VIA EMAIL ONLY

December 4, 2020

Ms. Paula Childs

Ms. Anita Langer

Thomas More Dickinson, Esq. Counsel, Bonnet Shores Fire District

Dear Ms. Childs, Ms. Langer, and Attorney Dickinson:

We have completed an investigation into the Open Meetings Act (“OMA”) Complaints filed by Ms. Paula Childs (“Childs”) and Ms. Anita Langer (“Langer”) against the Bonnet Shores Fire District Council (“Fire District”). For the reasons set forth herein, we find that the Fire District violated the OMA.

Ms. Childs alleges that the Fire District convened a meeting outside of the public purview before and after the Fire District’s June 17, 2020 meeting, which pursuant to the Governor’s Executive Order regarding public meetings during the COVID-19 pandemic, was conducted virtually via Zoom. Ms. Childs contends that although the meeting was conducted virtually, “four council members . . . met in person at the community center both before and after the public portion of the Meeting.” Ms. Langer similarly alleges that four members of the Fire District convened a meeting outside the public purview after the June 17, 2020 meeting.[1]

Ms. Childs also alleges that the notice for the Fire District’s June 27, 2020 meeting, which was physically posted on the door of the local community center, failed to indicate the date of said posting. Lastly, Ms. Childs contends that the meeting agenda for the June 27, 2020 meeting was inadequate in that it “failed to list the candidates under consideration for the office of council member and treasurer.”

Attorney Thomas Dickinson submitted a response on behalf of the Fire District as to both Complaints. With respect to the claim that members of the Fire District met outside the public purview, the Fire District produced sworn statements from five members of the Fire District.[2]  Each affiant attested that no official business was conducted before the June 17, 2020 virtual meeting commenced via Zoom, and that upon conclusion of the open meeting, the “Council members packed up their things and left the Community Center. No Council business was discussed during that time.”

In response to Ms. Childs’ second allegation regarding failure to include the date when the notice was posted on the door of community center, the Fire District argues that notice for the June 27, 2020 meeting was properly posted by electronic means on the Secretary of State’s website “on June 25, 2020, at 2:51 pm.” The Fire District also states that “Clerk Mannix advises that he posted the notice/agenda at the Community Center on the same date that he posted to the Secretary of State’s website, which would have been June 25, 2020.”

Lastly, with regards to the allegedly insufficient meeting agenda items for the June 27, 2020 meeting, the Fire District enclosed a copy of said agenda, which in pertinent part lists two items under “Old Business”: “Discuss and appoint council vacancy” and “Discuss and appoint Treasurer vacancy.”  The  Fire  District  contends  that  this  agenda  “complied  fully  with  the  Act’s requirements.”

We acknowledge the rebuttals of both Complainants.

Here, there is no question that the Fire District is a “public body”[3] and that at least four (4) members who were physically present before and after the meeting constitute a quorum of the seven member body.[4]  However, the Fire District disputes that its members engaged in a “meeting” as defined by the OMA. Each of the sworn statements provided to this Office expressly states that the Fire District members did not discuss official business either before or after the Zoom open meeting. Additionally, neither of the Complainants provides any specific evidence or allegations indicating that the members engaged in a substantive discussion before or after the Zoom meeting took place regarding a matter “over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1).

Based on the totality of the evidence presented, we do not find sufficient evidence that a quorum of the Fire District engaged in a collective discussion regarding a matter over which the Fire District has supervision, control, jurisdiction, or advisory power outside the public purview before or after the June 17, 2020 meeting such that the OMA was implicated. Notably, the Complaints do not provide any evidence to dispute the sworn statements submitted by the Fire District. We find no violation with respect to this allegation.

  Indicating Date of Posting Notice for June 27, 2020 Meeting

Ms. Childs’ second allegation is that the notice for the June 27, 2020 meeting posted at the community center failed to indicate the date of posting. 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).

Further, the OMA requires that supplemental notice of a meeting be posted in three locations: “the principal office of the public body holding the meeting, or if no principal office exists, at the building in which the meeting is to be held, and in at least one other prominent place within the governmental unit, and electronic filing of the notice with the secretary of state [.]” R.I. Gen. Laws

§ 42-46-6(c).

Here, the Fire District does not dispute that the meeting notice posted at the community center failed to include “the date the notice was posted.” See R.I. Gen. Laws § 42-46-6(b). Indeed, Attorney Dickinson states that “Mr. Mannix assures that, in future, he will note the date of the physical posting when he posts such notices of BSFD meetings.” As such, it is undisputed that the Fire District failed to include the date the notice was posted on the notice posted at the community center.[5] Accordingly, we find a violation with regard to this allegation.

  Notice of Business to Be Discussed at June 27, 2020 Meeting

Finally, Ms. Childs alleges that the Fire District’s meeting agenda for the June 27, 2020 meeting failed to properly inform the public as to the nature of the matters to be discussed. Specifically, the Complainant takes issue with two agenda items that she contends should have indicated the candidates being considered in connection with council member and treasurer vacancies.

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) (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, based on the evidence, we find no violation. The agenda indicated that the Fire District was going to “Discuss and appoint council vacancy” and “Discuss and appoint Treasurer vacancy.” Review of the minutes for the June 27, 2020 meeting indicates that with regard to each agenda item, the Fire District voted to appoint a specific individual for each of the vacant positions. The Fire District’s June 27, 2020 agenda items, which provided notice that the Fire District would make an appointment with regard to each of these positions, thus provided “fair notice to the public” under the circumstances and “fairly inform[ed] the public of the nature of the business to be discussed.” Anolik, 64 A.3d at 1173; see also Spodnik v. Town of West Warwick and West Warwick Town Council, OM 19-28 (determining that agenda items titled “Appointment of West Warwick Police Chief” and “Appointment of Tree Warden” did not violate the OMA).

The Complainant does not identify any authority for the proposition that the Fire District was required to list on the agenda all candidates being considered for the vacancies. Indeed, our Office has previously determined that the OMA does not require a public body to list the names of proposed appointees. See Mudge v. North Kingstown School Committee, OM 06-34 (discussing prior findings determining that a public body was required to indicate on its agenda the positions for which appointments would be made but was not required to include the names of proposed appointees.) Accordingly, we find no violation. Nonetheless, we encourage public bodies to provide as much specificity as possible in their meeting notices.