VIA EMAIL ONLY

September 7, 2023

Cynthia Rosengard, Ph.D., MPH

Caroline R. Thibeault, Esquire

Legal Counsel, Barrington School Committee

Dear Dr. Rosengard and Attorney Thibeault:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Dr. Cynthia Rosengard (“Complainant”) against the Barrington School Committee and Building Subcommittee (“Committee”). For the reasons set forth herein, we find the Committee violated the OMA.   

Attorney Caroline R. Thibeault submitted a response on behalf of the Committee. As to the Complainant’s first allegation, the Committee maintains that it did not violate the OMA at its January 12, 2023 meeting because the scope of the discussion and vote that transpired “related directly” to the agenda item in question. The Committee notes that at a subsequent meeting, on January 19, 2023, it “[ratified] its actions at the January 12^th meeting” and thus “cured” the alleged violation stemming from the January 12, 2023 meeting.[1]

As to the second allegation, the Committee concedes that one member of the Subcommittee engaged in “brief participation” from a virtual platform during the February 7, 2023 meeting of the Subcommittee, which constituted a “technical violation” of the OMA. Nevertheless, the Committee contends that this virtual participation was both de minimis and inadvertent.

We acknowledge the Complainant’s rebuttal.

In Castelli v. Coventry Town Council, OM 20-32, this Office found that an agenda item stating “District One Update by Councilwoman Dickson” violated the OMA because it did not provide information regarding the subject of the “update” or what would be discussed about District One pursuant to that agenda item. This Office noted that the agenda item did not provide public notice that the Councilwoman would discuss the formation of a “Coventry Charter Review Study Group,” or that she would “[report] on a ‘community forum.’” Id. Accordingly, the “agenda item failed to fairly encompass and provide notice of the substance of what would be discussed.” Id.

Additionally, in Ford v. Barrington School Committee, OM 21-21, this Office found that an agenda item titled “School Committee Workshop on School Goals: Mid Year Report,” violated the OMA because it “did not provide the public with sufficient notice that the subject of de-leveling [removing class levels] and ‘reorganizing the structural levels at the high school’ would occur.”

Here, given the totality of the circumstances, we find that the Committee did not fairly apprise the public of the nature of the business to be discussed in this instance. The relevant agenda item for the Committee’s January 12, 2023 meeting was entitled: “Discussion and possible vote: Building Committee Structure and Scope of Work.” Under this agenda item, the Committee both discussed and then “issue[d] an RFQ [‘Request for Quotes’] for an OPM [‘Owner’s Project Manager’], as recommended to the [Subcommittee by an architectural firm^[2]].”

The relevant meeting minutes confirm that under the subject agenda item, the public body “had a discussion on hiring an OPM … [a Committee member] stated that the first step should be to bring on an OPM and that the [Committee] should be engaging with the OPM and not the [Subcommittee].” A motion was then made “to have the Administration develop an RFQ for an OPM” and the motion passed. Although this agenda item did identify the possibility of a “vote,” there was no reference to the specific subject of this vote, the architectural firm’s recommendation, the possible issuance of an RFQ, or the potential hiring of an OPM. Like in Castelli, the public was not properly informed as to the nature of the Committee’s discussion and action based on this broad agenda item, which spoke solely to “Structure and Scope of Work.” The limited information provided by this notice “failed to fairly encompass and provide notice of the substance of what would be discussed [and voted upon].” See Castelli, OM 20-32.

Indeed, the record indicates that the Committee acknowledged the potential inadequacy of this agenda item. The Committee concedes that “[d]ue to concerns expressed by two of the Committee members that the Committee’s January 12th agenda did not fully encapsulate the discussion and vote regarding an OPM, the Committee included [a revised] item on its January 19^th agenda.” The Committee adds that this January 19, 2023 meeting “had the effect of curing any violation”[3] and it does not dispute the Complainant’s assertion that “one of the veteran members of the School Committee, who chose to abstain on the vote [during the January 12, 2023 meeting], had warned that the discussion was veering from the agenda item.”

We find that the subject agenda item failed to fairly encompass and provide notice of the substance of what would be discussed and voted upon, and that the Committee violated the OMA. See R.I. Gen. Laws § 42-46-6(b); Castelli, OM 20-32. 

·         Alleged Improper Virtual Participation: February 7, 2023 Subcommittee Meeting

The OMA provides 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. To that end, the OMA permits virtual participation of a member of a public body only if that member is on active duty in the United States armed forces or is disabled and otherwise cannot participate in person and meets the criteria described in the statute. R.I. Gen. Law §§ 42-46-5(b)(2), 42-46-5(b)(3). The OMA requires that electronic communication shall not be used “to circumvent the spirit or requirements” of the OMA. See R.I. Gen. Law § 42-46-5(b).

Here, it is undisputed that a member of the Subcommittee participated through electronic means during the February 7, 2023 Subcommittee meeting. The Committee concedes that “Co-Chair [Thomas] Peck, who could not attend in person, attended the meeting via Zoom. He … [made] two comments in the last five minutes of the meeting.” The Committee did not state that Co-Chair Peck met either of the OMA’s two above-described exceptions for when a member can participate remotely. We thus find that virtual participation by this member of the Subcommittee violated the OMA.

Here, regarding the January 12, 2023 agenda item, we do not find injunctive relief to be appropriate because the Committee subsequently reconvened and revoted regarding the same substance of what was discussed and voted upon pursuant to the subject agenda item during the January 12, 2023 meeting. At a January 19, 2023 meeting, the Committee “discussed the same exact topic (an RFQ for an OPM) and took virtually identical action on that topic (directing the administration to develop an RFQ).”[4] Our independent review of the Committee’s meeting minutes show agreement on January 19, 2023 that a revised draft of the RFQ would “be presented at the [January 26, 2023] … Committee meeting.” At that meeting, the Committee ultimately voted to approve the RFQ. See Durand v. Pawtuxet River Authority, OM 22-15 (injunctive relief not appropriate where “the PRA re-noticed and re-discussed the matters that were the subject of that executive session”); see also Lopez v. Westerly Housing Authority, OM 20-07 (injunctive relief not appropriate where “discussion of the Complainant’s job performance was re-noticed and re-discussed at the Board's July 9, 2019 meeting”).

Although we are aware of a similar violation by the Committee stemming from a February 2021 meeting (see supra, Ford v. Barrington School Committee, OM 21-21), we do not find a willful or knowing violation of the OMA in this instance due to the efforts of the Committee to re-notice this issue only one week later and to address the issue again at its January 26, 2023 meeting.[5]

As to the improper virtual participation of a Subcommittee member, there is no need for injunctive relief because the record does not evidence that the member in question voted or took any significant action while participating virtually. Regarding whether the violation was willful or knowing, we find mitigating circumstances in that this member was “a newly-elected member of the Committee and newly-appointed member of the Subcommittee,” which contributed to what the Subcommittee asserts was an “inadvertent” OMA violation. Nonetheless, we are still concerned that this member’s lack of awareness as to the OMA’s requirements led to a violation and that the Subcommittee permitted this member to participate remotely. We advise the Committee to be mindful of the importance of conducting government business in a manner that is open and accessible to the public and to take measures in order to avoid future similar violations by new members, such as watching this Office’s 2023 Open Government Summit training video (available on the Office of Attorney General website). We remind the Committee that “use of electronic communication” may not be used “to circumvent the spirit or requirements” of the OMA and that all members of a public body attending a meeting must do so in person, unless they qualify under one of the two exceptions identified in the OMA. R.I. Gen. Law §§ 42-46-5(b)(2), 42-46-5(b)(3)

As to both violations, 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.

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 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

By: /s/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General