Background

The Complainant alleges that the Board’s agenda for its January 13, 2020 meeting “lacked substance on many agenda items listed for discussion,” specifically agenda items (G)(1), (G)(2), (J), (K), (L), (M) and (O). The pertinent agenda items are reproduced below with formatting slightly altered:

“G. DISCUSSION/ACTION REGARDING PAYMENT OF BILLS: -

1. Olenn & Penza, LLP

530 Greenwich Avenue

Warwick, RI 02886

File # MBF 7372-Nov 2019

Amount: $1564.00

2. Howard E. Nyhart Company

Attn: Finance Dept

8415 Allison pointe Blvd

Suite 300

Indianapolis, IN 46250

Inv#0155500

Valuation prep Nov 2019

Hours-14.90

Amount: $9730.00

***

J. DISCUSSION/ACTION REGARDING CALCULATION OF NON UNION COLA’S

K. DISCUSSION/ACTION ON OPT/OUT FOR POLICE & FIRE DISABILITIES CONSENT JUDGEMENT

L. DISCUSSION/ACTION REGARDING MERS

M. DISCUSSION/ACTION ON NYHART EMAIL ON UPDATED PROJECTIONS & GASB REQUIREMENT

***

O. DISCUSSION/ACTION REGARDING RPF/RFQ FOR CUSTODIAN”

Attorney Krista J. Schmitz provided a substantive response on behalf of the Board arguing that the Complainant is not an “aggrieved” party with standing to bring an OMA complaint. See Graziano v. R.I. State Lottery Commission et al., 810 A.2d 215, 221 (R.I. 2015); R.I. Gen. Laws § 42-46-8(a). Specifically, the Board asserted that the Complainant “attended the Pension Board meeting on January 13, 2020 and spoke throughout the meeting.” The Board also asserted that each of the agenda items met the notice requirements under R.I. Gen. Laws § 42-46-6(b).

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.

The Board asserts that the Complainant lacks standing and does not qualify as an aggrieved person under the OMA because he was present at the January 13, 2020 meeting and even participated in public comment during that meeting. See R.I. Gen. Laws § 42-46-8(a); see also Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215 (R.I. 2002). We decline to examine this argument because the Office of the Attorney General may initiate a complaint on behalf of the public interest. See R.I. Gen. Laws § 42-46-8(e). We conclude that the allegations in this matter implicate the public interest. Accordingly, pursuant to our independent statutory authority, we proceed to consider the allegations relating to the January 13, 2020 meeting.

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 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, we conclude that the pertinent agenda items failed to fairly encompass and provide notice of the Board’s discussions during the January 13 meeting. Specifically, we find that agenda items (G)(1) and (G)(2) did not provide adequate notice to the public of the nature of the services performed that required compensation, including whether the invoices were related to monthly retainer agreements or specific projects. Next, we find that agenda items (J), (K), (L), (M) and (O) contained “vague and indefinite notice to the public” and were “lacking in specificity,” providing only the barest of information. Anolik, 64 A.3d at 1175. The acronyms used in the agenda items (L), (M) and (O) are not defined and it is not apparent what these terms mean. Similarly, it is unclear what employees (or groups of employees) are implicated by items (J) and (K) and what consent judgment is being referenced in item (K). Under item (M), it is unclear what the “Nyhat email” refers to or what projections will be discussed or acted upon. Items (J), (K), (L), (M) and (O) would leave a member of the public, and frankly this Office, with no clear idea what would be discussed pertaining to that item. Accordingly, we find that the aforementioned January 13 agenda items did not adequately inform the public of the business to be discussed by the Board and thus the Board 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.

The Complainant did not seek injunctive relief and it is undisputed that he attended and participated in the January 13 Board meeting.  Additionally, the minutes indicate that no substantive action was taken on the majority of the agenda items in question during this meeting. As such, we do not believe that injunctive relief is appropriate. The record also does not support a finding of a willful or knowing violation, nor are we aware of any recent, similar violations by the Board. This finding serves as notice that the Board’s conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.

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 decision.

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