VIA EMAIL ONLY
April 1, 2025
OM 25-15
Mr. Robert Cushman
Andrew D. Henneous, Esq.
Re: Cushman v. Warwick School Committee
Dear Mr. Cushman and Attorney Henneous:
We have completed our investigation into the Open Meetings Act (“OMA”) Complaint filed by Mr. Robert Cushman (“Complainant”) against the Warwick School Committee (“Committee”). For the reasons set forth herein, we find the Committee did not violate the OMA.
Background
The Complainant alleges that the Committee improperly convened an executive session during its December 30, 2024 meeting. He asserts that the December 30, 2024 meeting agenda included two items for discussion during the Committee’s executive session: “Investigation/Potential Litigation (RIGL 42-46-5(a)(2) and (4))” and “Discussion: FY2024 and 2025 budget(s).” He asserts that this second agenda item was impermissibly discussed in executive session as “[n]othing in the law permits the school department from conducting a meeting to discuss budgetary items in closed session.”
The Committee submitted a substantive response to the instant Complaint through its legal counsel Andrew Henneous, Esq., along with sworn affidavits from Committee members Shaun Galligan, Karen Bachus, David Testa, and Linda Hazelwood, and an unredacted copy of the December 30, 2024 executive session minutes for this Office’s in camera review. The Committee asserts that the Complainant misread the meeting agenda in question. The meeting agenda did not include two items to be discussed during executive session, but rather only one item (the FY2024 and FY2025 budgets) which was discussed in executive session as an investigation (R.I. Gen. Laws § 42-46-5(a)(2)) and potential litigation (R.I. Gen. Laws § 42-46-5(a)(4)). It avers that “[a]s is well known, the Committee recently identified a potential budget deficit for FY2024 and FY2025” and “[t]he discussion that took place in Executive Session was directly related to receiving legal advice and strategy on what steps would have to be taken should the Committee be required to proceed with potential litigation under the Caruolo Act.”[1]
It explains that “RIGL 16-2-21.4 and applicable case law requires a school committee to take certain procedural steps prior to initiating ‘Caruolo Act’ litigation” and that “[t]hese steps were discussed with the Committee as well as the process of instituting the aforementioned litigation with the Committee’s legal counsel.” The affidavits of the Committee members confirm that during the executive session, the Committee’s legal counsel, Attorney Henneous discussed with the Committee “the legal requirements when a district realizes a deficit as well as the legal options, including required cuts in the context of a deficit reduction plan and a potential ‘Caruolo Action.’”
The Committee asserts that R.I. Gen. Laws § 42-46-5(a)(2) “permits closed session discussion not only to discuss pending litigation, but also to discuss reasonably anticipated litigation and strategy.” It cited to several prior findings from this Office that it asserts support its interpretation of the OMA.
Finally, regarding the agenda’s indication that the Committee was also meeting in executive session to discuss an investigation under R.I. Gen. Laws § 42-46-5(a)(4), the Committee states that it “had anticipated discussing an investigation report prepared by a financial consultant directly related to the deficit, but as reflected by its absence in the minutes, that discussion did not take place.”
The Complainant submitted a rebuttal to the Committee’s response. He does not contest the Committee’s representation that there was only one agenda item discussed in executive session rather than two and concedes that the “December 30th meeting aimed to consider litigation against the City of Warwick under the Caruolo Act.” But he asserts that the Committee’s citations to prior findings from this Office regarding R.I. Gen. Laws § 42-46-5(a)(2) are “irrelevant to [his] complaint” because there was “no litigation, no pending litigation, no threatened litigation, no imminent litigation, or no reasonably anticipated litigation” before the Committee as “initiating litigation under the Caruolo Act is solely at the discretion of the [Committee].”
Relevant Law and Findings
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 mandates that all meetings of all public bodies be held in open session, unless otherwise exempt. R.I. Gen. Laws § 42-46-3. Here, the Complainant asserts that the Committee impermissibly met in executive session to discuss the FY2024 and FY2025 Budget, but in his rebuttal he does not contest that the subject of the executive session was potential litigation regarding the budget. Our review of the record also confirms the Committee’s representation that the agenda item pertained to potential litigation related to the budget[2]
One of the permissible uses of executive session is for “[s]essions pertaining to collective bargaining or litigation, or work session pertaining to collective bargaining or litigation.” R.I. Gen. Laws § 42-46-5(a)(2).
As this Office has previously noted, we are “cognizant that almost any matter could relate to litigation,” and therefore, each executive session must be reviewed on a case-by-case basis to ensure that any executive session discussion properly falls within the purview of R.I. Gen. Laws § 42-46-5(a)(2). See Clifford v. North Smithfield Municipal Building Review Task Force, OM 18-24 (emphasis in original).
In Wardwell v. Narragansett School Committee, OM 97-15, this Office examined an executive session convened to discuss “threatened litigation and strategy with respect to said threatened litigation.” After reviewing the executive session minutes this Office found that the executive session had been properly convened. Specifically, we stated that the OMA “permit[s] discussions not only of pending litigation, but also of litigation, which has in fact been threatened or is imminent.” Wardell, OM 97-15. In a subsequent case involving threatened litigation, this Office added that “holding a closed session is permitted where litigation is reasonably anticipated and the public body is receiving frank appraisals from its attorney or discussing strategy.” Trafford v. Coventry Town Council, OM 97-19. This Office has further recognized that convening in executive session under R.I. Gen. Laws § 42-46-5(a)(2) is permissible even when the discussion is about budget cuts when those potential budget cuts implicate potential litigation. See Rose v. Warwick School Committee, OM 22-56 (finding executive session permissible where the School Committee discussed “the Committee’s strategy with respect to budget measures that could be taken to avoid liability and/or litigation under R.I. Gen. Laws § 16-2-21(d)(vi)”). Therefore, each executive session must be reviewed on case-by-case basis to ensure that any executive session discussion properly falls within the purview of R.I. Gen. Laws § 42-46-5(a)(2). Indeed, our past findings make clear that the determination of whether a public body was permitted to convene into executive session is a fact-specific question that must be considered based on the totality of evidence.
Here, based on the record before us, including our in camera review of the executive session minutes for the December 30, 2024 meeting and the sworn affidavits of the Committee members describing what was discussed during the executive session, we find no violation. Although the in camera nature of our review prevents a more thorough description of the discussion that took place during the executive session, it suffices that the executive session discussion was related to potential litigation under the Caruolo Act and the procedural steps that would be involved in such litigation.
In his rebuttal, the Complainant does not refute the Committee’s assertion that its discussion during the executive session was related to potential litigation under the Caruolo Act. Indeed, he concedes that the “December 30th meeting aimed to consider litigation against the City of Warwick under the Caruolo Act.” However, he avers that the Committee’s discussion was not encompassed by R.I. Gen. Laws § 42-46-5(a)(2) because the Committee itself is the one that would be initiating litigation under the Caruolo Act, therefore there was “no litigation, no pending litigation, no threatened litigation, no imminent litigation, or no reasonably anticipated litigation.” But this distinction between potential litigation that would be initiated by the public body itself as opposed to potential litigation brought against the public body is not reflected in the text of the OMA. Rhode Island General Laws § 42-46-5(a)(2) permits executive sessions to discuss “litigation.” There is no requirement that the litigation or potential litigation in question be brought against the public body.
If a public body was not permitted to discuss in executive session litigation strategy regarding litigation it was considering bringing, this would undermine the purpose of the Legislature exempting discussions of “litigation” from the requirement for meetings to be held in open session. See R.I. Gen. Laws § 42-46-5(a)(2). Further, this would place public bodies at a substantial disadvantage as a litigant if the target of their litigation was given advance notice of their pending litigation plans and strategy. This is clearly not what the Legislature intended when it created an exemption for executive sessions “pertaining to … litigation.” Accordingly, we find no violation.
Conclusion
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