VIA EMAIL ONLY

May 19, 2021

Mr. Christopher Lamendola

Matthew T. Oliverio, Esquire

Legal Counsel, East Greenwich School Committee

Dear Mr. Lamendola and Attorney Oliverio:

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 did not violate the OMA.

Attorney Oliverio substantively responded on behalf of the School Committee and provided this Office with copies of the relevant executive session minutes for our in camera review. The School Committee maintains that it convened into executive session on March 2, 2021 to discuss “all of Mr. Lamendola’s pending APRA and OMA complaints” pursuant to R.I. Gen. Laws § 42-46-5(a)(2). Attorney Aubrey Lombardo of Henneous Carroll and Lombardo, LLC was invited to the March 2, 2021 executive session as she had been previously retained by the School Committee to respond to several of the Complainant’s previous APRA and/or OMA complaints that were the topic of the March 2, 2021 discussion. The School Committee also states that the March 2, 2021 executive session agenda indicates that votes may be taken, and any votes taken were reported in open session. The School Committee reveals that, during the executive session discussion, “member Kevin Murphy made a motion to continue the engagement of Attorney Lombardo to conclude the work on any of the outstanding complaints in which she was involved. The motion was approved unanimously, and the announcement of that vote was reported in open session.”^[1]

Additionally, the School Committee argues that the Complainant is not an “aggrieved party” with standing to bring the instant OMA complaint as he “has known of Attorney Lombardo’s involvement and his own attorney has interacted with her on several occasions *** Thus, it is disingenuous at best for Complainant to suggest that he was surprised, caught off guard or harmed by any action of the Committee relating to Attorney Lombardo’s continuing engagement.”

Finally, the School Committee contends that the agenda citation to “RIGL § 42-46-2(a)(2)” was “an obvious typographical error made by the Committee’s newly-hired clerk” that was “also unintentionally overlooked by the Committee, the Superintendent and legal counsel.” “Nonetheless, the Committee does cite to the general section permitting closed meetings, ‘RIGL § 42-46-4” and mention that the purpose for the closed meeting is “Legal Advice/Litigation.”

We acknowledge Complainant’s rebuttal.^[2]

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.^[3]

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 Tanner v. Town of East Greenwich, 880 A.2d 784 (R.I. 2005), the Rhode Island Supreme Court examined the OMA’s requirement that a public notice contain “a statement specifying the nature of the business to be discussed.” The Tanner Court stated that although the standard is “somewhat flexible,” the contents of the notice “reasonably must describe the purpose of the meeting or the action proposed to be taken.” Id. at 797-98 (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”).

The OMA permits public bodies to enter executive session for a limited number of enumerated purposes. See R.I. Gen. Laws § 42-46-4(a).  Rhode Island General Laws § 42-46-4(a) provides, in relevant part:

“By open call, a public body may hold a meeting closed to the public upon an affirmative vote of the majority of its members. A meeting closed to the public shall be limited to matters allowed to be exempted from discussion at open meetings by § 42-46-5. The vote of each member on the question of holding a meeting closed to the public and the reason for holding a closed meeting, by a citation to a subdivision of § 42-46-5(a), and a statement specifying the nature of the business to be discussed, shall be recorded and entered into the minutes of the meeting.” (Emphasis added).

Among the enumerated permissible purposes to enter executive session is R.I. Gen. Laws § 42-46-5(a)(2), which permits a public body to convene into executive session for sessions or work sessions pertaining to collective bargaining or litigation.

Turning to the instant complaint, the pertinent executive session agenda item provided “Executive Session, Vote to go into Executive Session for discussion and/or action regarding those items of business exempt from open meetings under RIGL 42-46-4 and RIGL 42-46-2(a)(2) Legal Advice/Litigation pertaining to PR 20-52, PR 20-60 and 2-16-21 Complaint to AG.”^[4]

Based on this Office’s review of the March 2, 2021 executive session minutes, which were submitted in camera, the School Committee’s executive session discussion was tailored to explaining Attorney Lombardo and her firm’s role in representing the School Committee and School District in connection with the Complainant’s past and current OMA and APRA complaints, Attorneys Oliverio and Lombardo providing a summary of the pending complaints, and a discussion about the costs incurred by the School Committee in connection with defending these complaints. During the executive session, the School Committee voted unanimously “to continue to engage the firm of Henneous, Carroll and Lombardo to represent the district in pending open meetings complaints.” It is undisputed that this vote was disclosed when the School Committee reconvened into open session and is also recorded in the March 2, 2021 open session minutes.

Although the Complainant maintains that the “posted agenda only describes the related agenda item as ‘Advice/Litigation’” the pertinent agenda item also gives notice that the School Committee intends to vote to convene into executive session “for discussion and/or action … pertaining to PR 20-52, PR 20-60 and 2-16-21 Complaint to AG.” (Emphasis added). Based upon this Office’s review of the executive session minutes as described above, the School Committee’s executive session was limited to discussing the two prior findings issued by this Office (PR 20-52 and PR 20-60) as well as the then-pending complaint submitted by the Complainant on February 16, 2021, all of which were referenced in the agenda item. The School Committee also took “action” pursuant to the then-pending complaint in voting unanimously to continue to engage Henneous, Carroll and Lombardo to represent the School Committee in the pending complaint. Therefore, based on the totality of the circumstances, we find that the March 2, 2021 executive session agenda item fairly informed the public of the nature of the business to be discussed and acted upon and did not violate the OMA. See Tanner, 880 A.2d at 797-98 (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”).

Lastly, the Complainant alleges that the School Committee violated the OMA because the citation to “RIGL 42-46-2(a)(2)” indicating the purpose for the executive session “does not exist.” 

As indicated above, the pertinent agenda item cites to R.I. Gen. Laws § 42-46-4, which permits public bodies to convene into executive session under the limited circumstances outlined in R.I. Gen. Laws § 42-46-5; one of those purposes being for matters pertaining to litigation. See R.I. Gen. Laws § 42-46-5(a)(2). The School Committee concedes that its citation to “RIGL 42-46-2(a)(2)” instead of R.I. Gen. Laws § 42-46-5(a)(2) in the agenda was a typographical error.  As previously noted, the OMA requires the public notice include, among other things, “a statement specifying the nature of the business to be discussed.” R.I. Gen. Laws § 42-46-6(b). (Emphasis added).  Under these specific facts and based on the totality of the circumstances, namely the fact that the public notice indicated the subject matter to be discussed would be “Legal Advice/Litigation pertaining to PR 20-52, PR 20-60 and 2-16-21 Complaint to AG,” we find the executive session notice fairly noted the nature of the business discussed and the basis for entering executive session, notwithstanding the typographical error in the citation. When viewed in context, it is apparent that the School Committee was entering executive session to discuss matters related to litigation and intended to reference R.I. Gen. Laws § 42-46-5(a)(2).^[5] Accordingly, we find no violation.^[6]