| 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
August 24, 2022
OM 22-56
Councilwoman Jess Rose
Andrew Henneous, Esquire
Legal Counsel, Warwick School Committee
RE: Rose v. Warwick School Committee [4.29.22], [5.3.22]
Dear Councilwoman Rose and Attorney Henneous:
We have completed an investigation into the Open Meetings Act (“OMA”) Complaints filed by Councilwoman Jess Rose (“Complainant”) against the Warwick School Committee (“Committee”). For the reasons set forth herein, we find that the Committee did not violate the OMA at its April 28, 2022 meeting.
In her first Complaint, the Complainant alleges that at its April 28, 2022 meeting the Committee engaged in a rolling quorum. Specifically, she alleges that about two and a half hours into the meeting the Committee “voted to take a five minute recess” and that during this time “several private conversations” transpired. At one point, the Complainant alleges, two separate conversations were linked through an intermediary. Upon the resumption of the meeting, the Complainant contends that the Committee was able to “simply approve the remainder of the budget without any further discussion.” Complainant infers that this efficient completion of the meeting is attributable to a non-public rolling quorum that took place during the aforementioned recess.
In a subsequent Complaint, filed on May 3, 2022, the Complainant alleges that during this same April 28, 2022 meeting the Committee discussed a matter in executive session that was not properly noticed on the agenda. She states that a school official later disclosed that the Committee had “discussed changes to the preschool program” in executive session and that this topic “was not noticed on the meeting agenda.” As such, she alleges that a violation of the OMA occurred.
Attorney Andrew Henneous submitted a response on behalf of the Committee as to both complaints. As to the April 29, 2022 Complaint concerning the alleged rolling quorum, the Committee argues that “no discussion regarding school committee business amongst a quorum, or even individual members for that matter, took place during the recess as alleged.” In support, the Committee submitted affidavits executed by each member of the Committee.
As to the May 3, 2022 Complaint regarding executive session notice, the Committee argues that “[t]he purpose of the April 28, 2022 meeting was to finalize a submission of a school budget” and that because the initial budget was potentially in violation of state statute, “the possibility of a legal action … had been mentioned.” Consequently, “the purpose of the … Executive Session was to discuss several potential cuts and their legal impact.” Thus, the Committee states that “changes to the preschool program” (as alleged in the Complaint) was a subtopic that was properly noticed under the executive session portion of the Committee’s supplemental notice.
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. We will address each Complaint in turn.
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 indicates that the Committee consists of five (5) members, Chairperson Judith Cobden, Vice Char David Testa, Committeeperson Karen Bachus, Committeeperson Kyle Adams, and Committeeperson Nathan Cornell. Accordingly, three (3) members of the Committee constitute a quorum. See R.I. Gen. Laws §§ 42-46-2(5), (6). The Committee does not dispute the Complainant’s allegation that during the recess three or more members engaged in a conversation, thus forming a quorum. Whether this quorum engaged in a meeting during the recess depends on whether these Committee members engaged in a collective discussion and/or took action over a matter which it had supervision, control, jurisdiction, or advisory power.
Here, the record before us does not demonstrate that a collective discussion of substantive Committee business occurred during the recess, as alleged in the Complaint.
In response to the Complaint, the Committee submitted sworn affidavits from each Committee member. Each member recalls “a recess being taken” but they all state that “[a]t no time during that recess did (they) discuss, or engage in discussion regarding, the school budget or any Warwick School Committee business with a quorum of school committee members, or any school committee member for that matter. Any conversation that took place during the recess was casual and unrelated to school committee business.” Although the footage on YouTube confirms that a quorum was formed during this recess, there is no audio available during this portion of the video that would allow the precise nature of these conversations to be determined. Further, the mere efficiency of the meeting following the recess does not establish that substantive Committee business was discussed non-publicly.
The record before us does not support Complainant’s suggestion that a quorum of the Committee convened a meeting outside the public purview to discuss the school budget or any other public business over which it has supervision, control, jurisdiction, or advisory power. We accordingly find that without evidence of a discussion concerning substantive Committee business, the OMA was not implicated. See R.I. Gen. Laws § 42-46-2(1). Therefore, we find no violation.
We appreciate Complainant’s concerns and strongly urge the Committee to be mindful about the optics of engaging in conversations outside of an open meeting. Assembling outside of the public purview, such as what occurred during the recess, 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.
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 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”).
Regarding matters scheduled for executive session, this Office has interpreted the OMA “to require that the posted agenda/notice specifically indicate matters scheduled for executive session by (1) specifying the nature of the business to be discussed in executive session, and (2) indicating the purpose for which the closed meeting is appropriate by citation to the applicable subdivision of R.I. Gen. Laws § 42-46-5(a).” See Cromwell v. Little Compton School Committee, OM 05-09.
As we have previously noted, “[t]he level of specificity that must be detailed for each agenda item depends on the facts and circumstances surrounding each item.” Mudge v. North Kingstown School Committee, OM 14-01. Furthermore, the OMA permits closed session discussion not only to discuss pending litigation, but also to discuss reasonably anticipated litigation and strategy. See Greig v. Jamestown Town Council; Jamestown Board of Water & Sewer Assessment, OM 97-06. This Office has also held 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.” See The Barrington Times v. Barrington School Committee, OM 09-10.
Further, this Office has previously recognized that with respect to executive session notice: “[i]f the matter to be discussed is one of public record, such as a pending court case or the well publicized negotiation of a principal or executive director's contract, the public body should cite the name of the case or reference that it will discuss the contract. However, where the matter to be discussed in executive session is not yet public, the public body may limit its open call to the nature of the matter, such as ‘litigation’ or ‘personnel.” See Graziano v. Lottery Commission, OM 99-06; see also Sullivan v. Coventry School Committee, PR 21-05.
This Office’s review of the agenda notice reveals that it specifically stated that the Committee would “go into closed session for discussion and/or action regarding those items of business exempt from open meetings under General Laws of Rhode Island … Potential Litigation/Legal Advice-Budget, under Rhode Island General Laws-RIGL 42-45-5(a)(2).”[1] Further, the Committee attests, and the Complainant does not dispute, that the school budget for the 2022-2023 school year ran “afoul of R.I. Gen. Laws 16-2-21(d)(vi),” which states that a school committee “shall not propose the appropriation of municipal funds … in excess of one hundred four percent (104%) of the total of municipal funds appropriated by the city or town council for school purposes” and thus, litigation was “reasonably anticipated.” See R.I. Gen Laws § 16-2-21(d)(vi). Executive session was therefore convened in this instance to discuss “several potential (budget) cuts and their legal impact on any anticipated litigation,” which is appropriate under R.I. Gen. Laws § 42-46-5(a)(2).
Although the sealed nature of the executive session minutes and our in camera review limit full discussion of our reasoning, our in camera review demonstrates that the Committee’s discussions concerned the Committee’s strategy with respect to budget measures that could be taken to avoid liability and/or litigation under R.I. Gen. Laws § 16-2-21(d)(vi), including measures impacting the preschool program. The notice in this instance complied with the OMA given the facts and circumstances surrounding this issue and discussion related to anticipated litigation and strategy. See Mudge v. North Kingstown School Committee, OM 14-01. See also Greig v. Jamestown Town Council; Jamestown Board of Water & Sewer Assessment, OM 97-06. The Committee also appropriately cited to the applicable subdivision of R.I. Gen. Laws § 42-46-5(a) which justified convening a closed meeting. See Cromwell v. Little Compton School Committee, OM 05-09.
Based on the record before us, we find that the agenda fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted in executive session. A closed meeting was necessary to discuss proposed budget measures involving the Warwick schools necessary to avoid possible liability. The same is reflected in the Committee’s executive session notice (“Potential Litigation/Legal Advice-Budget”). While the evidence demonstrates that the Committee faced bono fide litigation or legal threats had it not amended its budget, we stress that nearly any matter “could” relate to litigation and therefore public bodies must be particularly mindful to limit their executive session discussion to discussing the litigation or potential litigation. Accordingly, we find no violation. Nonetheless, we encourage public bodies to provide as much specificity as possible in their meeting notices.
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] In its Response the Committee states that “[t]he agenda actual (sic) cites 42-45-5(a)(2) and is obviously a typographical error not raised by the Complainant in this Complaint.” It is clear from the record that the Committee intended to cite to R.I. Gen. Laws § 42-46-5(a)(2), and that this typographical error did not render the agenda inadequate. See Lamendola v. EG School Committee, OM 21-18 (“…we find the executive session notice fairly noted the nature of the business discussed and the basis for entering executive session, notwithstanding the typographical error in the citation.”).