Background and Arguments

The Complainant alleges that the Council violated the OMA at its May 18, 2021 meeting by failing to adequately specify the nature of the business to be discussed in the supplemental notice (agenda) issued for it May 18, 2021 meeting. The agenda item in question stated:

“Discussion and Vote (Pursuant to Section 19-76 of the East Providence Zoning Ordinance) Regarding Petition For Zone Change for Property at: 500 Veterans Memorial Parkway (Map 107, Block 15, Parcel 001) and determination of a ‘substantial change of circumstances’ and potential referral to the Planning Board. Applicant and Owner: Metacomet Property, LLC.”

While discussing this agenda item, the Complainant alleges that discussion arose as to whether potential rezoning would shift jurisdiction over the area in question to the “Waterfront Commission.” The Complainant notes that “having observed some unrest among spectators in the gallery,” the Council President “called a person from the gallery to approach the podium.” The Complainant alleges that despite warnings from the Solicitor, conversation as to the Waterfront Commission ensued, with both the Council President and Councilperson Rodericks opining on this topic. The Complainant alleges that the agenda item above did not properly inform the public that discussion of the Waterfront Commission would take place, and that because these members of the Council were warned against straying from the agenda by the Solicitor, the Council’s violation was willful or knowing.

Attorney Michael J. Marcello submitted a substantive response on behalf of the Council. The Council argues that there was no violation of the OMA because the focus on the discussion was on whether there was a “substantial change of circumstances” as to the Zone Change Petition for the area in question. The petitioner seeking the zone change had previously withdrawn a zoning proposal within 18-months of the new proposal and was only allowed to submit a new proposal if the Council determined there was a “substantial change of circumstances” inherent in the new proposal.

The petitioner’s proposal sought zoning within the “Waterfront District.” Because properties within the Waterfront District are regulated by the Waterfront Commission rather than the East Providence Zoning Board, the Council argues that discussion of the Waterfront Commission would necessarily be subsumed within the agenda topic relating to the substantial change in circumstances determination with regard to the petition for a zone change. The Council argues that the Council’s consideration of whether there was a substantial change in circumstances was “inextricably linked to the contents of the petition itself which included a request for a Waterfront District inclusion.” The Council also argues that comments related to the Waterfront Commission were in response to public comment. The Council further added that the Solicitor’s comments at this juncture of the meeting were to remind the Council as to the fact that their actions relating to this agenda item would be procedural in nature and focused on whether there was a substantial change in circumstances. The Council argues that because “Keep Metacomet Green!” members participated in public discussion as to this topic, they lack standing to bring the instant Complaint.

Relevant Law and 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 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 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 circumstances, 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) (finding the appropriate inquiry to be “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”).

We have previously determined that public bodies violate the OMA by posting broad and insufficient agenda items such as “Tax Collector’s Report,” “Treasurer's Report,” “Chief's Report,” “Committee Reports,” “Old Business,” and “New Business.” These broad agenda items typically fail to “fairly inform the public of the nature of the business to be discussed or acted upon.” Spodnik v. West Warwick, OM 19-28; Beagan v. Albion Fire District, OM 10-27.

Similarly, in Castelli v. Coventry Town Council, OM 20-32, this Office found that an agenda item stating “District One Update by Councilwoman Dickson” violated the OMA because it did not provide information regarding the subject of the “update” or what would be discussed about District One pursuant to that agenda item. This Office noted that the agenda item did not provide public notice that the Councilwoman would discuss the formation of a “Coventry Charter Review Study Group,” or that she would “[report] on a ‘community forum.’” Id. Accordingly, the “agenda item failed to fairly encompass and provide notice of the substance of what would be discussed.” Id.

Here, this Office reviewed the agenda item and the relevant footage of the meeting in question. The pertinent agenda item stated: “Discussion and Vote (Pursuant to Section 19-76 of the East Providence Zoning Ordinance) Regarding Petition For Zone Change for Property at: 500 Veterans Memorial Parkway (Map 107, Block 15, Parcel 001) and determination of a ‘substantial change of circumstances’ and potential referral to the Planning Board. Applicant and Owner: Metacomet Property, LLC.” (Emphasis added).

In discussing this item, the topic of the Waterfront Commission arose because the petition included a request “that the property be placed in a special zoning district … known as the Waterfront District.” This request would cause the property to be “regulated by a State-created City Council appointed Waterfront Commission rather than the East Providence Zoning Board.” Thus, it is reasonable to assume that some discussion of the Waterfront Commission and the underlying petition for zone change would occur in relation to determining whether there was a “substantial change of circumstances” as to the proffered Zone Change Petition. This agenda item gave the public notice that zoning issues and issues that could come about through a zoning change related to that property would potentially be discussed. As such, the discussion was reasonably related to and encompassed within the business that was noticed. See Finnegan v. Scituate School Committee, OM 20-54; Lema v. Narragansett Town Council, OM 21-26. Additionally, unlike terse agenda items that we have found to violate the OMA in the past, such as “Old Business” or “New Business,” the agenda item here described what would happen (“Discussion and Vote”), cited to the relevant City ordinance, specifically identified the property and the owner of that property in question, the subject of their petition (a zoning change), and the issue that needed to be determined with regard to a potential substantial change in circumstances. Although the record indicates some discussion of the underlying petition occurred in the context of discussing whether there was a substantial change in circumstances, there is no indication that the Council took any votes on the underlying petition. Although this is not the basis for our finding, we also note that the crux of the comments related to the Waterfront Commission identified in the Complaint occurred in response to public comment. We find no violation.      

Conclusion

Although the Office of Attorney General has found no violation in this matter, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The Complainant may do so 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. R.I. Gen. Laws § 42-46-8. Please be advised that we are closing our file 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/ Adam D. Roach