Background and Arguments

Relevant Law

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.

On March 9, 2020, Governor Gina Raimondo declared a state of emergency in response to the public health crisis created by the outbreak of the 2019 novel Coronavirus (“COVID-19”). See Executive Order 20-02 (March 9, 2020). On March 16, 2020, Governor Raimondo issued an executive order that temporarily modified certain provisions of the OMA as part of the State’s emergency response to the COVID-19 crisis. See Executive Order 20-05, “Third Supplemental Emergency Declaration – Public Meetings and Public Records Requests” (March 16, 2020) (“Executive Order 20-05”). Among other provisions, Executive Order 20-05 relieved public bodies “from the prohibitions regarding use of telephonic or electronic communications to conduct meetings, contained in Rhode Island General Laws § 42-46-5(b).” Executive Order 20-05 permitted public bodies to conduct meetings through telephonic or electronic means, provided that the public body “makes provisions to ensure public access to the meeting of the public body for members of the public through adequate, alternative means.” Executive Order 20-05 defined adequate alternative means as “measures that provide transparency and permit timely and effective public access to the deliberations of the public body,” such as video conferencing.

Executive Order 20-05 expired on April 15, 2020 and was replaced by Executive Order 20-25, which continued to permit public bodies to meet using adequate alternative means. Notably, Executive Order 20-25 included a new provision requiring that:

Any meetings occurring during the timeframe when this Executive Orders is in effect must provide adequate alternative means for public access, even if the members of the public body are able to convene in person. Executive Order 20-25, sec. 1(d) (emphasis added).

Executive Order 20-25, which became effective on April 15, 2020, was extended by subsequent executive orders until June 12, 2020, when it was superseded by Executive Order 20-46. Executive Order 20-46 did not differ from Executive Order 20-25 in any way that is material to this finding. Executive Order 20-46 continued to permit public bodies to meet by adequate alternative means and to require that any open meeting be accessible to the public through adequate alternative means, even if the public body is able to meet in person. Executive Order 20-46 has been extended by subsequent executive orders and remains in effect as of the date of this finding. Additionally, the executive orders regarding open meetings have all expressly noted that “[a]ll other OMA provisions shall remain unchanged and fully applicable to the activities of public bodies.”

With regard to meeting minutes, the OMA provides, in pertinent part, that “[a]ll public bodies shall keep written minutes of all their meetings. The minutes shall include, but need not be limited to:

(1) The date, time, and place of meeting;

(2) The members of the public body recorded as either present or absent;

(3) A record by individual members of any vote taken; and

(4) Any other information relevant to the business of the public body that any member of the public body requests be included or reflected in the minutes.”

R.I. Gen. Laws § 42-46-7(a) (emphasis added).

Findings

Based on the submissions of the parties, we have little trouble concluding that the Boards violated the OMA and the pertinent Executive Orders. Indeed, the Board of Canvassers, as well as the Municipal and Police Pension Boards, concede that they did not provide adequate, alternative means of public access to their respective June 1, 2020, July 13, 2020, and July 27, 2020 meetings. During the timeframe when each of these meetings occurred, either Executive Order 20-25 or Executive Order 20-46 was in effect. Under both of those Executive Orders, public bodies holding open meetings during the period when the Executive Order is in effect are required to provide the public with adequate alternative means of accessing the meeting, such as video-conferencing. This requirement applies regardless of whether the public body is able to convene in person. Since it is undisputed that the Boards did not comply with the operative Executive Order provisions regarding providing adequate, alternative means of public access to all open meetings, we find that the Boards did not comply with the Governor’s Executive Orders modifying the OMA.

Additionally, the Municipal and Police Pension Boards further concede that the minutes for their June 1, 2020 and July 27, 2020 joint meetings failed to include a record of the Board members present or absent in violation of R.I. Gen. Laws § 42-46-7(a)(2). This is confirmed by our review of the minutes. As such, the Boards 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. 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.

It was unclear to this Office whether injunctive relief regarding the three meetings in question was appropriate. Accordingly, this Office asked the Boards to provide supplemental submissions addressing whether any votes were taken at the meetings and, if so, whether there were any further actions taken related to those votes.

The Board of Canvassers responded by indicating that aside from adjourning the meeting, no votes were taken at its July 13, 2020 meeting, which was convened “to hold a lottery for candidates to appear on the September & November ballots.” The Board of Canvassers states that “aside from the physical act of drawing the names from a glass bowl, there is no active decision-making, contemplation, or deliberation performed by the Canvassers.” This Office’s review of the July 13 Board of Canvassers minutes confirms that no vote was taken by the Board of Canvassers and that the candidate ballot-location was determined by drawing candidate names from a bowl. We additionally note that based on the record and our review of the meeting minutes, it does not appear that the Complainant was one of the candidates impacted by the drawing. Based upon this evidence, we do not find that injunctive relief is appropriate in connection with the July 13, 2020 Board of Canvassers meeting.

The Municipal and Police Pension Boards state that “[t]he vote(s) taken at the June 1, 2020 meeting, authorized [Finance] Director Arnett to make certain adjustments in the various pension accounts, to rebalance the proceeds (this process seeks to reallocate funds from poorly performing investment accounts into better performing investment accounts, in the same pension fund.).” The Boards maintain that “[t]his is a process that is done on a fairly regular basis; however, the COVID-19 pandemic brought some urgency to the Town’s investment strategy, so that the Town could avoid a deleterious effect on the pension funds.” The Municipal and Police Pension Boards provided a copy of the Pension Fund Rebalance as of June 2, 2020, which shows the rebalance. Given that the action voted on already occurred shortly after the meeting, we do not find that injunctive relief with regard to that vote is appropriate.  Based on this Office’s review of the Municipal and Police Pension Boards’ July 27, 2020 meeting minutes, no votes were taken by the Boards at that meeting.

Nonetheless, it was undisputed that the minutes for the June 1, 2020 and July 27, 2020 joint meetings failed to list the members of the Municipal and Police Pension Boards who were present or absent. Within twenty (20) business days of the issuance of this finding, the Municipal and Police Pension Boards are instructed to provide this Office and the Complainant with evidence that they have taken measures to identify the members of the Municipal and Police Pension Boards who were present or absent at the June 1, 2020 and July 27, 2020 meetings and, assuming the Boards are able to discern this information, should post modified minutes reflecting this information. Although injunctive relief may be appropriate, we will allow the Municipal and Police Pension Boards an opportunity to comply with this finding.

Further, Complainant does not allege, nor do we find evidence, that the violations discussed herein constitute a willful or knowing violation that would warrant civil penalties. See R.I. Gen. Laws §42-46-8(a), (d). There are no recent similar findings of violations against the Board of Canvassers or the Municipal and Police Pension Boards. However, this finding serves as notice that the 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 Office of the Attorney General will not file suit in this matter at this time, please be advised that nothing within the OMA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c).  The OMA allows the Complainant to file a complaint 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. See id. This file will remain open pending the Boards’ response as directed above.

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