| 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
November 17, 2020
OM 20-51
Ms. Hatsy Moore
William J. Conley, Jr., Esquire
Town Solicitor, Town of Westerly
RE: Moore v. Town of Westerly Department of Development Services
Dear Ms. Moore and Attorney Conley:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Ms. Hatsy Moore (“Complainant”) against the Town of Westerly Department of Development Services (“Department”). For the reasons set forth herein, we find that the Department is not a “public body” under the OMA.
The Complainant alleges that “[b]y taking on the task of revising and modernizing the Zoning Ordinance the Department of Development Services (DDS) acted and functioned like a ‘public body’” under the OMA and “failed to hold meetings open to the public and keep written minutes of its meetings” in violation of the OMA. (Emphases omitted).[1] The Complainant contends that the Department “had meetings and communications with a diverse array of people” relative to revising the Town of Westerly Zoning Ordinance without providing public notice of or maintaining minutes for those meetings.
The Department submitted a substantive response through Town Solicitor, William J. Conley, Jr., Esquire. The Department maintains that it “is established by the town charter for the Town of Westerly” and the Westerly Code of Ordinances. The Department “consists of a Director of Development Services who serves as the Chief of that department who is responsible for overseeing the offices of planning, zoning, building and code enforcement.” The Director of the Department is appointed by and reports directly to the Town Manager. The Director is charged with:
“(a) Direct[ing] the Town Planner, the Zoning Official, the Building Official and the Property Maintenance Code Official;
(b) Enforc[ing] the Town codes and ordinances within the purview of the Department;
(c) Administer[ing] grants;
(d) Perform[ing] other tasks as needed and as required by the Town Manager.”
The Department maintains that it performs purely administrative municipal functions for the Town. The Department asserts that “[t]he OMA, [t]he Town of Westerly Charter and the Town of Westerly Code of Ordinances establish that the [Department] is not a public body within the meaning of the OMA. *** Nothing contained therein vests any independent policy or decision- making authority in the [Department] as a whole or in any of the town positions in the department.” The Department states “[a]ll of the information provided by the complainant clearly establishes that the role of the [Department] was to draft proposed revisions to the zoning ordinance for review by the planning board and ultimate action by the town council. The information provided by the complainant demonstrates that in accordance with the Town Ordinances and state law the draft amendments were submitted to the planning board for an advisory recommendation to the town council. *** The favorable advisory opinion was forwarded to the town council and a public hearing on the proposed ordinance amendments is scheduled for October 19, 2020.”
The Complainant did not submit a 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 is implicated whenever a “quorum” of a “public body” convenes for a “meeting.” See R.I. Gen. Laws § 42-46-3; see also Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). A quorum is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). For purposes of the OMA, a “public body” is defined as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(3).
The threshold question in this case is whether the Department is a “public body” under the OMA. We have previously noted that determining whether a particular entity is or is not a “public body” is “a fact-intensive question not subject to ‘bright line’ rules.” Oliveira v. Independent Review Committee, OM 04-10.
The Rhode Island Supreme Court considered the issue of what constitutes a public body in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education, 151 A.3d 301, 307–08 (R.I. 2016). There, the Rhode Island Board Council on Elementary and Secondary Education (“RIDE”) created a Compensation Review Committee (“CRC”), which was tasked with reviewing requested and proposed salary adjustments to Rhode Island Department of Elementary and Secondary Education employees. Id. at 302–03. The CRC was described as an “‘informal, ad hoc working group with a strictly advisory role’ and with no legal status or authority[,]” and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:
“[T]he CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of a group of high-level state officials and operated under a charter, these two factors alone are insufficient to place them into the ‘public body’ umbrella. Importantly, the CRC’s sole function is to advise the commissioner of RIDE, who in turn has to make a recommendation to the council. At this point in the process, if the commissioner decided to present any proposal to the council for the council’s required approval, the public would have an opportunity to be informed of and object to such proposal.” Id. at 308.
Here, the relevant facts concerning the Department are undisputed. Created by the Town of Westerly Charter and Code of Ordinances, the Department, which is supervised by the Director, includes Planning, Zoning, Building, and Minimum Housing officials who are responsible for, inter alia, building inspections, permits, plan review and compliance, zoning enforcement, and grants administration. There is no evidence that the Department has a set membership appointed by a “public body” or that it meets on a regular basis.[2] There is no indication in the record before us that the Town Council’s decision-making authority relative to revising the Zoning Ordinance is delegated to the Department or its Director. Indeed, the Complainant asserts that the Department does not have the power or authority to amend the Zoning Ordinance and notes that the Charter requires all zoning amendments be referred to the Planning Board for its review and recommendation. Like the CRC in Pontarelli, the Department’s advice is subject to public scrutiny through the public meetings of the Planning Board and the Town Council, which has the ultimate authority over the Zoning Ordinance revision. See id.
Therefore, guided by Supreme Court precedent and based on the totality of the undisputed facts presented, we do not find that the Department is a “public body” under the OMA. As such, the OMA does not apply to the Department and we find no violations.
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/ Kayla E. O’Rourke
Kayla E. O’Rourke
Special Assistant Attorney General
[1] The Complaint also raised several issues that did not implicate any provisions of the OMA. This Office informed Complainant that those issues were outside this Office’s purview under the OMA and thus would not be investigated. See R.I. Gen. Laws § 42-46-8. The only issue before this Office for review is the allegation that the Department is a “public body” as that term is defined in the OMA and conducted meetings outside the public purview relative to revising the Town of Westerly Zoning Ordinance.
[2] As noted by the Department in its response to the Complaint, even apart from the question of whether the Department is a public body under the OMA, the Complainant does not provide evidence that a quorum of the Department convened a meeting regarding revising the Zoning Ordinance.