Background

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.

• Exeter Board of Canvassers

The OMA provides that:

 “All public bodies shall keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the secretary of state for inspection by the public within thirty-five days of the meeting[.]” 

R.I. Gen. Laws § 42-46-7(d) (emphasis added).

The record confirms, and there is no dispute, that the Board failed to file its meeting minutes for the November 23, 2024 meeting specifically and that in general it “had not been posting [the] minutes of its meetings.”  Thus, the Board violated the OMA.

The OMA also requires that:

“Public bodies shall give supplemental written public notice of any meeting within a minimum of forty-eight (48) hours, excluding weekends and state holidays in the count of hours, before the date. 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.”

R.I. Gen. Laws § 42-46-6(b).

The Complainant alleges and the Board concedes that it failed to post an agenda for the November 23, 2024 meeting. That also violated the OMA.

• Exeter Town Council

The OMA requires that all meetings of every public body “shall be open to the public.” R.I. Gen. Laws § 42-46-3. For the OMA to apply, however, a “quorum” of a “public body” must convene for a “meeting” as these terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). Under 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(1). A “quorum” is defined as “a simple majority of the membership of a public body.” R.I. Gen. Laws § 42-46-2(4). All three of these elements — a quorum, a meeting, and a public body — must be present in order for the OMA to apply; the OMA is not applicable when one or more of these elements is absent. See Sirios v. Glocester Town Council, OM 20-50. 

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., In Re: South Kingstown School Committee Electronic Mail Policy, OM 04-01 (a series of email communications among a quorum of a committee would satisfy the quorum requirement and implicate the OMA). 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 Finnegan v. Scituate Town Council, OM 20-22; Guarino, et al. v. Rhode Island Atomic Energy Commission, OM 14-07.

Here, there is no evidence to support the claim that the Council met outside of the public purview in order to either direct the Board to convene its November 23, 2024 meeting or to authorize the Solicitor’s legal representation of the Town in the BOE matter.

First, as to an alleged non-public meeting of the Council convened for the purpose of directing the Board to meet on November 23, 2024, the Council submits that “the Board … members who testified at … [a BOE] hearing stated that the meeting was called at the request of the [BOE], not the … Council.” Our independent review of the YouTube footage of the December 11, 2024 BOE meeting affirms the Town’s representations that the Council did not direct the Board to meet. In sworn testimony before the BOE, Board member Nancy Anderton spoke to the process leading up to the November 23, 2024 meeting. She stated that “we had to wait until the [BOE] certified the votes … that’s why we met on the 23rd.” Another Board member, Edward “Ted” Nataly, stated that “we were contacted by the [BOE] and told that …we were able to certify who won the elections on the 23rd. We met on the 23rd.” The Council’s statement that the BOE directed the convening of the Board is undisputed and is bolstered by the sworn testimony of individual Board members. We thus find no violation. See Giangiulio v. Foster School Committee, OM 25-13 (finding no OMA violation while noting that a “mere allegation without more is not enough to outweigh the four sworn affidavits submitted by the Committee”).

Second, the Complainant’s argument that the Council must have met outside of the public purview in order to manage the parameters of Solictor’s legal representation is similarly unsupported by fact. In addition to a dearth of evidence provided by the Complainant, the Council references Section 605 of the Town Charter, which outlines the duties and responsibilities of the Town Solicitor. The plain language of Section 605 is inconsistent with the Complainant’s statement that the Solicitor “is only authorized to pursue legal action when directed by the … Council.” To the contrary, the Charter sets a more permissive standard, stating that the Solicitor shall “serve at the pleasure of the Council,” without any reference to a requirement of prior authorization by that body. See Town of Exeter Charter § 605. While the Complainant argues that the former Town Solicitor “stated many times” and “on multiple occasion” that such explicit direction from the Council is required, he does not direct this Office to a specific instance of the same (and even if he did, such statements by the former solicitor would not amount to mandatory legal authority), nor does he provide any ancillary evidence to buttress this position.

Conclusion

Upon the finding of an OMA violation, the Office of the Attorney General may institute an action in Superior Court. See R.I. Gen. Laws § 42-46-8(a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8(d). Additionally, the Superior Court may impose fines up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.

Here, we are troubled by the Board’s history of failing to post meeting minutes. However, based on the totality of the evidence, we do not find a willful or knowing violation on the part of the Board. The Board characterizes its failure to post meeting minutes as “simply a mistake” attributable partly to the fact that “Exeter is a small town with a limited government.” The Board explains that it “has no support staff of its own” and “does not have legal counsel present for its meetings.” As such, Board members were “mistaken about their obligations under the OMA.” Our aforementioned review of the YouTube footage of the December 11, 2024 BOE hearing supports this conclusion, as it is clear that the Board members became aware of their obligations under the OMA through questioning by the BOE. Nevertheless, the Board represents that after becoming aware of the Board’s obligations under the OMA, they have since “taken steps to correct these issues going forward.”

Our conclusion is supported by the fact that the Board does not have any recent, similar violations that would have put the Board on express notice that it was subject to the OMA requirements that it failed to follow in this instance. See Carmody v. R.I Conflict of Interest Comm 'n, 509 A.2d 453, 459 (R.I. 1986); see also Peckham v. City of Pawtucket, PR 18-10 (“We do not find - nor [does the Complainant] present - any evidence that these mistakes were motivated by malicious intent.”).

Nevertheless, this finding serves as notice that the actions discussed herein violate the OMA and may serve as evidence of a willful or knowing violation in any similar, future situation.