| 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 26, 2021
OM 21-14
Mr. Christopher Lamendola
Aubrey L. Lombardo, Esquire
Legal Counsel, East Greenwich School District
RE: Lamendola v. East Greenwich School Committee [2-3-2021]
Dear Mr. Lamendola and Attorney Lombardo:
We have completed the investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Christopher Lamendola (“Complainant”) against the East Greenwich School Committee (“School Committee”). For the reasons set forth herein, we find that the School Committee violated the OMA.
In a Complaint filed on February 11, 2021, the Complainant alleges that the School Committee violated OMA when it did not properly report out executive session votes and vote to seal the minutes of an executive session in connection with an April 9, 2019 meeting. The Complainant asserts that the statute of limitations had not yet run as of when he filed his complaint because the Complainant did not have notice of the alleged violation until August 17, 2020 when the School Committee responded to an Access to Public Records Act (“APRA”) complaint he filed. See Lamendola v. East Greenwich School Department, PR 20-60.[1]
Attorney Aubrey Lombardo substantively responded on behalf of the School Committee in the form of a joint affidavit with School Committee Chairperson Anne Musella, and also provided this Office with affidavits from all School Committee members present at the April 9, 2019 executive session, as well as an affidavit from Ms. Christine DiMeglio, Administrative Assistant to the Superintendent who was charged with recording the minutes for the April 9, 2019 executive session. The School Committee also provided copies of the relevant executive session minutes for our in camera review. The School Committee argued that the Complainant’s allegations related to the April 9, 2019 meeting are time-barred because the April 9, 2019 meeting minutes were approved on April 23, 2019, thus, the 180-day statute of limitations under the OMA expired prior to the Complainant submitting his complaint with this Office. The School Committee also maintains that “[t]he April 9, 2019 executive session minutes were properly sealed by a majority vote of the School Committee immediately after executive session in accordance with R.I. Gen. Laws § 42-46-7(c),” to which all School Committee members present at the April 9, 2019 meeting have attested. The School Committee acknowledges that “[a]lthough the vote to seal the minutes of executive session was taken during open session, [Ms. DiMeglio] inadvertently included the motion to seal the minutes and the vote on the same in the April 9, 2019 executive session minutes.”
Although the in camera nature of this Office’s review of the April 9, 2019 executive session minutes makes discussion of the substantive content of the minutes inappropriate, we note that the minutes conclude with the following statement:
“On a motion by Mr. Plain, which was seconded by Ms. Powell, the Committee voted 7-0 to adjourn the executive session at 6:42 p.m. On a motion by Ms. Musella, which was seconded by Dr. McEwen, the Committee voted 7-0 to seal the executive session minutes.” (Emphases added).
Based on our review of the April 9, 2019 open session minutes, no disclosure of the vote to seal the executive session minutes was reported out and/or recorded in the open session minutes.
We acknowledge 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.
As a threshold matter, this Office must determine whether the statute of limitations relating to the April 9, 2019 meeting has expired. In relevant part, R.I. Gen. Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Office after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred or, in the case of an unannounced or improperly closed meeting, after 180 days from the public action of a public body revealing the alleged violation, whichever is greater. This Office has declined to review OMA complaints filed with this Office after the expiration of the statute of limitations because once the statute of limitations expires, the OMA prohibits this Office from seeking injunctive relief or civil fines by filing an OMA lawsuit in Superior Court. See, e.g., Langseth v. Buttonwoods Fire District, OM 19-27 (“when the statute of limitations has expired or is about to expire before a complaint is filed within [this Office], we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”).
The School Committee provided undisputed evidence that the April 9, 2019 meeting minutes were approved on April 23, 2019, which is more than 180 days prior to when the Complaint was filed. However, the Complainant maintains that he was unaware of the alleged violation until the School Committee responded to his APRA complaint on August 17, 2020, at which time the School Committee revealed that it had voted to seal the executive session minutes even though this was not disclosed in the open session minutes. We question whether this makes the executive session meeting “improperly closed” as Complainant argues, and thus extend the statute of limitations pursuant to R.I. Gen. Laws § 42-46-8(b). We decline to dwell on this issue since it is clear that even if the 180-day statute of limitations did not start to run until August 17, 2020, it expired on February 13, 2021, only two days after the Complaint was filed with this Office on February 11, 2021. As such, even when viewing the facts most favorably to the Complainant, the statute of limitations expired on February 13, 2021, two days after this Complaint was filed. Although the statute of limitations has expired and this Office cannot seek any relief, since there is some basis to believe this Complaint was filed prior to the expiration of the statute of limitations, we will proceed to discuss the allegations that this Office has investigated.
The OMA requires that “[a]ll votes taken in closed sessions shall be disclosed once the session is reopened; provided, however, a vote taken in a closed session need not be disclosed for the period of time during which its disclosure would jeopardize any strategy, negotiation or investigation undertaken pursuant to discussions conducted under § 42-46-5(a).” R.I. Gen. Laws § 42-46-4(b). Additionally, “[t]he minutes of a closed session shall be made available at the next regularly scheduled meeting unless the majority of the body votes to keep the minutes closed pursuant to §§ 42-46-4 and 42-46-5.” R.I. Gen. Laws § 42-46-7(c). In relevant part, the OMA requires minutes of a meeting to include “[a] record by individual members of any vote taken.” R.I. Gen. Laws § 42-46-7(a)(3).
Here, the School Committee has provided evidence in the form of affidavits, submitted under oath, from all School Committee members present at the April 9, 2019 meeting and from recording clerk, Ms. DiMeglio, that the vote to seal the executive session minutes occurred after the School Committee adjourned executive session. Specifically, affidavits provided by the School Committee attest that “[t]he motion to seal the minutes was voted on after the door to the room in which the meeting was held was opened up and the Committee was back in open session.” The School Committee also candidly acknowledges that it “inadvertently included the vote [to seal] in the executive session minutes” rather than in the open session minutes.
Complainant argues that there was a 19-minute delay between the adjournment of the executive session and the reconvening of open session based on a YouTube recording of the meeting and the approved minutes filed on the Secretary of State’s website, and questions whether the vote to seal the executive session minutes actually occurred in open session. Based on our review of the YouTube recording of the meeting, the recording of the open session begins with the pledge of allegiance and does not capture the vote to seal the executive session minutes.
Based on the record before us, it is clear that the School Committee voted to seal the executive session minutes and that this vote was not recorded in the open session minutes. Even assuming the vote occurred in open session as the School Committee asserts, the School Committee violated the OMA by failing to record that vote in the open session minutes as required by the OMA. See R.I. Gen. Laws § 42-46-7(a)(3).
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 within one hundred eighty (180) days of public approval of the minutes of the meeting at which the alleged violation occurred. 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.
As noted above, even assuming the statute of limitations in this matter was extended as Complainant argues and did not begin to run until August 17, 2020, the Complainant did not file this Complaint until two days prior to the expiration of the statute of limitations. As the statute of limitations expired on February 13, 2021 at the latest, this Office is not able to pursue any relief. Nonetheless, we encourage the School Committee to post revised open session minutes for the April 9, 2019 meeting that accurately report out and reflect the votes that occurred during the meeting in a manner consistent with the OMA and with this finding. Additionally, this finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence or 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.
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] The Complainant also raised similar allegations concerning the School Committee’s July 9, 2019, July 16, 2019, July 23, 2019, and August 13, 2019 meetings. As this Office explained to the Complainant, because his complaints regarding those meetings were not submitted to this Office prior to the expiration of the 180-day statute of limitations contained in the OMA, and this Office cannot enforce any directive after the expiration of the statute of limitations, no complaint was opened by this Office regarding those meetings. See R.I. Gen. Laws § 42-46-8(b); see also, Costantino v. Smithfield School Committee, OM 12-12 (“when the statute of limitations has expired or is about to expire before a complaint is filed within [this] Department, we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion”). We note that this Office issued its finding in Lamendola v. East Greenwich School Department, PR 20-60, on September 2, 2020, at which time this Office noted that the OMA issues had not been raised in the Complaint and were not properly before this Office, but that Complainant was free to file an OMA Complaint to the extent the statute of limitations had not expired. However, Complainant did not file this instant OMA Complaint until more than five months later after the statute of limitations related to above-listed meetings had clearly expired. Accordingly, this Office’s investigation and finding is limited to the allegations related to the April 9, 2019 meeting.