FVIA EMAIL ONLY

June 14, 2023

Ms. Karen Ephraim

Mr. Paul G. L’Heureux

General Manager, North Tiverton Fire District

Dear Ms. Ephraim and Mr. L’Heureux:

We have completed an investigation into the Open Meetings Act (“OMA”) Complaint filed by Ms. Karen Ephraim (“Complainant”) against the North Tiverton Fire District (“District”). For the reasons set forth herein, we find that the District violated the OMA.

The Complainant alleged that the District violated the OMA by including an inadequate agenda item in its supplemental notice relative to the North Point Development project, which the Complainant described as a “project underway in its proposed future location of Tiverton, Rhode Island.” Specifically, the Complainant alleged that a “new business item [titled] ‘Fish Road NTFD Land’ on the meeting agenda dated October 5, 2021” was “vague” because it did not give the landowners abutting Fish Road fair notice of a pending sale. Additionally, the Complainant alleged that “[t]he … meeting minutes of the North Tiverton Fire District (NTFD) [are] not available for public access … [o]nly meeting agendas could be located on the Secretary of State’s website.”[1]

Mr. Paul G. L’Heureux, General Manager for the District, submitted a substantive response on behalf of the District. The District argued that “Fish Road NTFD Land” is an adequate description in the meeting agenda because the discussion centered on the sale of the Fish Road land itself, and not the proposed North Point Development Project as a whole. Additionally, the District conceded that it failed to timely post meeting minutes on the Secretary of State’s website. The District noted after it became aware of the issue on November 10, 2022, it properly posted the meeting minutes for the October 5, 2021 meeting, as well as a number of other meetings, explaining that its initial failure was due to a lack of awareness as to this posting requirement. Our independent review of the Secretary of State’s website confirms that the minutes for the October 5, 2021 meeting were posted on November 14, 2022.

We acknowledge the Complainant’s rebuttal, wherein the Complainant reiterated that the agenda item was inadequate.

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 case law interpreting this statute.

Inadequate Agenda Item

The OMA requires that all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). “This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed.” Id. (emphasis added).

In Anolik v. Zoning Board of Review of the City of Newport, the Rhode Island Supreme Court held that R.I. Gen. Laws § 42-46-6(b) requires the “public body to provide fair notice to the public under the circumstance, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon.” 64 A.3d 1171, 1173 (R.I. 2013); see also Tanner v. Town of East Greenwich, 880 A.2d 784, 797 (R.I. 2005) (appropriate inquiry is “whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted”).

In her argument, the Complainant alleged that the agenda item in question, “Fish Road NTFD Land,” was an insufficient description of the business to be discussed at the District’s October 5, 2021 meeting. We have previously determined that public bodies violated the OMA by posting broad and insufficient agenda items such as “Tax Collector’s Report,” “Treasurer’s Report,” “Old Business,” and “New Business.” See Chiaradio v. Westerly School Committee, OM 22-01; Castelli v. Coventry Town Council, OM 20-32; Spodnik v. West Warwick, OM 19-28; Wilson v. Coventry Sewer Committee, OM 19-34. These broad agenda items typically failed to fairly inform the public of the nature of the business to be discussed or acted upon. For example, in Chiaradio v. Westerly School Committee, this Office found that the agenda item “School Committee By-laws” did not put the public on notice that the Committee would specifically discuss changing a particular aspect of the By-laws that would impact the public’s right to speak during the Open Forum portion of the meeting. See OM 22-01. By simply listing the agenda item “School Committee By-laws,” the Committee failed to give adequate notice to the public about the nature of business to be discussed regarding the By-laws. Therefore, based on the totality of the circumstances, this insufficient agenda item violated the OMA.

Here, the agenda item “Fish Road NTFD Land” similarly failed to provide notice about the nature of the business to be discussed. According to the District’s response, the discussion at the meeting centered on the sale of the Fish Road land. The meeting minutes stated that under this agenda item, the following topics were addressed: receiving an inquiry about selling the land the District owns on Fish Road, planning to have a tax sale, determining whether to have the land appraised, and the District Board discussing and deciding to ask Mr. L’Heureux to get proposals from real estate companies to have an appraisal done. The agenda item, which simply stated “Fish Road NTFD Land,” did not provide the public with sufficient notice that these various topics would be addressed under that agenda item. As such, the District violated the OMA. We note that the District argued that the discussion centered on the sale of the Fish Road land itself, and not the proposed North Point Development Project as a whole, but even assuming that is true, the agenda item did not give notice regarding the topic that the District acknowledged it discussed, i.e., the sale of the land. We therefore find that the agenda item “Fish Road NTFD Land” for the October 5, 2021 meeting violated the OMA.

• Failure to Post Meeting Minutes

The OMA provides that:

“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).

There is no dispute that the District failed to timely file its meeting minutes for its October 5, 2021 meeting, as required by the OMA. Accordingly, the District violated the OMA.

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.

Injunctive relief is not appropriate here because the pertinent meeting minutes have already been posted on the Secretary of State’s website. We also do not find injunctive relief appropriate regarding the agenda item violation. Based on our review of the record provided to us, including the relevant minutes, it does not appear that any definitive action was taken regarding the sale of the land at the meeting in question. Rather, the record indicates that there was a discussion regarding various preliminary topics related to the sale and an agreement to obtain appraisals. The District’s minutes from its December 14, 2021 meeting indicate that it was during that meeting, which is not the subject of this Complaint, that the District voted to sell the land in question. The Complainant did not allege that any particular vote or action that specifically occurred pursuant to the October 5, 2021 agenda item in question should be declared null and void. We also note that the Complaint in this case was submitted more than a year after the meeting that is the subject of this Complaint. To the extent the Complainant raised substantive concerns about the sale itself, that issue is outside the purview of this finding and this Office’s authority under the OMA. See R.I. Gen. Laws § 42-46-8(a).

We next turn to consider whether the District’s violations were willful or knowing. As noted in the District’s Response, the minutes-posting violation was caused by the District’s lack of awareness as to the OMA’s requirements with respect to meeting minutes. The District asserted that immediately upon becoming aware of the problem, the District took remedial measures by posting the minutes that are the subject of this finding, as well as numerous additional previously unposted minutes. Although we are concerned that the District was unaware of a key requirement of the OMA, we do not find this violation to be willful or knowing. Additionally, we have not been presented with sufficient evidence that the agenda item violation was willful or knowing. Nevertheless, this finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation. Additionally, we strongly urge the District staff who are responsible for OMA compliance to pursue additional training, including reviewing the OMA’s provisions and watching the OMA portion of this Office’s Annual Open Government Summit that is available on this Office’s website. 

Although the Office of the Attorney General will not file suit in this matter, please be advised that 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 Complaint 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 Sadeck

Katherine Sadeck

Assistant Attorney General