Background

The Complainant alleges that the Town Council violated the OMA at its July 11, 2019 meeting when an agenda item did not sufficiently specify the nature of the business to be discussed. Specifically, the Complainant contends that the following agenda item was inadequate:

"10. Town Business - Review, Discussion and/or Potential Action and/or Vote:

***

H. Authorization to purchase one 2019 Dodge Charger patrol cruiser at a cost of $38,751.35 (road-ready with equipment)"

The Complainant asserts that the Town Council voted on the reassignment of police cars under this agenda item.

As articulated in the July 11, 2019 meeting minutes, Council President Brady expressed that he did not believe the Town was in a monetary position to purchase a new vehicle and suggested that the vehicle the Chief currently drives could be put into the patrol circuit with necessary additions and the Chief could use a different vehicle. Then the following took place:

"Motion made by Council President Brady, seconded by Councilman D'Agostino against authorizing the purchase of a 2019 Dodge Charger patrol cruiser at the cost of $38,751.35,  and to follow the above mentioned vehicle rotation effective immediately, cost to make vehicle transition not to cost more than $5,000.00 A roll call vote was taken[.] *** Motion passes."

Relevant Law and Findings

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.

The OMA requires that all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). "This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed." Id. (Emphasis added).

In Anolik v. Zoning Board of Review of the City of Newport, the Rhode Island Supreme Court held that R.I. Gen. Laws § 42-46-6(b) requires the "public body to provide fair notice to the public under the circumstance, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon." 64 A.3d 1171, 1173 (R.I.  2013); see also  Tanner v.  Town of East Greenwich,  880 A.2d 784, 797 (R.I.  2005) (appropriate inquiry is "whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted"). In Anolik, the agenda item stated, "Request for Extension from Turner Scott received 11/30/08 Re:

Petition of Congregation Jeshuat Israel." 64 A.3d at 1173. The Court held that the agenda item was "completely silent as to which specific property was at issue; the agenda item provided no information as to a street address, a parcel or lot numbers, or even an identifying petition or case number." Id. at 1175 (emphasis in original). Accordingly, the Court held that the agenda item "fails to provide any information as to exactly what was the reason for the requested extension or what would be its duration." Id. at 1176.

Here, the pertinent agenda item indicated that the Town Council would discuss and/or vote on the purchase of a new patrol cruiser. As the July 11, 2019 meeting minutes indicate, the Town Council did so. But the Town Council also discussed reassigning patrol cars and voted that no more than $5,000 should be spent to effectuate this "vehicle transition[.]" The agenda item did not make any reference to vehicle reassignments or funding to modify existing vehicles. Consistent with the Rhode Island Supreme Court's precedent, the agenda item did not provide the public with fair notice "oft he nature of the business to be discussed." See Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education et al., 151 A.3d 301, 306 (R.I. 2016) ("The public had the statutory right to receive a more complete notice of what would be discussed and decided at the council meeting; this is especially true where the matters relate to expenditures of taxpayer monies."). As such, "[t]he public had the statutory right to receive a more complete notice of what would be discussed and decided" at the meeting. Anolik, 64 A.3d at 1175.

Based on the totality of the circumstances, and consistent with the Rhode Island Supreme Court's precedent, we find that the July 11, 2019 agenda item did not sufficiently specify the nature of the business to be discussed. Therefore, the Town Council violated the OMA.  See R.I. Gen. Laws§

42-46-6(b).

Conclusion

The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA on behalf of a complainant or the public interest within one hundred eighty (180) days of public approval of the minutes of the meeting at which the alleged violation occurred. See R.I. Gen. Laws § 42-46-8 (a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8 (d). Additionally, the Superior Court may impose fines up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.

Here, we do not find a knowing or willful violation. We are troubled by the fact that we found a recent similar violation in Bower & Angell v. Scituate Town Council, OM 19-04. However, we note that the agenda item here was precise as to the discussion and/or action regarding the purchase of a new patrol cruiser. It appears that the discussion and eventual vote on reassigning vehicles and the associated costs was a natural, albeit improper, extension of this agenda item. We further observe that the Complainant does not present - nor do we find - any evidence that the Town Council had a specific intent to circumvent the OMA. See Carmody v. R.I Conflict of Interest Comm 'n, 509 A.2d 453, 459 (R.I. 1986). Although we do not find evidence of a knowing or willful violation in this case, this finding nonetheless serves as notice to the Town Council that the conduct

discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.

We also do not find injunctive relief appropriate. We observe that the Town Council's action was taken during open session and that the nature of the action was consistent with the agenda item, namely the expenditure of funds for police vehicles. Indeed, the expenditure that was authorized at the meeting was actually substantially less than the amount of the expenditure noticed on the agenda. While we find the specificity of the agenda item lacking, we do not find that there was evidence that the insufficient agenda item substantively changed the outcome such that injunctive relief would be necessary.

In conclusion, the Attorney General will not file suit in this OMA matter. Nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The complainants 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 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