September 27, 2023

Mr. Richard Langseth

Brittany Morgan, Esquire

Dear Mr. Langseth and Attorney Morgan:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Mr. Richard Langseth (“Complainant”) against the Rhode Island Airport Corporation (“RIAC”). For the reasons set forth herein, we find that RIAC did not violate the OMA.   

The Complainant alleges that the “RIAC Committee”[1] (“Committee”) is a public body which is subject to the OMA and that it has violated the OMA by failing to post its annual notice, meeting agendas, and meeting minutes. The Complainant contends that the Committee acts as “a public body” when it appears “before the Warwick City Council” to address FAA noise management matters, pursuant to R.I. Gen. Laws § 1-5-3 and 14 CFR Part 150, “Airport Noise Compatibility Planning.” He states that because the Committee consists of “RIAC executives, the Warwick City Council, and the City of Warwick Administration,” it effectively acts as the “Permanent Implementation Committee,” which, per a June 15, 2000 “record of approval,” was established to ensure proper noise mitigation at T.F. Green Airport pursuant to 14 CFR Part 150. Because this is a “federally regulated activity that requires public participation,” the Complainant argues that the OMA is applicable to the Committee.[2]

A substantive response was submitted by Attorney Brittany Morgan on behalf of RIAC. RIAC states that “[i]n and effort to foster continuous communication [between the City of Warwick and RIAC]” the Committee “meet[s] monthly to discuss a variety of topics” and that there is “no formality in setting up these meetings.” Consequently, RIAC argues that the Committee is not a public body and is not subject to the OMA. Because the meetings in question lack “formality and direction” and there is “no formal order creating a committee of any kind,” “no requirements for the group to have meetings at any interval,” “no supervisory authority over anything related to RIAC or the City,” and “no single mandate to study and recommend direction on any particular issue,” RIAC contends that the Committee is not subject to the OMA. RIAC denies that the Committee convenes pursuant to R.I. Gen. Laws § 1-5-3 and 14 CFR Part 150 and as such is not the “Permanent Implementation Committee,” as contemplated by the June 15, 2000 record of approval.

We acknowledge Complainant’s rebuttal.

For the OMA to apply, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. See R.I. Gen. Laws § 42-46-3; see also Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). Initially, we must determine whether the Committee is a “public body” within the meaning of the OMA. The OMA defines a public body as “any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government[.]” R.I. Gen. Laws § 42-46-2(5).

We have previously stated that determining whether or not a particular entity is a “public body” is “a fact-intensive question not subject to ‘bright line’ rules.” See GoLocalProv v. Providence City Council, OM 20-15.

The Rhode Island Supreme Court considered this issue in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education, 151 A.3d 301, 307-08 (R.I. 2016). The Rhode Island Board Council on Elementary and Secondary Education (“RIDE”) had created a Compensation Review Committee (“CRC”) tasked with reviewing requested and proposed salary adjustments to RIDE employees. Id. at 302-03. The CRC was described as an “‘informal, ad hoc working group with a strictly advisory role’ and with no legal status or authority[,]” and which had irregular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:

 “[T]he CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of a group of high-level state officials and operated under a charter, these two factors alone are insufficient to place them into the ‘public body’ umbrella.” Id. at 308.

Other, non-exhaustive, factors to consider when determining whether an entity is a public body subject to the OMA were set forth in Oliveira v. Independent Review Committee, OM 04-10. These factors include “the text of the executive orders under which the Council was established, the scope of its stated authority, the nature of the public business delegated to it, and its membership and composition. We have found each of these factors relevant, to varying degrees, in findings issued by this [Office].” See Oliveira v. Independent Review Committee, OM 04-10; see also Arditi v. Governor’s State Equity Council, OM 21-32.

Here, the Committee lacks the qualities that would render it a public body subject to the OMA. To begin with, there is no “text … under which [the Committee] was established” or “stated authority” present that would be indicative of a public body. The Complainant infers that the Committee “is implied to serve as the Part 150 Permanent Implementation Committee [under 14 CFR Part 150].” Nothing in the record before us, however, supports that contention. The Permanent Implementation Committee consists of “airline operators, RIAC, FAA, the City of Warwick, and citizen representatives.” The Committee agendas provided by RIAC, however, show that the Committee is composed only of members of the City and RIAC, with no invitees identified as “airline operators,” (representatives of) the “FAA” or “citizen representatives.” Further, the Permanent Implementation Committee solely concerns itself with noise abatement and exposure issues. The Committee agendas include “noise” as only one topic of concern amongst others, including “Community Issues,” the “PVD Master Plan,” and “Properties/Land Use Update.” There is no evidence that the Committee is the Permanent Implementation Committee, nor is there any other establishing text or “stated authority” governing it. See Finnegan v. Scituate Prevention Partnership, OM 20-24, (“[the public body’s] origins and the authority under which it was established leans toward a determination that [it] is a public body because [it] was created pursuant to State statute.”)

The Committee also has no “public business delegated to it,” as any action that it takes must be ratified by a public body. The Complainant’s rebuttal supports the same conclusion, noting that “[a]ny discussions and/or recommendations that may arise from these (RIAC Committee) meetings that require action by either the RIAC Board of Directors and/or the City Council must be brought before a public body.”[3] Although advisory bodies can be public bodies subject to the OMA, public entities without any specific authority to take governmental action are frequently determined to not be “public bodies” under the OMA. See, e.g., Pontarelli, 151 A.3d 301 (finding the CRC, which was a strictly advisory body without authority, did not constitute a public body); Howard v. Portsmouth Senior Center Focus Group, OM 21-22 (finding that a focus group that made proposals that were subject to approval by the Town Council at open meetings was  not subject to the OMA); Arditi v. Governor’s State Equity Council, OM 21-32 (finding that a group that had no governmental decision-making authority but instead served as a ‘strictly advisory group” did not constitute a public body); Solas v. RIDE’s LEAP Task Force, OM 22-26 (finding the Task Force was an advisory body without any decision-making authority and thus was not a public body subject to the OMA).[4] But see Solas v. Emergency Hiring Council, 774 A.2d 820, 823 (R.I. 2001) (holding that an advisory entity was a public body subject to the OMA because of its “significant supervisory and executive veto power”).

Further, the inconsistent nature of Committee membership detracts from its potential status as a public body. See Arditi v. Governor’s State Equity Council, OM 21-32 (“the Council submits that it does not have a fixed membership … in making the determination as to whether an entity is a public body, the nature of its membership is another factor to take into account, which here supports the non-public nature of the Council”).The Committee agendas support the same, as they do not indicate regular membership but instead list “Invited Attendees.” The Complainant argues that the Committee consists of “RIAC officials and elected and appointed Warwick City officials” but provides no evidence as to specific membership and whether those members are consistently in attendance. In fact, the Complainant indicates that only one individual represents the City of Warwick at these meetings, stating that he “observed [the] Warwick City Council President … announcing that he delegated [Warwick City Councilman] Howe with the responsibility to represent the City of Warwick at … Committee meetings … ‘let him (Mr. Howe) handle those meetings.’”

Weighing these factors, we find that on balance the Committee is not a public body under the OMA. As such, the OMA does not apply to the Committee, and we find no violation. We note, however, that the OMA is a floor and not a ceiling. Even if an entity is not legally obligated to comply with the OMA, we encourage entities to adopt the types of measures set forth in the OMA when it is appropriate to do so to increase transparency.

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

/s/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General