Background

The Complainant alleges that the Council violated the OMA when it failed to post the minutes of the following meetings on the Secretary of State’s website within 35 days of the meeting: August 11, 2020, September 15, 2020, September 22, 2020, September 24, 2020, September 25, 2020, October 1, 2020, October 6, 2020, October 8, 2020, October 13, 2020, October 19, 2020, October 20, 2020, November 10, 2020, November 24, 2020, and December 8, 2020.

The Council submitted a substantive response through counsel, Michael Marcello, Esquire, which included an affidavit from City Clerk Samantha Burnett. The Council concedes that, “[w]ith the exception of the October 19, 2020 meeting, the East Providence City Council, by and through its City Clerk, admits that it did not file its officially approved minutes with the Rhode Island Secretary of State as required by the OMA.” The Council states that its failure to timely file minutes for these meetings “was not willful or intentional,” but rather an “administrative oversight” due to reduced staffing and alternative work arrangements caused by the COVID-19 pandemic. The Council maintains that once it was made aware of the missing minutes, “internal measures were taken to ensure that the missing minutes were filed on the Secretary of State’s website” and that “proper remedial measures have been taken to ensure full compliance with the OMA on a going forward basis.” The Council also maintains that “a full video copy of the actual meeting was posted on the City’s website through Clerkbase” on the day each respective meeting took place, “which would enable any interested member of the public to watch the entire meeting and its contents rather than read a summary of the meeting as contained in the minutes.” With respect to the October 19, 2020 meeting, the Council states that the minutes of said meeting “were approved on 11/10/2020 and filed within ten days of their approval.”

At the time the Council submitted its response, the minutes for the August 11, 2020 meeting were scheduled to be approved by the Council at its meeting on March 16, 2021.

We acknowledge Complainant’s rebuttal.

Relevant Law & 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 provides that:

Conclusion

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 we have been provided evidence that the meeting minutes for each of these meetings have already been posted on the Secretary of State’s website. We also observe that the Complainant’s rebuttal expressed satisfaction with the City’s description of its remedial measures. Nor have we been presented with evidence of a knowing or willful violation. We acknowledge the Council’s candor in conceding the violations and its undisputed representations that its omission was an “administrative oversight” due to the ongoing complications caused by the COVID-19 pandemic. Additionally, we are not aware of any prior, similar violations committed by the Council. We also acknowledge the Council’s representation that a full video of each of the meetings was posted on the Council’s Clerkbase webpage on the date of the meeting; although the posting on Clerkbase does not replace the minutes posting requirements under the OMA, it evidences that the violation was not an intentional attempt to obscure public access to the meetings. See R.I. Gen. Laws § 42-46-7(d). 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