VIA EMAIL ONLY

October 19, 2023

Councilor Samantha Wilcox

Karen Ellsworth, Esquire

Dear Councilor Wilcox and Attorney Ellsworth:

We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Councilor Samantha Wilcox (“Complainant”) against the Richmond Town Council (“Town Council”)[1]. For the reasons set forth herein, we find the Council did not violate the OMA.   

The Complainant asserts that the Town Council violated the OMA during several incidents that occurred during or in close proximity to December 6, 2022, December 20, 2022, January 3, 2023, and January 17, 2023 Town Council meetings.[2]

The Complainant initially asserts that Councilor Colasante and President Trimmer participated in a “sidebar” conversation during the December 6, 2022 meeting. This conversation was inaudible to other members of the Council and the public. She further asserts that during this same meeting, Councilor Colasante attempted to ask a question about pending litigation, but was reminded by Vice President Richard Nassaney that such topic was not on the agenda.

The Complainant further asserts that at the December 20, 2022 meeting, President Trimmer moved quickly between the “Yes” and “No” votes during a vote on a reappointment. She asserts that she was barely able to get her “yes” vote in. She further asserts that during this same meeting, several Councilors discussed the “McIntosh” development project during two agenda items related to appointments despite the project not being included on the agenda. She additionally asserts that President Trimmer, Councilor Sheehan, and Councilor Colasante engaged in a conversation outside of the meeting building following the meeting.

The Complainant further asserts that before the January 3, 2023 meeting was called to order, Councilor Colasante and President Trimmer discussed whether their previous post-meeting conversation was a “problem.” The Complainant also asserts that during the meeting, Councilor Colasante attempted to assign liaisons to boards and commissions despite that not being on the agenda. The Complainant further asserts that during an executive session, entered into for the purpose of discussing “possible filing of cross-appeals in Preserve at Boulder Hills v. Kenyon et als,” Councilor Colasante and President Trimmer discussed another matter related to the plaintiff developer in the case.

The Complainant additionally asserts that before the January 17, 2023 meeting was called to order, Councilor Colasante discussed a legal memorandum and upcoming vote with Councilor Sheehan and then discussed the same legal memorandum with President Trimmer. The Complainant further asserts that President Trimmer discussed the same legal memorandum with Town Solicitor Karen Ellsworth, Esquire, prior to the start of the meeting. Finally, the Complainant asserts that during the meeting, Vice President Nassaney asked members of the public to leave as the audience had exceeded the capacity set by the fire code.

·         Town Council’s Response

The Town Council submitted a substantive response through Town Solicitor Ellsworth, which included affidavits from three (3) of the Town Councilors (Trimmer, Colsante, and Sheehan) and Solicitor Ellsworth herself. Regarding the December 6, 2022 meeting, the Town Council argues that Councilor Colasante’s request for a “sidebar’ was clearly in jest and that there is no evidence that the Councilors were discussing public business during this “sidebar” conversation. The Town Council further argues that no violation occurred due to Councilor Colasante’s attempt to ask a question about pending litigation because he was prevented from discussing such topic.

Regarding the December 20, 2022 meeting, the Town Council argues that President Trimmer moving quickly through the “Yes” and “No” votes implicated only Robert’s Rules of Order not the OMA and, regardless, after the Complainant’s objection at the meeting, a discussion and re-vote was taken. The Town Council further argues that discussion of the McIntosh project during the agenda item for reappointment of Nancy Hess to the Planning Board was germane to the agenda item as it was discussed in the context of Ms. Hess’ perceived “desire to stifle commercial development and her argumentative posture toward some developers.” The Town Council further argues that no discussion of the McIntosh project took place during the agenda item for William McIntosh’s resignation from the Economic Development Commission. Finally, the Town Council argues that the attached affidavits confirm that President Trimmer, Councilor Colasante, and Councilor Sheehan’s post-meeting conversation did not violate the OMA as they did not discuss public business, instead they discussed their plans for the upcoming Christmas holiday.

Regarding the January 3, 2023 meeting, the Town Council argues that Councilor Colasante’s attempt to assign a liaison to a board or commission did not violate the OMA as no discussion took place on this matter once he was advised by other Councilors that it was not on the agenda. The Town Council further argues that the discussion about a topic related to a plaintiff developer was germane to the reason the Town Council gave for entering into executive session as it related to potential negotiations related to this litigation. The Town Council further argues that “[w]hen Council members Trimmer and Colasante attempted to discuss the merits of [the topic related to the plaintiff developer], their conversation was diverted.”

Regarding the January 17, 2023 meeting, Solicitor Ellsworth states that her conversation with President Trimmer about the legal memorandum in question was “brief.” She also states that she did not see or hear three or more Councilors discuss the memorandum. Finally, the Town Council argues that Vice President Nassaney’s comment asking members of the public to leave the meeting because the room was at capacity did not violate the OMA because the OMA “does not require a public body to provide unlimited seating, nor does it require the termination of a meeting if the number of persons present exceeds the seating capacity of the room.” (citing Brunetti, et al. v. Town of Johnston, OM 17-19; Daniels v. Warwick Long Term Facilities Planning Committee, OM 14-02; In re Town of West Warwick, Advisory Opinion OM 99-02).

We acknowledge the Complainant’s rebuttal.

This Office addressed a similar situation involving alleged text message and non-verbal communications between public officials during a public meeting. See Benjamin v. South Kingstown School Committee, OM 19-21. In that case, we found no OMA violation, explaining that “we do not find that a ‘quorum’ of the School Committee convened for a collective discussion outside the public purview about an issue over which the School Committee has authority, and thus find no violation.” As in Benjamin, the critical issue is whether the contested conversation involved a quorum of the Town Council as the OMA is not implicated unless a quorum is involved. See R.I. Gen. Laws § 42-46-3. Because it is undisputed that this “sidebar” conversation did not involve a quorum of the Town Council, we find no violation.[3]

That said, sidebar conversations between public officials during a public meeting is ill-advised as it can easily create the impression amongst the public that their elected officials are conducting business outside the public purview. Indeed, the public policy underpinning the OMA instructs that “[i]t is essential to the maintenance of a democratic society 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; see Advisory Opinion 99-15. However, as stated above, the sidebar conversation at issue in this case does not rise to the level of a violation of the OMA as it did not involve a quorum of the Town Council.

The Complainant also asserts that another OMA violation occurred at this same meeting when Councilor Colasante attempted to ask a question about pending litigation, despite such topic not being included in the meeting 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. (emphasis added). This Office has previously determined that a public body violates the OMA by discussing and/or acting on a matter that was not properly noticed on the agenda for that meeting. See FabCity Cigar Lounge v. Pawtucket City Council, OM 22-64 (finding the Council violated the OMA by discussing and voting on matters related to the FabCity Cigar Lounge without providing proper notice).

Although it is undisputed that Councilor Colasante asked a question about pending litigation that was not properly noticed on the Town Council’s December 6, 2022 meeting agenda, it is also undisputed that no substantive discussion occurred on this topic as Councilor Colasante was made aware that it was not on the agenda by Vice President Nassaney and could not be discussed. Accordingly, we find no violation.

·         December 20, 2022 meeting

The Complainant asserts that an OMA violation occurred when President Trimmer moved from counting the “Yes” to the “No” votes too quickly. The Complainant fails to identify any provision of the OMA that such action allegedly violated and this Office cannot deduce any. Regardless, the Complainant does not dispute the Town Council’s contention that, after the Complainant voiced her concern, the “motion was rescinded,” discussion occurred, and a re-vote took place. We find no violation. 

The Complainant also asserts that an OMA violation occurred when Town Councilors discussed a development project referred to as the McIntosh project during its discussions on motions to accept the resignation of William McIntosh from the Economic Development Commission and the re-appointment of Nancy Hess to the Planning Board. As discussed supra, the OMA requires all public bodies to timely provide supplemental public notice of all meetings, including a “statement specifying the nature of the business to be discussed.” R.I. Gen. Laws § 42-46-6(b); see FabCity Cigar Lounge, OM 22-64.

It is undisputed that Councilors did indeed make reference to the McIntosh project during this meeting. However, a review of the video footage of the meeting shows that the discussion of the McIntosh project pertained to an item properly noticed on the meeting agenda: the re-appointment of Ms. Hess. The McIntosh project appeared to be referenced as an example of some Councilors’ perception that Ms. Hess stifled economic development as a member of the Planning Board. Such a discussion was germane to the stated agenda item. Furthermore, when Councilor Sheehan began to talk about the legal matter involving the McIntosh project, she was informed by Vice President Nassaney that “we can’t talk about that” and the conversation on the McIntosh project ended. Accordingly, we find no violation.

The Complainant further asserts that an OMA violation occurred after the commencement of the December 20, 2022 meeting when President Trimmer, Councilor Sheehan, and Councilor Colasante engaged a discussion outside of the town building. In their sworn affidavits, Councilors Trimmers, Sheehan, and Colasante acknowledged having a discussion together after the meeting, however they each attested that the discussion pertained to their personal plans for the upcoming Christmas holiday. The Complainant did not proffer any evidence to refute this characterization of the conversation.

As noted above, 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(a).

Here, it is undisputed that a quorum of the Town Council participated in a discussion after the December 20, 2022 meeting. However, this discussion amongst a quorum of the Town Council did not constitute a meeting for OMA purposes as the participants discussed only personal matters not public business. See R.I. Gen. Laws § 42-46-2(a). Therefore, we conclude that no violation of the OMA occurred.

·         January 3, 2023 meeting

The Complainant asserts that an OMA violation occurred when President Trimmer and Councilor Colasante discussed whether their aforementioned post-meeting conversation was violative of the OMA prior to the start of the January 2, 2023 meeting. As noted above, the OMA is only implicated when a quorum of the Town Council participates. As such, this discussion between two members of the Town Council, which was less than a quorum, did not violate the OMA.

The Complainant further asserts that an OMA violation occurred when Councilor Colasante attempted to volunteer to serve as a liaison to the Planning Board. However, before any discussion on such matter could occur, Vice President Nassaney and the Complainant informed Councilor Colasante that a discussion about liaisons was not on the meeting agenda. Because Councilor Colasante was stopped from substantively discussing the topic of liaisons, we find no OMA violation.

The Complainant also asserts that an OMA violation occurred when President Trimmer and Councilor Colasante discussed a topic related to litigation[4] with the Preserve at Boulder Hills during an executive session. The OMA requires that “[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5.” R.I. Gen. Laws § 42-46-3. “A meeting closed to the public shall be limited to matters allowed to be exempted from discussion at open meetings by § 42-46-5.” R.I. Gen. Laws § 42-46-4(a). Here, the Town Council convened into executive session pursuant to R.I. Gen. Laws § 42-46-5(a)(2) to discuss a matter related to litigation pursuant to an agenda item entitled “Discussion of possible filing of cross-appeals in Preserve at Boulder Hills v. Kenyon et als.”

In its substantive response, the Town Council provided background information on the litigation that was the subject of the January 3, 2023 executive session. This background information supports the Town Council’s contention that the discussed topic related to litigation with the Preserve at Boulder Hills and was within the scope of the executive session agenda item as it was a potential negotiating tool to resolve the named litigation and related to litigation strategy. Therefore, we find no OMA violation.

We are troubled by the Complainant’s assertion that Councilor Colasante stated that it did not matter if the Town Council discussed a matter not within the scope of the reason for its executive session because “[w]e are in executive session anyway.” There is some evidence in the record to support this assertion. We remind the Town Council that it is obligated to follow the OMA, including when it is in executive session. See R.I. Gen. Laws 42-46-1 (“[i]t is essential to the maintenance of a democratic society that public business be performed in an open and public manner….”).

·         January 17, 2023 meeting

The Complainant asserts, and the Town Council fails to dispute, that prior to the start of the January 17, 2023 meeting, Councilor Colasante discussed a legal memorandum regarding the Chariho Regional School Committee appointment (the “Chariho memo”) and a related upcoming vote with Councilor Sheehan and then proceeded to ask President Trimmer if he had read the Chariho memo, but stopped when the Complainant informed him such was an OMA violation.[5]

As noted above, 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). 

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.”).

Here, it is undisputed that Councilor Colasante spoke to two other members of the Town Council about the Chariho memo. However, no evidence has been presented that during these two conversations, Councilor Colasante conveyed to one Councilor what the other had said. Indeed, the Complainant alleges that Councilor Colasante was not able to discuss the Chariho memo or the upcoming related vote with President Trimmer because she informed them that doing so would constitute a violation of the OMA. For the conversations at issue to constitute a rolling quorum, the separate one-on-one conversations would have had to serve as a chain of communications sufficient to constitute a collective discussion.  See Robert Cushman, OM 22-53. Thus, the lack of evidence establishing that Councilor Colasante created a chain of communication by serving as a pass-through for information amongst the other two Councilors is fatal to the assertion that these conversations constituted a collective discussion among all three Councilors. Therefore, we find no violation of the OMA.

The Complainant further asserts that the Town Council violated the OMA when, prior to the same meeting, President Trimmer discussed the Chariho memo with Town Solicitor Ellsworth. However, the Complainant failed to make any allegations to support the premise that an OMA violation occurred as she did not assert that this communication involved, either directly or indirectly, a quorum of the Town Council. Indeed, while we have acknowledged that “it is possible that a non-member of a public body could serve as a conduit between public body members if he or she supplied the missing link connecting collective discussions between and among public body members,” in this case, no such evidence has been discovered or presented that the Town Solicitor served as such a conduit between a quorum of the Town Council.  See Carlson v. Coventry Town Council, OM 19-36. Furthermore, the Rhode Island Supreme Court has recognized circumstances in which public body members may seek legal advice from their solicitor without violating the OMA.  Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999); Reynolds v. Richmond Town Council, 23-16.

Finally, the Complainant asserts that the Town Council violated the OMA when Vice President Nassaney asked members of the public to leave during the January 17, 2023 meeting because the audience exceeded fire code capacity. However, this Office has consistently observed that the OMA “does not require a public body to provide unlimited seating.” See In re Town of West Warwick, ADV OM 99-02; see also Brunetti, et al. v. Town of Johnston, OM 17-19; Daniels v. Warwick Long Term Facilities Planning Committee, OM 14-02. Specifically, in In re Town of West Warwick, this Office issued an advisory opinion to the Town of West Warwick in anticipation of a meeting that was expected to exceed capacity, concluding that the OMA did not require the termination of the meeting if attendance exceeded the capacity of the room. And in Brunetti and Daniels, we similarly found that no OMA violation occurred when the respective public bodies failed to move a meeting when the public audience exceeded the meeting room’s capacity.

The Complainant has not directed us to any provision of the OMA that requires unlimited seating for the public during public meetings and this Office has not found one. This Office can envision a scenario in which the OMA is violated where available seating is so sparse as to effectively eliminate the public’s attendance, but no facts have been presented for us to conclude that such is the case here. Therefore, we find no violation of the OMA.