Background

The Complainant alleges that a quorum of the Committee and a quorum of the Council met privately, outside of a properly noticed meeting, with the Westerly Anti-Racist Coalition (“ARC”) on two occasions in 2020 and 2021 in violation of the OMA.

Specifically, the Complainant alleges that sometime in October of 2022 he “came to be in the possession of a group of videos/podcasts” that was “made sometime in 2021” where a member of the ARC, Mr. Kevin Lowther, apparently stated that the ARC had “three separate, private meetings with the School Committee, Town Council, and Law Enforcement.” The Complainant contends that the ARC is not a public body but that the Committee and the Council are and thus violated the OMA when they privately met with members of the ARC “probably more than once.” The Complainant attached a series of emails purportedly to show that a quorum of the Committee and a quorum of the Council attended private meetings with the ARC on December 16, 2020 and February 23, 2021.

Attorney William A. Nardone, Esquire submitted a substantive response to the Complaint on behalf of the Committee. The Committee maintains that it consists of seven (7) total members, four (4) of which would constitute a quorum for purposes of the OMA. The Committee describes the “event in question” as “more in the nature of a group gathering, in an attempt to garner support for a not yet named or formally organized group” in December 2020. The Committee contends that “there may have been four members in attendance at the December 16, 20220 Zoom event” but the Committee “did not ‘convene to discuss and/or act upon a matter(s) over which they have supervision, control or jurisdiction.’” The Committee states that “[p]erhaps the optics were not the best, but bad optics does not rise to the level of an OMA violation.”

The Committee provided affidavits from five (5) members: Mr. Robert Cillino, Ms. Christine Cooke, Mr. Guiseppe Gencarelli, Ms. Diane Chiaradio Bowdy, and Mr. Michael Ober. Mr. Cillino, Ms. Cooke, Ms. Bowdy, and Mr. Ober attest that they attended the virtual Zoom meeting on December 16, 2020 with the not-yet-named ARC, but that “no discussions among School Committee members on matters over which they have jurisdiction, supervision or control” occurred at this meeting. Ms. Cooke and Mr. Ober further attest that the December 16 meeting is the only meeting with the ARC that they attended. Ms. Bowdy attests that she attended another meeting hosted by the ARC on January 7, 2021 via Zoom. Mr. Gencarelli attests that he attended the ARC’s virtual Zoom meeting on February 23, 2021 and that, to the best of his knowledge, he “was the only School Committee member to attend the February 23, 2021 event.”

Westerly Town Solicitor, William J. Conley, Jr., provided a substantive response on behalf of the Council, including two (2) affidavits from Town Manager, Shawn Lacey, and then-Council President, Sharon Ahern. Mr. Lacey attests that he did not participate in any meetings with the ARC nor was he aware of a quorum of Council members participating in any meetings with the ARC during the relevant period. Ms. Ahern’s affidavit, however, attests that she “participat[ed] in a virtual Zoom meeting with ARC *** however, I do not recall the date and I do not recall any other member of the Westerly Town Council participating in said Zoom meeting. At no time did I participate in a meeting with ARC with a quorum of Town Councilors present.”

We acknowledge Complainant’s rebuttal.

This Office also received a third-party submission from two (2) representatives of the ARC, Mr. Geoffrey P. Serra and Ms. Anne M. Pearce. The ARC asserts that “no violation of the OMA occurred” and that the Complainant has made “a pattern of false and misleading claims.” Although we acknowledge this filing, its substance has no bearing on our analysis.  

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.

We note that neither the Committee nor the Council argued that the statute of limitations has expired on these alleged meetings, thereby making the Complaint out-of-time. See R.I. Gen. Laws § 42-46-8(b) (“No complaint may be filed by the attorney general after one hundred eighty (180) days from the date of public approval of the minutes of the meeting at which the alleged violation occurred, or, in the case of an unannounced or improperly closed meeting, after one hundred eighty (180) days from the public action of a public body revealing the alleged violation, whichever is greater”). While this Office may raise this issue on its own, here we need not and we turn to address the substantive issues before us.

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 Langer v. Bonnet Shores Fire District Council, OM 21-04.

Here, there is no question that the Committee and the Council are public bodies subject to the provisions of the OMA. Therefore, our inquiry is appropriately focused on whether a “quorum” of these bodies convened a “meeting” outside of the public purview with the ARC.

Although the Complainant provides copies of emails from the ARC to several community members, including members of the Committee and the Council, which he argues proves that a quorum of each public body met (albeit virtually) with the ARC, these emails only show that members of the Committee, Council, law enforcement, Chamber of Commerce, and other community members received the invitation to participate in these Zoom meetings. The Complainant does not provide any evidence that these meetings were actually attended by a quorum of the Committee and/or the Council. Importantly, the affidavits submitted by the Committee acknowledge that four (4) members virtually attended the meeting with the ARC on December 16, 2020; however, the affidavits also attest that no collective discussion amongst the Committee members in attendance took place at this meeting. Additionally, the Council has provided evidence that, although Council members may have attended “meetings” with the ARC, no collective discussions amongst Councilmembers occurred at these meetings, and no quorum of Councilmembers was present at these meetings. Rather, this Office has previously observed that attendance alone (even of a quorum of public body members at an event or presentation) does not per se violate the OMA. See Neubert v. Governor’s Office and Exeter Town Council, OM 98-09 (finding that a quorum of Council members attending a presentation by the Governor’s Office was not a “meeting” under the OMA as the members did not engage in any collective discussion about Council business or take any action); see also In re: North Kingstown Town Council, ADV OM 99-5 (informing government leaders of concerns relating to the proposed Quonset Point Development was not a “meeting” provided that members of the Town Council do not engage in a collective discussion, vote, or take other action); In re Rhode Island Ethics Commission, ADV OM 00-03 (opining that Commission members who merely address questions to legal counsel (and receive answers from legal counsel) outside of the public purview during Commission hearings would not constitute a “meeting” for purposes of the OMA).

Accordingly, based on the totality of the evidence presented, we do not find sufficient evidence that a quorum of the Council or a quorum of the Committee engaged in a collective discussion regarding matters over which these public bodies have supervision, control, jurisdiction or advisory power in connection with the December 2020 or February 2021 ARC “meetings” such that the OMA was implicated. Notably, the Complainant does not provide any evidence to dispute the sworn statements submitted by the Council or the Committee. The record before us does not support Complainant’s allegations that a quorum of the Council and/or the Committee convened a meeting outside the public purview. See R.I. Gen. Laws § 42-46-2(1). Therefore, we find no violations.

Notwithstanding the above, we appreciate Complainant's concerns and strongly urge the Council and the Committee to be mindful about the optics of engaging in conversations outside of an open meeting. Assembling outside of the public purview, such as what occurred here, 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.

Conclusion

Although the Office of the Attorney General will not file suit in this matter, 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 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

By: /s/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General