Background

The Complainant alleges that an item on the Town Council’s agenda for its January 27, 2020 meeting regarding a public informational hearing did not adequately inform the public that the Town Council would vote on the issue. The pertinent agenda item – continued from the Town Council’s January 13, 2020 meeting to the January 27, 2020 meeting – is reproduced below with formatting slightly altered:

“7. PUBLIC HEARING

A.    A Public Informational Hearing continued from the January 13, 2020 Town Council meeting to receive oral and written comments from the public relative to applying for State and Federal permission to discontinue the use of a Town recreation facility that is subject to a Federal Land and Water Conservation Fund easement. The recreation facility that is the subject of this Public Informational Hearing includes the entire property known as Town Farm Park, designated as plat 64-1, lot 1. The Town is considering discontinuing the use of Town Farm Park (approximately 8.1 acres) and transferring that property to the South County Hospital in exchange for a parcel of land approximately 35 acre, located at 494

Glen Rock Road and designated as a portion of plat 4-1, lot 1.”

At the January 27, 2020 meeting, the Town Council took the following action:

“VOTED:  to  authorize  the  submission  of  a  Proposal  Description  and Environmental  Screening  Form  to  the  RI  Department  of  Environmental Management [DEM] for a land swap of an approximately 35-acre parcel of land located at 494 Glen Rock Road (portion of plat 4-1, lot 1), for 8.1 acres of Town recreation property known as Town Farm Park (plat 64-1, lot 1); and further to authorize the Town Manager to work with the Hospital to find an alternative parcel.”

Attorney Amy Goins provided a substantive response on behalf of the Town Council arguing that the Complainant is not an “aggrieved” party with standing to bring an OMA complaint. See Graziano v. R.I. State Lottery Commission, et al., 810 A.2d 215, 221 (R.I. 2015); R.I. Gen. Laws § 42-46-8(a). Specifically, the Town Council asserted that the Complainant was present at both meetings and offered comments. The Town Council also asserted that the agenda item met the notice requirements under R.I. Gen. Laws § 42-46-6(b) and provided an affidavit from the Town Clerk attesting to the posting of the pertinent agendas and attachments.

The Complainant did not file a rebuttal.

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.

The Town Council asserts that the Complainant lacks standing and does not qualify as an aggrieved person under the OMA because she was present at both January 2020 meetings and even participated in public comment during the meetings. 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). We decline to examine this argument because the Office of the Attorney General may initiate a complaint on behalf of the public interest. See R.I. Gen. Laws § 42-46-8(e); see also City of Central Falls v. Central Falls Detention Facility Corporation, OM 19-03. We conclude that the allegations in this matter implicate the public interest. Accordingly, pursuant to our independent statutory authority, we proceed to consider the allegations relating to the January 27, 2020 meeting.

The OMA requires that all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). “This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed.” Id. (emphasis added). In Anolik v. Zoning Board of Review of the City of Newport, the Rhode Island Supreme Court held that R.I. Gen. Laws § 42-46-6(b) requires the “public body to provide fair notice to the public under the circumstance, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon.” 64 A.3d 1171, 1173 (R.I. 2013); see also Tanner v. Town of East Greenwich, 880 A.2d 784, 797 (R.I. 2005) (holding that the appropriate inquiry is “whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted”).

Here, we conclude that the pertinent agenda item failed to fairly encompass and provide notice of the Town Council’s action during the January 27, 2020 meeting. Specifically, the agenda item did not inform the public that the Town Council would vote to authorize the submission of a proposal to the Department of Environmental Management. Instead, the agenda item only informed the public that the Town Council would “receive oral and written comments[.]”

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

After reviewing the totality of the circumstances, we do not find injunctive relief appropriate. We note that although the agenda item did not provide notice that a vote would occur regarding submitting a proposal to DEM, it did provide notice that the Town Council was considering and accepting comments regarding applying for State and Federal permission to discontinue the use of a certain park and transfer that property to the South County Hospital in exchange for a different parcel of land. As such, although the Town Council did not provide notice that it was conducting a vote related to that issue, it did provide notice that the subject matter would be discussed at the January 27, 2020 meeting and public comment on the issue would be received. Accordingly, any member of the public who wished to attend and comment regarding the subject matter had notice of the opportunity to do so. Indeed, the Town Council made the undisputed assertion that Complainant was present and participated in the meetings.

In response to our inquiry, the Town Council represented that the proposal that was voted upon at the January 27, 2020 meeting was submitted to DEM on June 5, 2020, before this Complaint was filed, and is presently under review by DEM. We also note that the Complaint in this matter was filed with this Office on June 10, 2020, which was several days after the proposal was submitted to DEM but more than four months after the subject vote occurred. At this point, the action voted on at the January 27, 2020 meeting, i.e. submitting a proposal to DEM, has already taken place and seeking injunctive relief, months after the subject vote and action occurred, could impact a proposal that is already pending with DEM. See Durfee v. Tiverton Town Council, OM 19-40 (determining injunctive relief not appropriate where Town Council did not provide adequate notice that it would vote to authorize purchase of a fire rescue vehicle but where prior to issuance of finding, Town had already awarded bid for vehicle). To be sure, there may be times when seeking injunctive relief is warranted even when action has already been taken, but we do not think doing so is appropriate in these circumstances where the public received notice of an opportunity to comment on the subject matter voted upon and where months elapsed between when the vote publicly occurred and when this Complaint was filed.

The record also does not support a finding of a willful or knowing violation. Although we find that the agenda item did not provide adequate notice regarding a vote, the item itself was detailed and did provide substantial information about the topic that was going to be considered. Nor are we aware of any recent, similar violations by the Town Council. This finding serves as notice that the Town Council 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/ Kayla E. O’Rourke                     

Kayla E. O’Rourke

Special Assistant Attorney General