VIA EMAIL ONLY

August 16, 2022

Mr. Robert Cushman

William G. Walsh., Esquire

Attorney, Warwick City Council Finance Committee

Dear Mr. Cushman and Attorney Walsh:

We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Cushman (“Complainant”) against the Warwick City Council Finance Committee (“Committee”). For the reasons set forth herein, we find that the Committee did not violate the OMA.

The Complainant alleges that the Committee violated the OMA by engaging in a non-public meeting and/or a rolling quorum prior to its May 3, 2021[1] meeting. Specifically, the Complainant asserts that correspondence between the members of the Committee and an administration official, Christy Moretti, had already occurred and a decision was made by the Committee members that no further information about a bid package under PCR-66-21 agenda, item 3, “2022-003 Sand, Grit, Gravel, Loam and Stone” would be provided at the meeting other than what the administration official planned on presenting.

Attorney William G. Walsh, Esquire, submitted a response on behalf of the Committee, which included an affidavit from Committee Chairman Timothy Howe and affidavits from Committee Members William Foley and Vincent Gebhart. The affidavit of Vincent Gebhart included an attachment of “Emails” between Warwick City Officials Christy Moretti and Eric Earls. The Committee provided a copy of the agenda for the May 3, 2021 meeting, which advertised the agenda item “2022-003 Sand, Grit, Gravel, Loam and Stone,” a screenshot of the Rhode Island Secretary of State Website, and Section 2-17 of the Warwick City Charter. The Committee first argues that the Complainant lacks standing because “he has failed to allege any conceivable grievance or disadvantage from the approval of the bid.” As to the substance of the Complaint, the Committee asserts that the Complainant does not provide any evidence that a non-public meeting or rolling quorum occurred. The Committee Chairman Howe provided clarification in his affidavit, attesting that the only discussion he had regarding the Bid prior to the meeting was with Christy Moretti, an administration official who is not a member of the Committee, and the contents of the discussion were not provided to any other members of the Committee. The Committee further attests that all three affidavits include denials of having discussions or communications amongst other Committee members about the Bid prior to the meeting as well as any awareness of discussions or communications occurring prior to the meeting. The Committee contends that because the discussion between Committee Chairman Howe and Christy Moretti regarding the Bid was not a communication to other members of the Committee prior to the meeting, there was a lack of quorum of the members and the OMA did not apply. Additionally, the Committee argues that the emails provided by Committee member Gebhart regarding “contextual, logistical, and technical information” was not shared with any members of the Committee and therefore did not create a chain of communication necessary to meet the threshold of a rolling quorum of a public body. Overall, the Committee asserts that the “meeting” and “quorum” prongs of the OMA were not met regarding any alleged discussions or communications of the members of the Committee regarding the Bid prior to the May 3, 2021 meeting.

We acknowledge the Complainant’s rebuttal which, among other points, asserts that “Councilman Howe, in his own words specifically stated, at the May 3, 2021 meeting that ‘this was discussed and as far as this committee is concerned, we’re content and happy with the information’ ”. The Complainant contends that Councilman Howe’s statement alludes to a prior discussion of agreement between Committee members regarding the Bid.

The OMA is implicated whenever a quorum of a public body convenes for a “meeting.” See R.I. Gen. Laws § 42-46-3; Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). 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); see also Zarella, et al. v. East Greenwich Town Planning Board, OM 03-02.

A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). It is noteworthy that 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 a quorum of the three-member Committee is two members. Thus, the existence of a rolling quorum depends on whether two Committee members engaged in a collective discussion regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power.

The Complainant alleges that the Committee violated the OMA when a quorum of its members discussed and came to a decision regarding a Bid package prior to the May 3, 2021 meeting. This Office reviewed the parties’ submissions as well as the May 3, 2021 Committee agenda and video footage of the meeting. The Committee submitted affidavits from all three members. Each of the three affidavits affirms that no discussion or any form of communication occurred between the Committee members regarding the Bid prior to the May 3, 2021 meeting. Specifically, Chairman Howe attests that he individually met with City Official, Christy Moretti, who is not a member of the Committee prior to the meeting, but did not share the contents of the discussion with any other member of the Committee, Warwick City Council, or any other person. Furthermore, Chairman Howe attests that at no time prior to the meeting did he become aware of any discussions or any form of communication of other members of the Committee regarding the Bid. Additionally, Committee member Gebhart attests that he did individually engage in email communication with City Officials Christy Moretti and Eric Earls, however the emails and information were not provided to any other member of the Committee, Warwick City Council, or any other person. Although the Complainant takes issue with Chairman Howe’s comment during the meeting, the record before us does not evidence such a collective discussion amongst Committee members prior to the May 3, 2021 meeting. While we have acknowledged that “it is possible that a non-member of a public body could serve as a conduit between public body members if he or she supplied the missing link connecting collective discussions between and among public body members,” in this case, no such evidence has been discovered or presented.  See Carlson v. Coventry Town Council, OM 19-36.

Moreover, this Office’s review of the May 3, 2021 email thread begins with an email from Committee Member Gebhart to the Eric Earls and Christy Moretti asking questions regarding several bids, including “Bid2022-003 Sand, Grit, Gravel, Loam, and Stone.” Based upon the undisputed affidavit from Committee Member Gebhart – in addition to the emails themselves – the email threads do not evidence that two members of the Committee ever engaged in collective discussion or took action, either through their own actions or through the actions of a third-party.  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.”); 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). Rather, the emails demonstrate Committee member Gebhart’s efforts to gather information related to certain City matters.

We accordingly find no violations.[2] Nonetheless, we caution the Committee to be mindful of engaging in any substantive email communications that may involve a quorum, as doing so carries the risk of engaging in communications that have the potential to implicate the OMA and constitute a rolling quorum.