Background

The Complainants allege that the Fire District has violated the OMA in various ways. Ms. Childs and Mr. Rose contend that the Fire District improperly convened into executive session on six different occasions. Ms. DiLeo maintains that the Fire District failed to provide or file official and/or unofficial meeting minutes for six meetings. And Mr. Stenmark asserts that the Fire District failed to file its annual notice.

Relevant Law and Findings

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.  Whether the Fire District is a “Public Body” Under the OMA

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 “public body” is defined as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(3). As such, whether an entity is a “public body” under the OMA is a threshold inquiry.

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, PR 19-35; Lapp v. Fishermen’s Advisory Board, 19-23.

The Rhode Island Supreme Court examined this issue in Solas v. Emergency Hiring Council, 774 A.2d 820, 823 (R.I. 2001), which considered whether the OMA applied 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 hirings. 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 again 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, 307–08 (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 Rhode Island Department of Elementary and Secondary Education 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.

We recently addressed whether a property-owner-based entity was a “public body” under the OMA. See In re: Boone Lake Management District, ADV OM 18-04. There, after considering the language of the enabling state statute, we observed that the District was empowered to levy taxes, a “quintessential governmental function.” Cf. In re: Prudence Island Volunteer Fire Department, ADV OM 16-03 (determining the PIVFD is not a “public body” under the OMA because, in part, the PIVFD has no taxing authority). We accordingly concluded that “[t]he assessment, collection, and use of tax revenues are such critical components of a democratic society that to permit the District to conduct these activities outside the public purview would be entirely contrary to the purpose of the OMA. See R.I. Gen. Laws § 42-46-1.” In re: Boone Lake Management District, ADV OM 18-04.

Here, it is undisputed that the Fire District was created by an Act of the Rhode Island General Assembly in 1932. Amended several times since, including in 1992 (Chapter 491, 92-H 9722), the Fire District’s founding Act grants the Fire District a number of powers, including the ability to “adopt such rules, regulations, ordinances and by-laws as may be reasonably necessary to enable it to fulfill its corporate purposes and may provide a penalty for the breach of such rules *** [including] imprisonment for a term of not exceeding thirty days[.]” Section 5. The Act also permits the Fire District to “raise money by taxation of real estate[.]” Section 7. The Fire District provides maintenance, garbage removal, and other improvement services.

Much like in In re: Boone Lake Management District, we are hard-pressed to conclude that a taxing entity is outside of the OMA’s umbrella. We reiterate our earlier assertion that “[t]he assessment, collection, and use of tax revenues are such critical components of a democratic society that to permit the District to conduct these activities outside the public purview would be entirely contrary to the purpose of the OMA. See R.I. Gen. Laws § 42-46-1.” In re: Boone Lake Management District, ADV OM 18-04. Further, the nature of the Fire District’s activities – maintenance and garbage removal – fit well within the traditional role of a governmental public body.

Concluding that the Fire District is a “public body” under the OMA is also consistent with a February 24, 1984 letter from then-Attorney General Dennis J. Roberts II to Thomas L. Marcaccio, Jr., then-clerk of the Bonnet Shores Fire District, explaining that “I disagree with your contention that you are not required pursuant to R.I.G.L. 42-46-6 to give notice of all meetings of the Fire District[.]” One of the Complainants attached this letter to her rebuttal. Although this letter does not expressly opine on whether the Fire District is a public body, it nonetheless expresses an expectation that the Fire District abide by the OMA’s requirements.

Further, the Fire District’s reference to a November 2, 2018 letter from this Office to a complainant explaining that this Office “does not have jurisdiction over Charters and By-Laws” is unavailing. Although it is true that this Office’s authority under the OMA does not encompass issuing findings about alleged violations of bylaws and charters, see R.I. Gen. Laws § 42-46-8(a), this Office does have jurisdiction to issue findings regarding alleged violations of the OMA. See id. The November 2, 2018 correspondence concluded that this Office did not have jurisdiction over the specific charter and bylaw issues raised. This Office did not conclude that it was without jurisdiction over the Fire District if a subject matter was raised that fell within our authority.

In sum, we conclude that the Fire District is a “public body” under the OMA. As a public body under the OMA, the Fire District is required to follow the OMA’s provisions, including its requirements related to executive sessions, the timely filing of meeting minutes, and the timely filing of meeting notices.

2.  Executive Sessions

The OMA generally requires all meetings of public bodies to be open to the public. R.I. Gen. Laws § 42-46-3. The OMA permits public bodies to enter executive session for a limited number of enumerated purposes. See R.I. Gen. Laws § 42-36-4.

Here, the Complainants allege that the Fire District improperly convened into executive session on the following dates: August 31, 2017; March 10, 2018; March 28, 2018; May 10, 2018; May 15, 2018; and May 8, 2019. The Fire District responds that out of those dates, it only held meetings on August 31, 2017 and March 28, 2018. However, the Fire District also acknowledged that it erroneously posted the date for its May 12, 2018 meeting as May 10, 2018, and thus even though it did not meet on May 10, 2018, it did meet on May 12, 2018 even though it had not posted notice for a meeting on that date. In rebuttal, Complainants did not contest that the Fire District only met in executive session three times out of the relevant dates. The Fire District provided the executive session minutes for each of these three meetings for our in camera review.

For the August 31, 2017 and March 28, 2018 meetings, we decline to address the merits of the Complainants’ allegations because the applicable statute of limitations has run. Rhode Island General Laws § 42-46-8(b) does not permit this Office to file an OMA complaint in the Superior Court after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred. This Office has declined to review OMA complaints filed with this Office after the expiration of the statute of limitations because once the statute of limitations expires, the OMA prohibits this Office from seeking enforcement by filing an OMA lawsuit in Superior Court. See, e.g., Langseth v. Buttonwoods Fire District, OM 19-27 (“[W]hen the statute of limitations has expired or is about to expire before a complaint is filed within [this Office], we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”).

Upon inquiry from our Office, Attorney Mannix represented that the minutes for the March 28, 2018 meeting were approved on April 25, 2018. The Complainants did not dispute this, and our review of the minutes posted on the Fire District’s website corroborates Attorney Mannix’s representation. Additionally, based on our research of the meeting minutes posted on the Fire District’s website, the August 31, 2017 meeting minutes were approved on September 20, 2017. Based on the record before us, pursuant to R.I. Gen. Laws § 42-46-8(b), the 180-day statute of limitations for both of these meetings expired well before the complaints in this matter were filed with this Office. Consequently, we decline to address the merits of Complainants’ allegations concerning the August 31, 2017 and March 28, 2018 meetings.

Upon inquiry from this Office, the Fire District was unable to provide evidence of approval of the minutes for the May 12, 2018 meeting, nor did we find any evidence of approval of these minutes. As such, we address the merits of the Complainants’ allegation with respect to that meeting.

One permissible reason for a public body to enter 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).

With respect to the May 12, 2018 executive session, the Fire District convened into executive session pursuant to R.I. Gen. Laws § 42-46-5(a)(1). Based on our in camera review of the executive session minutes, the Fire District discussed new contract terms for the Fire District manager during the executive session. This was the only matter discussed during the executive session.  Although it appears there was also some discussion of the employee’s employment background at the start of the executive session, which could be characterized as discussion of the individual’s character or job performance, the majority of the executive session minutes pertain to discussion of various contract terms. We were not presented with evidence, nor was any apparent from our review of the executive session minutes, that this discussion of contract terms was intertwined with discussion of the individual’s job performance, or other permissible topics for executive session under (a)(1).We have previously held that discussions of contract terms, without discussing job performance, is inappropriate under R.I. Gen. Laws § 42-46-5(a)(1). See Jenkins, et al. v. Narragansett Town Council, OM 19-38 (finding violation where “the Council did not discuss the selected applicant’s job performance, character or physical or mental health during these executive sessions, but rather discussed considerations related to potential contract terms”). We accordingly find that the May 12, 2018 executive session violated the OMA by including discussion of matters that fell outside the ambit of (a)(1).

3.  Failure to File Meeting Minutes

The OMA requires all public bodies to keep written minutes of all their meetings. See R.I. Gen. Laws § 42-46-7(a). For all fire entities, unofficial minutes of their meetings shall be posted within twenty-one days of the meeting, but not later than seven days prior to the next regularly scheduled meeting, whichever is earlier. See R.I. Gen. Laws § 42-46-7(b)(2). Official and/or approved minutes shall be posted with the secretary of state within thirty-five days of the meeting. See R.I. Gen. Laws § 42-46-7(d).

The Complainants allege that the Fire District failed to keep, provide, and/or post meeting minutes for meetings occurring in September 2018, December 2018, April 2019, May 2019, June 2019, and July 2019. In response, the Fire District does not dispute that it failed to do so, but merely maintains that they did not have to do so as they are not a “public body” under the OMA.

Consistent with our analysis supra, the Fire District is a “public body” under the OMA. It is accordingly required to make unofficial minutes available and post official minutes in accordance with the OMA’s requirements. The Fire District’s failure to do so within the time requirements set forth by the OMA violated the OMA.

4.  Failure to File Annual Notice

The OMA also requires all public bodies to provide written notice of their regularly scheduled meetings at the beginning of each calendar year. See R.I. Gen. Laws § 42-46-6(a).

Again, the Fire District does not dispute that it failed to file its annual notice. The Fire District’s failure to do so violated the OMA.

Conclusion

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 per violation against a public body found to have committed a willful or knowing violation of the OMA. Id.

At this time, we do not find that the violations found herein were willful or knowing because there are no recent similar findings of violations against the Fire District and because the Fire District appears to have been operating under the belief that it was not a public body. To be sure, the Complainants present a letter from then-Attorney General Roberts that the Fire District must post notice, but that letter does not explicitly address whether the Fire District is subject to the OMA and it is unclear what knowledge the present Fire District had concerning that thirty year old document.  Nonetheless, this finding serves as notice to the Fire District that it is subject to the OMA, its conduct violated the OMA and this finding may serve as evidence in a future similar situation of a willful or knowing violation.