VIA EMAIL ONLY

January 17, 2020

Michael J. McCarthy, Esquire

Mark Davis, Esquire

Town Solicitor, Town of Narragansett

Dear Attorney McCarthy and Attorney Davis:

We have completed our investigation into the Open Meetings Act ("OMA") complaint filed by Michael J. McCarthy, Esquire ("Complainant") against the Narragansett Town Council ("Town Council").

The Complainant alleges that the Town Council violated the OMA by entering into multiple executive sessions from May through August of 2019 to discuss the disposition of town owned property, specifically the "Belmont" property.

Unless exempt, the OMA requires that all meetings of public bodies be held open to the public. Among the exemptions where a meeting may be held in executive session (but does not have to be held in executive session) is for "[a]ny discussions or considerations related to the acquisition or lease of real property for public purposes, or of the disposition of publicly held property wherein advanced public information would be detrimental to the interest of the public." R.I. Gen. Laws § 42-46-S(a)(S) (emphasis added).

During the pendency of this complaint, this Office issued Fortin v. Narragansett Town Council, OM 19-41, which is attached as Exhibit A to this finding. There, this Office found that the Town Council did not violate the OMA by convening into executive session to discuss the Belmont property during the following meetings: February 4, 2019, March 4, 2019, March 18, 2019, April 8, 2019, May 6, 2019, May 13, 2019, May 20, 2019, June 17, 2019, June 24, 2019, July 15, 2019, July 22, 2019, and July 29, 2019.

We found that for each of these twelve meetings, the evidence supported the Town Council's contention that it convened into executive session to discuss the disposition of public property pursuant to  R.I.  Gen.  Laws  §  42-46-S(a)(S)  and  "advanced public information would be detrimental to the interest of the public":

"As the Town Council accurately explained in its response, 'revealing the plan and negotiations of the Town Council in disposing of the Belmont property would give potential buyers/lessors valuable insight that could be used by these parties to undercut potential revenue realized by the Town in a final agreement.' For this reason, the Town Council did not violate the OMA on these twelve (12) occasions when it convened into executive session." Fortin, OM 19-41.

We observe that the instant complaint concerns the propriety of these exact same executive sessions.1[1] This Office concluded in Fortin, OM 19-41 that these executive sessions did not violate the OMA. While we acknowledge the Complainant's arguments to the contrary, the Complainant has not presented any argument or evidence that would alter our conclusion. We find no violations.

However, we reiterate our earlier observation that although there is no provision within the OMA that automatically unseals properly sealed executive session minutes, to the extent that disclosure of the executive session discussions relating to the Belmont property would no longer be detrimental to the public interest, the Town Council may wish to review and unseal relevant portions of the executive session minutes.

Although the Attorney General has found no violations 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,

PETER F. NERONHA ATTORNEY GENERAL

By: /s/ Sean Lyness

Sean Lyness

Special Assistant Attorney General

Exhibit A

December 17, 2019

OM 19-41

Ms. Carol A. Fortin

Mark Davis, Esquire

Town Solicitor, Town of Narragansett

RE:   Fortin v. Narragansett Town Council

Dear Ms. Fortin and Attorney Davis:

We have completed our investigation into the Open Meetings Act ("OMA") complaint filed by Ms. Carol Fortin ("Complainant") against the Narragansett Town Council ("Town Council"). For the reasons set forth herein, we find that the Town Council did not violate the OMA.

By e-mail dated July 24, 2019, the Complainant alleged a misuse of executive sessions under the OMA by the Town Council to "hide the sale of the former Belmont Build[ing] located in the Pier in Narragansett from the residents and Taxpayers in Narragansett." While the Complainant related certain allegations against the Town Council that do not fall within the ambit of the OMA- such as refusing to publicly discuss the sale, advertising the property, and failing to obtain a new appraisal - the complaint also alleges that the Town Council convened into various executive sessions and that "not all these session[s] were to discuss[] with a known buyer or negotiating a sale price." As such, the Complainant contends that the Town Council improperly convened into executive session during the following meetings:  February 4, 2019, March 4, 2019, March 18, 2019, April 8, 2019, May 6, 2019, May 13, 2019, May 20, 2019, June 17, 2019, June 24, 2019, July 15, 2019, July 22, 2019, and July 29, 2019.1[2]

We received a substantive response from the Town Council's attorney, Andrew Berg, Esquire, as well as the executive session minutes for the meetings at issue, which we have reviewed in camera. For the reasons discussed, infra, the Town asserts that the executive sessions were properly convened pursuant to R.I. Gen. Laws§ 42-46-5(a)(5).

We acknowledge receipt of the Complainant's rebuttal.

Here, we have reviewed the executive session minutes for the twelve (12) executive session meetings referenced in the complaint.[3]  Respectfully, we conclude that the Town Council did not violate the OMA when it convened into executive session on the twelve dates referenced to discuss the potential sale of the Belmont property.  While the sealed nature of the executive session minutes and our in camera review makes extended discussion of our reasoning difficult, it suffices that our in camera review reveals the Town Council discussions concerned the type of discussions one would expect when a person or entity is selling real estate and being presented with offers to purchase.  As the Town Council accurately explained in its response, "revealing the plan and negotiations of the Town Council in disposing of the Belmont property would give potential buyers/lessors valuable insight that could be used by these parties to undercut potential revenue realized by the Town in a final agreement." For this reason, the Town Council did not violate the OMA on these twelve (12) occasions when it convened into executive session.

To be clear, it is critical to our finding that during each executive session, the Town Council was in the midst of negotiating the sale and/or lease of the Belmont property.  For example, the Town Clerk submitted an affidavit relating that on January 22, 2019, at an open meeting of the Town Council and following public comment, "a motion passed to sell Town-owned property located at 25, 27 and 29 Pier Market Place, a portion of which formerly housed the Belmont Market."

Thereafter, according to the Complainant, the Town Council began convening into executive session (beginning on February 4, 2019) to consider the disposition of the Town-owned property. Even the Complainant acknowledges that she "understand[s] that contract negotiations pertaining to real estate might need to be secret in the final stages of that negotiation."

Despite our conclusion, we do not reject- and in fact agree-with Complainant's general position: "[w]e deserve to know the details of this transaction, and to respond to it in a fully informed manner."  The Complainant's general statement is particularly true considering that in August 2019, the Town Council approved the sale of a portion of the Belmont property. While there is no provision within the OMA that automatically unseals properly sealed executive session minutes, to the extent that disclosure of the executive session discussions relating to the Belmont property would no longer be detrimental to the public interest, we would encourage the Town Council to review and unseal relevant portions of the executive session minutes.