Background

The Complainant alleges that the Council violated the OMA by having substantive conversations outside of a properly noticed public meeting about the appointment of a Town Solicitor and Interim Town Manager. The Complainant contends these conversations took place prior to the Council’s November 28, 2022 and December 20, 2022 Council meetings and posits:

“How was it decided that a new Town Solicitor was presented without any prior public/executive meeting discussion and certain members of the Town Council (Shockley and Ludwig), Town Manager and prior Town Solicitor, seemed not to be informed prior to the meeting?

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How was it chosen that an interim Town Manager was chosen without any prior executive/public discussion and certain members of the Town Council seemed not to be informed prior to the meeting? Town Council [sic] Shockley and Ludwig once again seemed to be taken by surprise by the introduction of one candidate for interim Town Manager choice.”

The Council submitted a substantive response through its former-Solicitor, David V. Igliozzi, Esquire, which included several exhibits and affidavits from each of the five (5) current members of the Council. The Council states that it is a public body subject to the OMA consisting of five (5) members. The Council contends that, “[p]rior to November 28, 2022, Councilor James LeBlanc, Councilor Hillary Lima, and Councilor Elect Jonathan Pascua did communicate regarding a change in the Town Solicitor position.” The Council, however, argues that this conversation was not subject to the OMA “because Councilor Elect Jonathan Pascua was not a member of the Council until qualified and sworn into office on November 28, 2022.” The Council states that Councilor Pascua was elected to the Council on November 8, 2022 and sworn into office on November 28, 2022.

The affidavit of Councilor LeBlanc states that, “[p]rior to November 28, 2022, I had telephone and personal communications with Council Candidate Jonathan Pascua and Councilor Hillary Lima regarding replacements for the existing Town Solicitor and Town Manager. The possible replacements included Attorney Stephen Angell as Town Solicitor and Edward Warzycha as Town Manager.” The affidavits of Councilors Lima and Pascua contain identical statements. All three councilmembers maintain that, after November 28, 2022, they did not have “any email, telephone, or personal communications” with another Councilmember about the topics of the November 28, 2022 or December 20, 2022 meetings.

Councilor Ludwig attests that she had a texting conversation with Councilor Lima about setting the agenda for the November 28 meeting, but that “no substantive discussion about the agenda items themselves” took place and that Councilor Lima “cc’d” Councilor Ludwig on an email to the Town Clerk about placing certain items on the agenda. Councilor Ludwig maintains that she had “a brief phone conversation with Councilor Shockley [on December 19, 2022] where we confirmed that neither of us had any background on the Manager Performance or Interim town manager voting agenda items” for the December 20 meeting.

Councilor Shockley attests that she “did not have any email, telephone, or personal communications with any other Town Council member regarding [the appointment of Town Solicitor] prior to the public discussion at that meeting on November 20, 2022.” Councilor Shockley also attests that she “did not have any email, telephone, or personal communications with any other Town Council member regarding [the appointment of Interim Town Manager] prior to the public discussion at that meeting on December 20, 2022 except” for a “brief conversation with Councilor Jennifer Ludwig clarifying” the agenda items.

Based upon this Office’s review of the November 28, 2022 meeting minutes, Angell Law, LLC and its principal, Attorney Stephen Angell, were appointed Town Solicitor. The minutes reveal that Councilors Pascua, LeBlanc and Lima voted “aye” while Councilors Ludwig and Shockley abstained. Similarly, based upon the December 20, 2022 meeting minutes, Mr. Edward Warzycha was appointed Interim Town Manager after the suspension and removal of former Town Manager Marchant under an earlier agenda item. The Council voted unanimously to appoint Mr. Warzycha.

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.

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(3). 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 Ahlquist v. Energy Facilities Siting Board, OM 17-25.

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). Several findings from this Office have reviewed the “meeting” requirement and determined that either “action” or a “collective discussion” by a quorum of the public body on matters over which they have “supervision, control, jurisdiction, or advisory power,” is required to satisfy the “meeting” element, and thus, implicate the OMA and its attendant requirements. See, e.g., The Valley Breeze v. Cumberland Fire Committee, OM 15-04. Conversely, if a “quorum” of a “public body” convenes, but do not collectively discuss and/or act upon matters over which they have “supervision, control, jurisdiction, or advisory power,” a “meeting” has not convened. Id.

It is undisputed that the Council is a public body subject to the OMA.  Also, there is no question that Councilors LeBlanc and Lima, and Councilor-Elect Pascua, total three individuals and collectively discussed amongst themselves matters over which the Council had supervision, control, jurisdiction or advisory power.  The question we are left with is whether a councilor-elect is subject to the OMA’s requirements prior to officially being sworn in, but after being elected. Based upon the facts presented, as well as caselaw and this Office’s prior findings, we have little trouble determining that, as discussed below, the conversation(s) between Councilors LeBlanc, Lima and Councilor-elect Pascua prior to the November 28 and December 20, 2022 meetings – but after Councilor-elect Pascua was elected – violated the OMA.

This Office first considered the applicability of the OMA to members-elect in Offer v. Newport City Council, Official Opinion 95-12. In Offer, this Office reviewed Hough v. Stembridge, 278 So.2d 288 (Fla.Ct. App. 1973) wherein members-elect convened a meeting without public notice one (1) day after their election. In rejecting the members-elect claim that the OMA did not apply because the members-elect had not been formally sworn into office, the Florida Court of Appeals noted:

“[w]e simply cannot accept this line of reasoning. To adopt this viewpoint would in effect permit… members-elect of a public board or commission to gather with impunity behind closed doors and discuss matters on which foreseeable action may be taken by that board or commission in clear violation of the purpose, intent, and spirit of the Government in the Sunshine Law.

We find the position untenable to hold on the one hand that [the Sunshine Law] is applicable to elected board or commission members who have been officially sworn in and on the other hand inapplicable to members-elect who as yet merely have not taken the oath of public office. An individual upon immediate election to public office loses his status as a private individual and acquires the position more akin to that of a public trustee.” Id. at 289.

The above quotation was set forth verbatim in Offer where this Office found the reasoning of the Florida Court of Appeals “persuasive” and concluded that the “members-elect of the Newport City Council f[e]ll within the scope of, and are governed by, the Open Meetings Act.” Offer, OM 95-12. This Office’s finding in Offer has been applied in subsequent cases. See Schanck v. Glocester Town Council, OM 97-03 (“it is this Department['s] position that members-elect of a public body are subject to and governed by the Open Meetings Act”); Cullen v. Lincoln Town Council, OM 06-03 (“This Department has consistently held that members-elect of a public body are subject to the provisions of the OMA”); DePatie v. Charlestown Town Council, OM 07-03 (“here the affidavits provided by the council-members elect leads to the conclusion that the council members-elect did meet to discuss public business and to plan action, which would be effectuated upon being sworn into office and violated the OMA.”); Callahan v. East Greenwich Town Councilors-Elect, OM 19-35 (“The Town Council is a ‘public body,’ and it is undisputed that three [council] members [elect] constitute a quorum.”).

Accordingly, we reject the Council’s argument that the OMA did not apply to the private conversation(s) between Councilors LeBlanc, Lima and Pascua because Councilor Pascua was not yet sworn in at the time the conversation(s) occurred, despite having been elected. We therefore conclude that these three (3) Councilmembers (including, of course, Councilor-Elect Pascua) convened a quorum outside of the public purview to discuss substantive Council business and violated the OMA.

Conclusion

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 of up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.

Here, we find injunctive relief to be appropriate as, based upon the November 28, 2022 meeting minutes, little discussion about the appointment of a new Town Solicitor took place during the public meeting and two Councilmembers attested that they had no prior knowledge of the proposed new Solicitor (including the agenda failing to specify the name of the proposed Solicitor). We therefore direct the Council to re-consider and re-vote on the appointment of the new Town Solicitor at a properly noticed future meeting within twenty (20) business days of the date of this finding. We likewise conclude that the Council must re-consider and re-vote on the appointment of the Interim Town Manager.  The Council must provide evidence to this Office of the re-consideration and re-votes within thirty (30) days of the date of this finding.

Additionally, we do not find sufficient evidence to conclude that the violation found herein was willful or knowing, although admittedly not without hesitation. It is clear from the affidavits of Councilors LeBlanc, Lima and Pascua that they were under the mistaken impression that Councilor Pascua was not a member of the Council for the purposes of the OMA until he was sworn in on November 28. Given this Office’s many prior findings on this subject, we are concerned by the Councilors’ arguments. Nonetheless, we expect that this misunderstanding is now resolved through this finding. We are not aware of any recent, similar violations involving the Council. We note that this finding may serve as evidence of a willful or knowing violation in a future similar case involving the Council.

Although the Office of the Attorney General will not file suit in this matter (assuming the Council takes the remedial measures outlined in this finding), 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 this file will remain open pending the Council’s notification to this Office of the required remedial measures. 

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