VIA EMAIL ONLY

August 23, 2023

Mr. Lou Chrostowski

Amy H. Goins, Esquire

Dear Mr. Chrostowski and Attorney Goins:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Mr. Lou Chrostowski (“Complainant”) against the South Kingstown Town Council (“Council”). For the reasons set forth herein, we find the Committee did not violate the OMA.   

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.

The OMA is implicated whenever a quorum of a public body convenes for a “meeting.”  See R.I. Gen. Laws § 42-46-3; Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999).  For purposes of 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); see also Zarella et al. v. East Greenwich Town Planning Board, OM 03-02.  A “quorum” is defined as “a simple majority of the membership of a public body.”  R.I. Gen. Laws § 42-46-2(4).

It is noteworthy that a quorum may be created, and a meeting “convened,” by a “rolling” or “walking” quorum, where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions.  See, e.g., Langer v. Bonnet Shores Fire District Council, OM 21-04 (finding a quorum was formed by “cc’ing” a quorum of Council members on an email chain that discussed substantive Council business where a quorum collectively discussed certain matters); In Re: South Kingstown School Committee Electronic Mail Policy, ADV OM 04-01 (finding a series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA).  But see Lema v. Narragansett Town Council, OM 21-26 (finding an email from one Council member to another, which copied the Town Council but received no response from any copied members, does not evidence a rolling quorum).  Importantly, our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion.  See Robert Cushman v. Warwick City Council Finance Committee, OM 22-53 (finding separate communications that Committee members had with non-members, who did not share the contents of the discussions with any other Committee members, did not create a rolling quorum); Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07 (“[I]f a quorum of members of a public body creates a chain of communication and responses, through any electronic media, about any matter over which a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, the OMA may be violated.”).

Initially, the Complainant expresses displeasure with the Council breaking from its purported past practice of electing the top vote-getter in the preceding election as the Council President.  However, the Complaint fails to cite to any municipal or state statute that requires such practice be followed.  To the contrary, the Town cites to a section of the Charter, which instructs the Council to elect one of its members as Council President with no reference to the number of votes received in the preceding election.  Moreover, even if such a practice were required by a municipal or state statute, such a violation would fall outside of the scope of this Office’s inquiry, which deals only with whether the Council violated the OMA.

The Complainant asserts that the Council members violated the OMA by discussing the election of the Council President outside of a public meeting.  Indeed, in their signed affidavits, four Town Councilors acknowledged sending or receiving communications regarding the election of the Council President prior to the Council’s public organizational meeting.

In their sworn affidavits, Councilors Michael Marran and Patricia Alley acknowledged receiving a joint text message sent by Councilor Jessica Rose stating her intent to support Councilor Rory McEntee for President.  Neither Councilor Marran nor Councilor Alley responded to Councilor Rose’s message. 

For her part, Councilor Rose did not acknowledge that she sent a text message to Councilors Marran and Alley regarding the election for President in her sworn affidavit.  However, she did acknowledge discussing the election for President with Councilor Deborah Bergner prior to the organizational meeting.  Councilor Bergner corroborated this account in her sworn affidavit.

Although Councilor Rose discussed the election for President with Councilor Bergner, their conversation on its own did not violate the OMA as their conversation did not involve a quorum of the Council.[1]  However, the acknowledgement that Councilor Rose engaged in communication with Councilors Marran, Alley, and Bergner regarding the election of President prior to the public organizational meeting raises the question of whether these separate instances of communication, taken together, created a rolling forum.

Ultimately, the question of whether a rolling quorum was created centers on whether the separate communications serve as a chain of communication sufficient to constitute a collective discussion.  See Robert Cushman, OM 22-53.  Collective discussion requires a “chain of communication and responses.”  Guarino, et al, OM 14-07 (emphasis added).  Here, while Councilor Rose created a chain of communication which could have easily facilitated collective discussion, ultimately collective discussion was never had as only one Councilor, Councilor Bergner, responded and engaged with Councilor Rose’s communication.  Councilor Marran and Councilor Alley’s lack of a response to Councilor Rose’s text message regarding the election for President broke the chain of communication that could have facilitated a collective discussion and thus constituted a rolling forum.  Additionally, the record does not evidence that Councilor Rose relayed any aspects of her conversation with Councilor Bergner to the other Councilors. Therefore, we do not find a violation of the OMA. 

However, we caution the Council to be mindful that individual communications with members of the Council regarding matters before the Council can easily constitute a rolling forum and thus violate the OMA.  Moreover, communicating outside of the public purview 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.