| 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
April 05, 2021
OM 21-12
Andrew G. Blais, Esquire
Legal Counsel, Western Oil, Inc.
Nicholas J. Hemond, Esquire
Legal Counsel, Central Falls Zoning Board of Review
RE: Western Oil, Inc. v. Central Falls Zoning Board of Review
Dear Attorneys Blais and Hemond:
We have completed our investigation into the Open Meetings Act (“OMA”) complaint filed by Attorney Andrew G. Blais on behalf of his client, Western Oil, Inc. (“Complainant”), against the Central Falls Zoning Board of Review (“Board”). For the reasons set forth herein, we find that the Board violated the OMA, but there is no need for injunctive relief and no evidence of a willful or knowing violation.
The Complainant alleges that the Board violated the OMA by (1) failing to file official minutes on the Secretary of State’s website within thirty-five (35) days of the following meetings: September 2, 2020, September 16, 2020, September 23, 2020, September 30, 2020, and October 7, 2020; and (2) by failing to make the unofficial minutes for these meetings available at the office of the public body within thirty-five (35) days of the meeting, or at the next regularly scheduled meeting. The Complainant maintains that the Board’s failure to timely post these minutes or otherwise make these minutes available “has prejudiced Western Oil and its attempt to challenge Western Oil’s requested dimensional variance and special use permit.”
The Board submitted a substantive response through counsel, Nicholas J. Hemond, Esquire, which included affidavits from Mr. James Vandermillen, Assistant Director of Planning & Economic Development for the City of Central Falls, and Assistant City Solicitor Robert Weber, Esquire. The Board does not dispute that the minutes for the September 2, 2020, September 16, 2020, September 23, 2020, September 30, 2020 and October 7, 2020 meetings were not timely posted on the Secretary of State’s website. The Board contends that there is “no evidence that the Board had the specific intent to deliberately delay the posting of its minutes to prejudice the Complainant” and that the “Board’s inactions can be characterized as accidental. Any delays in the drafting, review, approval, and posting of the Meetings’ minutes resulted from the Board and the Planning Department Staff’s significant backlog of work.” (Emphasis in original). The Board states that it and the Planning Department Staff have taken certain remedial measures to ensure compliance with the OMA, including posting the subject meeting minutes on the Secretary of State’s website, and that they have “thoroughly reviewed procedures, timelines and staffing responsibilities” to prevent future delays.
The Board also states that the Complainant submitted an Access to Public Records Act (“APRA”) request to the City of Central Falls on January 7, 2021 for the meeting minutes that are the subject of this Complaint and that the Board “fully responded” on February 19, 2021 after invoking an extension under the APRA. The Complainant has not disputed these representations or otherwise alleged that the Board and/or the City violated the APRA.
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 provides that:
“All public bodies shall keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the secretary of state for inspection by the public within thirty-five days of the meeting[.]” R.I. Gen. Laws § 42-46-7(d).
Pursuant to section 7(d) quoted above, the Board was required to file its September 2, 2020 minutes no later than October 7, 2020; its September 16, 2020 minutes no later than October 21, 2020; its September 23, 2020 minutes no later than October 28, 2020; its September 30, 2020 minutes no later than November 4, 2020; and its October 7, 2020 minutes no later than November 11, 2020. The undisputed evidence establishes, and the Board does not dispute, that the Board did not timely file meeting minutes for these five (5) meetings on the Secretary of State’s website. As such, the Board violated the OMA. See R.I. Gen. Laws § 42-46-7(d).
The OMA also requires that “unofficial minutes shall be available to the public at the office of the public body within thirty-five (35) days of the meeting or at the next regularly scheduled meeting, whichever is earlier.” R.I. Gen. Laws § 42-46-7(b)(1). Here, the Complainant argues that it “attempted to obtain minutes for each meeting, and has yet to receive copies of these minutes[.]” The Board did not dispute the Complainant’s allegation that the Board did not comply with R.I. Gen. Laws § 42-46-7(b)(1). The Board notes that it provided meeting minutes to Complainant on February 19, 2021 in response to an APRA request that Complainant had made on January 7, 2021 seeking the minutes, as well as other documents. The Complainant does not contest the Board’s representation that it provided the minutes after this Complaint was filed and after extending the time for its response under the APRA, see R.I. Gen. Laws § 38-2-3(e). However, the Board does not dispute the allegation that the meeting minutes were not made readily available to the public at the office of the public body or at the next regularly scheduled meeting as required by R.I. Gen. Laws § 42-46-7(b)(1). See also R.I. Gen. Laws § 38-2-3(d) (public body shall not require written APRA requests for documents prepared for or readily available to the public).[1] Accordingly, we find that the Board violated the OMA. To the extent it has not already done so, the Board should ensure that the minutes are available as required by R.I. Gen. Laws § 42-46-7(b)(1).
The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA on behalf of a complainant or the public interest. See R.I. Gen. Laws § 42-46-8(a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8(d). Additionally, the Superior Court may impose fines up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.
Injunctive relief is not appropriate here because the Board has represented, and our independent search has confirmed, that meeting minutes for the subject meetings have already been posted on the Secretary of State’s website.[2] Nor do we find sufficient evidence of a willful or knowing violation of the OMA. We observe that there are no recent similar violations found against the Board. We also note the Board’s representation that it has taken measures to avoid future similar violations. This finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.
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
[1] We make no determination regarding whether the Board complied with the APRA as that issue is outside the scope of this Complaint and the Complainant did not dispute the Board’s assertion that it responded to the Complainant’s request in accordance with the APRA.
[2] The Complainant also asks this Office to “void [the Board’s] hearing and determination regarding Western Oil’s applications for a dimensional variance and special use permit.” We find this remedy inappropriate given the nature of the violations. See DeCubellis v. William M. Davies Career and Technical High School Board of Trustees, OM 21-08 (finding nature of violation did not warrant seeking to have the meeting action declared to be null and void); see also Edwards v. State of Rhode Island, et al., 677 A.2d 1347, 1349 (R.I. 1996) (reversing judgment of the Superior Court which had declared the action of the school committee null and void due to failure to properly provide notice). Additionally, the Board has undisputedly represented that the Complainant was in attendance at several of the relevant meetings, that the Board’s decision regarding Complainant’s applications was presented in a written finding dated January 25, 2021, and should the Complainant disagree with the Board’s decision regarding its applications, the Complainant can appeal the decision to the Superior Court. Accordingly, we find Complainant’s request for this Office to declare the Board’s actions null and void inappropriate given the nature of the violations found herein and the totality of the circumstances.