VIA EMAIL ONLY

February 28, 2020

PR 20-11

Mr. Christopher Lamendola

Matthew T. Oliverio, Esquire

Legal Counsel, East Greenwich School Committee

Dear Mr. Lamendola and Attorney Oliverio:

We have completed the investigation into the Access to Public Records Act (“APRA”) and Open Meetings Act (“OMA”) complaints filed by Mr. Christopher Lamendola (“Complainant”) against the East Greenwich School Committee (“School Committee”).[1]  For the reasons set forth herein, we find that we need not consider the merits of the APRA complaint and that the School Committee committed one technical violation of the OMA.

We acknowledge Complainant’s rebuttal.[2]

Relevant Law and Findings

When we examine an APRA or OMA complaint, our authority is to determine whether a violation of the APRA or OMA has occurred. See R.I. Gen. Laws §§ 38-2-8, 42-46-8. In doing so, we must begin with the plain language of the APRA and OMA and relevant caselaw interpreting these statutes.

  The APRA Complaint

The APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or copy such records. See R.I. Gen. Laws § 38-2-3(a). This Office has previously determined it unnecessary for us to consider whether a public body violated the APRA where a complainant receives the subject documents after filing an APRA complaint and where there is no evidence of a willful and knowing or reckless violation. See Farinelli v. City of Pawtucket, PR 17-22; Piskunov v. Town of North Providence, PR 16-38. Here, the undisputed evidence demonstrates that the School Committee has provided Complainant with the unredacted invoice as he requested. As such, any request for injunctive relief is moot. Additionally, we were provided with no evidence that the School Committee’s initial redaction, even assuming it was improper, would have constituted a willful and knowing, or reckless, violation that would warrant civil penalties. See R.I. Gen. Laws § 38-2-9(d). As such, this Office declines to further address the merits of this allegation.

  The OMA Complaint

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 Tanner v. Town of East Greenwich, 880 A.2d 784 (R.I. 2005), the Rhode Island Supreme Court examined the OMA's requirement that a public notice contains “a statement specifying the nature of the business to be discussed.” The Tanner Court stated that although the standard is “somewhat flexible,” the contents of the notice “reasonably must describe the purpose of the meeting or the action proposed to be taken.” Id. at 797-98 (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”).

Additionally, the OMA generally requires that “public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials[.]” R.I. Gen. Laws § 42-36-3. Nonetheless, the OMA permits public bodies to enter executive session for a limited number of enumerated purposes. See R.I. Gen. Laws § 42-36-4(a). Rhode Island General Laws § 42-46-4(a) provides, in relevant part:

“By open call, a public body may hold a meeting closed to the public upon an affirmative vote of the majority of its members. A meeting closed to the public shall be limited to matters allowed to be exempted from discussion at open meetings by § 42-46-5. The vote of each member on the question of holding a meeting closed to the public and the reason for holding a closed meeting, by a citation to a subdivision of § 42-46-5(a), and a statement specifying the nature of the business to be discussed, shall be recorded and entered into the minutes of the meeting.” (Emphasis added).

This Office has previously found that, with respect to executive session notice:

“[i]f the matter to be discussed is one of public record, such as a pending court case or the well-publicized negotiation of a principal or executive director's contract, the public body should cite the name of the case or reference that it will discuss the contract. However, where the matter to be discussed in executive session is not yet public, the public body may limit its open call to the nature of the matter, such as ‘litigation’  or  ‘personnel.”  Andrews-Mellouise  v.  East  Providence  School Committee, OM 19-10.

Additionally, “[a]ll votes taken in closed sessions shall be disclosed once the session is reopened; provided, however, a vote taken in a closed session need not be disclosed for the period of time during which its disclosure would jeopardize any strategy, negotiation or investigation undertaken pursuant to discussions conducted under § 42-46-5(a).” R.I. Gen. Laws § 42-46-4(b).

April 9 Meeting

As a threshold matter, this Office must determine whether the statute of limitations relating to the April 9 meeting has expired. In relevant part, R.I. Gen. Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Office after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred. This Office has declined to review OMA complaints filed with this Office after the expiration of the statute of limitations because once the statute of limitations expires, the OMA prohibits this Office from seeking injunctive relief or civil fines by filing an OMA lawsuit in Superior Court. See, e.g., Langseth v. Buttonwoods Fire District, OM 19-27 (“when the statute of limitations has expired or is about to expire before a complaint is filed within [this Office], we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”).

The School Committee provided undisputed evidence that the April 9 meeting minutes were approved on April 23, 2019. Pursuant to R.I. Gen. Laws § 42-46-8(b), the 180-day statute of limitations began running as of April 23 and expired on or about October 20, 2019, which was before the Complainant filed his complaint with this Office. Consequently, we decline to address the merits of Complainant’s allegations concerning the April 9 meeting.

July 16 and August 13 Executive Session Meetings

We now turn to the Complainant’s allegations regarding the School Committee’s July 16 and August 13 meetings, where the contested agenda item pertained to an executive session. For July 16, the agenda item provided “Discussion/vote: investigative proceedings regarding allegations of misconduct – Requested staff investigation and engagement of independent counsel related to same.” For August 13, the agenda item stated, “Discussion: Requested Staff Investigation.”

The Complainant contends that these items violated the OMA because they do not identify “who requested the staff investigation and who or what staff is considered to be investigated.” The School Committee maintained that “the law does not require that the public body announce or reveal the identity of the person(s) who is the subject of the inquiry or investigation” and that the individual(s) accused of misconduct have privacy interests that outweigh the public’s interest in knowing their identities.

Here, it is undisputed that the Complainant (and others) submitted a letter to officials within the Town of East Greenwich requesting an investigation into various public officials, which prompted the subject executive session discussions. The record does not indicate that the potential investigation was publicly known or subject to a pending court case. We also note that there is a significant privacy interest implicated when individuals are accused of misconduct or subject to a potential investigation, and that said privacy interest does not disappear because that individual is a “public official.” See Citizens for Responsibility and Ethics in Washington v. Dep’t of Justice,

746 F.3d 1082, 1095 (D.C. Cir. 2014) (Majority Leader Tom DeLay had a “substantial” privacy interest in the disclosure of records concerning the FBI’s investigation into his conduct). Accordingly, based on the totality of the circumstances, we find that the July 16 and August 13 agenda items did not violate the OMA in these circumstances.

The Complainant next argues that the School Committee did not adequately report a closed session vote that occurred at the July 16 meeting. Based on the evidence provided, the School Committee reported during open session that, during executive session, the School Committee voted to hold the vote on the agenda item until a future open session meeting. Said vote to engage Callaghan & Callaghan occurred during open session at the July 23 School Committee meeting. Accordingly, we find no violation.

However, based on our in camera review of the August 13 executive session minutes, the School Committee took a vote which was reported out in open session as “a vote was taken in executive session regarding a staff investigation. The vote was 7-0.” The School Committee did not describe the substance or nature of the vote in open session.[3]

Based on our in camera review of the executive session minutes, the School Committee chose to withhold details about the nature of its August 13 vote as a courtesy to Complainant since the vote pertained to allegations he raised. The record evinces that the School Committee believed it appropriate for counsel to draft a letter to the individuals who made the allegations informing them of the vote prior to the public being informed. It is undisputed that the Complainant and the others who had requested an investigation received a September 5, 2019 letter informing them that during the August 13, 2019 executive session meeting, the School Committee unanimously consented to end the investigation. The School Committee did not argue that disclosing this vote would “jeopardize any strategy negotiation or investigation.” See R.I. Gen. Laws § 42-46-4(b). Although

it is arguable that delaying full disclosure of the vote was necessary for strategic reasons, the School Committee did not provide evidence that it publicly disclosed the vote after sending the September 5, 2019 letter, and no such subsequent disclosure is apparent to us based on the publicly filed meeting minutes. We find that the School Committee’s failure to subsequently disclose the nature of this vote violated the OMA.