| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
December 21, 2023
OM 23-25
Timothy C. Cavazza, Esquire
Legal Counsel, Woonsocket Housing Authority
Re: Akers v. Woonsocket Housing Authority
Dear Ms. Akers and Attorney Cavazza:
We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Ms. Kathy Akers (“Complainant”) against the Woonsocket Housing Authority (“WHA”). For the reasons set forth herein, we find the WHA did not violate the OMA.
· Complainant’s Allegations
The Complainant asserts that the WHA Board of Commissioners (the “Board”) violated the OMA during their May 18, 2023 meeting.
The Complainant initially asserts “while discussing open positions in the WHA, [the Board] also discuss[ed] a consultant. […] Since the consultant is not an employee of the WHA, this should not have been discussed.” Based on the revised timestamps provided by the Complainant in her rebuttal, it can be deduced that the events in question occurred during the Board’s discussion of agenda item 6(A).[1]
The Complainant further asserts that while discussing the hiring of the new executive director, the Board discussed “an OMA [complaint] [that] had been filed with the AG’s office about the hiring process.” She asserts that Board Chairman Michael Houle informed the Board and the public that the complaint was filed by Katrina Lapierre. The Complainant asserts that because Ms. Lapierre’s “name was not listed on the agenda” she was not able to “be there to defend herself” in violation of the OMA. Based on the revised timestamps provided by the Complainant in her rebuttal, it can be deduced that the events in question occurred during the Board’s discussion of agenda item 6(H).[2]
The Complaint additionally asserts that while discussing a Memorandum of Agreement (“MOA”) with AFSCME Local No. 1793, the Board invited a WHA employee “to the table to air her grievances against the union, even tho[ugh] her [i.e., the employee’s] name is not specifically listed in the agenda item.” She further asserts that this employee proceeded to “slander[ ] Ms. Lapierre by stating ‘and the union did nothing when Katrina harassed me.’” She asserts that “the WHA attorney, did admonish [the employee] at that point that she could be in violation of the OMA, but the damage was already done as the statement was made in public.” Based on the revised timestamps provided by the Complainant in her rebuttal, it can be deduced that the events in question occurred during the Board’s discussion of agenda item 8(B).[3]
· WHA’s Response
WHA submitted a substantive response through Attorney Louise Marcus, which included the posted agenda of the WHA Board’s May 18, 2023 meeting and an affidavit from WHA Chairman Houle. Attorney Marcus argued that the discussions in question “were within the scope of the agenda’s numerous posted topics and reflect fact-based opinions permissibly expressing differing views during said discussions.”
Regarding the discussion of a consultant during the May 18, 2023 meeting, Chairman Houle argued that “[d]uring this discussion, a Board member responsibly stated the fact that [ ] the Finance Director is new to the role, [and asked] does the WHA continue to be in compliance with HUD financial reporting requirements[?]” He asserted that the consultant was discussed in connection with the issue of HUD compliance that arose in the context of discussing the new Finance Director.
Regarding the naming of Katrina Lapierre as the author of an OMA complaint, Chairman Houle argued that the discussion surrounding the OMA complaint “complied with the OMA as it was general statements of facts and First Amendments protected opinions, all properly within the context of the posted [agenda item].”
Regarding the discussion of the MOA with AFSCME Local No. 1793, Chairman Houle explained that “[d]ue to the room’s acoustics, the employee came forward so the Board could discuss this posted Agenda item,” presumably so she could be heard more clearly. He further argued that “any statements made were brief, in the context of this posted item and protected by the First Amendment and/or were factual and within the context of the posted ‘Discussion.’”
We acknowledge the Complainant’s rebuttal.
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 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). We deem each of the Complainant’s this allegations 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 Board violated the OMA by “discussing several matters that were not properly noticed on the agenda.”
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.
Discussion of the consultant
Item 6(A) of the Board’s May 18, 2023 meeting provided notice to the public that the Board would discuss and/or vote on an “Update on Finance Directors Position, offer of employment.” The Complainant asserts that this agenda item did not sufficiently inform the public of the business to be discussed because the Board discussed potentially hiring a financial consultant during this part of the meeting. Chairman Houle argues that the discussion of the consultant was fairly encompassed within the discussion on the finance director’s position because the hiring of a consultant may have been required to maintain HUD compliance based on the hiring of a new finance director. In other words, depending on who was hired as WHA finance director, WHA may or may not need to also hire a consultant in order to maintain HUD compliance.
During the meeting, Attorney Marcus made it clear that any conversation about the consultant would need to remain in the context of HUD compliance related to the finance director’s position and potential employment. The Complainant does not provide any assertions to support a finding that the Board did not heed Attorney Marcus’ warning or to show that the Board discussed the consultant in a broader manner. The Complainant further notes that “[s]ince the consultant is not an employee of the WHA, this should not have been discussed.” However, the Complainant offers no explanation as to what significance the consultant’s employment status may hold. We also note that the discussion of the consultant position was very brief and that no vote was taken regarding that topic.
Here, given the totality of the circumstances, we find that item 6(A) from the Board’s May 18, 2023 meeting sufficiently “inform[ed] the public of the nature of the business to be discussed or acted upon.” See Tanner, 880 A.2d at 796. We do not find a violation.
Naming of the OMA complaint author
Item 6(H) of the Board’s meeting provided notice to the public that the Board would discuss and/or vote on the ratification of the hiring of Todd Boisvert as Executive Director of WHA. The Complainant asserts that this agenda item did not sufficiently inform the public of the business to be discussed because a member of the Board mentioned that Ms. Lapierre was the author of the OMA complaint with this Office that led to the need for a ratification vote. Chairman Houle argues that the discussion of the OMA complaint and complainant was fairly encompassed within the discussion of ratification of the hiring of the Executive Director.
Our review of a recording of the meeting shows that Ms. Lapierre’s OMA complaint was briefly discussed in the context of the ratification of the hiring of the Executive Director as the complaint pertained to the vote being ratified. The prior complaint provided an explanation for why there was a need for a ratification vote. Therefore, given the totality of the circumstances, we find that item 6(H) from the Board’s May 18, 2023 meeting sufficiently “inform[ed] the public of the nature of the business to be discussed or acted upon.” See Tanner, 880 A.2d at 796. We do not find a violation.
Discussion of the MOA
The Complainant’s third allegation concerns the Board’s discussion of an MOA for an employee represented by Local 1793. During the Board’s discussion, the employee who was the subject of the MOA spoke. The Complainant alleges that the employee “slander[ed] Ms. Lapierre.” Even if this Office were to find that the Complainant had the standing to pursue this complaint on behalf of Ms. Lapierre, our authority is limited to investigating alleged violations of the OMA and does not extend to investigating a common law claim such as slander. See R.I. Gen. Laws § 42-46-8. To the extent this allegation could be construed as implicating the notice requirements of R.I. Gen. Laws § 42-46-6(b), the Complainant solely alleges that “the employee was invite[d] to the table to air her grievances against the union, even tho[ugh] [the employee’s] name is not specifically listed in the agenda item.” We do not find that this allegation constitutes a violation of the OMA. The Complainant does not dispute that the employee’s comments were made within the context of discussing the MOA that was the subject of the agenda item. Nothing within the OMA requires an agenda to list the names of any people who may speak related to the agenda item. Therefore, we find no violation on the sole issue raised by the Complainant with regard to this agenda item. See Finnegan v. Scituate School Committee, OM 20-54 (finding that an agenda item denoting a “Discussion/Action/Vote” regarding a school boiler replacement bid fairly informed the public that other items related to the boiler bid could be discussed “in a more particularized manner than on the agenda”).
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
By: /s/ Patrick Reynolds
Patrick Reynolds
Special Assistant Attorney General
[1] Agenda item 6(A) was entitled: “Discussion and/or Vote on each of the following items: (A) Update on Finance Directors Position offer of employment.”
[2] Agenda item 6(H) was entitled: “Discussion and/or Vote on each of the following items: … Ratify the hiring of Todd Boisvert as Executive Director of WHA. – The Board authorized its Chairman at the April 6, 2023, BOC meeting to go into negotiation with Todd Boisvert for the position of Executive Director of the Woonsocket Housing Authority. Mr. Boisvert accepted the offer and, due to exigent circumstances, began serving as WHA Executive Director of April 10, 2023. The Board will vote to ratify the result of that successful negotiation: The hiring of Mr. Boisvert as Executive Director of the Woonsocket Housing Authority, beginning April 10, 2023.”
[3] Agenda item 8(B) was entitled: “Discussion and/or Vote on each of the following items: … MOA between the W.H.A. & AFSCME Local No. 1793.”