VIA EMAIL ONLY

October 10, 2023

Carolyn DiLeo

Thomas M. Dickinson, Esquire

Dear Ms. DiLeo and Attorney Dickinson:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Ms. Carolyn DiLeo (“Complainant”) against the Bonnet Shores Fire District Council (“Fire District”)[1]. For the reasons set forth herein, we find the Committee violated the OMA.   

The Fire District, through its legal counsel, Thomas More Dickinson, Esq., provided a substantive response. The Fire District argues that documentation related to agenda item B was readily available to the public on its website on subpages dedicated to the “Charter Committee” and the “Voting Lawsuit.” In regard to agenda item C, the Fire District argues that the “gravamen of the of the complaint is that the Council should not have considered any alternative without first alerting the Charter Commission and its counsel so that they could be heard on the issue,” but such is a complaint about internal District communications and “does not set out any violation of the [OMA].” Finally, the Fire District argues that documentation related to agenda item E was readily available to the public on its website on subpages dedicated to the “Harbor.”[2]

We acknowledge the Complainant’s rebuttal.

Although the OMA does not require public bodies to make available documents to be discussed at an open meeting,[3] the OMA does require 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). The Complainant in this case asserted that “[a]s a citizen of Bonnet Shores Fire District, I have been denied the ability to understand the nature of the following motions because insufficient information is provided in the statement of the Motions prior to the discussion and vote.” We deemed this allegation as implicating R.I. Gen. Laws § 42-46-6(b), as reflected in this Office’s acknowledgement letters to the parties which framed the Complaint as alleging that the Fire District violated the OMA by including “inadequate agenda items in its supplemental notice.”  Additionally, this Office is empowered to initiate a compliant on behalf of the public interest. See R.I. Gen. Laws § 42-46-8(e).

In Tanner v. Town of East Greenwich, the Rhode Island Supreme Court examined the OMA’s requirement that a public notice contains “a statement specifying the nature of the business to be discussed.” 880 A.2d 784 (R.I. 2005). The Court determined that the 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.” Id. at 797-98; see also Anolik v. Zoning Board of Review of the City of Newport, 64 A.3d 1171, 1173 (R.I. 2013) (holding 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”).

We have previously determined that public bodies violate the OMA by posting broad and insufficient agenda items such as “Tax Collector’s Report,” “Treasurer’s Report,” “Chief’s Report,” “Committee Reports,” “Old Business,” and “New Business.” These broad agenda items typically fail to “fairly inform the public of the nature of the business to be discussed or acted upon.” Spodnik v. West Warwick, OM 19-28; Beagan v. Albion Fire District, OM 10-27.

Here, given the totality of the circumstances, we find that certain agenda items for the Fire District’s April 4, 2023 meeting failed to sufficiently “inform the public of the nature of the business to be discussed or acted upon.” See Tanner, 880 A.2d at 796.

As an initial matter, our review of the minutes of the April 4, 2023 meeting reveals that no vote took place regarding Item C. Because the Fire District did not vote affirmatively or negatively on this item, injunctive relief is not appropriate, and as the record does not demonstrate that the Fire District’s actions were a willful or knowing violation (assuming a violation occurred), as explained infra, civil penalties are not warranted. As such, even assuming a violation occurred, there is no appropriate relief available under the OMA. See Cienki v. Rhode Island Special Commission on Reapportionment, OM 22-33 (“there are only two principal remedies available for alleged violations of the OMA: injunctive relief and civil fine”); Childs v. Bonnet Shores Fire District, OM 22-14; see also R.I. Gen. Laws § 42-46-8(d). Accordingly, this Office declines to further address the merits of this allegation.

Turning to agenda items B and E, both items reference potential discussion and votes on proposals before the Fire District. Item B references the “Charter Commission[’]s Proposed Voting Amendments” and item E references the “Harbor proposal.” Neither agenda item contains any other information that specifies what these proposals entail or what will be discussed and voted upon at the April 4, 2023 meeting. The Complainant avers that the Fire District should have supplied documentation regarding these proposals to the public.

The OMA does not obligate public bodies to supplement its agendas by posting related documentation. See R.I. Gen. Laws § 42-46-6; Brown v. PVD, OM 21-16 (finding the complainant had not identified any provision of the OMA that would “require the [public body] to post back-up information along with the agenda”). That said, supplementing agendas by posting related documentation could potentially provide important context and supplement an agenda. However, if such documentation is not posted with the respective agenda (in all the places where agendas must be posted under the OMA), then it cannot supplement the notice of the agenda or be considered in determining whether the agenda provided notice that complied with the OMA. See Pontarelli v. Rhode Island Bd. Council on Elementary & Secondary Educ., 151 A.3d 301, 306 (R.I. 2016) (holding a public body provided insufficient notice for an agenda item where the agenda item did not sufficiently describe the business to be discussed or acted upon and where the agenda referenced an enclosed document but failed to post the document along with the agenda).

In its substantive response, the Fire District argues that it provided proper notice with its April 4, 2023 meeting agenda because documents related to the Charter Commission and Harbor proposals were “available on the Fire District’s user-friendly website.” But this argument is unavailing as the Rhode Island Supreme Court has held documentation “being accessible on [the public body’s] website is irrelevant to our analysis, as G.L. 1956 § 42–46–6 requires that it be placed on the Secretary of State’s website, and there is no duty placed upon the public to search elsewhere.” Pontarelli, 151 A.3d at 306; see DeCubellis v. William M. Davies Career and Technical High School Board of Trustees, OM 21-08 (“Although the adequacy of an agenda item must be assessed in light of the totality of the circumstances, the agenda item itself must provide adequate notice without expecting members of the public to piece together information available elsewhere to surmise what the agenda item may refer.”). Therefore, this Office considered the text of the April 4, 2023 meeting agenda alone to determine whether it “fairly inform[ed] the public of the nature of the business to be discussed or acted upon.” See Tanner, 880 A.2d at 796.

The minutes of the April 4, 2023 meeting reveal that under agenda item B, the Fire District discussed the Charter Commission’s proposal that related to a court case and that pertained to the voting rights of short-term and long-term residents and also discussed an alternative proposal authored by Faith LaSalle. The Fire District voted affirmatively on a motion to not support the Charter Commission’s proposal and to have the Commission and Council meet to explore other options, specifically Ms. LaSalle’s alternative proposal.

Under agenda item E, the Fire District discussed a number of harbor-related regulations involving, inter alia, minimum boat length, a grace period for unused moorings, and enforcement of mooring inspections. The Fire District voted affirmatively on motions “that the sharing of moorings be at the discretion of the harbormaster, that the BSFD is fully supportive of the harbormaster on the topic of mooring inspections” and to “agree that the minimum vessel length be 12 feet and exclude dinghys, row boats and similar.” The Fire District also voted to table consideration of proposals “to limit mooring waitlist size and length.”

Based upon the record before us, and Rhode Island Supreme Court precedent, we find that agenda items B and E failed to sufficiently inform the public of the nature of the business the Fire District discussed and acted upon at their April 4, 2023 meeting as reflected in the meeting minutes. 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.”) (emphasis added). The items in the Fire District’s posted agenda only made reference to the “Charter Commission[’]s Proposed Amendments” and the “Harbor proposal” without further specifying the nature of these proposals. For instance, agenda item B did not identify the nature of the proposed amendments and someone looking at the agenda would not have notice that agenda item B pertained to the voting rights of short-term and long-term residents. It also did not specify that the Fire District would be discussing Ms. LaSalle’s alternate Charter proposal. Regarding agenda item E, the agenda did not provide notice regarding the nature of the harbor proposal or the various issues that were ultimately considered and voted upon under this agenda item. The reference to these proposals did not specify that the Fire District would be taking votes on topics such as mooring policies and minimum vessel lengths. Accordingly, we find the Fire District violated the OMA. See R.I. Gen. Laws § 42-46-6(b).[4]