| 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 24, 2020
OM 20-25
Ms. Denise Perron
Vicki Bejma, Esquire
Legal Counsel, Central Falls School District
RE: Perron v. Central Falls School District Board of Trustees [12-30-2019 Complaint]
RE: Perron v. Central Falls School District Board of Trustees [2-11-2020 Complaint]
Dear Ms. Perron and Attorney Bejma:
We have completed an investigation into the two Open Meetings Act (“OMA”) complaints filed by Ms. Denise Perron (“Complainant”) against the Central Falls School District Board of Trustees (“Board”). As both complaints involve the same parties and related issues, we have consolidated them into one finding. For the reasons set forth herein, we find that the Board violated the OMA with respect to one of the two allegations.
The Complainant alleges two violations of the OMA: (1) the Board discussed her job performance, character, or physical or mental health in a prior executive session without providing her advanced written notice; and (2) during its November 21, 2019 meeting, the Board failed to state in open call and record in its open session minutes prior to convening into executive session that the affected person (the Complainant) had been notified under R.I. Gen. Laws § 42-46-5(a)(1).
In support of her first allegation, the Complainant alleges that the interim superintendent made statements during a November 21, 2019 Board hearing that suggested that the Board had discussed Complainant sometime prior to the August 7, 2019 Board meeting when they voted to non-renew
Complainant’s employment.[1] The Complainant specifically targets the following meeting dates, claiming that an executive session regarding her job performance, character, or physical or mental health must have taken place without providing her with advanced written notice: April 24, 2019, May 13, 2019, May 22, 2019, June 11, 2019, June 19, 2019, and July 1, 2019.
Legal Counsel for the Board, Attorney Vicki Bejma, submitted a substantive response that included an affidavit from Board Chair Stephanie Gonzales. Chair Gonzales affirms that she attended the Board meetings on April 24, May 13, June 11, and July 1 and “[a]t no point during those meetings and/or executive sessions were the job performance, character, or physical or mental health of Denise Perron discussed.” At this Office’s request, the Board also provided an affidavit from former Board Chair Anna Cano-Morales, who avers that she attended the Board meetings on May 22 and June 19, 2019 and that “[a]t no point during those meetings and/or executive sessions were the job performance, character, or physical or mental health of Denise Perron discussed.” The Board further asserts that the Complainant’s allegations stem from a misunderstanding of the interim superintendent’s comments at the November 21, 2019 hearing, where the interim superintendent merely alluded to the possibility that her predecessor may have discussed the Complainant with the Board Chair. The Board also provided the relevant executive session minutes for all six meetings, which this Office reviewed in camera.
With respect to the Complainant’s second allegation, the Board maintains that the Complainant is not “aggrieved” because she was present for the November 21, 2019 meeting. Notwithstanding, the Board does not contest that during its November 21, 2019 meeting it failed to state in open call and record in the meeting minutes prior to convening into executive session that advanced written notice was provided to the Complainant.
We acknowledge the Complainant’s rebuttals and additional submissions.[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.
1. Alleged Failure to Provide Advanced Written Notice
We begin with the Complainant’s contention that the Board discussed her job performance, character, or physical or mental health without providing advanced written notice. The OMA requires all meetings of public bodies to be open to the public. R.I. Gen. Laws § 42-46-3. However, the OMA permits public bodies to enter executive session for a limited number of enumerated purposes. See R.I. Gen. Laws § 42-46-4. One such permissible reason for an executive session is “[a]ny discussions of the job performance, character, or physical or mental health of a person or persons provided that such person or persons affected shall have been notified in advance in writing and advised that they may require that the discussion be held at an open meeting.” R.I. Gen. Laws § 42-46-5(a)(1).
Here, the Complainant identified six executive sessions during which her job performance, character, or physical or mental health may have been discussed without advanced written notice. Chair Gonzalez avers that the Complainant was not discussed at four of these executive sessions she attended. Former Chair Cano-Morales avers that the Complainant was not discussed at the remaining two executive sessions. Moreover, we have reviewed in camera all six executive session minutes and we find no evidence indicating that Complainant was discussed at any of these executive sessions.
It appears that the Complainant’s allegation is based on the interim superintendent’s statement that it was her understanding that the Board had been briefed on other situations involving the Complainant during the previous superintendent’s tenure. The Complainant interprets this statement to mean that a quorum of the Board improperly discussed the Complainant’s job performance, character, or physical or mental health without providing advanced written notice to the Complainant, a conclusion the Complainant candidly admits she has “no real evidence” to support. The undisputed evidence before us does not support the Complainant’s conclusion. We find no violation.
2. Alleged Failure to State in Open Call and Record in the Meeting Minutes that the Affected Person Has Been Notified
Next, the Complainant alleges that the Board violated the OMA when it discussed her job performance at its November 21, 2019 executive session without first stating in the open call that advanced notice had been provided and recording this statement in the meeting minutes. See R.I. Gen. Laws § 42-46-5(a)(1) (“Before going into a closed meeting pursuant to this subsection, the public body shall state for the record that any persons to be discussed have been so notified and this statement shall be noted in the minutes of the meeting.”). The Complainant does not contest that the requisite notice was in fact provided.
The Board does not refute these contentions, instead maintaining that the Complainant is not “aggrieved” under R.I. Gen. Laws § 38-2-8(a). We question the Complainant’s status as an “aggrieved” party with standing to bring an OMA complaint regarding the November 21, 2019 executive session because it is undisputed that she attended and participated in the executive session with counsel. 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). Nonetheless, this Office may initiate a complaint on behalf of the public interest. See R.I. Gen. Laws § 42-46-8(e). Therefore, we choose to consider the allegations relating to the November 21, 2019 executive session on behalf of the public interest.
Our review of the November 21, 2019 meeting minutes indicates that the Board failed to include a statement that the person to be discussed during the executive session (the Complainant) under R.I. Gen. Laws § 42-46-5(a)(1) had been notified. The Board also does not dispute that the required advisement was not provided during the open call. The Board’s failure to do so violated the OMA. See R.I. Gen. Laws § 42-46-5(a)(1) (“Before going into a closed meeting pursuant to this subsection, the public body shall state for the record that any persons to be discussed have been so notified and this statement shall be noted in the minutes of the meeting.”).
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.
Here, where it is undisputed that the Complainant attended and participated in the November 21, 2019 executive session, we do not find injunctive relief 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. However, 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/ Sean Lyness_
Sean Lyness
Special Assistant Attorney General
[1] To the extent Complainant raises substantive allegations regarding the non-renewal of her employment or allegations related to the Board’s compliance with their own bylaws, those allegations are beyond 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 acknowledges that some of the issues she raises may be beyond the scope of this Office’s authority in this matter and indicated that some of these other issues may be the subject of other ongoing proceedings.
[2] To the extent the Complainant submitted rebuttals and other submissions that raise additional allegations, 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 letters, rebuttals should not raise new issues that were not presented in the Complaint and no additional submissions will be considered without obtaining permission. 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 any other issues related to the OMA if the statute of limitations has not expired.