| 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
April 16, 2020
OM 20-22
Mr. Richard Finnegan
David R. Petrarca, Jr., Esquire
Assistant Solicitor, Town of Scituate
RE: Finnegan v. Scituate Town Council
Dear Mr. Finnegan and Attorney Petrarca:
We have completed the investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Richard Finnegan (“Complainant”) against the Scituate Town Council (“Council”). For the reasons set forth herein, we find that the Council did not violate the OMA.
Complainant alleges the Council violated the OMA when it “convened a meeting sometime between July 19, 2019 and [July] 21, 2019 outside the public purview related to placing [Police] Chief Delaere on administrative leave.”[1] Complainant also alleges that a July 20, 2019 email from Scituate Town Solicitor Peter Ruggiero to the Town Council informing them of events related to Chief Delaere “is by definition a rolling or walking quorum.”
Assistant Solicitor David R. Petrarca, Jr., Esquire provided a substantive response on behalf of the Council, which included affidavits from all seven (7) Council members. The Council contends that the Complainant’s allegations are “uncorroborated and unsubstantiated” and that the Complainant “did not indicate that he has personal knowledge of the alleged events which he claims constituted an OMA violation.” The Council also maintains that, “[a]t no time did the Scituate Town Council, nor a quorum thereof, meet to discuss placing the Chief of Police on paid administrative leave.”
Specifically, Council President Brady and members D’Agostino, Grande, and Frederickson attest that they did not discuss Vice President Groves’ decision to place the Chief on paid administrative leave with any member of the Council. Council Vice President Groves acknowledges having one conversation with Councilmember Collins and possibly one conversation with Councilmember McCormick about placing Chief Delaere on administrative leave but attests that she did not discuss her decision to place the Chief on leave with any other councilmember. The affidavits of Councilmembers Collins and McCormick corroborate Vice President Grove’s statements. Councilmember Collins attests that he did not otherwise discuss the Vice President’s decision to place the Chief on leave with any other member of the Council. Councilmember McCormick acknowledges separately assisting both President Brady and Vice President Groves with drafting their respective press releases after Chief Delaere was placed on administrative leave but attests that he otherwise did not discuss either the press releases or the Vice President’s decision with any other member of the Council (besides possibly having a conversation with Vice President Groves about her decision to place the Chief on leave).
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 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). 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 Angelo v. Westerly Town Council, OM 19-17. 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. Moreover, “it is possible that a non-member of a public body could serve as a conduit between public body members if he or she supplied the missing link connecting collective discussions between and among public body members.” Carlson v. Coventry Town Council, OM 19-36.
Here, it is undisputed that the Council is a “public body” and that four (4) members constitute a quorum. The undisputed evidence does not support Complainant’s allegation that a quorum of the Council convened a meeting outside the public purview to discuss placing Chief Delaere on leave. Instead, although some Council members acknowledge separate discussions among certain Councilmembers, these discussions collectively involved less than a quorum of the Council. Nor is there any evidence of a nexus between these separate communications. We accordingly find that without a collective discussion among a quorum of the Council, the OMA was not implicated. R.I. Gen. Laws § 42-46-2(1). Therefore, we find no violation.
Additionally, although the Complainant alleges that the July 20, 2019 email from Town Solicitor Ruggiero to the entire Council “is by definition a rolling or walking quorum,” the undisputed evidence shows that no Council members responded to Solicitor Ruggiero’s email or otherwise engaged in a collective (or even singular) discussion about it. Accordingly, we find no violation. See R.I. Gen. Laws § 42-46-2; see also Guarino, OM 14-07 (“a single email disseminating information that was not responded to by other members of the public body” did not violate the OMA).[3]
Although the Office of the Attorney General did not find a violation and will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court. 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 are closing our file as of the date of this finding.
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] Complainant also questions whether the Council Vice President had the authority to place Chief Delaere on administrative leave. This issue does not implicate the OMA and is therefore outside the scope of this Office’s authority under the OMA and will not be investigated. See R.I. Gen. Laws § 42-46-8. The Complainant also raised several other allegations against the Council that did not implicate any provisions of the OMA. See R.I. Gen. Laws § 42-46-8. This Office’s initial letter to the Complainant explained that the only allegation that would be investigated by this Office was the alleged “walking” or “rolling quorum” convened by the Council.
[2] To the extent Complainant’s rebuttal raises additional allegations concerning a press release issued by the Scituate Republican Town Committee, these allegations are outside the scope of this complaint and will not be investigated. See R.I. Gen. Laws § 42-46-8. As we explained in our acknowledgment letter, the rebuttal should not raise new issues that were not presented in the Complaint. In line with this Office’s acknowledgement letters to the parties and this Office’s precedent, this Office declines to review issues 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 Mudge v. North Kingstown School Committee, OM 12-35. The Complainant is free to file a new complaint regarding that issue if the statute of limitations has not expired.
[3] As we find no violation, we decline to address the Council’s argument that Complainant lacks standing.