| State of Rhode Island and Providence Plantations | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
November 1, 2021
OM 21-31
Mr. Robert Cushman
William J. Conley, Jr., Esquire
Attorney, Warwick City Council
Re: Robert Cushman v. Warwick City Council
Dear Mr. Cushman and Attorney Conley:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Cushman (“Complainant”) against the Warwick City Council (“City Council”). For the reasons set forth herein, we find that the City Council did not violate the OMA.
The Complainant alleges that the City Council violated the OMA during its May 24, 2021 meeting regarding the fiscal year 2022 City of Warwick (“City”) budget, by not adequately informing the public of the business that would be discussed. Specifically, the Complainant states the City Council discussed three topics without providing adequate notice: (1) the revenue portion of the City budget (2) the City of Cranston municipal budget, and (3) the City of Providence budget unfunded liabilities.[1]
Attorney William J. Conley, Jr. submitted a response on behalf of the City Council, which included an affidavit from City Council President Stephen P. McAllister. The City Council provided a copy of the agenda for the May 24, 2021 meeting, which advertised that the “Purpose of Meeting” was “Public Hearing on the Proposed Budget for fiscal year 2021-2022” and then listed various departments of the City. The City Council’s response addresses each topic the Complainant alleges was not properly noticed on the meeting agenda. The City Council argues that the City Finance Director, Mr. Peder Schaefer, “did not speak about the City’s revenue budget as a whole at the May 24, 2021 meeting, but merely explained to all present the process for the disbursement of American Rescue Funds to the City of Warwick.” The City Council contends that this explanation by Mr. Schaefer was “a logical and reasonable offshoot of the global discussion and deliberation regarding the Departmental request and the City Budget.”
The City Council additionally notes that Mr. Schaefer displayed a snapshot of a portion of the City of Cranston’s recently passed budget. The City Council argues that Mr. Schaefer used this item as an illustrative tool to orient viewers and the Council as to (1) how the City of Warwick accounts for Fire Department benefits and (2) to mention that overtime amounts are dictated by state law. Further, the City Council states in its response that the only time the City of Providence was mentioned was during the comments made by Mr. Schaefer. The City Council asserts these items related to other cities were used merely for illustrative purposes and it was clear on the face of the May 24, 2021 meeting agenda that the business to be discussed would lead to a final vote on the City Budget during the May 27, 2021 meeting.
We acknowledge the Complainant’s rebuttal which, among other points, argues that the three topics identified in his Complaint were discussed at length and not just in passing.[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.
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 § 42466(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 § 42466(b) requires the “public body to provide fair notice to the public under the circumstance, 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) (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 Court explained in Tanner that the General Assembly “intended to establish a flexible standard aimed at providing fair notice to the public under the circumstances.” See id. at 796.
This Office reviewed the parties’ submissions as well as the May 24, 2021 City Council agenda and video footage of the meeting. The revenue budget was mentioned during the meeting; however, the topic was discussed as part of the discussion of the fiscal year 2021-2022 budget, which was the noticed topic of the meeting. For instance, the Complainant acknowledges that “Mayor Picozzi discussed the revenue budget in the context of how much money would be allocated to the school department budget.” Similarly, the Complainant notes that Mr. Schaefer’s testimony “touched on detailed parts of the revenue budget used by the administration to balance the budget.” On balance, we find that the discussion of the revenue budget was related to the fiscal year 2021/2022 City budget, which was the advertised topic of the meeting.
The record also supports the City Council’s averment that the mentions to the “City of Cranston’s municipal budget” and the “City of Providence’s Budget” occurred in the context of discussing Warwick’s budget. The agenda clearly stated this was a meeting focusing on the “Proposed Budget for Fiscal Year 2021/2022.” The Complainant does not dispute that the discussions of other cities occurred in relation to discussing Warwick’s budget. For instance, the rebuttal acknowledges that with regard to Mr. Schaefer displaying one of the slides about other cities, “[h]is point was to use the slide as a tool to demonstrate that Warwick Fire Department overtime budget was reasonable.” There is no evidence or assertion that the City Council had control or authority over the budgets of the City of Cranston or City of Providence. The record supports that any discussion of aspects of these other cities’ budgets occurred in the context of discussing the noticed subject matter of the meeting, namely Warwick’s budget. See Keep Metacomet Green! v. East Providence City Council, OM 21-29 (finding no violation where the discussion was reasonably related to and encompassed within the business that was noticed). In these circumstances, we find that the City Council did not violate the OMA.
Although the Office of the Attorney General has found no violation in this matter, 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: Katherine Connolly Sadeck
Special Assistant Attorney General
[1] The Complaint also took issue with an alleged lack of adequate opportunity for public comment, but this Office already responded to Complainant that although public bodies are encouraged to offer opportunities for public comment, nothing in the OMA “requires any public body to hold an open forum session, to entertain or respond to any topic nor does it prohibit any public body from limiting comment on any topic[.]” R.I. Gen. Laws § 42466(b). To the extent any other law or provision outside the OMA may require public comment, that issue is outside our purview under the OMA.
[2] At times, the City Council’s response and the Complainant’s rebuttal references budget-related meetings that also occurred on May 25, 2021 and May 27, 2021, but our focus is on the May 24, 2021 meeting as that was the meeting identified in the final iteration of the Complaint presented to this Office, as well as in this Office’s acknowledgment letters to the parties.