| 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 08, 2021
OM 21-13
Mr. Richard Finnegan
David D’Agostino, Esquire
Legal Counsel, Scituate School Committee
RE: Finnegan v. Scituate School Committee [11.27.20], [12.5.20]
Dear Mr. Finnegan and Attorney D’Agostino:
We have completed an investigation into the Open Meetings Act (“OMA”) complaints filed by Mr. Richard Finnegan (“Complainant”) against the Scituate School Committee (“Committee”) on November 27, 2020 (relating to a November 10, 2020 meeting) and on December 5, 2020 (relating to a December 1, 2020 meeting). For the reasons set forth herein, we find that the Committee violated the OMA.
The Complainant makes nearly identical allegations in both Complaints. He alleges that the Committee violated the OMA at its November 10, 2020 meeting because the agenda item “C. Consent Agenda, 1. Meeting Minutes, 2. Bills, 3. Correspondence” did not provide adequate notice under the OMA. The Complainant alleges that the Committee again violated the OMA by failing to provide adequate notice at its December 1, 2020 meeting by using an identically worded agenda item.
Attorney David M. D’Agostino submitted a response on behalf of the Committee as to both complaints. The Committee first argues that the Complainant lacks standing in each matter 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 Complaints pertaining to both the November 10, 2020 and December 1, 2020 meetings, the Committee argues that at its May 7, 2019 meeting it agreed to implement a “consent agenda” for all future meetings. As part of this implementation, the Committee began using a program called “ClerkBase” to file the supporting documents associated with its meeting agendas. The Committee argues that the boilerplate language of the “consent agenda,” combined with the documents accessible to the public via ClerkBase, together provide proper notice under the OMA.
The Complainant did not submit a rebuttal as to the December 1, 2020 meeting complaint but did rebut the Committee’s response to his November 10, 2020 meeting complaint. In rebuttal, the Complainant argues that the use of ClerkBase to file agenda attachments, and thus provide notice to the public, is insufficient because the OMA requires such documents to be filed “with the secretary of state.” The Complainant makes this same argument in the body of his December 5, 2020 complaint.
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.[1]
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).
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”).
With respect to both the November 10, 2020 meeting and the December 1, 2020 meeting, the pertinent agenda item stated: “C. Consent Agenda, 1. Meeting Minutes, 2. Bills, 3. Correspondence.” Here, we conclude that the agenda item did not provide adequate notice to the public. Both the November 10, 2020 and December 1, 2020 meeting notices did not provide the public with any information as to which “Meeting Minutes,” “Bills,” and “Correspondence,” would be discussed and acted upon, or what would take place with regard to each of those broad topics. We have previously noted that such broad agenda items do not provide sufficient notice. See Fagnant v. Woonsocket City Council, OM 19-44 (agenda topic titled “Good and Welfare” did not sufficiently specify the nature of the business to be discussed); Spodnick v. West Warwick, OM 19-28 (agenda items, including “monthly Finance Report” and “Quarterly Director Reports” failed to indicate the nature of the business to be discussed).
The Committee argues that notice was proper in both instances in that supporting documents related to each broad category are accessible to the public through ClerkBase. We find this argument unavailing. The OMA is clear that meeting notices must be posted on the Secretary of State’s website and two other locations (as described in the statute). See R.I. Gen. Law § 42-46-6(c). In Noordzy v. South Kingstown Town Council, in a situation similar to the instant Complaints, this Office found that the posting of supporting attachments on ClerkBase was inadequate in the context of the OMA, and did not “override the plain language of the agenda item that was posted on the Secretary of State’s website.” See Noordzy v. South Kingstown Town Council, OM 20-38.
This Office reviewed the agendas as posted on the Secretary of State’s website and determined that the public is unable to access the supporting documents from the Secretary of State’s website itself. The Committee concedes the same, noting that “the RI Secretary of State’s website does not allow hyperlinking of documents that are part of public meeting agendas.”
It should further be noted that the supporting documents themselves are fairly substantive. For example, under agenda item “C” for the November 10, 2020 meeting, the supporting document for “Meeting Minutes” is 14 pages, for “Bills” it is 15 pages, and for “Correspondence” it is an additional page. If the Committee wished to include these materials with the agenda as part of providing adequate notice under the OMA, these 30 supporting pages would have needed to be posted along with the agenda on the Secretary of State’s website, and also physically posted with the agenda at the two distinct locations where notice is required to be posed by the OMA. See R.I. Gen. Laws § 42-46-6(c).
We accordingly conclude that the agendas for both the November 10, 2020 and December 1, 2020 meetings did not provide adequate notice to the public as to the nature of the business to be discussed at each meeting, as contemplated by the OMA. We therefore find that the Committee violated the OMA.
We encourage public bodies to provide advanced public access to documents that will be discussed or acted upon at public meetings, including through ClerkBase, but it is important for public bodies to comply with the particular notice requirements set forth in the OMA. Going forward, the Committee can comply with the OMA’s notice requirements by including a statement in the agenda itself that more particularly specifies the nature of the business to be discussed with regard to minutes, bills, and correspondence, consistent with the OMA. See Tanner v. Town of East Greenwich, 880 A.2d at 797. We also encourage the Committee to make the supporting documents available to the public in advance of the meeting.
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. Although action was taken as to the agenda item in both meetings, the action was limited to approving the consent agendas, making corrections to prior minutes, discussing the proper formatting of bills, and voting on bill payments. The Complainant has not alleged that anyone was prejudiced by these actions or by the notice provided. It is undisputed that the relevant discussion and action occurred in open session and the Complainant attended the meetings. We have not been presented with sufficient evidence that injunctive relief is necessary under these circumstances.
We also do not find sufficient evidence of a willful or knowing violation of the OMA. We observe that although there have been recent similar violations found against the Committee, the instant violations took place prior to the issuance of the recent findings by this Office with respect to the Committee’s violations. The record indicates that the Committee did post the documents that were the subject of the agenda items on ClerkBase, which although not compliant with the OMA, does evidence that the Committee was not attempting to intentionally obscure this information from the public. We also note the Committee’s recent representations that it will take measures in order to avoid future similar violations. See Finnegan v. Scituate School Committee [10.06.20], [10.13.20], OM 21-09.
This Office is concerned, however, as to the Committee’s continued violations of the OMA. We thus direct the Committee to this Office’s website, http://www.riag.ri.gov/CivilDivision/OpenGovernmentUnit.php, to review pertinent resources and training materials on OMA compliance. We also recommend that the Committee contact this Office to schedule a training on the OMA and to ensure that its members are advised of their obligations. 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 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 evinces that Complainant was in attendance at the meetings that are the subject of the Complaints. We need not address the issue of standing to bring either Complaint, as this Office may proceed based on the public interest and we find the public interest is implicated by the allegations in this case. See R.I. Gen. Laws § 42-46-8(e).