VIA EMAIL ONLY

June 27, 2023

Mark Reynolds

Karen Ellsworth, Esquire

Dear Mr. Reynolds and Attorney Ellsworth:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Attorney Mark Reynolds (“Complainant”) against the Richmond Town Council (“Council”). For the reasons set forth herein, we find the Council did not violate the OMA.   

We begin with reviewing whether a rolling quorum occurred before the January 19, 2023 meeting regarding the agenda item at issue, i.e., the appointment of Mr. Clay Johnson to the vacant seat on the School Committee. It is undisputed that the Council is a public body and that a quorum of the five-member Council is three members. Thus, the existence of a rolling quorum depends on whether three Council members engaged in a collective discussion about a matter of Council business outside of a properly noticed meeting. The Complainant alleged that, based on several separate incidents and discussions, a quorum of the Council discussed competing interpretations regarding the legal appointment authority[1] of the Council and/or the appointment of Mr. Johnson prior to the January 19, 2023 meeting in violation of the OMA.

The record reveals that on January 9, 2023, President Trimmer and Councilor Sheehan sent separate emails to the Town Solicitor, Karen Ellsworth, to request her legal opinion regarding the Council’s authority to fill the vacancy. The Complainant alleged that these two email requests suggest prior conversations about that topic between the two Council members. The Complainant noted that both members “reference[d] the perceived conflict between the Chariho Act and Richmond’s Charter and cite[d examples regarding] the same persons previously appointed by Town Councils.” Councilor Sheehan was newly elected, while President Trimmer had previously served on the Council. Based on this information, the Complainant alleged that Councilor Sheehan “presumably” received the information about previous appointments from President Trimmer. The Complainant also argued that the fact that the time stamps of both emails were only one minute apart serves as “further evidence of collaboration.” The Council argued that the separate emails Council members Trimmer and Sheehan sent to Solicitor Ellsworth do not evidence that “they spoke to each other before they made their requests.” President Trimmer attested that he did not tell any other Council member that he had asked for the opinion from Solicitor Ellsworth.

The Complainant stated that there was another meeting concerning this agenda item outside of a public meeting among Solicitor Ellsworth and Councilors Sheehan and Colasante at a Starbucks in Richmond the day before the January 19, 2023 meeting. Councilor Sheehan and Solicitor Ellsworth confirmed this meeting took place in their affidavits. They stated that the meeting was to discuss a January 17, 2023 letter the Council received from Attorney Jon Anderson who represents the School Committee. Attorney Anderson wrote that the Council should follow the procedure in Richmond’s Chapter for filling the seat, and he would advise the School Committee not to recognize any person not appointed according to the requirements of the Charter. The Councilors asked Solicitor Ellsworth’s opinion on Attorney Anderson’s correspondence. As requested by President Trimmer and Councilor Sheehan, Solicitor Ellsworth had previously emailed the Council her legal opinion on that issue on January 10, 2023, which opposed Attorney Anderson’s view. Both Councilor Sheehan and Solicitor Ellsworth stated in their affidavits that the conversations at the Starbucks were about the legal basis of both attorneys’ opinions. Solicitor Ellsworth stated in her affidavit that “[n]either [Councilor] told [her] how they would vote,” nor did she know of “any discussion that took place among two or more Council members about filling the vacancy” on the School Committee. Councilor Sheehan also attested that “[a]t no time did [they] discuss the name of any candidate.”

In addition, the Complainant alleged that President Trimmer and Councilor Colasante had a prior discussion related to the same agenda item. The Complainant based his allegation on a statement Councilor Colasante made that suggests he was aware that President Trimmer had received a legal opinion from Attorney Larissa related to the question of the Council’s appointing authority before the January 19, 2023 meeting.

Finally, the Complainant alleged that President Trimmer and Councilor Sheehan discussed appointing Mr. Johnson to the School Committee before the January 19, 2023 meeting. He based this allegation on the motion Councilor Sheehan made to appoint Mr. Johnson during the January 19, 2023 meeting. Mr. Johnson emailed President Trimmer on January 15, 2023 and expressed his interest in filling the vacancy on the School Committee. The Complainant argued that Councilor Sheehan’s motion would only “make sense” if she learned from President Trimmer of Mr. Johnson’s desire to be appointed. Councilor Sheehan stated in her affidavit that she made the motion based on her meeting with Mr. Johnson during the 2022 campaign and that she knew from prior discussions with then-Candidates Trimmer and Colasante that they also had favorable opinions of Mr. Johnson and knew that he had an interest in being on the School Committee.[2] During the campaign, the three agreed that Mr. Johnson “had a superb background for being on the school committee and that [they] would all vote for him when he ran again in 2024.”

·         Analysis

All three Council members’ affidavits deny having discussions with other Council members about appointing Mr. Johnson prior to the January 19, 2023 meeting.[3] Both Councilors Sheehan and Colasante expressed that they felt there was no need for the three to discuss how to fill the vacancy. The Council explained that each of them knew Mr. Johnson “had previously served on the school committee and that he was interested in doing so again,” and they “believed that his views were in line with theirs.” The three affidavits clearly attest that the Council members did not discuss selecting Mr. Johnson to fill the vacancy with each other prior to the January 19, 2023 meeting. Based on the evidence in the record, we find no violation of the OMA as to the Council discussing who to appoint to fill the vacancy prior to the scheduled public meeting.

Neither do we find sufficient evidence that the Council engaged in a rolling quorum outside of an open meeting regarding the appointment authority of the Council and the method for making an appointment. Councilors Sheehan and Colasante did “discuss the threat” the Council had received from Attorney Anderson with Town Solicitor Ellsworth at the Starbucks. Specifically, they asked Solicitor Ellsworth “what the outcome would be if [they] followed her legal opinion and chose the best candidate for the school committee position.” Solicitor Ellsworth advised that while she believed a court would agree with her opinion — that the Council should appoint the vacancy according to the Chariho Act — she also thought the Council should consider filling the vacancy “according to the procedure in the Home Rule Charter.” The Rhode Island Supreme Court has held that a meeting between members of a public body and their solicitor, where no quorum of the public body was present and where the members were seeking legal advice, does not violate the OMA. See Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). The Starbucks meeting, which involved less than a quorum of members seeking legal advice from their solicitor, did not violate the OMA.

The January 9, 2023 emails Solicitor Ellsworth received from President Trimmer and Councilor Sheehan seeking a legal opinion could suggest some coordination on their part. But President Trimmer attested that he “did not tell any other Town Council member that [he] had asked for the [legal] opinion.” We were not presented with any evidence to the contrary. We have held that separate communications by members of a public body with non-members, who did not share the contents of the discussions with any other members of the public body, did not implicate a rolling quorum. See Robert Cushman v. Warwick City Council Finance Committee, OM 22-53. Overall, there is insufficient evidence of a nexus between the separate communications identified by the Complainant that would link them in such a way as to establish a rolling quorum of three members collectively discussing the Council’s appointing authority.

Our decision is bolstered by the fact that even if a violation had occurred, we would not find any relief to be appropriate. See Cienki v. Rhode Island Special Commission on Reapportionment, OM 22-33 (determining that even assuming the alleged violation(s) occurred, no relief is appropriate). 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). Injunctive relief would not be appropriate because the discussions at issue pertained to the scope of the Council’s appointing authority, but the issue of the Council’s appointing authority is the subject of petitions pending before the Rhode Island Supreme Court. It would not be appropriate for this Office to pursue any injunctive relief on this subject over which the Court already has jurisdiction. There is also not sufficient evidence that the Council engaged in any willful or knowing conduct through the various separate interactions and requests for legal advice discussed above, none of which involved a quorum of the Council.

2.      Alleged Rolling Quorum Convened Before the January 25, 2023 Meeting

·         Evidence

The Complainant also alleged that sometime prior to the January 25, 2023 meeting, a quorum of the Council discussed hiring Attorney Larisa to represent the Council in pending Rhode Island Supreme Court petitions related to the Council’s authority to make the School Committee appointment. The Complainant based this allegation on the fact that the Council did not vote to hire Attorney Larisa until its January 25, 2023 meeting, but that on January 24, 2023 Attorney Larissa filed a petition in the Rhode Island Supreme Court on behalf of the Town of Richmond. Additionally, President Trimmer asserted during a radio interview on January 24, 2023 that the Town had hired Attorney Larisa. Moreover, pursuant to an Access to Public Records Act request, the Complainant obtained a series of text messages between President Trimmer and Attorney Larissa, including a January 24, 2023 text message where Attorney Larissa stated that he informed a radio show host that he was representing “the council and Clay Johnson” and let President Trimmer know “[w]e will file [in the Supreme Court] today and send out the brief.” Additionally, the Complainant produced evidence that on January 19, 2023, Attorney Larisa emailed President Trimmer a retention agreement, and subsequently engaged in further communications related to the representation. The Complainant argued that these above-described series of events indicates that President Trimmer must have already “communicated with Councilors Colasante and Sheehan and [known] their position on hiring Attorney Larisa” prior to the January 25, 2023 meeting. 

President Trimmer stated in his affidavit that he contacted Attorney Larisa on January 20, 2023 and asked him if he would be interested in representing the Council if legal representation became necessary regarding the School Committee appointment. President Trimmer stated that he did this as a result of his conversation with the Town Solicitor after the January 19, 2023 meeting, during which the Town Solicitor suggested that the Council might feel more comfortable being represented by Attorney Larissa if the School Committee dispute went to the Supreme Court.  President Trimmer acknowledged in his affidavit that he said on the radio show that the Town had hired Attorney Larissa, but asserted that this was a misstatement because “the Town Council had not yet voted to hire [Attorney Larisa] . . . [and n]o decision had yet been made to hire anyone.” The Council also argued that although the Supreme Court petition was captioned “Clay Johnson, in his capacity as Council Appointee to the Chariho Regional School Committee and the Town of Richmond, as Appointing Authority,” Attorney Larisa only signed the last page of the petition on behalf of Mr. Johnson, which indicates that he did not have the legal authority to act on behalf of the Town. President Trimmer stated that he “did not direct [Attorney] Larissa to file the petition on behalf of the [Town]” and “was not aware beforehand that he planned to do so before being formally hired.”[4] President Trimmer also stated that the other Town Council members knew that he had spoken to Attorney Larissa about the School Committee appointment because he had said so during the Council meeting on January 19, 2023, but that he “did not speak to any other Town Council member about hiring Mr. Larissa until the closed session on January 25[, 2023].” Both Councilors Colasante and Sheehan provided affidavits stating under oath that they did not discuss hiring Attorney Larisa with any other Council member before the January 25, 2023 meeting.

·         Analysis

The OMA is only implicated by discussion or action taken by a quorum of the public body. See R.I. Gen. Laws § 42-46-3; Fischer, 723 A.2d 294. The actions of President Trimmer, by themselves, do not implicate the OMA. As noted above, both Councilors Colasante and Sheehan have stated under oath that they did not discuss hiring Attorney Larisa with any other Council member before the January 25, 2023 meeting. Councilor Colasante attested that “[n]either Mark Trimmer nor any other member of the Town Council spoke to [him] about hiring Joseph S. Larissa, Jr., Esq. to represent Clay Johnson and the Town of Richmond before the Town Council closed session on January 25.” Councilor Colasante further attested that he had not met Attorney Larissa and prior to the January 25, 2023 meeting was “not aware that Mr. Larissa was interested in representing the town in the school committee dispute.”  Councilor Sheehan similarly attested that “[n]o one spoke to [her] about” hiring Attorney Larisa to represent the Town in the Supreme Court prior to the January 25, 2023 meeting and that she first learned that Attorney Larissa had offered to represent the Town during the meeting on January 25, 2023. President Trimmer’s affidavit confirms these statements. We have not been presented with any specific evidence to dispute these specific attestations.

Based on the record before us, there is no evidence that a quorum of Council members collectively discussed hiring or agreed to hire Attorney Larisa, either through a direct or rolling quorum, prior to the January 25, 2023 meeting. The January 25, 2023 Town Council meeting started at 5:30 PM and adjourned at 5:57 PM. The text message sent by President Trimmer to Attorney Larisa on January 25, 2023 at 6:34 PM states that “[t]he signed contract was sent to your email.” The totality of evidence presented here shows that the Council only formally retained Attorney Larisa after the January 25, 2023 meeting. No tangible evidence has been presented demonstrating that the Council members engaged in a collective discussion about this topic outside of a properly noticed meeting. Therefore, we find no violation of the OMA. [5]  

3.      Alleged Discussion of Matter Not on Agenda

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.

The Complainant alleged that the Council violated the OMA by discussing an “Emergency Item,” raised by President Trimmer that was not on the agenda during the February 9, 2023 meeting, i.e., the Complainant’s OMA complaint. The Council argued that no such discussion took place. Our independent review of the meeting minutes and video of the relevant portion of the meeting reveals that after returning from executive session, President Trimmer stated that he wished to address an “emergency” item that was not on the agenda, namely Complainant’s OMA complaint (which President Trimmer called a “lawsuit”). As soon as President Trimmer raised the issue, Town Solicitor Ellsworth interrupted and clarified that the OMA complaint “was not a lawsuit.” Solicitor Ellsworth then quickly stated, “if the question is, can Joe Larissa represent you, then the answer is no.” Councilor Wilcox then immediately interjected and advised that there is a procedure to add items to the agenda. Namely, the OMA permits public bodies (except school committees) to vote to amend their agenda during a meeting to address an item for informational purposes only. See R.I. Gen. Laws 42-46-6(b). The record reveals that before the Council could consider whether to vote to amend the agenda, Town Solicitor Ellsworth stated that amending the agenda was unnecessary because she had already anticipated and answered the question. The Council then voted to adjourn the meeting.

We are concerned that a matter related to Council business was raised by a Council member and then addressed by the Town Solicitor at a public body meeting without being on the meeting agenda. Our review of the record, however, reveals that the Council was in the process of considering whether to add the item to the agenda, which would have been potentially permissible under the OMA. See R.I. Gen. Laws 42-46-6(b). It was then the solicitor who, without being asked to do so, quickly interjected and addressed the item. The Council members did not engage in any discussion or action regarding the item, and the solicitor spoke on the issue without expressly being invited by the Council to do so. The entire happenings on this topic were concluded in what appears to be less than one minute.  In these particular circumstances, we decline to find a violation of the OMA. However, we caution the Council to be mindful going forward that if it wishes to address an issue at a public meeting that is not on the agenda for the meeting, it should only do so after properly amending the agenda in accordance with the OMA, or as otherwise permitted by the OMA.