Background

In July 2022, the Complainant filed this complaint alleging that the Town Council violated the OMA by meeting in executive session on September 14, 2020 to discuss the Town’s Pension Plan without providing advanced notice to the public of that intended discussion. The Complainant states that “the time limit for an Open Meetings Act complaint has expired on this meeting,” but that he “did not learn of the existence of a Portsmouth Town Council closed session discussion of the Portsmouth Pension Plan until” he reviewed the Town’s response to an Access to Public Records Act request on May 5, 2022. The agenda item in question read:

“EXECUTIVE SESSION

1.      RIGL 42-46-5(a)(2) – Collective Bargaining – Police-Sessions pertaining to collective bargaining or litigation, or work session pertaining to collective bargaining or litigation.”

The Complainant argues that “[t]he Council met in Executive Session on a matter related to the membership of the Portsmouth Town Pension Plan, without any citation in the agenda published for that meeting, that could in any way be construed to address the Plan.” Further, “[t]he Executive Session report included in the minutes can in no way inform a member of the public that Portsmouth Pension plan discussions took place.” 

Relevant Law and Findings

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 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”).

Here, the pertinent agenda item read:

“EXECUTIVE SESSION

1.      RIGL 42-46-5(a)(2) – Collective Bargaining – Police-Sessions pertaining to collective bargaining or litigation, or work session pertaining to collective bargaining or litigation.”

The Town Council argues that “[t]he agenda item for the September 14, 2020 Town Council meeting was properly noticed and held as an executive session under R.I. Gen. Laws § 42-46-5(a)(2), which provides an exception for ‘[s]essions pertaining to collective bargaining or litigation, or work sessions pertaining to collective bargaining or litigation.’”

Under the above-referenced agenda item, it is undisputed that within this executive session, the Town Council discussed the pension plan “loophole,” the “ramifications and impacts” of the “loophole” on the police union negotiations, school management employees, and the Town, and voted on the amendment proposed by Attorney Ursillo. Based upon the record before us, and Rhode Island Supreme Court precedent, we find that the agenda item failed to sufficiently inform the public of the nature of the business the Town Council would be discussing and acting upon. See R.I. Gen. Laws § 42-46-6(b). The agenda item here, listed under “Executive Session” only mentioned a collective bargaining or work session pertaining to the police union, without further specifying the nature of the discussion and/or action (voting to amend the pension plan to remove the “loophole” for school management employees) that would take place. Additionally, there is no indication whatsoever that the Town Council would be voting on any matter discussed under the subject agenda item, let alone voting to amend the pension plan. Accordingly, we find the Town Council violated the OMA. See R.I. Gen. Laws § 42-46-6(b).