| 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
December 31, 2020
OM 20-54
Mr. Richard Finnegan
David D’Agostino, Esquire
Legal Counsel, Scituate School Committee
RE: Finnegan v. Scituate School Committee [8.28.20]
Dear Mr. Finnegan and Attorney D’Agostino:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Richard Finnegan (“Complainant”) against the Scituate School Committee (“Committee”). For the reasons set forth herein, we find that the Committee did not violate the OMA.
The Complainant contends that the Committee violated the OMA when it did not provide proper notice of the nature of the business to be discussed and/or acted upon at its July 7, 2020 meeting. Specifically, the Complainant alleges that agenda item (2)(E)(7), “Discussion/Action/Vote regarding awarding the bid to replace the North Scituate Elementary School Boilers to Coyne Mechanical Inc. in the amount of $288,000,” failed to describe what actually transpired at the meeting. The Complainant alleges that under this item, the Committee discussed and voted upon two additional line items that had been delineated on the School Department’s 5-Year Capital Improvement Plan[1] but that were not specifically listed on the agenda: “Replace/modify unit ventilators (noise)” and “Install 2 VFD’s.”
Attorney David M. D’Agostino submitted a response on behalf of the Committee. The Committee first argues that the Complainant lacks standing because “he was in attendance at the meeting, participating remotely on the Zoom platform. Because the Complainant was in attendance at the meeting, he cannot be deemed to have been aggrieved by any defect in notice.” As to the substance of the Complaint, the Committee argues that agenda item (2)(E)(7) sufficiently described what occurred at the meeting and that the two items from the Five-Year Improvement Plan identified by Complainant were encompassed within that agenda item. Specifically, the Committee contends that “the boiler replacement bid encompassed several items that together represented the scope of work in the RFP” for replacing the school boilers. The Committee asserts that its position is evidenced both by the Request for Proposals (RFP) documentation and by the sworn statement of the engineer involved with the boiler project.
We acknowledge the Complainant’s 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 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).
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, the pertinent agenda item is titled “Discussion/Action/Vote regarding awarding the bid to replace the North Scituate Elementary School Boilers to Coyne Mechanical Inc. in the amount of $288,000.” Given the totality of the circumstances, we find that the public was fairly informed of the nature of the business to be discussed in this instance.
A close review of the RFP and other evidence provided by the Committee clearly demonstrates that “VFD’s” are component parts of “School Boilers” and the school boiler project as a whole, and not a separate topic unrelated to the general topic of replacing the school boilers. Affiant Krista Iacobucci, P.E., a consulting engineer on the boiler project, stated that “the Boiler Project did include installation of two (2) VFDs. VFD stands for ‘variable frequency drives.’” Further, page 38 of the RFP for the boiler project states that “variable frequency drives, sensor/transmitters and related equipment shall be installed by the mechanical contractor as shown on the plans.” As such, the evidence demonstrates that installing “VFD’s” is a component of the work necessary to replace the school boilers and that this subject matter is encompassed within the agenda item regarding the bid to replace the school boilers.
Similarly, we find that the item “Replace/modify unit ventilators (noise)” is incorporated within the agenda item. Under Part 2 of the RFP, addressing “Products,” Subsection 2.11 “Pressure Gauges, Thermometers, and Test Plugs” lists “unit ventilators” as a relevant boiler product. Moreover, the evidence indicates that the “unit ventilators” item was ultimately “not accepted as part of the RFP process.” In that regard, the evidence indicates that even though this item was previously included in the Five-Year Improvement Plan and the RFP, it was not ultimately part of the bid that was discussed and voted upon at the July 7, 2020 meeting. As such, the evidence indicates that this item was not even a component of the bid that was discussed and acted upon at the meeting.
As to agenda item (2)(E)(7), the public was fairly informed of the nature of the business that would be discussed. See R.I. Gen. Laws § 42-46-6(b). The public knew that there would be a “Discussion/Action/Vote” regarding the school boiler bid. The meeting minutes provided by the Complainant show that each step of this agenda item process, as-written, precisely took place. There was a discussion of this topic, which the Complainant was a part of, and then an “Action/Vote” in favor of awarding the bid to “Coyne Mechanical Inc”. Although the 5-Year Improvement Plan referenced by Complainant may have broken down the aspects of the boiler project in a more particularized manner than on the agenda, the evidence indicates that the items on the Five-Year Improvement Plan referenced by Complainant are all components of the boiler project that was listed on the agenda. As such, we conclude that the agenda item fairly encompassed what occurred at the meeting and we find no violation.[2]
Although the Attorney General 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 decision.
We thank you for your interest in keeping government open and accountable to the public.
Sincerely,
PETER F. NERONHA ATTORNEY GENERAL
By: /s/ Adam D. Roach
Adam D. Roach
Special Assistant Attorney General
[1] The record indicates that the Five-Year Capital Improvement Plan was required by the Rhode Island Department of Education and that the School Department was in Year Four of that Plan at the time when this meeting occurred. The Five-Year Plan, as excerpted in the Complaint, contains separate line items for “Replace boilers” and for the two items referenced in the Complaint.
[2] We need not address the issue of standing, as this Office may proceed based on the public interest.
See R.I. Gen. Laws § 42-46-8(e).