Background and Arguments

Applicable 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 R.I. Gen. Laws § 42-46-3; see also Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). 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 or is not a “public body” is “a fact-intensive question not subject to ‘bright line’ rules.” See GoLocalProv v. Providence City Council, OM 20-15.

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.

The Rhode Island Supreme Court again 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 Rhode Island Department of Elementary and Secondary Education 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:

“Unlike the EHC in Solas, the 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 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 text of the executive orders under which the Council 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].” See Oliveira, OM 04-10.

Here, the EDC has characteristics that weigh both against and in favor of it being considered a public body under the OMA.  The EDC has a set membership, which includes one Town Council member, a member of the Chamber of Commerce, and five (5) appointed members of the public. Additionally, our review of the record and of public postings on the Secretary of State’s website indicates that the EDC meets regularly, often once a month.  It is undisputed that the EDC was created by an act of the Town Council in January 2021, granting the EDC the authority to advise the Council and the Planning Board on various matters involving the economic growth of the Town of Narragansett and to work closely with local businesses and the University of Rhode Island. 

The record demonstrates that the EDC is an advisory body, but an advisory body can still be subject to the OMA. See R.I. Gen. Laws §§ 42-46-2(1) (defining “meeting” as including the convening of a public body to discuss or act upon matters over which the public body has “advisory power”); R.I. Gen. Laws 42-46-7(d) (excluding public bodies whose responsibilities are solely advisory in nature from the requirement of filing official/approved minutes). Whereas the Supreme Court determined that the advisory body in Pontarelli was not subject to the OMA, it determined that the advisory body in Solas was subject to the OMA. The difference in those two cases seemed to hinge, at least in part, on the nature of the entity’s advisory authority. 

Here, it is undisputed that the EDC has no independent, decision-making authority and receives no funding or other compensation from the Council or the Town. And, similar to Pontarelli, the entities that the EDC advises —the Town Council and the Planning Board — are public bodies subject to the OMA, which provides an avenue for public scrutiny before any advice provided by the EDC is adopted. Nonetheless, the above-listed bullet points describing the EDC’s purview demonstrate that the EDC has an official and substantive advisory function related to governmental business. For instance, the EDC advises the Planning Board and the Town Council in matters regarding community economic development, works to implement the goals and objectives of the Town’s Comprehensive Plan as they relate to economic development, and reviews Town ordinances, policies, and practices to determine their impact on existing and proposed commercial businesses in the Town of Narragansett. 

In sum, although certain factors point in different directions, the totality of the circumstances provide reason to believe that the EDC may be subject to the OMA. However, that question is a close call and we note that we are aware of a case pending before the Rhode Island Superior Court pertaining to the issue of whether a specific entity that operates in an advisory capacity is a public body under the OMA. See Solas v. South Kingstown School Committee, PC-2022-04727 (seeking, inter alia, a declaration that the “South Kingstown BIPOC Advisory Committee” is subject to the OMA). The Superior Court’s decision in that case will constitute precedent and is likely to provide additional helpful guidance regarding the considerations for determining whether an advisory entity is a public body under the OMA. Especially given the likelihood that there will be additional relevant judicial precedent forthcoming regarding the matters at issue in this case, we find it unnecessary in the circumstances of this particular case to definitively resolve whether the EDC is a public body. Indeed, we are concerned that a conclusion that the EDC is or is not a public body could be misleading since it will not reflect the latest evolution of the relevant precedent that will emerge as a result of the Superior Court’s upcoming decision.  Rather than determine this issue, we believe the Superior Court’s upcoming decision should inform the EDC concerning whether it is subject to the OMA.

Our prior findings have observed, consistent with the plain language of the OMA, that there are only two principal remedies available for alleged violations of the OMA: injunctive relief and civil fines. See, e.g., Childs v. Bonnet Shores Fire District, OM 22-14; see also R.I. Gen. Laws § 42-46-8(d). On multiple occasions, this Office has found it unnecessary to analyze the particular allegations asserted and has proceeded to resolve the case on the basis that, even assuming the alleged violation(s) occurred, no relief is appropriate.  See Cienki v. Rhode Island Special Commission on Reapportionment, OM 22-33; Lyssikatos v. City of Pawtucket, PR 21-04; Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62; Lamendola v. East Greenwich School Committee, PR 20-11; Farinelli v. City of Pawtucket, PR 17-22.  Such is the case here.

Here, the record evidences that even assuming a rolling quorum occurred, and even assuming a matter was discussed at a meeting without proper notice, no action was taken regarding the subject matter of the alleged rolling quorum and improperly noticed discussion, which both pertained to a no confidence vote in the Chair of the EDC. Specifically, the record evidences that a vote of no confidence regarding the Chair of the EDC did not occur at the meeting. The EDC provided affidavits from multiple members attesting that “[a]fter a lengthy discussion, the EDC did not vote on the ‘no confidence’ motion” or that “the EDC did not take any action on the ‘no confidence’ motion on November 3, 2021.” The relevant meeting minutes pertaining to this issue also state “Discussion over validity of vote occurred at length between members; no vote occurring.” Publicly filed minutes from the next meeting subsequent to the one that is the subject of this Complaint support this conclusion by indicating that the Chair, who is the Complainant in this case, was still present and acting as Chair at that meeting. For example, the first substantive agenda item for the next meeting on December 1, 2021 states, “EDC Chairman Paul Zonfrillo shares how members of the EDC can sign up for ethics training[.]” The minutes from the January 27, 2022 meeting reveal that Mr. Zonfrillo was the chairperson of that meeting as well, but that during the meeting the EDC voted to appoint a new chairperson pursuant to an agenda item stating, in part, “[a]ppoint a new chairperson.” As such, the record reveals that the Chairperson was not removed as a result of the November 1, 2021 meeting that is the subject of this Complaint and no injunctive relief is therefore necessary. We also note that our high level review of the Secretary of State’s website indicates that the EDC has continued to post meeting notices and that the EDC appears to be operating as if it were subject to the OMA. For all these reasons, we find no need for injunctive relief.

Additionally, as we have discussed above, the question of whether an entity is a public body pursuant to the OMA is often not straightforward and we find this case to be a close call. As such, even assuming the EDC did not comply with the OMA regarding the meeting in question, we do not find that the violation was willful or knowing. Nonetheless, as noted above, there are reasons to believe that the EDC is an advisory public body and it would be prudent for the EDC to operate as a public body subject to the OMA pending the anticipated decision of the Superior Court and the further clarification it is likely to provide regarding the relevant precedent.

Conclusion

Although the Attorney General will not file suit, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. R.I. Gen. Laws § 42-46-8(c). 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.” Id. Please be advised that we are closing this file 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

/s/ Katherine Connolly Sadeck

Katherine Connolly Sadeck

Assistant Attorney General