| 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 17, 2020
OM 20-23
Ms. Donna Cook
Councilor, Tiverton Town Council
Michael Marcello, Esquire
Tiverton Town Solicitor
RE: Cook v. Tiverton Town Council
Dear Ms. Cook and Solicitor Marcello:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Town Council member Ms. Donna Cook (“Complainant”) against the Tiverton Town Council (“Town Council”). For the reasons set forth herein, we find that the Town Council did not violate the OMA.
The Complainant – a current member of the Town Council – alleges that the Town Council violated the OMA when it engaged in a discussion related to Town business after the December 9, 2019 Town Council meeting. The Complainant contends that after concluding the December 9, 2019 meeting, several members of the Town Council – including the Complainant – discussed a particular individual’s salary increase on which the Town Council had just voted. The Complainant also notes that the next day, December 10, 2019, Council member Joseph Perry submitted a request to reconsider the salary increase vote on a future agenda.
Town Council Solicitor Michael Marcello submitted a substantive response along with affidavits from five Town Council members: Mr. Stephen T. Clarke, Ms. Denise DeMedeiros, Mr. John Edwards, Ms. Patricia Hilton, and Mr. Joseph Perry. The Town Council acknowledges that some members made statements or conversed after the adjournment of the meeting but maintains that no votes were taken and that these discussions did not constitute a meeting. The Town Council also provided a copy of the December 9, 2019 meeting audio, which captures a portion of the post- meeting audio.[1]
We acknowledge the Complainant’s rebuttal.
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). 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, 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, it is undisputed that a quorum of the seven-member Town Council is four members. Thus, the existence of a quorum depends on whether four Town Council members engaged in a collective discussion. It is undisputed that one of the seven members was absent on the date in question.
The Complainant alleges that following the December 9, 2019 meeting, Council President Hilton voiced her displeasure over the salary increase vote that had just occurred by expressing that it sets a bad precedent and harms negotiations. The Complainant further contends that Ms. DeMedeiros “chimed in” after President Hilton’s statement by making similar comments. The Complainant
further argues that Mr. Perry’s subsequent request to reconsider the vote illustrates that the statements of President Hilton and Ms. DeMedeiros constituted “debate intended to affect the actions of other council members.”
The affidavits of the Town Council members generally take issue with the Complainant’s characterization of President Hilton’s comments, but do not expressly deny that President Hilton said something after the adjournment expressing her displeasure about the vote. Mr. Clarke attests that as he was packing up to leave, he overheard President Hilton make some comment concerning her disappointment over the vote. He characterizes President Hilton’s comment as “venting” and avers that “[n]o one present at the Council responded to the Council President’s remarks[.]” Additionally, Mr. Edwards’ affidavit attests that after the meeting adjourned, Ms. DeMedeiros indicated that she thought the vote was harmful and no longer wished to serve on the negotiating team. It appears these post-adjournment comments were made in the presence of all the councilmembers who were present at the meeting, although it is unclear if all the members heard them.
Although there is evidence that President Hilton and Ms. DeMedeiros each made comments after the meeting was adjourned, there is no evidence that any collective discussion occurred regarding those comments. Indeed, Mr. Clarke’s affidavit avers that no one responded to President Hilton’s remark. Similarly, Mr. Perry attests that he did not “overhear nor witness any communications among any other counsel members” as he gathered his papers to exit. The Complainant also does not allege that any other council members responded to the remarks of either President Hilton or Ms. DeMedeiros. The affidavits indicate that most of the council members exited the council chamber and dispersed shortly after adjournment.[2]
Based on the evidence before us, we do not find that the isolated remarks of President Hilton and Ms. DeMedeiros constitute a “collective discussion” among a quorum of the Town Council. We also note that the evidence indicates that the issue of the salary increase was openly and vigorously debated in open session just prior to adjournment. This further supports the Town Council’s argument that the remarks of President Hilton and Ms. DeMedeiros were isolated remarks venting their frustration over the outcome of the vote rather than a collective discussion among council members about public business outside of the public purview. See Lapierre v. Batterers’ Intervention Programs Standard Oversight Subcommittee (Rules and Standards), OM 02-22 (finding that post-meeting discussions regarding personal reactions to meeting did not violate the OMA).
The Complainant also notes that on December 10, 2019, Mr. Perry requested that the issue of the salary increase be placed on the next agenda for reconsideration. Mr. Perry’s affidavit makes the undisputed assertion that he left the December 9, 2019 meeting immediately after it adjourned and requested reconsideration based on his own independent research of the Town Charter. Thus, there is no evidence that Mr. Perry’s actions were the result of any improper post-meeting discussions.
We therefore find insufficient evidence that a quorum of four Town Council members had a collective discussion about the issue of the salary increase outside of a properly noticed meeting. Nonetheless, we caution the Town Council – including the Complainant[3] – to be mindful about discussing public business outside of a properly noticed open meeting.
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
[1] The audio contains less than a few minutes of post-meeting audio. As such, this audio is of little utility, but we note that what little portion of the audio we have does not conflict with the averments in the affidavits.
[2] The affidavits indicate that some type of discussion about the salary increase vote and/or Ms. DeMedeiros possibly leaving the negotiating team occurred between Ms. DeMedeiros, Mr. Edwards, and the Complainant after the other council members had left. Ms. DeMedeiros avers she left the room after President Hilton’s remark, saw Mr. Clarke and Mr. Perry leave, and then returned to the council chambers to speak with Ms. Cook and Mr. Edwards. As this discussion between Ms. DeMedeiros, Mr. Edwards, and the Complainant does not include a quorum of four Town Council members, it does not implicate the OMA.
[3] We question whether Complainant was “aggrieved” but we need not address that issue because we find no violations. See R.I. Gen. Laws § 42-46-8(a). We note that along with her rebuttal, Complainant submitted a letter from Mr. Justin Katz requesting to be added as a complainant in the event that the Complainant was deemed to lack standing, or in the alternative to be considered as having filed a new complaint that incorporates by reference the Complainant’s submissions. As we did not issue a finding regarding whether Complainant was aggrieved, we have no need to consider Mr. Katz’s purported attempt to join and/or incorporate the present complaint.