VIA EMAIL ONLY

January 6, 2021

Ms. Anita Langer

Thomas More Dickinson, Esq.

Counsel, Bonnet Shores Fire District

Dear Ms. Langer and Attorney Dickinson:

We have completed an investigation into the two Open Meetings Act (“OMA”) Complaints filed by Ms. Anita Langer (“Complainant”), respectively on July 20, 2020 and July 22, 2020, against the Bonnet Shores Fire District Council (“Fire District”). For the reasons set forth herein, we find that the Fire District violated the OMA with regard to the July 22, 2020 Complaint, but not as to the July 20, 2020 Complaint.

As to vacating Mr. Johnson’s seat, in an affidavit, Vice Chair Janice McClanaghan attests that due to COVID-19, the Fire District’s June 2020 annual meeting was cancelled and as a result, the members whose terms were scheduled to expire, including the term of Dan Johnson, would automatically be renewed for another year. Vice Chair McClanaghan asserts that certain issues had arisen with regard to Mr. Johnson’s membership on the Fire District and that he had been absent from meetings for an extended period of time. The Fire District asserts that its Chair at the time, Michael Vendetti, decided to address the matter by seeking to declare Mr. Johnson’s seat vacant at the next Council meeting in June. Vice Chair McClanaghan attests that Chair Vendetti asked her to notify Mr. Johnson as a courtesy that a motion would be made at the next meeting to declare his position vacant due to absences. Vice Chair McClanaghan did so by letter and Mr. Johnson then submitted a resignation letter. Vice Chair McClanaghan attests that “[o]ther than the conversation with Mr. Vendetti about the courtesy call to Mr. Johnson, I did not communicate with any other members of the Council about the motion to vacate Mr. Johnson’s position outside an open public meeting.”  

In response to Complainant’s July 22 Complaint, the Fire District argues that the email thread concerning “Little Beach” never amounted to a rolling quorum because any action that the Fire District took with respect to the “Little Beach” issue transpired at the Fire District’s August 5, 2020 meeting and not through the email thread. The Fire District further argues that the email thread, initiated by two members of the public, was informational in nature in that individual members of the Fire District “attempted to answer” the questions posited by the members of the public. The Fire District asserts that if a quorum of the Fire District was included in this email thread, it was due to the fact that each individual email sender was “replying all” to the initial email.

We acknowledge the Complainant’s rebuttals as to both Complaints.

The OMA requires that all meetings of every public body “shall be open to the public.” R.I. Gen. Laws § 42-46-3. For the OMA to apply, however, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). Under the OMA, a “meeting” is defined as “the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1). A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4).  All three of these elements — a quorum, a meeting, and a public body — must be present in order for the OMA to apply; the OMA is not applicable when one or more of these elements is absent. See Sirios v. Glocester Town Council, OM 20-50. 

Here, there is no question that the Fire District is a “public body.”^[1] However, the Complainant does not provide any substantive evidence that at least four (4) members (constituting a quorum of the seven member body) were engaged in a collective discussion or action regarding the two issues identified in the Complaint: (1) the hiring of legal counsel to address OMA complaints, and (2) vacating Mr. Johnson’s seat.

The sworn statement of Chair Farley indicates that he “took it upon [him]self” to retain legal counsel in advance of the next Fire District meeting. We were not presented with any evidence to the contrary. Indeed, the Complaint only speculates that “[a] Quorum of the Council must have either voted via email or at a [closed session] Meeting to give the Chair the Authority to hire Atty Dickinson and appropriate Tax Dollars without Public Notice.” However, we were not presented with any evidence to support Complainant’s argument, which is contradicted by Chair Farley’s affidavit.

Similarly, with regard to vacating Mr. Johnson’s seat, the evidence provided by the Fire District indicates that at most three members were involved in the events leading to the vacancy (Vendetti, McClanaghan, and Johnson). Importantly, the Complainant provides no direct evidence to rebut this evidence or suggest that additional members engaged in discussions outside of a public meeting. The Complainant suggests that Vice Chair McClanaghan must have known that a quorum of the Council would vote to vacate the seat based on the wording of her letter to Mr. Johnson, which indicated that “[t]his letter is to officially notify you that your seat on the Bonnet Shores Fire District Council will officially be vacated at the next Council meeting on June 17, 2020.” To be sure, this language suggests that Vice Chair McClanaghan believed that the vote at the upcoming meeting would result in the seat being vacated. However, Vice Chair McClanaghan expressly swore that besides Chair Vendetti and Mr. Johnson, she “did not communicate with any other members of the Council about the motion to vacate Mr. Johnson’s position outside an open public meeting.”  The Complainant has not presented any evidence to dispute this sworn statement. Because we have not been presented with evidence that a quorum was ever achieved, the OMA was not implicated, and we need not reach the issue of whether a “meeting” transpired.

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 or action outside the public purview regarding the hiring of legal counsel or Mr. Johnson’s vacancy. We find no violations with respect to the July 20, 2020 Complaint.

• July 22, 2020 Complaint: Alleged Rolling Quorum Relating to “Little Beach”

The July 22, 2020 Complaint alleges that the Fire District violated the OMA when it formed a rolling quorum over an email thread and acted on matters relating to “Little Beach.” The email chain was initiated on May 26, 2020 when two members of the public sent an email to the Fire District setting forth their concerns as to seaweed accumulating on the beach.

As noted above, the Fire District is a public body, subject to the OMA. Our analysis then turns on whether a quorum was established and a meeting was convened following the initial email. A quorum may be created, and a meeting “convened,” by a “rolling” or “walking” quorum, where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions. See, e.g., In Re: South Kingstown School Committee Electronic Mail Policy, OM 04-01 (series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA). Our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion. See Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07. Moreover, the OMA states that “[n]o meeting of members of a public body or use of electronic communication . . . shall be used to circumvent the spirit or requirements of this chapter.” R.I. Gen. Laws § 42-46-5(b). Additionally, the OMA expressly provides that “discussions of a public body via electronic communication . . . shall be permitted only to schedule a meeting.”  R.I. Gen. Laws § 42-46-5(b)(1).

Here, review of the email chain provided by the Complainant shows that Fire District member Chris Mannix responded to the members of the public on May 26, 2020 in an email that was also sent to or copied a quorum of the Fire District. The Complainant identified the names of the members of the Fire District and those names correspond with the email addresses included in the email chain. When the email thread was reinitiated on July 11, 2020 and again on July 15, 2020, by the same members of the public, those Fire District members remained on the email and the Complainant, who is also a member of the Fire District, also appears to be “cc’d” for the first time. The evidence thus indicates that a quorum of the Fire District was present on these emails.^[2]

It is also clear that various members of the Fire District were discussing “a matter over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1). Throughout the email chain, Fire District members discuss various methods and approaches at their disposal to mitigate the seaweed problem on Little Beach. Further, the Fire District concedes that this topic was addressed at the August 5, 2020 Fire District meeting. Although the email chain began with an inquiry from members of the public and a response thereto, the communications quickly devolved into a discussion among Fire District members regarding how the problem identified by the members of the public should be addressed.

We note that the first email in the thread from a member of the Fire District initiating discussions among members of the Fire District was sent by the Complainant. In a July 16, 2020 email addressed to “Janice and all,” the Complainant states that the seaweed issue needs to be placed on the next agenda and asserts that public comment should be allowed. The Complainant also states that a permanent solution needs to be found and a firm that deals with dredging and oceanographic issues should be hired to look into the issue. The Complainant goes on to indicate that money can be budgeted for this and suggests a resource to contact.

Mr. Farley then responds to “Anita and all” by further substantively discussing the seaweed issue and asking Complainant as Harbor Chair to research the issue. Complainant responds by indicating that she will set up a committee. Mr. Farley then responds by objecting to the notion that a committee should be created. At this point, Complainant indicates for the first time that the matters being discussed should be discussed at a public forum, but nonetheless goes on to advocate for establishing a committee and state that there needs to be a financial commitment to support the project.

Mr. Farley then responds with an email to “All” informing them that he had just learned that another member, “Marlene,” had already been investigating these issues and would continue to do so. He also notes his belief that working with “URI” was a good direction to move in. In a subsequent email, member Janice McClanaghan notes that she is meeting with two individuals, seemingly experts, to discuss the situation and they are considering bringing in equipment but it would require a ramp or a crane and she tells the other members to “stay tuned.”  Then another member, “Carol,” responds by indicating her belief that the seaweed is the result of “Mother Nature” and if it is cleaned one day it will quickly return.

The above-described communications pertain to substantive issues amongst members of a public body that are clearly related to matters within the Fire District’s purview. These are precisely the type of comments and debate that the public would expect to take place at an open meeting, not in a private email chain. Moreover, the evidence shows that a quorum of the Fire District was actively involved in this collective discussion. Indeed, the Fire District acknowledges that its members participated in emails that “speculated on various possible ways to address the problem.” Because both a quorum was achieved and a discussion ensued as to a topic over which the Fire District has supervision, control, jurisdiction, or advisory power, a “meeting” as defined by the OMA was convened outside of the public purview. As such, the Fire District violated the OMA.