Background and Arguments

The Complainant alleges that the City Council violated the OMA on September 11, 2019 when it convened a working group outside of the public purview.

The City Council maintains that no quorum of the City Council was present on September 11, 2019 and, in any event, that the working group, which advises the City Council President on issues related to nightlife in the City of Providence, is not a “public body” under the OMA. In support, the City Council submitted an affidavit from Attorney Erlin Rogel, the City Council’s Chief of Staff.

The Complainant did not file a rebuttal.

Relevant Law & 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 is implicated whenever a “quorum” of a “public body” convenes for a “meeting.” See R.I. Gen. Laws § 42-46-3; see also Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). A quorum is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). For purposes of the OMA, a “public body” is defined as “any department,  agency,   commission,  committee,  board,  council,  bureau,   or  authority  or  any subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(3).

We first conclude that there was no quorum of the City Council present at the September 11, 2019 working group meeting. It is undisputed that the City Council is a fifteen-member public body. As averred in Chief of Staff Rogel’s affidavit, only four members of the City Council were present at the September 11, 2019 working group meeting. Thus, with less than a quorum of the City Council present, the OMA is not implicated with respect to the City Council.

The next question is whether the working group is itself a “public body” under the OMA. We have previously noted that determining whether a particular entity is or is not a “public body” is “a fact- intensive  question  not  subject  to  ‘bright  line’  rules.”  See  Oliveira  v.  Independent  Review Committee, OM 04-10.

The  Rhode Island  Supreme  Court  considered  the  issue  of  what  constitutes  a  public body  in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education, 151 A.3d 301, 307–08  (R.I.  2016).  There,  the  Rhode  Island  Board  Council  on  Elementary  and  Secondary Education (“RIDE”) created a Compensation Review Committee (“CRC”), which was tasked with reviewing requested and proposed salary adjustments to Rhode Island Department of Elementary and Secondary Education employees. Id. at 302–03. The CRC was described as an “‘informal, ad hoc working group with a strictly advisory role’ and with no legal status or authority[,]” and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:

“[T]he CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of  a  group  of  high-level  state  officials  and  operated  under  a  charter,  these  two factors  alone  are  insufficient  to  place  them  into  the  ‘public  body’  umbrella. Importantly, the CRC’s sole function is to advise the commissioner of RIDE, who in turn has to make a recommendation to the council. At this point in the process, if the commissioner decided to present any proposal to the council for the council’s required  approval,  the  public  would  have  an  opportunity  to  be  informed  of  and object to such proposal.” Id. at 308.

Here, the relevant facts concerning the working group are undisputed. Created by the President of the City Council, the working group is an informal ad hoc group assembled to advise the President on nightlife issues within the City of Providence. As averred in Chief of Staff Rogel’s undisputed affidavit, the working group does not have a fixed membership nor a set schedule of meetings. Further, the working group does not have any set authority beyond advising the President. There is  no  indication  in  the  record  before  us  that  the  City  Council’s  decision-making  authority  is delegated to the working group. Finally, like the CRC in Pontarelli, the working group’s advice is subject to public scrutiny through the public meetings of the City Council, which has the ultimate authority over matters of public policy. See id.

Therefore, guided by Supreme Court precedent and based on the totality of the undisputed facts presented, we do not find that the working group fits within the “public body” umbrella of the OMA. As such, the OMA does not apply to the working group and we therefore find no violations.

Conclusion

Although the Attorney General has found no violation and 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. Please be advised that we are closing this 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