VIA EMAIL ONLY

April 30, 2020

Mr. Robert Jones

Matthew Plain, Esquire

Legal Counsel, Kingston Hill Academy Board of Trustees

Dear Mr. Jones and Attorney Plain:

The investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Robert Jones (“Complainant”) against the Kingston Hill Academy Board of Trustees (“Board”) is complete. For the reasons set forth herein, we find the Board did not violate the OMA.

Attorney Matthew Plain provided a substantive response on behalf of the Board, which included an affidavit from himself and Board member Paul Meleedy, as well as copies of the Board’s June 26 open and executive session minutes.[1] Mr. Meleedy’s affidavit and the executive session minutes were submitted in camera. The Board contends that its June 26 emergency meeting was necessary to discuss the job performance of a Board member that could potentially expose the Board to legal liability and that this information was noted on the emergency meeting agenda and in the meeting minutes. The Board argues that the emergency circumstances necessitated removing the then- Interim President and appointing a new Interim President. Next, the Board maintains that the Complainant “lacks standing to bring the claim that the Board violated § 42-46-5” because the Complainant was not the affected person discussed during the executive session. Finally, the Board argues that the Complainant offers nothing but “speculation and bald conclusions” to allege that the Board convened a “rolling quorum” outside the public purview about the emergency meeting.

We acknowledge Complainant’s rebuttal.

Based on the record before us, including the in camera submissions, we conclude that the Board’s statement regarding the reasons for the emergency meeting satisfied the OMA’s requirement that “the public body shall state for the record and minutes why the matter must be addressed in less than forty-eight (48) hours.” See R.I. Gen. Laws § 42-46-6(c). The Board’s statement conveyed that an emergency meeting was necessary because of an issue that had arisen in the prior 24 hours and involved potential liability for the Board. Although public bodies are encouraged to provide as much detail as possible regarding the emergency need for a meeting, we recognize the Board’s representation that providing additional detail in this case could have exposed the Board to potential liability. Based on our review of the in camera materials, we do not think the Board’s concern regarding providing additional detail is unreasonable or violated the APRA.[2] Accordingly, we find no violation.

Complainant next alleges that the Board’s discussion and vote to appoint an Interim Board President went beyond the scope of the emergency because “[n]othing in the minutes demonstrate why this additional action was required to solve the issue.” The Board argues that “it was necessary for the Board to appoint an Interim President due to the reasons the emergency meeting was called in the first place *** due to the nature of the emergency, which was a potential liability to the Board.” Although the in camera nature of our review limits our ability to comment, the evidence indicates that the emergency meeting was held to address certain conduct involving a member of the Board that occurred the day before the June 26 meeting and that the Board believed may expose it to legal liability. Based on the evidence presented, the decision to remove the Interim President and to appoint a new Interim President resulted from the issue that was the basis for the emergency meeting. As such, we find that the discussion and vote to appoint an Interim President at the emergency meeting came within the ambit of the issue “that created the need for an emergency meeting.” R.I. Gen. Laws § 42-46-6(c).

Next, Complainant contends that the Board improperly convened into executive session at the emergency meeting to discuss the job performance of a Board member when that Board member requested the discussion be held in open session.[3] The Board argues that the Complainant does not have standing to file a complaint about this issue because he was “not one of the affected persons entitled to notice.”

The OMA provides that “aggrieved” citizens may file a complaint with this Office. See R.I. Gen. Laws § 42-46-8(a); Graziano v. Rhode Island Lottery Commission, 810 A.2d 215 (R.I. 2002). Here, pursuant to R.I. Gen. Laws § 42-46-8(a), and Graziano, in order to have standing to complain about an alleged violation, the Complainant must demonstrate that he is “in some way disadvantaged or aggrieved” by the allegation raised in his complaint. Graziano, 810 A.2d at 221. Based on the record before us, we find no evidence that the Complainant was aggrieved in connection with his allegation that the person discussed in executive session was not provided the opportunity to have the discussion in open session. It is undisputed that the Complainant was not the subject of the executive session discussion.[4] Although this Office does have authority to pursue complaints in the public interest, see R.I. Gen. Laws § 42-46-8(e), this particular allegation chiefly implicates the interests of the specific person who was the topic of the discussion rather than the public interest. The person discussed in the executive session did not submit a complaint to this Office. In these circumstances, we conclude that the Complainant is not “aggrieved” with regard to this allegation and decline to address the merits of it.

Finally, the Complainant argues that “some members” of the Board convened a “rolling quorum” to “facilitate the emergency meeting” and to remove the Board Interim President and appoint a new one.

The OMA is implicated whenever a quorum of a public body convenes for 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). Based on this Office’s independent research, the Board consists of thirteen (13) members, seven (7) of which would constitute a quorum.

The Complainant provided this Office with a series of emails that he contends evidence Board members planning a meeting. The emails consist of a thread where the then-Interim President notified the members in the evening of June 25 that a meeting scheduled for June 26 was being cancelled. Five (5) members “reply all” indicating that they will still attend the previously scheduled meeting. The evidence indicates that the June 26 emergency meeting that is the subject of this complaint was scheduled after the then-Interim President cancelled the previously scheduled June 26 meeting.[5]

Upon our review of the emails provided by the Complainant in support of his position, we find that the email exchange does not involve a discussion regarding a substantive issue before the Board, but rather only involves certain members expressing whether they would attend a meeting. Additionally, only six (6) members sent emails, which is less than a quorum of the thirteen (13) member  Board.  We  also  note  that  the  OMA  explicitly  permits  electronic  or  telephonic communications to schedule a meeting. See R.I. Gen. Laws § 42-46-5(b)(1). In sum, no evidence has been presented to suggest that a quorum of the Board convened a meeting, as that term is defined in the OMA, outside the public purview. As such, we find no violation.