VIA EMAIL ONLY

May 28, 2021

Mr. Zachary Farrell

William J. Conley, Jr., Esquire

Legal Counsel, Johnston School Committee

Dear Mr. Farrell and Attorney Conley:

The investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Zachary Farrell, (“Complainant”) against the Johnston School Committee (“Committee”) is complete.  For the reasons set forth herein, we find that the Committee did not violate the OMA.   

Specifically, the Complainant alleges that, under this agenda item, the School Committee discussed a change of date for one “Professional Development” or “PD” day, but this topic was not listed on the agenda.^[1] The Complainant acknowledges that parents were notified of the change in PD date from March 15 to March 26 on March 12, 2021. The Complainant maintains that “[t]his change to the school calendar was not approved by an action item by the Johnston School Committee.”

The Committee submitted a substantive response through legal counsel, William J. Conley, Jr., Esquire, which included an affidavit from Johnston Superintendent of Schools, Dr. Bernard DiLullo, Jr, as well as a copy of the March 16 Committee meeting minutes.  Dr. DiLullo maintains that, “after presenting the updated plan for the return to in-person learning, a virtual attendee made a comment about [Dr. LiLullo’s] decision to change the Professional Development day from March 15, 2021 to March 26, 2021. In response, [Dr. LiLullo] explained that the change in the schedule was due to the fact that the district had coordinated with a renowned speaker to deliver a professional development opportunity to teachers and staff, but learned that said speaker became unavailable on March 15, 2021, but was available on March 26, 2021.” Dr. DiLullo states that, in his capacity as Superintendent of Schools, he has “administrative responsibility for the Johnston Public Schools District” and it is his duty to “report to the school committee on the operation of the school system.” See R.I. Gen. Laws §§ 16-2-11(5); (11)(16). Dr. DiLullo also states that he “did not seek, nor was [he] required to seek, the School Committee’s approval to make this scheduling change, as evidenced by Mr. Farrell’s acknowledgment that parents were notified of the change prior to the meeting, on March 12, 2021.”

The Committee also challenges the Complainant’s standing to assert the allegations regarding the March 16, 2021 meeting because the Complainant was aware of the change in PD date at least four (4) days prior to the meeting and that the Complainant and/or his wife virtually attended the March 16, 2021 meeting.

The Complainant did not submit a rebuttal.

This Office’s review of the Committee’s March 16, 2021 meeting minutes revealed that, under the Superintendent’s Report agenda item, Dr. DiLullo presented the proposed return to in-person learning plan for the Johnston Public Schools. At the conclusion of Dr. DiLullo’s presentation, four (4) questions were presented by virtual, non-Committee member attendees. One such question related to the “change in the district PD day on the current calendar from 3/15 to 3/26” because the virtual attendee “felt that having the children out of the classroom two days that week would be unacceptable.” Based on the minutes provided, Dr. DiLullo responded to this virtual attendee explaining the need to change the date to accommodate the proposed speaker’s schedule and invited the Committee to respond to this issue as well. Committee Chairman LaFazia asked Dr. DiLullo whether the proposed speaker had any other availability after the March 26 date to which Dr. DiLullo responded that “he had already asked the speaker for this accommodation, but they were not going to be available.^[2] No further discussion took place on this topic and no vote related to the change in professional development day took place.

The OMA provides:

“Nothing within this chapter shall prohibit any public body, or the members thereof, from responding to comments initiated by a member of the public during a properly noticed open forum even if the subject matter of a citizen's comments or discussions were not previously posted, provided such matters shall be for informational purposes only and may not be voted on except where necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official.” R.I. Gen. Laws § 42-46-6(d) (emphasis added).

Here, based on the undisputed evidence, we find no violation. Our review of the March 16, 2021 Committee meeting minutes, as well as Dr. DiLullo’s affidavit, finds that the pertinent agenda item fairly encompassed the discussion presented under that topic and “fairly inform[ed] the public of the nature of the business to be discussed[.]” Anolik, 64 A.3d at 1173; see also Katz v. Board of Elections, OM 20-27 (finding no violation where agenda item stated “The Board may discuss and vote upon the recall election process pertaining to Town of Tiverton Councilors Robert D. Coulter and Justin P. [sic] Katz” and Board solely discussed the recall process and interviewed members of the Tiverton Board of Canvassers). The brief conversation related to the professional development day date change was initiated by a member of the public after Dr. DiLullo’s presentation and in the context of Dr. DiLullo’s presentation regarding the Superintendent’s Report, which was noticed on the agenda. Dr. DiLullo and the Committee member responded to the virtual attendee’s question and it is undisputed that the Committee took no action related to the professional development day date change and did not carry on any discussion of that topic beyond the scope of the question presented. Indeed, it is undisputed that the professional development date change occurred before the March 16, 2021 meeting and that Dr. DiLullo is vested with the authority to schedule, and reschedule, professional development days, not the Committee. Although the brief comments at issue in this case did not occur during a formal “open forum,” we find that the principles set forth in R.I. Gen. Laws § 42-46-6(d) are analogous and are implicated by the particular circumstances of this case. Accordingly, based on the totality of the circumstances, we find no violation.