| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
August 11, 2022
OM 22-49
Gregory P. Piccirilli, Esquire
Caroline R. Thibeault, Esquire
Legal Counsel, Barrington School Committee
RE: Piccirilli v. Barrington School Committee
Dear Attorneys Piccirilli and Thibeault:
We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Attorney Gregory Piccirilli (“Complainant”) against the Barrington School Committee (“School Committee”). For the reasons set forth herein, we find that the School Committee did not violate the OMA.
The contextual background leading to this Complaint is undisputed.
The Complainant represents three (3) teachers, at least at the time the Complaint was filed, who were formerly employed by the Barrington School District that were “terminated from employment effective January 1, 2022 for refusing to comply with the COVID-19 vaccine policy that was enacted by the Committee on September 2, 2021.” Each of these teachers requested a religious exemption to the vaccine requirement and submitted such requests in writing to the Superintendent of the Barrington Public Schools in September 2021 asserting, inter alia, their rights under the United States Constitution, Title VII of the Federal Civil Rights Act of 1964 and Rhode Island law. On October 14, 2021, the School Committee met in executive session pursuant to the following agenda item (in pertinent part):
“The Committee may seek to convene in executive session in accordance with R.I. Gen. Laws § 42-46-5(a)(2) to discuss the following litigation and potential litigation matters: *** and (3) Implementation of Committee COVID-19 vaccine mandate/exemption requests.”
On October 18, 2021, the Barrington Schools Superintendent “sent each teacher a letter recommending that they be terminated from employment *** because granting an exemption would pose an ‘undue burden’ on the District.”
Almost six (6) months after the October 14, 2021 meeting and four (4) months after their employment with Barrington Public Schools was terminated, the teachers, through their legal counsel and Complainant submitted a Complaint with this Office alleging that the School Committee violated the OMA at its October 14, 2021 meeting by improperly discussing the implementation of a COVID-19 vaccine mandate and exemption request in executive session under the exemption for litigation and potential litigation.[1] The Complainant maintains that “[t]here was no litigation pending at the time” and that “the Committee had no basis to conclude at that time that litigation regarding the policy or the exemptions was anticipated.” The Complainant argues that the School Committee used the October 14 executive session to determine to implement the District’s COVID-19 policy “to deny religious exemptions.”
The School Committee submitted a substantive response through its legal counsel, Caroline R. Thibeault, Esquire, which also included an affidavit from co-legal counsel, Sara Rapport, Esquire. The School Committee’s response detailed its reasons for entering closed session to discuss the anticipated COVID-19 vaccine mandate, pending religious exemption requests and to address the advice from legal counsel regarding the same.[2] The School Committee avers that the OMA permits public bodies to convene in executive session “to discuss not only active litigation but also litigation that is ‘threatened,’ ‘imminent,’ or ‘reasonably anticipated.’” The School Committee also argues that “[a] public body’s belief that litigation is threatened or imminent is entitled to deference.” The School Committee maintains that, based upon the language used in the Complainant’s clients’ religious exemption requests, litigation was “virtually certain” if such requests were denied. The School Committee “also noted the surge of litigation around the country involving challenges to vaccine mandates” and attests that Attorney Rapport attended the October 14 executive session to advise the School Committee on their legal obligations and potential impact of the District’s COVID-19 vaccine mandate policy. The School Committee maintains that its convening in executive session on October 14 was proper under the OMA because litigation was “reasonably anticipated” “and the Committee was receiving ‘frank appraisals from its attorney’ and ‘discussing legal strategy.’”
The School Committee also states that “in the months following Superintendent Messore’s decision to deny the Complainants’ [clients] requests for exemption and the Committee’s subsequent decision to discharge Complainants [clients] from their employment, they have initiated an aggressive litigation campaign in multiple forums” including the Superior Court and the Rhode Island Department of Labor and Training.
The School Committee also provided a copy of the October 14 executive session minutes for this Office’s in camera review.
Almost one-month after the School Committee submitted its response to the Complaint, the Complainant submitted additional information and filings that this Office will treat as his rebuttal. The Complainant submitted a Rhode Island Superior Court decision issued by Justice Lanphear on May 25, 2022 in the matter of Brittany DiOrio, et al. v. Barrington School Committee, et al., PC-2021-7234. Although this Office was not provided a copy of the Complaint in that Superior Court matter, it is understood from the Decision that case was brought by the Complainant and the same three (3) teacher-clients against the Barrington School Committee alleging the School Committee violated the OMA at its meetings in August and September 2021 when agenda items pertaining to a COVID-19 policy regarding back-to-school plans were not sufficiently specific to fairly inform the public of the nature of the business to be discussed. See R.I. Gen. Laws § 42-46-6(b). The Superior Court found that the School Committee did violate the OMA when the School Committee failed to “provide sufficient notice before enacting the Emergency Policy on COVID-19 Related Issues in August and September 2021”; however, imposition of any remedies, damages or sanctions were deferred for further briefing.
The Complainant contends that the Decision in DiOrio, et al. v. Barrington School Committee, et al. supports this Office finding a willful or knowing violation in the instant complaint.
The School Committee was given an opportunity to provide a supplemental submission limited to addressing the new information provided in Complainant’s rebuttal. The School Committee emphasizes, inter alia, that the DiOrio Decision issued by Justice Lanphear is distinguishable from the instant matter as DiOrio pertained to the sufficiency of agenda notice, while the instant Complaint challenges the appropriateness of an executive session. Additionally, the School Committee maintains that while Justice Lanphear determined OMA violations occurred in DiOrio, he did not determine that the violations were willful or knowing, nor did he impose any civil fines or damages at that time.
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 mandates that all meetings of all public bodies be held in open session, unless otherwise exempt. R.I. Gen. Laws § 42-46-3. Among the enumerated exceptions are R.I. Gen. Laws § 42-46-5(a)(2), which permits a public body to convene into executive session for “[s]essions pertaining to collective bargaining or litigation, or work session pertaining to collective bargaining or litigation.”
As this Office has previously noted, we are “cognizant that almost any matter could relate to litigation,” and therefore, each executive session must be reviewed on a case-by-case basis to ensure that any executive session discussion properly falls within the purview of R.I. Gen. Laws § 42-46-5(a)(2). See Clifford v. North Smithfield Municipal Building Review Task Force, OM 18-24 (emphasis in original).
In Wardwell v. Narragansett School Committee, OM 97-15, this Office examined an executive session convened to discuss “threatened litigation and strategy with respect to said threatened litigation.” After reviewing the executive session minutes this Office found that the executive session had been properly convened. Specifically, we stated that the OMA “permit[s] discussions not only of pending litigation, but also of litigation, which has in fact been threatened or is imminent.” Wardell, OM 97-15. In a subsequent case involving threatened litigation, this Office added that “holding a closed session is permitted where litigation is reasonably anticipated and the public body is receiving frank appraisals from its attorney or discussing strategy.” Trafford v. Coventry Town Council, OM 97-19; see also Providence Retired Police & Firefighters Association v. Board of Investment Commissioners, OM 00-21; Palazzo v. West Warwick Town Council, OM 22-39. Therefore, each executive session must be reviewed on case-by-case basis to ensure that any executive session discussion properly falls within the purview of R.I. Gen. Laws § 42-46-5(a)(2). Indeed, our past findings make clear that the determination of whether a public body was permitted to convene into executive session is a fact-specific question that must be considered based on the totality of evidence.
Here, based on our in camera review of the executive session minutes for the October 14 meeting, as well as the evidence presented, we find no violation. Although a more detailed explanation of the executive session minutes would thwart their confidentiality and this Office’s in camera review, it suffices that the October 14 executive session discussion on the COVID-19 policy was related to reasonably anticipated litigation, particularly in light of the religious exemption request letters submitted to the District by the Complainant’s clients, as well as the various legal authority cited within those request letters. See supra. Although not dispositive, we observe litigation regarding these requests did ensue. Nor do we find DiOrio to be persuasive as there is a distinct difference between the underlying issues, namely agenda specificity in DiOrio and executive session discussions here. Accordingly, we conclude that the pertinent October 14 discussion fits amply within our precedent and the OMA as a proper matter for executive session discussion pursuant to R.I. Gen. Laws § 42-46-5(a)(2). See e.g., Palazzo, OM 22-39; Clifford, OM 18-24; Trafford, OM 97-19; and Providence Retired Police & Firefighters Association, OM 00-21.
Accordingly, we find no violation.
Although the Attorney General has found no violation and 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. R.I. Gen. Laws § 42-46-8(c). 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.” Id. Please be advised that we are closing this 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/ Kayla E. O’Rourke
Kayla E. O’Rourke
Special Assistant Attorney General
[1] Although much of the Complaint contests the School Committee’s COVID-19 vaccine mandate and failure to grant requested religious exemptions, these issues are outside of this Office’s authority under the OMA and will not be investigated. See R.I. Gen. Laws § 42-46-8(a). The only matter appropriate for investigation is whether the October 14, 2021 executive session discussion complied with the OMA’s requirements.
[2] The School Committee submitted their substantive response in camera and provided a redacted copy to the Complainant. Accordingly, this Office will limit the discussion of the School Committee’s response to that information disclosed in the redacted copy. This Office reviewed both the in camera response and redacted response when conducting its investigation into the issues.