| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 | |
| | |
| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
March 26, 2020
OM 20-19
Ms. Raissa Mosher
Andrew Henneous, Esquire
Legal Counsel
South Kingstown School Committee
RE: Mosher v. South Kingstown School Committee
Dear Ms. Mosher and Attorney Henneous:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Ms. Raissa Mosher (“Complainant”) against the South Kingstown School Committee (“School Committee”). For the reasons set forth herein, we find that the School Committee did not violate the OMA.
The Complainant alleges that the School Committee violated the OMA when a quorum of its members engaged in a collective discussion over social media, specifically Facebook, outside of a properly noticed public meeting. The Complainant provided screenshots of an alleged Facebook exchange, the authenticity of which was not disputed by the School Committee. The screenshots revealed an initial post by School Committee Chairwoman Canter expressing her happiness with the “current state of the South Kingstown School Department.” School Committee Vice Chair Markey and members Collins and Northup “liked” or “loved” Chairwoman Canter’s post.[1] The Complainant then responded to Chairwoman Canter’s post expressing her displeasure with the events of the first month of school. School Committee Member Collins responded to the Complainant’s comment with a post that mentioned several specific topics related to the schools. The Complainant then responded to Member Collins’ response. Vice Chair Markey then responded to the Complainant’s second posting by criticizing Complainant and expressing that “the school year is off to a great start” and expressing “Kudos” to the school staff. The Complainant generally alleges that Vice-Chair Markey and Members Collins, Cummiskey, and Northup further “engaged in the comment sections” by “liking” certain comments.
The Complainant contends that this Facebook exchange constituted a “rolling” or “walking” quorum among the School Committee members and thus violated the OMA. The Complainant also maintained that “[i]n the next posted meeting, agenda items directly relevant to the exchanges on social media appear.” In her initial complaint, the Complainant did not allege that the agenda items were improper, but instead seemingly referenced the agenda items to support her assertion that the Facebook posts pertained to School Committee business.
The School Committee provided a substantive response to the allegations by and through their attorney, Andrew Henneous, Esquire. The response included affidavits from Attorney Henneous and each of the five referenced School Committee members, as well as copies of the School Committee’s October 15, 2019 open session minutes. The School Committee contends that the Facebook exchange stemmed from a generic complimentary post by Chairwoman Canter, which did not relate to any specific matter over which the School Committee had supervision, control, jurisdiction, or advisory power. Additionally, the School Committee maintains that this Facebook exchange was “open and available to all to view.” The School Committee also disputes whether the Complainant constitutes an “aggrieved party” under the OMA because the Complainant actively participated in the Facebook exchange she now alleges violated the OMA.
Finally, the School Committee stated that the October 15, 2019 executive session agenda topic of “A. Discussion regarding matters of security (RIGL 42-46-5(a)(3))” “had nothing to do with the [Facebook] posts and was a proper subject for executive session.” Chair Canter’s affidavit affirms that the executive session discussion “was related to district wide safety planning and written plans.” The School Committee also provided the executive session minutes for our in camera review.
We acknowledge the Complainant’s rebuttal.[2]
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; Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). For purposes of the OMA, a “meeting” is defined as “the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1); see also Zarella, et al. v. East Greenwich Town Planning Board, OM 03-02.
A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). It is noteworthy that a quorum may be created, and a meeting “convened,” by a “rolling” or “walking” quorum, where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions. See, e.g., In Re: South Kingstown School Committee Electronic Mail Policy, ADV OM 04-01 (series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA). Importantly, our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion. See Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07 (“[I]f a quorum of members of a public body creates a chain of communication and responses, through any electronic media, about any matter over which a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, the OMA may be violated.”).
Here, there is no question that the School Committee is a “public body” consisting of seven (7) members and that four (4) members would constitute a quorum. The Complainant contends that a quorum of the Committee violated the OMA by having “a social media discussion/interaction on a matter of SC business, namely school safety.” Chair Canter’s initial post, which was “liked” or “loved” by three other School Committee members, complimented educators and administrators in general terms and expressed her “love” for “our schools.” We do not find that this post or “liking” or “loving” it constituted a meeting about “school safety” or any other specific matter over which the School Committee has supervision, control, jurisdiction, or advisory power.
The Complainant generally alleged that multiple members of the School Committee either responded to one of the Complainant’s two comments or “liked” the responses of other members to it. In Attorney Henneous’ affidavit, the School Committee attests that “[a]t no time, in response to [Complainant’s] two (2) posts, did a quorum of the Committee engage.” The School Committee disputes that “liking” or “loving” a post constitutes a “discussion” but attests that even if it did, only Vice Chair Markey and Members Collins and Cummiskey were involved in responding to Complainant’s comments. We were not presented with any evidence that Chair Canter or Member Northup participated in the exchange related to Complainant’s comments and Member Northup’s affidavit indicated that she simply “liked” Chair Canter’s original post. Since we have already established that four (4) members constitute a quorum of the School Committee, the participation
of three (3) School Committee members did not create a quorum. As such, even if the Members’ responses to Complainant’s comments constituted a discussion of a matter over which the School Committee has authority, we have not been presented with evidence that a quorum of the School Committee engaged in any particular discussion of any specific issue over which the School Committee has authority. Accordingly, we find that the OMA was not implicated during the Facebook exchange and thus no violation occurred. Because we find the OMA was not implicated, it is not necessary for us to consider whether the Complainant is an “aggrieved party.”
Although we do not find a violation in connection with the Facebook exchange, we take this opportunity to advise that great caution should be exercised when members of a public body communicate using any social media platform, particularly if the posting member is “connected” on the platform with a quorum of members of their public body.
Although this Office has found no violation, nothing within the OMA prohibits an individual from obtaining legal counsel for the purpose of instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c). The OMA allows the Complainant to file a complaint 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. See id. Please be advised that we are closing this complaint 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
[1] As indicated in the record provided to us, “liking” a post consists of posting a “thumbs up” image and “loving” a post consists of posting a “heart” image.
[2] The Complainant’s rebuttal raises additional allegations against the School Committee that are outside the scope of the allegations raised in the complaint. Our initial letter to the Complainant noted that the “rebuttal should be limited to the matters addressed in the School Committee’s response and should not raise new issues that were not presented in your complaint or addressed in the School Committee’s response.” This Office has declined to review issues which are raised for the first time in a rebuttal since the public body has no opportunity to respond to the new allegations and this Office cannot fully investigate them. See Mulanaphy v. South Kingstown School Committee, OM 19-24. Accordingly, the new allegations raised for the first time in Complainant’s rebuttal are not properly before us.