| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
| | |
| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
May 20, 2022
OM 22-31
Rory Schuler
William J. Conley, Jr., Esquire
Legal Counsel, Johnston School Committee
RE: Schuler v. Johnston School Committee
Dear Mr. Schuler and Attorney Conley:
We have completed our investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Rory Schuler (“Complainant”) against the Johnston School Committee (“Committee”). For the reasons set forth herein, we find that the Committee did not violate the OMA.
The Complainant alleges that the Committee convened “an unadvertised, closed-door meeting” on November 9, 2021. He contends that this meeting took place in advance of the regular Committee meeting, which was scheduled for 7 p.m. that evening. The Complainant asserts that he happened upon the closed meeting when he “arrived about 15-20 minutes prior to the advertised start time, and was not allowed into the public meeting space … the committee was already seated inside.” He states that “no executive session (was) scheduled to start prior to the 7 p.m. meeting … (the) Committee continued to meet in private, in secret, behind locked doors for at least 20 minutes past the 7 p.m. official start time.”
Attorney William J. Conley, Jr., Legal Counsel to the Johnston School Committee, submitted a response on behalf of the Committee. Appended to his response are affidavits executed by Dr. Bernard DiLullo, Jr., Superintendent of Schools for the Town of Johnston, Robert LaFazia, Committee Chair, Joseph Rotella, Committee Vice Chair, Susan M. Mansolillo, Committee member, and Dawn M. Aloisio, Committee member. Also included is the agenda and minutes for the meeting in question, as well as an article written by the Complainant at around the time that the Complaint was filed. Through the collective sworn statements, the Committee argues that it did not hold an executive session and that during the time period prior to the start of the meeting, the Committee members were simply waiting for the final member of the Committee to arrive so that the meeting could start. According to the sworn statements, during this time period, Committee member Mansolillo asked Dr. DiLullo about a personnel issue, Chair LaFazia asked the Committee’s Secretary about an incident that occurred at the High School that day, Committee Member David Santilli[1] arrived and asked legal counsel a question, and Chair LaFazia instructed Committee Member Santilli to end his interaction with legal counsel.
We acknowledge the Complainant’s rebuttal, wherein he notes that the time period described above lasted “at least 38 minutes” and “the public was literally locked out of the library where the meeting was held.” He also provided this Office with an audio recording that he made at the conclusion of the meeting.
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.
For the OMA to apply, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). A “public body” is defined, in part, as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government.” R.I. Gen. Laws § 42-46-2(5). A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(6). For purposes of the OMA, a “meeting” is defined as “the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” R.I. Gen. Laws § 42-46-2(1). All three of these elements—a quorum, a meeting, and a public body—must be present in order for the OMA to apply; the OMA is not applicable when one or more of these elements is absent. See Callanan v. East Greenwich Town Councilors-Elect, OM 19-35.
A quorum may be created, and a meeting “convened,” by a “rolling” or “walking” quorum, where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions. See, e.g., In Re: South Kingstown School Committee Electronic Mail Policy, ADV OM 04-01 (series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA). Importantly, our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion. See Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07 (“[I]f a quorum of members of a public body creates a chain of communication and responses, through any electronic media, about any matter over which a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, the OMA may be violated.”).
It is undisputed that the Committee is a “public body” subject to the OMA. Additionally, the record before us indicates that the Committee consists of five (5) members representing Districts 1 through 5. Accordingly, three (3) members of the Committee constitute a quorum. See R.I. Gen. Laws §§ 42-46-2(5), (6). The sworn statements provided by the Committee indicate that all five members of the Committee were physically present at some point before the 7 p.m. start time of the November 9, 2021 meeting. Whether a quorum engaged in a meeting prior to the 7 p.m. start of the scheduled meeting depends on whether three or more Committee members engaged in a collective discussion and/or action during this time.
Here, the record indicates that a collective discussion did not occur during the time period before the official start of the meeting.
The evidence indicates that a specific set of events transpired during the period that is at issue. First, “Committee Member Susan Mansolillo mentioned to Dr. DiLullo that she had concerns with respect to the potential employment of (an individual) and indicated to him that she intended to place her concerns on the record.” Although this comment was overheard by three other members of the Committee, there is no evidence that any collective discussion ensued, as the affidavits state that no Committee member responded to this comment. Both Vice Chair Rotella and Committee member Aloisio state that they were “not part of the conversation” and did not know specifically what was said. Committee member Mansolillo states that “[n]o one else in the room participated in this dialogue.” Thus, there is no evidence that a collective discussion about the employment issue occurred among a quorum, either all at once or on a rolling basis.
The next event took place when Committee member Santilli entered the room and Chair LaFazia asked him if he had any questions for legal counsel, who was present in the meeting space with the Committee. A conversation between Committee member Santilli and legal counsel ensued, but Chair LaFazia intervened to end what became a seemingly unproductive conversation. Soon thereafter, the public meeting commenced as scheduled.
Again, like the comment made by Committee member Mansolillo, we do not find that the question that Committee member Santilli directed to legal counsel constitutes a “collective discussion” among a quorum of the Committee. Dr. DiLullo states that “Mr. Santilli was merely engaging in a colloquy with legal counsel; the members of the School Committee were not collectively discussing and/or acting upon any matter over which the Committee has supervision, control, jurisdiction or advisory power.” See Bodo v. Charlestown, No. WC NO. 93-0624, 1997 WL 839921, at *2 (R.I. Super. May 22, 1997), aff’d sub nom. Fischer, 723 A.2d 294 (noting that “this Court believes in the free and unhindered discussions between lawyer and client” and holding that no meeting was held when two members of the public body asked the solicitor questions). Chair LaFazia, Vice Chair Rotella, Committee member Mansolillo, and Committee member Aloisio all attest to the fact “[a]t no time did (the Committee) collectively discuss and/or act upon … any matter over which it has supervision, control, jurisdiction or advisory power.” Additionally, the Committee correctly notes that when a member of a public body “merely address(es) questions to legal counsel (and receive answers from legal counsel) (it) will not constitute a ‘meeting’ for purposes of the OMA.” See Re: Rhode Island Ethics Commission, ADV 00-03.[2]
The Complainant raises important issues, and based on the facts before us it seems that the Committee closely approached implicating the OMA while awaiting the start of the meeting. In rebuttal, the Complainant states that the Committee was together for “at least 38 minutes; likely longer,” that “the public was literally locked out of (the meeting space)” during this time period, and that “[t]here’s no testimony from David Santilli.” The Complainant additionally submitted a recording that he argues “contradict much of what (the affiants) state.”
Although the length of time spent assembled outside of the public purview and behind locked doors is concerning, these facts alone do not amount to an OMA violation. Further, the lack of an affidavit from one former member of the public body does not itself establish an adverse inference as to the facts in question, especially in light of the four sworn consistent statements of fact provided by the other members of Committee.[3] Additionally. this Office has carefully reviewed the recording submitted by the Complainant, wherein the Complainant questions people about the alleged OMA violation at the conclusion of the meeting. Based on what can be gleaned from the recording, there is no evidence that rebuts the record before us. Although the recording is noisy, the Complainant can be heard questioning Chair LaFazia about what transpired pre-meeting. Chair LaFazia clearly denies that an OMA violation took place, and states that “something else came up” with respect to “clarification.” This does not conflict with Chair LaFazia’s sworn statement concerning Mr. Santilli’s interaction with legal counsel before the meeting started.
As to the two events that transpired before the meeting, Committee member Mansolillo’s statement to Dr. DiLullo and Committee member Santilli’s question to counsel, the record before us demonstrates that Chair LaFazia, Vice Chair Rotella, and Committee member Aloisio only overheard these statements. There is no evidence that the other members of the Committee contributed to the discussion. Our precedent is clear that when members only overhear a conversation such as the one described above, without more, that discussion does not then constitute a “meeting.” See Callahan v. East Greenwich Town Councilors-Elect, OM 19-35 (noting that a “collective discussion” is not present where members are only within earshot of each other and heard another member’s remarks to a third party as opposed to having a colloquy amongst themselves); see also Cook v. Tiverton Town Council, OM 20-23 (finding no OMA violation where a quorum of a public body was within earshot of comments made by a Town Council President but did not engage in “any collective discussion” relative to her statement).
After a close examination of the record, it appears that this time period wherein Committee members were assembled while awaiting the official start of the meeting fell short of ever becoming a “collective conversation.” Consequently, we find that the assembly did not constitute a “meeting” as defined within the OMA. We thus find no violation.
We appreciate Complainant’s concerns and strongly urge the Committee to be mindful about assembling outside of an open meeting. Assembling outside of the public purview, such as what occurred in advance of the meeting’s official start time, not only risks violating the OMA, but also can create the impression that public business is being conducted outside the public purview and erode trust in government. Members of public bodies must bear in mind the OMA’s purpose “that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.” R.I. Gen. Laws § 42-46-1.
Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. The Complainant may pursue an OMA complaint within “ninety (90) days 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 consider this matter closed as of the date of this decision.
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
Adam D. Roach
Special Assistant Attorney General
[1] The record indicates that “Mr. Santilli has since resigned” from the Committee.
[2] The record also indicates that prior to the start of the open meeting, Chair LaFazia had a separate conversation with two school administrators about an incident that happened at the school earlier the day, but that no other Committee members were involved. See Fischer, 723 A.2d 294.
[3] The record indicates that Mr. Santilli resigned from the Committee prior to when this Complaint was filed and that there was some tension between him and the rest of the Committee. Given these circumstances, we do not find it unusual that the Committee did not submit an affidavit from him. Additionally, the Complainant stated in his Complaint that he was in communication with Mr. Santilli and that Mr. Santilli indicated he had information to share with the Complainant, but the Complainant did not provide any affidavit or statement from Mr. Santilli in support of the Complainant’s allegations.