| 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
July 30, 2020
OM 20-39
Mr. Ronald Cervasio
Mark Tourgee, Esquire
Town Solicitor, Town of Foster
RE: Cervasio v. Foster Town Council
Dear Mr. Cervasio and Attorney Tourgee:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Ronald Cervasio (“Complainant”) against the Foster Town Council (“Town Council”). For the reasons set forth herein, we find that the Town Council did not violate the OMA.
The Complainant alleges that the Town Council violated the OMA during its March 12, 2020 executive session meeting by discussing a matter that pertained to Complainant without providing prior notice to him and without listing it on the agenda. In support of this allegation, the Complainant provided an email dated March 19, 2020 that he received from a member of the Regional School Committee and that purports to contain the text of a message from Foster Town Council President Denise DiFranco concerning the Complainant’s appointment to the Regional Charter Review.[1] Complainant alleges that during the March 12, 2020 executive session, President DiFranco informed the rest of the Town Council that she was drafting the message concerning Complainant and attempted to encourage others to sign onto the message. Complainant’s allegation appears to be based on the message forwarded to him by a Regional School Committee member and the fact that he “ha[s] been told” President DiFranco tried to get others to sign the message. The Complaint does not identify who told Complainant this and does not explain how the individual who sent him the email came to be in possession of the purported message from President DiFranco.
Foster Town Solicitor, Mark Tourgee, submitted a substantive response that included affidavits from four (4) out of the five (5) Town Council members. The affidavits largely mirror each other and affirm that the affiants — Town Council President DiFranco, Vice President Hawes, Member Stone and Member Rogers — were present for the March 12, 2020 Town Council meeting and that “[a]t no point during the Executive Session was there a discussion related to a letter regarding Mr. Cervasio’s placement on the Regional Charter Review.” The Town Council also submitted an affidavit from Town Clerk, Susan Dillon, who is responsible for drafting minutes of the executive session, similarly attesting that “[a]t no point during the Executive Session was there a discussion related to a letter regarding Mr. Cervasio’s placement on the Regional Charter Review.” The Town Council did not submit an affidavit from former Town Council Member Mr. Joseph Cardillo because, although Mr. Cardillo was present at the March 12 meeting, he had resigned from the Town Council prior to the filing of this Complaint. The Town Council submitted the March 12 open session minutes and an audio recording of the March 12 open session meeting. The Town Council also provided the relevant executive session minutes for the March 12 meeting for this Office’s in camera review.
We acknowledge Complainant’s rebuttal which included a signed statement from former Town Council Member Mr. Cardillo. Mr. Cardillo’s submission included the following statement:
“To the best of my knowledge President Defranco [sic] discussed this letter and offered for all of the Council members to sign it during executive session. It has been some time since this meeting so it is possible my memory is incorrect. Whether I am correct or not can be proven by the recordings taken by the Town Clerk when we reconvened regular session.
The discussion of the letter in question did take place of that I am 100% positive;
if it is not on the recording of regular session it must have been executive session.”
Complainant’s rebuttal also noted, “I can clearly see that the minutes do not contain any mention of the letter i [sic] forwarded to you.” Complainant also indicates that the allegations in the Complaint are based on information he received from Mr. Cardillo.
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 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. Additionally, within a minimum of forty- eight (48) hours, excluding weekends and holidays, the public body must post a supplemental notice (or agenda) that includes a statement specifying the nature of the business to be discussed at the meeting. See R.I. Gen. Laws § 42-46-6.
Here, the Complainant alleges the Town Council discussed a message concerning the Complainant’s appointment to the Regional Charter Review during the March 12 executive session without providing notice. Complainant contends, “I have been told she tried to get others to sign onto this letter.” Based on the Complaint and rebuttal, it appears Complainant’s allegations are based on the message forwarded to him by a School Committee member and information provided by Mr. Cardillo.
While Mr. Cardillo’s submission indicates that he believes President DiFranco’s message was discussed during the March 12 executive session, Mr. Cardillo also acknowledges “[i]t has been some time since this meeting so it is possible my memory is incorrect.” Balanced against Mr. Cardillo’s equivocal statement, are the four affidavits of the other Council members present at the executive session, as well as the Town Clerk, all of whom aver that “[a]t no point during the Executive Session was there a discussion related to a letter regarding Mr. Cervasio’s placement on the Regional Charter Review.” Moreover, we have reviewed in camera the executive session minutes and we find no evidence indicating that Complainant was discussed during this executive session. Based on our review, the totality of the evidence before us does not support the Complainant’s allegations. Accordingly, we find no violation.
Although the Complaint in this matter only alleged that the discussion occurred in executive session during the March 12 meeting — and as such that is the only allegation properly before us — we also note that after reviewing the submitted materials, including audio from the March 12 open session meeting, we also do not find evidence that the Complainant was discussed during the open session meeting.[2]
Although the Office of Attorney General has found no violations in this matter and will not file suit, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The Complainant may do so within ninety (90) days from the date 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 our 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/ Kayla E. O’Rourke
Kayla O’Rourke
Special Assistant Attorney General
[1] The message expresses disappointment regarding Complainant’s selection to serve on the Regional Charter Review and is purportedly signed by President DiFranco. It is unclear to whom the message was addressed or if it was ever sent, although it appears to be addressed to the entity responsible for making appointments to the Regional Charter Review. Based on the record, it appears the Regional Charter Review is a type of standing school committee that consists of citizens from Foster and Glocester. Complainant did not identify the name of the Regional School Committee member who sent him the email containing this message.
[2] The Complaint in this matter specifically alleged that the discussion occurred during the March 12 2020 executive session and our acknowledgement letter to the Complainant described the Complaint as alleging that “the Council violated the OMA when it discussed sending correspondence that relates to you in executive session without providing prior notice to you and without listing it on the agenda.” The acknowledgement letter also advised Complainant that “[i]f you have any additional information that you wish this Office to consider, or if this acknowledgment letter does not accurately reflect your complaint, please contact me in writing within five (5) business days.” Complainant did not respond or take issue with the characterization of the Complaint. As such, the sole issue properly before this Office is whether the alleged discussion occurred during the executive session of the March 12 meeting. In line with this Office’s acknowledgement letters to the parties and this Office’s precedent, this Office typically declines to review issues not raised in the Complaint and to which the public body did not have an opportunity to respond See Mudge v. North Kingstown School Committee, OM 12-35.