VIA EMAIL ONLY

June 26, 2023

Attorney Aubrey L. Lombardo

Dear Attorney Lombardo:

The review of your request for an Open Meetings Act (“OMA”) advisory opinion is complete.

You wrote this Office seeking an advisory opinion on behalf of your client, the East Greenwich School Committee (“Committee”), regarding the applicability of the OMA to “Local Special Education Advisory Committees” (“SEAC”).

The Committee submits that “[p]ursuant to the Rhode Island Board of Education’s Regulations Governing the Education of Children with Disabilities the school committee of each Rhode Island public school district is required to appoint an Advisory Committee on Special Education. 200- RICR-20-30-6.10.1(A)(1).” The responsibilities of the SEAC are as follows:

“The committee shall advise the school district or regional program on matters concerning the unmet needs of students with disabilities, comment on improvement plans including school support plans resulting from IDEA Part B compliance reports, local compliance with state and federal laws pertaining to the education of students with disabilities, comment on applications for federal and state funds and serve as advocates in partnership with parents for students with disabilities to ensure that they receive the entitlements provided to them under state and federal laws. Id. at 6.10.1(A)(3).”

Additionally, the Committee notes that “[t]he regulations also specify how meetings are to be conducted:

The committee shall meet as often as necessary to conduct its business but at least four times annually. Official minutes shall be kept of all committee meetings and be available for public review. All committee meetings and agendas shall be publicly announced prior to any meeting, and meetings shall be open to the public.” Id. at 6.10.1(A)(5).

The Committee states that “in accordance with these Board of Education regulations, and other state and federal law, the School Committee has appointed and created the East Greenwich Special Education Advisory Committee (“EGSEAC”). The Committee requests this Office’s opinion as to: “1. [Whether] the EGSEAC is a ‘public body’ as defined by the OMA; and 2. Whether the OMA is applicable to EGSEAC.”   

At the outset, we note that in examining whether an entity is subject to the OMA, our authority is to apply the OMA. In doing so, we must begin with the plain language of the OMA and relevant caselaw interpreting this statute. See R.I. Gen. Laws § 42-46-8.

Furthermore, our statutory mandate and this advisory opinion are limited to determining whether the EGSEAC is subject to the OMA based on the particular record before us at this time, including the information provided to this Office in connection with your request for an advisory opinion. See R.I. Gen. Laws § 42-46-8.

The purpose of the OMA is that:

“[i]t is essential to the maintenance of a democratic society 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.” See R.I. Gen. Laws § 42-46-1.

In order 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). Here, we are solely concerned with the “public body” requirement. The OMA defines a public body 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). We have previously noted that determining whether a particular entity is a “public body” is “a fact-intensive question not subject to ‘bright line’ rules.” See Oliveira v. Independent Review Committee, OM 04-10.

The Rhode Island Supreme Court examined this issue in Solas v. Emergency Hiring Council, 774 A.2d 820, 823 (R.I. 2001), which considered whether the OMA applied to an entity formed by two executive orders of then-Governor Lincoln Almond to “manage and control the state’s hiring practices and its fiscal resources.” The Emergency Hiring Council consisted of five senior executive branch staff members who met on a biweekly basis “to determine whether creating a new position in state government or filling a vacancy is absolutely necessary.” Id. at 824. It was the Governor’s intent that “no person or persons other than the Council shall have the authority to make any determinations in this regard.” Id. (internal quotation omitted). Based on these facts, the Supreme Court concluded the Council was subject to the OMA:

“[T]he EHC [Emergency Hiring Council] is composed of a group of high level state officials that convenes to discuss and/or act upon matters of great interest to the citizens of this state. In addition, our reading of the executive orders creating the council persuades us that the EHC possesses significant supervisory and executive veto power over creating or filling state employment positions. At the very least the council functions in an advisory capacity in state hirings. Whether supervisory or advisory, both functions are regulated by the act. As the plain language of the statute provides, a council’s exercise of advisory power is enough to bring it under the act’s umbrella.” Id. at 825.

Additionally, the Rhode Island Supreme Court considered the issue of what constitutes a public body in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education, 151 A.3d 301, 307-08 (R.I. 2016). There, the Rhode Island Board Council on Elementary and Secondary Education (“RIDE”) created a Compensation Review Committee (“CRC”), which was tasked with reviewing requested and proposed salary adjustments to RIDE employees. Id. at 302-03. The CRC was described as an “‘informal, ad hoc working group with a strictly advisory role’ and with no legal status or authority[,]” and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:

“[T]he CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of a group of high-level state officials and operated under a charter, these two factors alone are insufficient to place them into the ‘public body’ umbrella. Importantly, the CRC’s sole function is to advise the commissioner of RIDE, who in turn has to make a recommendation to the council. At this point in the process, if the commissioner decided to present any proposal to the council for the council’s required approval, the public would have an opportunity to be informed of and object to such proposal.” Id. at 308.

Other, non-exhaustive, factors to consider when determining whether an entity is a public body subject to the OMA were set forth in Oliveira v. Independent Review Committee, OM 04-10. These factors include the authority under which the entity was established, “the scope of its stated authority, the nature of the public business delegated to it, and its membership and composition. We have found each of these factors relevant, to varying degrees, in findings issued by this [Office].” Oliveira v. Independent Review Committee, OM 04-10; see also Arditi v. Governor’s State Equity Council, OM 21-32.

Here, the relevant facts concerning the EGSEAC inform our analysis. The EGSEAC was created and appointed by the Committee per Board of Education regulation.[1] The regulation requires it to meet “as often as necessary … but at least four times annually.” With respect to EGSEAC’s membership, the regulations state that:

“Each local or regional committee shall be composed of persons involved in or concerned with the education of students with disabilities. Parents of students with disabilities shall compose a majority of the committee membership, and at least fifty percent (50%) of this majority shall be selected by the parents of students with disabilities. A regional committee shall reflect an equal distribution of representatives from each of the school districts that comprise the regional program. Membership shall include an individual with a disability, a public school administrator, a special education teacher, a general education teacher and other members of the community at the discretion of the committee and school board.”

The record indicates that the key function of the EGSEAC is to “advise the school district or regional program on matters concerning the unmet needs of students with disabilities, comment on improvement plans … [and] comment on applications for federal and state funds and serve as advocates in partnership with parents for students with disabilities to ensure that they receive the entitlements provided to them under state and federal laws.” (Emphases added). Additionally, like the CRC in Pontarelli, the EGSEAC’s advice and commentary is subject to public scrutiny through the public meetings of the “school committee of each local educational or regional special education program,” which based on the record appears to have the ultimate authority. See Pontarelli, 151 A.3d at 308. This is supported by the plain language of the regulations, which direct any SEAC to “advise” and “comment” but lacks indicia of any sort of independent authority vested with an SEAC or the EGSEAC.

Based on the specific evidence presented, we find that the EGSEAC is not a “public body” within the meaning of the OMA. The EGSEAC acts as an advisory group providing advice and commentary to the Committee, but it lacks any specific authority to take any governmental action. See, e.g., Pontarelli, 151 A.3d 301 (finding the CRC, which was a strictly advisory body without authority, did not constitute a public body); Howard v. Portsmouth Senior Center Focus Group, OM 21-22 (finding that a focus group that makes proposals that are subject to approval by the Town Council at open meetings is not subject to the OMA); Arditi v. Governor’s State Equity Council, OM 21-32 (finding that a group that has no governmental decision-making authority but instead serves as a ‘strictly advisory group” does not constitute a public body); Solas v. RIDE’s LEAP Task Force, OM 22-26 (finding the Task Force was an advisory body without any decision-making authority and thus was not a public body subject to the OMA). While the EGSEAC’s advisory role does not conclusively determine whether it is a “public body” subject to the OMA, it is a consideration that weighs in favor of determining that the EGSEAC is not a “public body.”  The fact that the EGSEAC provides advice and comment to the Committee, and that the Committee is a public body subject to the OMA, further advances our conclusion. See Pontarelli, 151 A.3d at 308.

Weighing other factors, we find that on balance the EGSEAC is not a public body under the OMA and more closely resembles the entity in Pontarelli. In this case, while the regulations require that the Committee appoint an SEAC, it is notable that “[p]arents of students with disabilities shall compose a majority of the [SEAC] membership, and at least fifty percent (50%) of this majority shall be selected by the parents of students with disabilities.” In other words, at least a quarter of the EGSEAC members are not selected by the Committee or any other governmental entity, but rather are “selected by the parents of students with disabilities.” Also, similar to Pontarelli, the EGSEAC is not required to conduct regular meetings but rather must hold at least 4 meeting per year. These factors also weigh significantly against determining that the EGSEAC is a “public body.”

As such, the OMA does not apply to the EGSEAC. We will note, however, that the Board of Education regulations that govern the EGSEAC contemplate adherence to some of the requirements set forth in the OMA, including keeping “[o]fficial minutes,” that will be “available for public review,” having “[a]ll committee meetings and agendas … publicly announced prior to any meeting” (although the OMA requires 48 hours advanced notice), and ensuring that “meetings shall be open to the public.” The OMA is a floor and not a ceiling. Even if the EGSEAC is not legally obligated to comply with the OMA, we encourage entities like the EGSEAC to adopt the types of measures set forth in the OMA when it is appropriate to do so to increase transparency and, in this case, to adhere to its own governing regulations.

This advisory opinion does not abrogate any rights that the Office of the Attorney General is vested with pursuant to R.I. Gen. Laws § 42-46-8 and is strictly limited to this Office’s interpretation of the OMA. This opinion does not address the EGSEAC’s responsibilities under any other state law, rule, regulation, or ordinance, nor does it shield the EGSEAC or its members from a complaint filed in the Superior Court by a citizen or entity pursuant to R.I. Gen. Laws §§ 42-46-8, 38-2-8(b).

We thank you for your interest in keeping government open and accountable to the public.

Very truly yours,

PETER F. NERONHA

ATTORNEY GENERAL

By: Adam D. Roach

Adam D. Roach

Special Assistant Attorney General