Background and Arguments

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.

The OMA requires that “[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5.” R.I. Gen. Laws § 42-46-3. A public body may hold a meeting closed to the public for one of the ten (10) purposes enumerated under R.I. Gen. Laws § 42-46-5(a). Among the enumerated exemptions is that a public body may convene into executive session for “[a]ny discussions or considerations related to the acquisition or lease of real estate for public purposes, or of the disposition of publicly held property wherein advanced public information would be detrimental to the interest of the public.” See R.I. Gen. Laws § 42-46-5(a)(5). This Office has expressly recognized that, “unlike the first clause concerning the ‘acquisition or lease’ of real property, the second clause pertaining to the ‘disposition’ of public property expressly requires a public body to demonstrate that ‘advanced public information would be detrimental to the interest of the public.’” Riley v. I-195 Redevelopment District Commission, OM 14-13.   “Our inquiry concerning whether ‘advanced public information would be detrimental to the interest of the public’ is necessarily fact and case specific.” Id.

At the request of this Office, the Council submitted a supplemental affidavit from Town Manager, J. Mark Rooney, addressing whether “advanced public information” of the discussions around the disposition of the Tower Street Property would have been “detrimental to the interest of the public.” See R.I. Gen. Laws § 42-46-5(a)(5). Town Manager Rooney attested that:

“[A] public discussion would have been detrimental to the public interest *** [because] I, along with the Council, discussed what the Council considered to be allowable uses for the Property, including what would be acceptable density considerations and whether the Council intended to place any restrictions on the sale of the Property. Said considerations if discussed in public had the potential to impact how the Property could be listed and marketed, and the Town’s desire for a listing price for the Property and its ability to negotiate any such listing price.”

Town Manager Rooney also stated that a public discussion regarding “various types of broker fees” “could have detrimentally affected the Town Manager’s ability to negotiate with potential brokers.”

The Complainant did not submit a supplemental rebuttal disputing the Council’s position that advanced public information of the executive session discussion on the Tower Street property would have been detrimental to the interest of the public.

Having reviewed the September 21, 2020 executive session minutes, we conclude that the Council did not violate the OMA when it convened into executive session to discuss the potential disposition of the Tower Street School Property. Although the sealed nature of the executive session minutes and our in camera review limit full discussion of our reasoning, our in camera review and the Council’s supplemental affidavit reveal the Council discussions concerned the Council’s strategy with respect to the listing and marketing of the property for sale, including potential restrictions and fees the Council would be willing to pay. The Council has provided evidence that if held in open session, this discussion could be detrimental to the interests of the public by hampering the Council’s ability to effectively negotiate the sale of the property. See Angelo v. Westerly Town Council, OM 20-18 (finding that Town Council’s executive session discussion regarding the disposition of certain property was proper because public discussion of the Council’s negotiation strategy could hamper the Council’s effectiveness in such negotiations).

The Complainant does not contest that the Tower Street property is “publicly held property”; indeed, the Complainant essentially concedes this point in the Complaint, stating that “[t]he building is owned by the Town[.]” Nor does the Complainant contend that the Council did not have the authority to dispose of the Tower Street School, which it owned. Rather, the gravamen of Complainant’s argument is his belief that the Council’s decision to sell the property after the Planning Board apparently recommended that the property be used as a “Community Center” was improper.

Although the Complainant may disagree with the Council’s decision, our authority in this matter is to investigate alleged violations of the OMA, see R.I. Gen. Laws § 42-46-8, not to evaluate the merits of a public body’s discretionary decision-making and policy decisions. As this Office has observed on past occasions, “in order for this Office to find a violation of the OMA, our attention must be directed to specific conduct that is contrary to the OMA.” Miller et. al, v. Chariho School Committee, OM 17-03. Here, the Complainant generally alleges that the “conditions” for holding an executive session were not satisfied, but does not state any specific allegations indicating that the Council’s September 21, 2020 executive session discussion involving the Tower Street property violated the OMA. We accordingly find that the Council did not violate the OMA by convening into executive session on September 21, 2020 to discuss disposition of the Tower Street property.

We now turn to the Complainant’s allegation that the “Council never explicitly stated in their notice that they were conducting a ‘closed meeting’ in order to vote on the disposition of the Tower Street School and Community Center.”

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”).

Complainant’s allegation is directly refuted by the pertinent agenda item and the Council’s affidavit in response to the Complaint. This Office’s review of the agenda notice reveals that it specifically stated “[t]he Council may vote to go into executive session for discussion and/or action regarding *** Land Disposition – Tower Street School.” Likewise, the Council attests, and the Complainant does not dispute, that “[t]he Special Meeting Agenda reflected that the Town Council was possibly entering into Executive Session for the purpose of discussing Land Disposition pursuant to §§ 42-46-4 and 42-46-5(a)(5), and specifically noted that [sic] the location of the land to be discussed, including the ‘Tower Street School,’ which is the basis for Mr. Straus’ complaint.” Based on the record before us, we find that the agenda notice did sufficiently advise the public of the Council’s intention to convene into executive session to discuss and/or vote upon the disposition of the Tower Street property. To the extent Complainant takes issue with the agenda item’s use of the word “may” (“[t]he Council may vote to go into executive session” (emphasis)), our prior findings have recognized that such wording is in accord with a Rhode Island Superior Court decision wherein the Court, recognizing that a public body generally cannot know in advance whether there will be an affirmative vote to enter executive session, held that “at most, [the notice] may indicate that the public body may seek at an open meeting to go into closed executive session for a stated purpose.”  Town of New Shoreham, ADV OM 99-14 (quoting Pine v. Charlestown Town Council, C.A. No. 95-491). Accordingly, we find no violation in this instance.

Conclusion

Although the Office of the Attorney General will not file suit in this matter, please be advised that nothing within the OMA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c).  The OMA allows the Complainant to file a complaint within ninety (90) days from the date of the Attorney General’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. See id. Please be advised that we are closing this Complaint 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