VIA EMAIL ONLY

April 21, 2023

Mr. Yuriy Ivanov

Todd Romano, Esquire

Legal Counsel, Tiverton Planning Board

Dear Mr. Ivanov and Attorney Romano:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Mr. Yuriy Ivanov (“Complainant”) against the Tiverton Planning Board (“Board”). For the reasons set forth herein, we find the Board violated the OMA.   

Attorney Todd Romano, Esquire, provided a substantive response on behalf of the Board. The Board maintains that it has “met significant challenges in the last year to include having the Administrative Officer/Planner resign mid-June 2022” leaving the position vacant for several months until it was filled on a part-time basis, as well as the Land Use Clerk taking an extended leave of absence. The Board states that “[s]teps have been taken to address the issue with meeting minutes and this will hopefully no longer be a concern. Specifically, the Land Use Clerk has received additional training concerning the creation of, and posting of, meeting minutes.” The Board also argues that “[n]ot all delays in posting minutes are a function of error on the part of the Land Use Clerk,” stating that the approval of some meeting minutes was unable to occur in a timely fashion due to the Board not having a quorum at subsequent meetings.[1]

We acknowledge Complainant’s rebuttal.

“All public bodies shall keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the secretary of state for inspection by the public within thirty-five days of the meeting[.]” R.I. Gen. Laws § 42-46-7(d) (emphasis added).

The below table outlines each meeting addressed in the Complaint, along with the deadline by which the Board had to file its approved meeting minutes pursuant to the OMA and the date upon which the minutes were actually filed:

Pursuant to section 7(d) quoted above, the Board was required to file its meeting minutes within 35-days of each meeting. The Board’s failure to do so violated the OMA.

Complainant also argued that the Council failed to timely file minutes for the following meetings: November 1, 2022, November 15, 2022, November 17, 2022, December 6, 2022 and December 7, 2022. Based upon this Office’s review of the Secretary of State’s website, the November 1, 15, 17 and December 6 minutes were posted on January 19, 2023, and the December 7 minutes were posted on January 20, 2023. All filings for these meetings were outside the 35-day deadline in R.I. Gen. Laws § 42-46-7(d). Accordingly, we find the Board violated the OMA with respect to these meetings as well.

The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA. See R.I. Gen. Laws § 42-46-8(a), (e).  The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA.  See R.I. Gen. Laws § 42-46-8(d).  Additionally, the Superior Court may impose fines up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.

Injunctive relief is not appropriate as all outstanding meeting minutes have been posted on the Secretary of State’s website. Although we are concerned by the number and extent of OMA violations found herein, we do not find the Board’s violations to be willful or knowing on this record. While Complainant asserts that the Board has failed to timely file meeting minutes for over 48 meetings, this issue was raised to support Complainant’s position that the ten (10) violations found above were willful or knowing, not specific allegations of OMA violations.  Moreover, these 48 alleged instances of untimely filings go back to February 2019 and are at least partially barred by the statute of limitations. See R.I. Gen. Laws § 42-46-8(b). The Board both concedes its violations and acknowledges its obligations under the OMA. The Board maintains that it has provided additional training to the Land Use Clerk on compliance with the OMA and has “taken the necessary steps to prevent future violation.” Additionally, we acknowledge that the Board does not have any prior, similar violations and the minutes for the last four (4) meetings of the Board (January 9, 2023, January 10, 2023, February 7, 2023 and March 7, 2023) were posted on the Secretary of State’s website within the 35-day period, based upon our independent review of the Secretary of State’s website on April 12, 2023. For all these reasons, we do not find the instant violations to be willful or knowing. Nonetheless, this finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or knowing violation in any similar future situation.

Although the Attorney General will not file suit in this matter at this time, 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 are closing our file as of the date of this finding.

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