Background

The Complainant alleges that the Foundation violated the OMA when it failed to post notice and agendas for its meetings on the Secretary of State’s website for meetings occurring on February 10, 2017, May 4, 2017, June 7, 2017, November 20, 2017 and March 5, 2018. The Complainant further alleges that the Foundation is a quasi-state agency subject to the OMA.

Counsel for the Foundation, Matthew C. Reeber, Esquire, submitted a substantive response wherein Attorney Reeber maintained that the Foundation is a 501(c)(3) non-profit corporation organized for charitable purposes. Attorney Reeber stated further that “the Foundation is a Rhode Island charitable corporation and not an arm of state government carrying out a function of government,” and thus is not subject to the OMA. Attorney Reeber states that “the Foundation is a non-profit corporation with no restrictions on who can or cannot serve as a board member” and “[t]he Foundation has no legal authority bestowed on it by the General Assembly or RITBA [Rhode Island Turnpike and Bridge Authority].” With its response, the Foundation also included copies of its Non-Profit Corporation Articles of Incorporation and Bylaws.

The Complainant did not submit a rebuttal.

Relevant Law

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.

For the OMA to apply, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. 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). As a threshold issue, we must determine whether the Foundation is a “public body” within the meaning of the OMA. The OMA defines a public body 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 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 Rowland v. North Kingstown Interview Committee, PR 19-35; Lapp v. Fishermen’s Advisory Board, 19-23. In order to seek clarity on whether an entity is or is not a “public body,” the following non-exhaustive list of factors about an entity are frequently considered: (1) the text and appointing authority under which it is established; (2) the scope and type of authority within its control; (3) the nature of public business delegated to it; and (4) its membership and composition.  See In re Aquidneck Island Planning Commission, AVD OM 17-02.

The Rhode Island Supreme Court examined the issue of what constitutes a public body in Solas v. Emergency Hiring Council, 774 A.2d 820 (R.I. 2001), which considered the application of the OMA to an entity formed by two executive orders of then-Governor Lincoln Almond to “manage and control the state's hiring practices and its fiscal resources.” The Emergency Hiring Council consisted of five senior executive branch staff members who met on a biweekly basis “to determine whether creating a new position in state government or filling a vacancy is absolutely necessary.” Id. at 824. It was the Governor’s intent that “no person or persons other than the Council shall have the authority to make any determinations in this regard.” Id. (internal quotation omitted). Based on these facts the Supreme Court concluded the Council was subject to the OMA:

“[T]he EHC [Emergency Hiring Council] is composed of a group of high level state officials that convenes to discuss and/or act upon matters of great interest to the citizens of this state. In addition, our reading of the executive orders creating the council persuades us that the EHC possesses significant supervisory and executive veto power over creating or filling state employment positions. At the very least the council functions in an advisory capacity in state hirings. Whether supervisory or advisory, both functions are regulated by the act. As the plain language of the statute provides, a council's exercise of advisory power is enough to bring it under the act's umbrella.” Id. at 825.

The Rhode Island Supreme Court more recently 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 (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 RIDE 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:

“Unlike the EHC in Solas, the 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.

In past findings, this Office has determined that entities were not public bodies where, among other considerations, the entity was not appointed by or under the jurisdiction of an OMA public body, and its members do not receive public funds. See Sinapi v. University of Rhode Island Student Senate, OM 14-23 (“[T]he Student Senate was not appointed by the University to perform a task under  the  University’s  jurisdiction.”);  Montiero  v.  Providence  School  Board  Nominating Commission, OM 02-25 (“The distinguishing factor between Finnegan and this matter, however, concerns the fact that the citizens comprising the Finnegan committee were appointed by a public body and public dollars were expended for their services. Here, the evidence demonstrates that the Nominating Commission citizens are appointed through a non-municipal scheme, not subjected to a governmental approval process, and not paid any public money.”); Schmidt v. Ashaway Volunteer Fire Association, OM 98-33 (finding Fire Association not a public body where it was a “non-business, non profit corporation”; its members did not receive a salary, medical benefits, or a pension for their services; and the officers were not elected by the public, or appointed by a subdivision of state or municipal government); Lataille v. Primrose Volunteer Fire Association, OM 99-21 (determining Fire Association was not a “public body” since Board members are elected by members of the Fire Department and do not receive a salary, benefits, or pension).

In contrast, in Reilly v. Providence Economic Development Partnership, OM 12-07, this Office concluded that the Providence Economic Development Partnership (“PEDP”) was subject to the OMA because “the business of the PEDP [was] inextricably intertwined with that of the City of Providence.” Among our considerations in Reilly was that the Mayor of Providence appointed all the board members and the PEDP was “charged with, among other things, the economic development policy making for the City of Providence.” Based upon the information provided, we found that “the PEDP is a subdivision of municipal government” and that the PEDP performed “public business” over which the public body, the City through its mayor, had supervision, control, jurisdiction, or advisory power.

Findings

Here, based on the specific evidence presented, we find that the Foundation is not a “public body” within the meaning of the OMA. Much like the Fire Associations in Schmidt and Lataille, the Foundation is a “non-profit 501(c)(3) corporation” “with no restrictions on who can or cannot serve as a board member.” Additionally, although the Foundation was organized by RIBTA, it is undisputed that “[t]he [Foundation] bylaws do not grant RITBA control over the Foundation’s budget or the donations it makes.” The evidence indicates that the Foundation has complete and exclusive control over its programming and priorities without the control or oversight of the RITBA. Furthermore, the Foundation “has no employees and the board members serve without compensation.”

Moreover, unlike the PEDP in Reilly and the EHC in Solas, the Foundation does not perform delegated public business. Stated differently, the Foundation “does not perform any of the statutory obligations of the RIBTA,” and does not represent a “subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(3). A review of the evidence submitted, as well as the Foundation’s website, indicates that the Foundation’s function is that of a private, non-profit entity: to “provide[] funds to worthy organizations with proceeds generated from special events.” While these efforts may involve partnership with municipal and state government actors, these functions have not been assigned or delegated to the Foundation by any governmental entity. Such an independent posture renders the Foundation separate and apart from any governmental entity and thus outside the “public body” umbrella. Accordingly, we find that the OMA does not apply to the Foundation, and consequently there was no violation.

Conclusion

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 consider this matter closed 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/ Kayla E. O’Rourke

Kayla E. O’Rourke

Special Assistant Attorney General