Background and Arguments

The Complainant alleges that the Building Committee violated the OMA at its January 22, 2020 meeting when an agenda item failed to fairly inform the public of the nature of the business that occurred. When queried by this Office, the Complainant represented that the minutes of the January 22, 2020 meeting were not approved by the Building Committee until March 4, 2020, and thus the statute of limitations set forth in R.I. Gen. Laws § 42-46-8(b) had not yet expired at the time when Complainant submitted the Complaint to this Office on August 31, 2020.

Legal Counsel for the Building Committee, Attorney Andrew Henneous, submitted a substantive response in affidavit form from South Kingstown Town Council Vice President and Building Committee Chairman  Bryant DaCruz and  South Kingstown Superintendent and  Building Committee member Linda Savastano. The Building Committee maintains that the January 22, 2020 meeting minutes were publicly approved by the Building Committee at its February 5, 2020 meeting. Accordingly, the Building Committee contends that the Complaint is untimely, and that this Office cannot pursue a complaint pursuant to the statute of limitations set forth in R.I. Gen. Laws § 42-46-8(b). The affidavit of Mr. DaCruz and Ms. Savastano, as well as the minutes of the February 5, 2020 meeting provided by the Building Committee, corroborate the Building Committee’s representation that the January 22 minutes were publicly approved on February 5.

We acknowledge the Complainant’s rebuttal, which argues that the statute of limitations in connection with the January 22, 2020 meeting should not have started running until March 4, 2020.

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.

In relevant part, Rhode Island General Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Office 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 under these circumstances the OMA prohibits this Office from filing a lawsuit and seeking any relief in Superior Court. See e.g., Costantino v. Smithfield School Committee, OM 12-12 (“when the statute of limitations has expired or is about to expire before a complaint is filed within [this] Department, we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”); Block v. Rhode Island Board of Elections, OM 18-17; Lamendola v. East Greenwich School Committee, OM 20-11.

Here, according to the undisputed evidence, the January 22, 2020 Building Committee meeting minutes were approved by the Building Committee in open session during its public meeting on February 5, 2020. Pursuant to R.I. Gen. Laws § 42-46-8(b), the 180-day statute of limitations began running as of “the date of public approval of the minutes,” i.e., February 5, 2020. Therefore, with respect to the January 22, 2020 meeting, the time for this Office to file a lawsuit in the Superior Court related to Complainant’s allegations expired on or about August 3, 2020, twenty-eight (28) days prior to the Complainant filing the Complaint with this Office on August 31, 2020.

The Complainant argues that it is “ambiguous” whether the minutes for the January 5, 2020 meeting were approved during the February 5, 2020 meeting because the February 5, 2020 meeting minutes provided by the Building Committee and posted on the Secretary of State website contain the word “Draft.” As such, Complainant argues that the statute of limitations did not begin to run until March 4, 2020 because the agenda for the March 4, 2020 meeting refers to approval of “minutes of prior meetings.” We reject this argument raised by Complainant in light of the plain language of R.I. Gen. Laws § 42-46-8(b), which provides that the statute of limitations period begins upon “public approval of the minutes of the meeting at which the alleged violation occurred.” (Emphasis added). It is undisputed that the alleged violation occurred at the Building Committee’s January 22, 2020 meeting. Therefore, the statute of limitations began to run on February 5, 2020 when the January 22, 2020 minutes were publicly approved. The Complainant has not provided any evidence to dispute the evidence provided by the Building Committee evidencing that the January 22, 2020 meeting minutes were publicly approved at the February 5, 2020 meeting. Specifically, the Building Committee provided both a copy of the February 5, 2020 meeting minutes, as well as an affidavit from Mr. DaCruz and Ms. Savastano attesting that they attended the February 5, 2020 meeting and that the minutes for that meeting are accurate to the best of their knowledge. Accordingly, we conclude that the statute of limitations expired prior to the Complaint being submitted to this Office and decline to consider the merits of the Complainant’s allegations relating to the January 22 Building Committee meeting. This conclusion is consistent with our precedent, including Lamendola, OM 20-11, Block, OM 18-17, and Block, OM 12-05.

Conclusion

Although the Attorney General will not file suit in this matter, nothing within the OMA prohibits an individual or entity from instituting an action in Superior Court if it is within the statute of limitations. “[T]he individual may file suit in superior court 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.” See R.I. Gen. Laws § 42-46-8(c). We take no position on whether R.I. Gen. Laws § 42-46-8(c) would re-open a statute of limitations that expired prior to a complaint being filed with this Office. We are closing this file as of the date of this correspondence.

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_

Special Assistant Attorney General