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| State of Rhode Island |
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| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
January 13, 2020
OM 20-02
Ms. Deborah Bergner
Michael A. Ursillo, Esquire
Town Solicitor, Town of South Kingstown
RE: Bergner v. Town of South Kingstown
Dear Ms. Bergner and Attorney Ursillo:
We have completed our investigation into the Open Meetings Act ("OMA") complaint filed by Ms. Deborah Bergner ("Complainant") against the Town of South Kingstown (the "Town"). For the reasons set forth herein, we find that we need not determine whether the now-disbanded subcommittee that is the subject of the complaint constituted a public body because we find that, even if the subcommittee violated the OMA, there is no need for injunctive relief and no evidence of a willful or knowing violation.
Background
The Complainant alleges that the Town's Economic Development Committee Data Subcommittee ("Subcommittee") violated the OMA when it failed to post notice or an agenda for its meeting held on January 29, 2019. The Complainant contends that the Director of Planning, Ms. Chelsea Seifert, "willfully and intentionally decided to hold the meeting, without regard for the law."
The Town Solicitor, Michael A. Ursillo submitted a response on behalf of the Town wherein he maintained that the Subcommittee is not a "public body" subject to the provisions of the OMA. In support thereof, the Town asserts that the Subcommittee was not created directly by the Town Council (the "Council"), but rather consists of three members of the Economic Development Committee ("EDC")[1] who are selected by other EDC members to "analyze data for consideration by the rest of the EDC."
Attorney Ursillo acknowledged that the Town's practice had been to post agendas for the Subcommittee in accordance with the OMA, and that the January 29 meeting, which had been conducted without meeting the OMA's notice requirements, was reconducted with a nearly identical agenda on February 26 after proper notice. The Town contends that the decision to reconduct the meeting was done in order to err on the side of caution given the "fact intensive nature of the determination whether or not the Subcommittee is subject to the OMA."
We acknowledge Complainant's rebuttal.
Counsel for the Town recently advised this Office that the Subcommittee was disbanded on June 18, 2019. Our review of publicly posted meeting minutes confirms that the Subcommittee is disbanded.
Relevant Law
When we examine an OMA complaint, our authority is to determine whether a violation of the OMA has occurred. See R.I. Gen. Laws § 42-46-8. In doing so, we must begin with the plain language of the OMA and relevant caselaw interpreting this statute.
Due to the fact that the Subcommittee is now disbanded, the question of whether the Subcommittee constituted a public body, and thus violated the OMA by failing to post notice of its January 29 meeting, is moot unless there is a need for injunctive relief or if there is evidence of a willful or knowing violation that would warrant civil fines. See R.I. Gen. Laws § 42-46-8(d).
Injunctive relief is not appropriate because the Town Solicitor indicated that that the January 29 meeting was reconducted with a nearly identical agenda on February 26 in accordance with the OMA's requirements. The Complainant argues that Ms. Seifert, in her capacity as Director of Planning, "willfully and intentionally decided to hold the meeting" "knowing the agenda wasn't posted properly." Ms. Seifert, whom the Complainant does not allege was a member of the Subcommittee, is not a "public body" as that term is defined under the OMA. See R.I.G.L. §42-46-2(3). Accordingly, the Complainant's allegations about Ms. Seifert's individual actions do not implicate the OMA. We were not presented with evidence that the Subcommittee members knew that the agenda had not been posted prior to the meeting; in fact, by the Complainant's own admission, "[t]he subcommittee members did not know the agenda had not been legally noticed." Based on the evidence presented, the totality of the circumstances fails to indicate a willful or knowing violation.
Conclusion
Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. 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. Please be advised that we are closing our file as of the date of this letter.
We thank you for your interest in keeping government open and accountable to the public.
Sincerely,
PETERF. NERONHA
ATTORNEY GENERAL
By: /s/ Kayla E. 0 'Rourke
Kayla E. 0 'Rourke
Special Assistant Attorney General