VIA EMAIL ONLY

April 17, 2023

Mr. Julian Drix

Chair, Providence Sustainability Commission

Michael A. Calise, Esquire

Senior Assistant City Solicitor, City of Providence

Dear Mr. Drix and Attorney Calise:

We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Mr. Julian Drix (“Complainant”) against the Providence City Council Finance Committee (“Committee”). For the reasons set forth herein, we find that the Committee violated the OMA.

·         Alleged Committee Action Outside of the Public Purview

The Complainant argues that the Committee took action in a non-public forum by privately discussing potential amendments to the ProvPort legislation during a recess. This alleged closed portion of the meeting took place during a break in the meeting between a “public hearing” and “the [Committee’s] discussion and votes.” The Complainant contends that Committee members met during this recess and agreed upon ProvPort matters in advance of speedily passing ProvPort amendments following the recess.

The OMA requires that all meetings of every public body “shall be open to the public.” R.I. Gen. Laws § 42-46-3. For the OMA to apply, however, 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). Under 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). A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). 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 Sirios v. Glocester Town Council, OM 20-50. 

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, OM 04-01 (series of email communications among a quorum of a committee would satisfy the quorum requirement and implicate the OMA). 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 Finnegan v. Scituate Town Council, OM 20-22; Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07.

Here, it is undisputed that the Committee is a “public body” subject to the OMA. It is further undisputed that the Committee consists of five (5) members. Accordingly, three (3) members of the Committee constitute a quorum. See R.I. Gen. Laws §§ 42-46-2(5), (6). The Complainant alleges that he “heard during the recess that there were some amendments being discussed behind closed doors.” He states that Councilman James Taylor “made reference on the record about discussions that occurred during the recess.” However, the crux of Councilman Taylor’s public remarks (referenced in the Complaint) concern the Councilman’s conversations with City Solicitor Jeffrey Dana, and not a member of the Committee. Because the City Solicitor is not a member of the public body, it is well-settled that these conversations do not implicate the OMA or a rolling quorum. See Mancini v. Providence City Plan Commission, OM 19-07 (finding that the City’s “Principal Planner” was not member of the Commission, and thus no quorum was formed). The Complainant adds that “Chairwoman Ryan already knew what [the Committee’s] votes would be” and that business conducted after the recess took place “very quickly,” but there is no allegation that Chairwoman Ryan gained this knowledge by engaging in a private conversation with another member of the Committee. The only additional person alleged to have taken part in this “informal closed session” was “Council President Igliozzi,” though it is less clear whether the Council President is a member of the Committee. Additionally, no tangible evidence is presented demonstrating that the Committee members engaged in a rolling quorum, that the Complainant saw a quorum (or a rolling quorum) of the Committee engaged in a private conversation, or that the Complainant has evidence to support such a violation.

Based upon the most generous interpretation, because only Councilman Taylor and Council President Igliozzi were identified as having participated in a non-public conversation, and because there is only a general allegation that a rolling quorum transpired due to how “quickly” the amendments were passed and because the Committee was “already familiar with the amendments,” we conclude there is insufficient evidence to establish a rolling quorum or that a quorum of the Committee convened during the recess. Even assuming that Councilman Taylor and Council President Igliozzi participated in a non-public conversation (and that both were Committee members), there is no allegation or evidence that a third member of the Committee participated as well, and thus a quorum was never achieved. Indeed, the Committee posits that during the “regular meeting, Councilman Taylor asked the Chair if he could be recognized and then explained that, after listening to the testimony at the public hearing, he wished to propose amendments.”  The Committee continues that “Councilman Taylor then explained, on the record, that he was both proposing amendments and voting to approve on the basis of comments heard at the public hearing. Councilman Taylor indicated that the City Solicitor had taken detailed notes on changes the Councilman wished to propose [and t]hese changes were then explicated by the City Solicitor, who serves as legal counsel to the Finance Committee.” Consequently, we find that this assembly, assuming one took place, did not constitute a “meeting” as defined by the OMA. Thus, based solely on the record before us, we find no violation.

We appreciate Complainant’s concerns and strongly urge the Committee to be mindful about assembling outside of an open meeting. Assembling outside of the public purview 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.

·         Alleged Improper Supplemental Notice

The Complainant additionally alleges that the Committee held a vote on the ProvPort matter at the November 28, 2022 meeting and that vote was not properly noticed on the agenda.

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 Committee acknowledges, and our own independent review confirms, that the potential for a vote was not included on the agenda. The Committee argues that “compliance with the OMA is not premised on the agenda specifically providing an intention to vote, but rather on whether the notice fairly informed the public of the business to be conducted.” The Committee argues that in the instances wherein a public body is found to have violated the OMA for failing to specify “voting,” it is only because the subject agenda item contained “some limiting or misleading language” such that the public was not fairly informed of the business to be discussed.

We disagree.

In Anolik, the Court found notice to be inadequate when the agenda item stated “Request for Extension from Turner Scott” when there was no indication that the “request” itself would be acted upon. Importantly, the Court held that there was “no indication in the agenda item that any action would be taken.” (Emphasis added). Subsequent findings issued by this Office have followed suit, finding OMA violations when a public body votes without noticing this specific action item on the agenda. See Noordzy v. South Kingstown Town Council, OM 20-38 (“As in Tanner, the agenda item here provided ‘no further indication that any action would be taken [.]’”); See also Fandetti v. Bonnet Shores Fire District, OM 22-37 (“there is no factual dispute that the Council did vote on the Quickbook issue, which was not included on the agenda and therefore violated the OMA”); Aiello v. Westerly Town Council, OM 22-54 (“this notice contained no information … that the Council may be voting … Accordingly we find the Council violated the OMA).”

We thus find that the Committee violated the OMA by voting on the ProvPort amendments without properly noticing the same. See R.I. Gen. Laws § 42-46-6(b).

We do not find injunctive relief appropriate, as it was publicly reported that the full Providence City Council subsequently tabled action on ProvPort matters at its December 1, 2022 meeting by a unanimous vote, three (3) days after the Committee’s meeting.[1] We also do not find the Committee’s actions willful or knowing based on the record we have reviewed.

This finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.

Although the Office of the Attorney General will not file suit in this matter, please be advised that nothing within the OMA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c).  The OMA allows the Complainant to file a complaint within ninety (90) days from the date of the Attorney General’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. See id. Please be advised that we are closing this Complaint 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/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General