| 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 22, 2020
OM 20-24
PR 20-36
Mr. Richard Finnegan
David R. Petrarca, Jr., Esquire
Assistant Town Solicitor, Scituate
Ms. Patricia Sweet
Director of Prevention and Southern Providence County Regional Prevention Coalition
Tri-County Community Action Agency
RE: Finnegan v. Scituate Prevention Partnership
Dear Mr. Finnegan, Attorney Petrarca, and Ms. Sweet:
We have completed the investigation into the Open Meetings Act (“OMA”) and Access to Public Records Act (“APRA”) complaints filed by Mr. Richard Finnegan (“Complainant”) against the Scituate Prevention Partnership (“Partnership”).[1] For the reasons set forth herein, we find no violations.
This finding first addresses the APRA complaint and then proceeds to address the OMA complaint.
APRA Complaint
The Complainant sent an APRA request to the Town of Scituate (“Town”) seeking documents related to a cell phone for the Partnership Coordinator that was listed in a 2014 Budget Narrative.
The Complainant’s request explained that he sought documents such as the “original purchase price, cell phone agreements, phone bills from date of activation to present,” and other similar records related to the cell phone. The Complainant alleges that the Partnership[2] violated the APRA when the Town indicated that it did not have records responsive to Complainant’s request. The Complainant argues that the Town should be in possession of responsive documents because there was a line-item on a 2014 Budget Narrative for the purchase of the cell phone.
We received a substantive response from the Town through Assistant Town Solicitor David R. Petrarca, Jr., Esquire. The response included an affidavit from Deputy Town Clerk Gloria Taylor and an affidavit from then-Partnership Coordinator Erika McCormick. The Town asserts that the Partnership is a vendor for the Town and that in responding to the APRA request, the Town searched its own records and inquired whether the Partnership maintained any responsive records. The Town maintains that although a line-item to purchase a cell phone for the Partnership’s Coordinator was included in the 2014 Budget Narrative, no such cell phone was ever purchased; thus, at the time when the APRA request was received, neither the Town nor the Partnership maintained documents responsive to Complainant’s APRA request.
The Complainant did not submit a rebuttal.
When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant caselaw interpreting that statute.
The APRA mandates that “all records maintained or kept on file by any public body *** shall be public records and every person or entity shall have the right to inspect and/or copy those records.” R.I. Gen. Laws § 38-2-3(a). The undisputed evidence indicates that the cell phone listed in the 2014 Budget Narrative was never purchased and, as such, none of the documents requested by the Complainant related to the purchase and use of the cell phone exist. Because the uncontested evidence indicates that neither the Town nor the Partnership maintain the documents the Complainant sought, and because the APRA only applies to documents “maintained or kept on file,” we find no violation. R.I. Gen. Laws § 38-2-3(a).[3]
OMA Complaint
The Complainant also alleges that the Partnership violated the OMA when it failed to post notice of its meetings occurring during the 180-day timeframe preceding October 22, 2018 and failed to file official minutes for those meetings with the Secretary of State. The Complainant alleges he is aggrieved because he was not aware of these meetings and thus could not attend them. The Complainant argues that the Partnership is a “public body” subject to the OMA because “it is a committee of the Town of Scituate designated the power to establish, operate, conduct and/or make provisions for programs to provide a comprehensive substance abuse program” and that “it was formed under the authority of the Scituate Town Council according to R.I. Gen. Laws § 16-21.2-1.” The Complainant also asserts that the Partnership “receives 100% percent of its budget from town monies…which currently are reimbursed by the State of Rhode Island through a Federal grant.”
The Town submitted a substantive response in which it did not dispute that the Partnership held meetings during the relevant 180-day timeframe and that the Partnership did not post any meeting minutes or notices related to those meetings on the Secretary of State’s website. The Town provided unposted Partnership meeting minutes indicating that during the relevant 180-day timeframe in 2018, the Partnership held meetings on April 26, May 17, June 14, September 20, and October 18, 2018.[4]
Nonetheless, the Town argued, inter alia, that the Partnership is not a “public body” that is an entity of the Town subject to the OMA because “the Town Council has never (1) created the [Partnership] or SAFE; (2) appointed members to the [Partnership] or SAFE; or (3) controlled the actions/goals/purposes of the [Partnership] or SAFE.”[5] The Town maintains that the Partnership is “its own entity, independent of the municipal government, with the power to control the program and funds under the R.I. Substance Abuse Prevention act or any other grant monies awarded to the [Partnership].” The Town further asserted that because the Partnership is not an entity of the Town, the Town was not the proper party to defend the Partnership from the OMA Complaint.
Upon inquiry from this Office, Ms. McCormick provided a supplemental submission on behalf of the Partnership, which was further supported by an additional supplemental submission from Ms. Patricia Sweet, Director of the Southern Providence County Regional Prevention Coalition. The Partnership submitted an affidavit from Ms. McCormick and various documents related to the Partnership. The Partnership maintains that it is independent from the Town and not a public body subject to the OMA.
We acknowledge the rebuttal and responses to the supplemental submissions provided by the Complainant.
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 that 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). The threshold question that must be answered before this Office can address the merits of the Complainant’s OMA allegations is whether the Partnership is indeed a “public body” under the OMA. In pertinent part, the OMA defines “public body” as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government[.]” See R.I. Gen. Laws 42-46-2(3). If an entity is not a public body, then the provisions of the OMA do not apply. 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, OM 19-32; Lapp v. Fishermen’s Advisory Board, OM 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 hiring’s. 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 Grieb v. Aquidneck Island Planning Commission, OM 17-24 (“[T]he AIPC is a duly incorporated nonprofit organization that selects its own leadership and establishes its own programs and priorities without consultation, amendment or review by any municipality.”); 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.”).
To determine whether the Partnership is subject to the OMA, this Office applies the above- described precedent to the evidence before us.
First, we look to the text or authority under which the Partnership was established. Ms. McCormick attested that the Partnership, under its former name SAFE, was one of thirty-four municipal task forces established following the General Assembly’s passage of the Rhode Island Substance Abuse Prevention Act (“RISAPA”) in 1987. RISAPA delegated authority to the municipalities “to establish, conduct, and/or make provision for programs to provide a comprehensive substance abuse program.” R.I. Gen. Laws § 16-21.2-3(a). RISAPA further provides that the municipalities’ substance abuse programs must comply with applicable laws and that the “municipal authority shall adopt rules and regulations governing the substance abuse prevention program including an application and contracting procedure by which qualified groups may apply to operate a substance abuse prevention program.” R.I. Gen. Laws § 16-21.2-3(b), (c). The Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals is tasked with administering RISAPA and providing grants. R.I. Gen. Laws § 16-21.2-4. Funds are required to be awarded to municipal governments and held in a separate account for substance abuse prevention. R.I. Gen. Laws § 16-21.2-7.
Like Solas, consideration of the Partnership’s origins and the authority under which it was established leans toward a determination that the Partnership is a public body because the Partnership was created pursuant to State statute and acquires its funds through the Town of Scituate, albeit via a federal grant. Other factors, however, point in the opposite direction.
Next, we consider the scope and type of authority within the Partnership’s control, its funding, and the nature of the public business, if any, delegated to it. Based upon the record before us, the Partnership has adopted its own bylaws and has sole discretion to amend those bylaws. The Partnership describes itself as a coalition that creates and promotes a healthy and safe environment by providing substance abuse prevention strategies that support the well-being of the Scituate community. Although the Town acts as a fiduciary for the Partnership’s funding, the funds are provided through grants and do not represent Town funds. The Partnership considers itself its own entity and its 2019 Bylaws declare the Partnership independent of municipal government. Both the Partnership and the Town represent that the Town has no control over the funds awarded to the Partnership and that the Partnership’s programs and activities are not required to be reviewed by or receive approval from the municipal government.[6] Although the Partnership clearly has a relationship with the Town, we have not been presented with any evidence that during the relevant timeframe the Town exercised jurisdiction or substantive control over the Partnership’s activities or use of funds.
These considerations suggest that the Partnership’s operations are independent from the Town, evidencing that the Partnership is not a public body.
Finally, we look to the Partnership’s composition and membership. The evidence indicates that the Partnership does not restrict who can or cannot be a member and the members serve on a voluntary basis and are not compensated for their time. Indeed, according to the 2019 Bylaws, the Partnership must have anywhere between 6 and 21 members and members must “live, work, or be a representative of an agency, in the Town of Scituate.”[7] The elastic nature of the Partnership’s membership is highlighted by a provision that provides that if a member misses three consecutive meetings without prior approval, the member “shall be vacated from the coalition list.” Neither the Town nor its residents have any involvement in recruiting or naming the Partnership’s members, and instead, “[m]embership recruitment is the responsibility of the coordinator and the coalition members.”
The Partnership does have a dedicated Coordinator, paid with grant funds, that coordinates and manages all administrative functions of the Partnership. The Partnership’s members have no required connection or relationship to any municipal board or commission, nor are they required to be sitting members of any other board or commission. As noted above, Partnership members are not even required to be Town residents. Much like the AIPC in Grieb, the Partnership selects its own leadership. Overall, the members of the Partnership do not receive a salary, medical benefits, or a pension for their services (though the Coordinator is paid through a grant); neither the members or the officers are elected by the public or appointed by a subdivision of state or municipal government, but instead, the officers are elected by the members of the Partnership itself and the members are recruited by the Partnership and its Coordinator. Moreover, neither the Town nor its residents have any role in the removal of Partnership members or officers.
Unlike in Solas, the Partnership is not appointed by the Town to perform a task under the Town’s jurisdiction. While it is true that RISAPA suggests a relationship between the Partnership and the Town, there is no evidence that the Partnership acts as a “subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(3). In sum, based on these specific facts, as well as our precedent, we conclude that the Partnership is not a “public body” under the OMA. As such, the OMA does not apply and we find no violations. Nonetheless, we note that the Partnership has been posting some of its agendas on the Secretary of State’s website and we encourage entities to take such actions to improve public awareness, even if not strictly required by law.
Although the Office of the Attorney General will not file suit in this matter, please be advised that nothing within the OMA or the APRA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court as provided in the OMA or that APRA. See R.I. Gen. Laws §§ 38-2-8(b), 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] Because the Complainant submitted two complaints related to the same entity, this Office has consolidated the complaints and will issue one (1) finding. As discussed in the OMA portion of this finding, the Partnership’s mission is to prevent substance abuse in Scituate.
[2] The Complainant’s APRA request was directed to and responded to by the Town, but the Complaint was filed against the Partnership. The Town provided a substantive response to the Complaint in which the Town maintained that the Partnership is not “an entity of the Town,” but rather a vendor “performing substance abuse prevention services on the Town’s behalf.” Given that the Town provided evidence that neither the Town nor the Partnership maintain responsive records, and given that we find no APRA violation, there is no need for us in the context of this APRA complaint to further address the relationship between the Town and the Partnership or whether the Complaint was filed against the correct entity. We will further address the nature of the Partnership and its relationship with the Town in the OMA portion of this finding. Although this finding addresses whether the Partnership is a public body under the OMA, we do not have occasion in this finding to decide the separate question of whether the Partnership is a public body under the APRA.
[3] The Complainant also contended that the Town’s reply to his APRA request was nonresponsive. Rather than stating that no responsive records exist, the Town provided Complainant with a copy of an email from the then-Partnership Coordinator stating that “[n]o cell phone was ever purchased with PFS [grant] funds.” The Coordinator’s email, which the Town provided to Complainant, had been sent to the Town in response to the Town’s inquiry about whether the Partnership maintained any documents responsive to the Complainant’s APRA request. Since the Complainant requested documents regarding the cell phone, a document evincing that no cell phone was purchased with “PFS [grant] funds” was arguably responsive while also answering the Complainant’s substantive inquiry.
[4] The undisputed evidence indicates that the October 18, 2018 meeting was ended shortly after it began because Complainant objected that the OMA had not been followed.
[5] “SAFE” is the acronym for “Scituate Advocates for Everyone,” a substance abuse prevention coalition established in 1987 pursuant to the Rhode Island Substance Abuse Prevention Act. It is uncontested that SAFE was the name of the Partnership until 2011 when its name was changed.
[6] For instance, in connection with the APRA Complaint, the Partnership’s former Coordinator indicated that the Partnership submits invoices for purchases to the Town but indicated that the purchase would have been made with grant funds and that the Partnership made the decision whether to purchase a cell phone for the Coordinator.
[7] The 2019 Bylaws post-date the timeframe when the meetings discussed in this finding occurred, but the record indicates that these Bylaws are generally representative of how the Partnership conducted itself during the relevant timeframe.