| 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
June 19, 2020
OM 20-33
Mr. Justin Katz
Vicki J. Bejma, Esquire
Legal Counsel, Tiverton Library Board of Trustees
RE: Katz v. Tiverton Library Board of Trustees
Dear Mr. Katz and Attorney Bejma:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Justin Katz (“Complainant”) against the Tiverton Library Board of Trustees (“Board”). For the reasons set forth herein, we find that the Board did not violate the OMA.
After receiving emails from the Board in response to an Access to Public Records Act request, the Complainant filed the instant OMA complaint alleging that the Board convened a rolling quorum through email communications on two occasions: October 18, 2018 and October 20, 2018. Specifically, the Complainant alleges that email threads on both of these dates indicate that a rolling quorum of the Board convened outside the public purview on each of these dates.
The Board denies the allegations in a substantive response supported by affidavits from six Board members – Kathy Clarendon, Carol Herrmann, Geri Holewiak, Gregory Jones, Pam Poli, and Kimberly Sutherland – as well as an affidavit from Tiverton Public Library Director Catherine Damiani. The Board maintains that both the October 18 and 20, 2018 email chains consist of emails between Director Damiani – who is not a member of the public body – and the Board. The Board argues that on neither of these dates did a quorum of the Board engage in collective discussion or take action on any matter. Instead, certain Board members replied to Director Damiani’s email – sometimes via reply and sometimes via reply-all. The Board maintains that none of these email threads involves discussion or action by a quorum of the Board. The affidavits largely mirror each other and support these contentions.
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 generally requires that every meeting of all public bodies “shall be open to the public.” R.I. Gen. Laws § 42-46-3. 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).
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.”).
It is undisputed that a quorum of the seven-member Board is four members. Although the evidence indicates that only six members were appointed during the relevant time period and included on the subject emails, Complainant agrees that four members are necessary for a quorum. Thus, the existence of a rolling quorum depends on whether four Board members engaged in a collective discussion or took action regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.
The October 18, 2018 email thread begins with an email from Director Damiani to the six appointed Board members explaining her intention to send an email regarding the cancellation of a political candidate event at the library due to concerns raised by the solicitor and Town Administrator. Director Damiani asks the Board members to contact her individually if they have any concerns or edits to her proposed email.
The undisputed affidavits of the Board members and Director Damiani – in addition to the emails themselves – do not evidence a rolling quorum. The email threads do not evidence that four members of the Board ever engaged in collective discussion or took action. In the October 18, 2018 email thread, Director Damiani sent out an email to the entire Board to which only three Board members replied via email – Ms. Poli, Ms. Herrmann, and Ms. Clarendon (and we note that two of the three did so by replying only to Director Damiani). The corresponding affidavits of the Board members confirm these facts and each Board member attests that he or she did not discuss the subject matter of the email with a quorum of the Board outside a publicly noticed meeting. With, at most, three Board members involved in the discussion, we find no quorum.
The same is true for the October 20, 2018 email thread. This email thread was initiated when Director Damiani sent an email to the six Board members informing them that an APRA request had been received for communications regarding cancelling the candidate event. Director Damiani indicated how she intended to respond to the request and invited the Board members to contact her individually if they had any objections. Again, only three Board members replied – Ms. Poli, Ms. Herrmann, and Ms. Sutherland (and we likewise note that one of the three did so by replying only to Director Damiani). The corresponding affidavits of the Board members confirm these facts and each Board member attests that he or she did not discuss the subject matter of the email with a quorum of the Board outside a publicly noticed meeting. Where, again, only three Board members are implicated, we find no quorum.
The Complainant does not dispute these facts, instead insisting that a rolling quorum existed because Director Damiani sent an email to a quorum of the Board. However, our analysis focuses on whether the communications serve as a chain of communications 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.”); 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). An email sent from a non-public body member to a quorum of a public body does not, without more, constitute a collective discussion among members of the public body any more than a an email sent from a citizen to a quorum of a public body would, by itself, violate the OMA.
The Complainant also asserts that the two email threads constitute action by the Board and are “tantamount to unanimous consent from the body[.]” However, there is no evidence that a quorum of the Board agreed on taking any course of action. With regard to each email thread, a quorum of Board members did not respond. The silence of these Board members is not tantamount to taking action or expressing approval.[1] Where, as here, it is undisputed that with respect to each of the email threads only three members of the Board communicated, there is no evidence that a quorum of the Board acted. See Fischer v. Zoning Bd. of Town of Charlestown, 723 A.2d 294, 295 (R.I. 1999) (“[T]here was never any convening of a meeting of a public body as envisioned by the act and no quorum for such a meeting was ever present.”); see also Pine v. Charlestown Town Council, et al., C.A. No. 95-491, 1997 WL 839926 at *17 (R.I. Super. June 4, 1997) (“Absent a quorum, therefore, a public body cannot ‘convene’ itself and, if not convened, the public body is not ‘meeting’ so as to be subject to the strictures of the Open Meetings Act.”).
We accordingly find no violations.[2] Nonetheless, we caution the Board to be mindful of engaging in any substantive email communications that involve a quorum, as doing so carries the risk of engaging in communications that have the potential to implicate the OMA and constitute a rolling quorum.
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 Complainant attempts to analogize this situation to a public body noticing and convening a meeting pursuant to the OMA, in which case a meeting occurs regardless of whether a quorum of the Board actively engages in discussion or takes action during the meeting. However, unlike a meeting convened pursuant to the OMA, which is undisputedly a public meeting, here the Complaint is based on email communications. As described herein, these email communications only constitute a meeting if collective discussion or action occurred, as defined by the precedent discussed in this finding.
[2] Because we find no violations, we need not address the Board’s argument that the Complainant lacks standing to bring this Complaint.