Background

The Complainant alleges that the Fire District violated the OMA in connection with its June 1, 2015 meeting when: (1) it voted on extending the "BBA-BFD 10 year Land Lease" despite this item not appearing on the agenda; and (2) the "draft" minutes for the meeting failed to indicate each member's vote taken on this item. The Complainant also alleges that the 180-day OMA statute of limitations has not expired because the June 1, 2015 meeting minutes were never approved by the Fire District. See R.I. Gen. Laws§ 42-46-8 (a), (e).

Attorney John M. Boehnert, Esquire submitted a substantive response on behalf of the Fire District, which included an affidavit from Mr. Jonathan Pratt, Senior Supervisor of the Fire District at all times relevant to the Complainant's allegations. The Fire District states that "no vote or other action was taken by the Board with regard to the Lease" and that on June 1, 2015 the Board notified the public "that the Lease had been automatically extended another ten-year term pursuant to automatic renewal provisions in the Lease." The Fire District did not refute Complainant's allegation that the meeting minutes were never approved and the statute of limitations for the June 1, 2015 meeting has not expired.

The Complainant submitted a rebuttal wherein he conceded that a vote regarding the lease "did not take place" but maintains that "there was nothing in the agenda that delivered a notice to the public that the lease would even be discussed, never mind voted on."

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.

Since the Complainant does not dispute the Fire District's contention that it did not vote to extend the lease agreement at its June 1, 2015 meeting, we need only address Complainant's allegation that the June 1, 2015 agenda failed to indicate that discussion regarding the lease would occur.

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 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").

Here, the June 1, 2015 agenda does not contain any indication that the Fire District would discuss the lease extension. Our review of the June 1, 2015 minutes indicates that the topic of "BBA-BFD 10 year Land lease renewed" was mentioned during the meeting.  Based on the undisputed evidence, we find that the June 1, 2015 agenda did not adequately inform the public of the business to be discussed by the Fire District.  Accordingly, we find that the Fire District 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 injunctive relief appropriate because the Fire District did not take any action related to the relevant agenda item.  We next consider whether the violations were willful or knowing.   We are concerned that the Fire District has previously committed OMA notice violations.  See Langseth v. Buttonwoods Fire District, OM 19-27 (Fire District failed to post annual notice of its regularly scheduled meetings and its minutes for three meetings fail to indicate the Board members present or absent and fail to record the votes of each individual member); Langseth v. Buttonwoods Fire District, OM 07-05 (Fire District failed to post annual notice of its projected regular meetings). However, we note that the violation in this case is somewhat different than those prior matters and that the Fire District did not have the benefit of this Office's most recent finding prior to its June 1, 2015 meeting. Accordingly, we do not find sufficient evidence of a willful or knowing violation. This finding serves as notice to the Fire District that its conduct violated the OMA and may serve as evidence in a future similar situation of a willful or knowing violation.

We consider this matter closed as of the date of this decision. Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. 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 thank you for your interest in keeping government open and accountable to the public.

Sincerely,

PETER F. NERONHA ATTORNEY GENERAL

By: /s/ Kayla E. 0 'Rourke

Kayla E. O'Rourke

Special Assistant Attorney General