(a)(1). This exemption is for “[a]ny discussions of the job performance, character, or physical or mental health of a person or persons provided that such person or persons affected shall have been notified in advance in writing and advised that they may require that the discussion be held in an open meeting.” (Emphasis added). “Failure to provide such notification shall render any action taken against the person or persons affected null and void.” Id.

Here, the School contends the Ms. Goodness’ job performance was not discussed, but rather the discussion centered on the economic viability of the position of librarian. As such, the School submits that its admitted failure to provide advanced notice to Ms. Goodness as outlined in R.I. Gen. Laws § 42-46-5(a)(1) is of no moment because the School “did not discuss her job performance at its May 14, 2018 meeting.” Ragosta affidavit, ¶ 11. See also id., ¶ 14 (“such nonrenewal does not necessarily implicate her ‘job performance, character, or physical or mental health’”). Assuming the veracity of the School’s argument, i.e., that it “did not discuss [Ms. Goodness’ job performance at its May 14, 2018 meeting,” id., at ¶ 11, we must find that the School violated the OMA.

The facts present in this case are strikingly similar to a prior finding issued by this Department, Hayes v. Bristol/Warren Regional Joint Finance Committee, OM 95-32. In Hayes, the subject matter at issue concerned a discussion that occurred regarding a report prepared by an outside consultant, which involved members of the Bristol Warren Regional School District. In that case, the finance committee believed that a closed session was necessary because the discussion would “reveal very damaging information about an individual’s job performance that was not fully substantiated or complete.” During the closed session, however, no individual’s job performance was discussed. Instead, the finance committee addressed the performance of the administration in general. As a result, we determined that the finance committee violated the OMA because general discussions regarding the overall performance of the administration do not fall within the exception set forth in R.I. Gen. Laws § 42-46-5(a)(1). See also Brien v. Woonsocket Housing Authority, OM 09-21 (“the remaining portions of the executive session minutes evince that the Housing Authority discussed its general structure, administration, and future”).

Because the School maintains that its executive session did not implicate Ms. Goodness’ “job performance, character, or physical or mental health,” Ragosta affidavit, ¶ 14, the School could not have convened into executive session pursuant to R.I. Gen. Laws § 42-46-5(a)(1), which only permits an executive session for “[a]ny discussions of the job performance, character, or physical or mental health of a person or persons.” To be sure, the School’s May 14, 2018 agenda also cited R.I. Gen. Laws § 42-46-5(a)(2), but the School presents no argument or evidence that it convened into executive session for “collective bargaining or litigation” purposes. For these reasons, the School violated the OMA.

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the Superior Court. R.I. Gen. Laws § 42-46-8(a). There are two remedies available in suits filed under the OMA: (1) “[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];” or (2) “the court may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members found to have committed a willful or knowing violation of [the OMA].” R.I. Gen. Laws § 42-46-8.

Here, we find insufficient evidence that the School knowingly or willfully violated the OMA. While injunctive relief would be appropriate, we prefer to provide the School the opportunity to remedy the violation on its own. The School should, therefore, reconsider and re-vote on the matter discussed at its May 14, 2018 meeting at a properly posted and convened future meeting. See Tanner v. Town Council of the Town of East Greenwich, 880 A.2d 784, 802 (R.I. 2005) (“By scheduling, re-noticing, and re-voting on the challenged appointment, the town council, albeit belatedly, was acting in conformity with both the letter and spirit of the avowed purpose of the OMA – to ensure that ‘public business be performed in an open and public manner.’”). The School’s legal counsel should contact this Department within ten (10) business days of this finding to inform us of its intentions.

This finding serves as notice to the School that the conduct discussed herein is unlawful and may serve as evidence of a willful or a knowing violation in any similar future situation. Although the Attorney General will not file suit in this matter, at this time, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court. The complainant may pursue an OMA complaint within “ninety (90) days 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 our file as of the date of this finding, although we reserve the right to reopen this matter in the event the School fails to comply with this finding and the OMA.

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

Very truly yours,

Lisa Pinsonneault

Special Assistant Attorney General

LP/kr

Cc:          Vincent F. Ragosta, Esq.