| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
May 23, 2023
OM 23-14
Vicki J. Bejma, Esquire
Charles A. Ruggerio, Esquire
Legal Counsel, Providence School Board
Re: Bejma v. Providence School Board
Dear Attorney Bejma and Attorney Ruggerio:
We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Attorney Vicki Bejma (“Complainant”) against the Providence School Board (“Board”). For the reasons set forth herein, we find the Board did not violate the OMA.
The Complainant alleges that the Board failed to disclose a vote taken during the executive session portion of its November 22, 2022 meeting. Specifically, Complainant contends that during the November 22 meeting, the Board convened in executive session pursuant to R.I. Gen. Laws §§ 42-46-5(a)(1) and 5(a)(4) for discussions related to “job performance, character, or physical or mental health” and “investigations regarding allegations of misconduct.” The Complainant states that the Board reported that no votes had been taken during the executive session upon the Board’s return to open session. The next day, Complainant maintains that Board-member Ty’relle Stephens posted on his personal Twitter page “suggesting a very different account of what had taken place in the Executive Session” and appended a copy of a November 23, 2022 “correspondence to the Superintendent from the ‘Providence School Board Leadership’ to the tweet, which outlined a series of expectations and instructions to the Superintendent.” The Complainant argues that “[i]t is apparent that a majority of the Providence School Board voted or otherwise agreed that it would forward the November 23, 2022 orders to the Superintendent. *** Mr. Stephens’ Twitter feed and the letter itself makes it clear that the November 23, 2022 orders were the product of the November 22, 2022 executive session.” Complainant maintains the Board violated the OMA by failing to report the purported executive session vote to send the November 23 correspondence to the Superintendent during the November 22 open session.
The Complainant provided a copy of the November 23 correspondence, which was signed by three (3) members of the Board.
The Board provided a substantive response through its legal counsel, Attorney Charles A. Ruggerio. The Board first argues that the Complainant fails to indicate how she is an “aggrieved party” with standing to file her Complaint against the Board pursuant to R.I. Gen. Laws § 42-46-8. Regarding the substance of the Complaint, the Board contends that the Complainant’s allegation is “theorizing that the November 23 orders could not have come from individual members because they have no authority to act on their own. The allegation assumes that Board members cannot communicate with the Superintendent and agents of the School Department without a formal vote of the entirety of the public body. This is patently untrue.” The Board also maintains that the November 23 correspondence from “Board Leadership” was a “private reiteration of the expectations discussed by the Board during its November 22nd 2022 meeting” and “had no legal effect.” The Board argues that it “took one vote in Executive Session, a vote to come out of executive session, which was reflected in the minutes of the meeting.”
This Office twice requested the Board provide a copy of the November 22, 2022 executive session meeting minutes for this Office’s in camera review. Instead of providing the same, the Board submitted an affidavit from Board member Mark Santow, Mr. Santow’s “notes” from the November 22 executive session and a copy of the November 22 open session minutes. Mr. Santow’s “notes” identify only who was purportedly present during the November 22 executive session, and that two votes were taken: to move out of executive session and to seal the minutes. Mr. Santow attests in his affidavit that:
“[t]he decision to send Superintendent Javier Montanez correspondence dated November 23, 2022, did not arise from a vote during the November 22, 2022, Providence School Board meeting, but rather from a discussion of the School Board leadership, including then President Kinzel Thomas, then Vice President Diagneris Garcia, and Secretary Mark Santow which occurred outside of the School Board meeting. No other members participated in this discussion.”
After reiterating a request from this Office for the executive session minutes, the Board stated that it did not have any executive session minutes beyond Mr. Santow’s “notes” and what was reflected in the Board’s open session minutes.
It is our understanding that the Board consists of nine (9) members, seven (7) of which were present at the November 22, 2022 meeting.
We acknowledge Complainant’s rebuttal.
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.
As an initial matter, the Board contends that the Complainant does not qualify as an aggrieved person under the OMA. See R.I. Gen. Laws § 42-46-8(a). The Complainant responds by noting that she is a resident of the City of Providence and that this Office can “investigate Open Government complaints from persons without standing, in the public interest.” We believe that the public interest is implicated in this case. Because the Office of the Attorney General may initiate a complaint on behalf of the public interest, see R.I. Gen. Laws § 42-46-8(e), we need not address whether the Complainant qualifies as an aggrieved person under the OMA. Pursuant to our statutory authority, we proceed to consider the alleged violations set forth in the Complaint. See Jerzyk v. Central Falls Detention Facility Corporation, OM 19-03; Solas v. North Kingstown School Committee, OM 22-24.
We now turn to the substance of the Complainant’s allegations. The OMA provides that:
“All public bodies shall keep written minutes of all their meetings. The minutes shall include, but need not be limited to:
***
(3) A record by individual members of any vote taken.” R.I. Gen. Laws § 42-46-7(a)(3) (emphasis added).
Regarding executive session, the OMA provides that:
“All votes taken in closed session shall be disclosed once the session is reopened; provided, however, a vote taken in closed session need not be disclosed for the period of time during which its disclosure would jeopardize any strategy, negotiation or investigation undertaken pursuant to discussion conducted under § 42-46-5(a).” R.I. Gen. Laws § 42-46-4(b) (emphasis added).
Here, Complainant assumes that the Board took a vote during its November 22 executive session to send written correspondence to the Superintendent outlining certain expectations based upon a tweet by another Board member and the fact that the correspondence was signed by three (3) Board members. The Board contends that no vote to send the correspondence was taken during the executive session and the three (3) Board-members who signed the correspondence acted independently.[1]
Although this Office is concerned that the Board failed to memorialize its executive session discussion in the form of formal minutes, we note that the OMA does not require a detailed description of executive session discussions. See R.I. Gen. Laws §§ 42-46-4(a) and 4(b). The Board did produce an affidavit from Board member and secretary Mark Santow, attesting that the decision to send the correspondence to the Superintendent following the November 22 executive session meeting was made solely by the three (3) members of the Board leadership outside of the November 22 meeting. As such, the Board did not violate the OMA when it failed to report a vote after its executive session. Moreover, because the November 23, 2022 correspondence was signed by less than a quorum of the Board’s members, the signing of this letter did not violate the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999) (For the OMA to apply, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA.).
Accordingly, based upon the record before us, we find no violation.
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
[1] We also note that only three (3) members of the Board signed the correspondence, which is less than a quorum of the Board. See R.I. Gen. Laws § 42-46-2(6).