Background

The Complainant alleges that:

Relevant Law & 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 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). It is undisputed that the Council consists of seven (7) members and thus four (4) would constitute a quorum. 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. As noted by the Council, the OMA permits virtual communications between members of a public body outside of an open meeting to “schedule a meeting.” See R.I. Gen. Laws § 42-46-5(b)(1); see also 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.”). (Emphasis added).

As we explain below, we find no violation because the communications reflected in the Council President’s text were not collective in nature (and not because the Council was engaging in the act of “scheduling a meeting”).

• Whether R.I. Gen. Laws § 42-46-5(b)(1), allowing for non-public electronic communication to “schedule a meeting”, is applicable to the facts at bar

As noted, our conclusion finding no violation herein does not rest on R.I. Gen. Laws § 42-46-5(b)(1). In considering this provision of the OMA, we have determined that qualifying electronic communications must be limited to the scheduling of meetings, alone. For example, in Ahlquist v. Middletown School Committee, OM 25-10, we found that the Committee’s unnoticed discussion of scheduling a “training” was improper because “inclusion of a funding element” in the unnoticed conversation evidenced “a more substantive consideration, beyond the mere scheduling of a meeting.” See Ahlquist v. Middletown School Committee, OM 25-10 (finding an OMA violation because the conversation “was distinguishable from the rote scheduling of future Committee meetings, and it involved a … vote which, importantly, impacted Committee funding and expenditures.”).

Like the Committee communications in Ahlquist, the communications at issue here did not involve “the rote scheduling of future … meetings.” The communications were not intended to “schedule a meeting” but were to make a determination as to the inclusion of a potential agenda item at an already-scheduled meeting. Additionally, the added element of polling members relative to this specific issue (whether to conduct a vote on the proposed collective bargaining agreement) adds a substantive element that carries these communications beyond what is permissible under R.I. Gen. Laws § 42-46-5(b)(1). We therefore conclude that the communications at issue were not limited to “scheduling a meeting.”

• Whether the electronic communications at issue constituted a “collective” discussion such that the OMA was implicated

There is no question that the Council is a public body, and it is clear from the record that the Council has “supervision, control, jurisdiction, or advisory power” over the inclusion of a CBA vote on a meeting agenda. Our focus, therefore, is limited to determining whether four (4) or more Councilmembers convened non-publicly and discussed the inclusion of a certain agenda item in a “collective” manner.

Although a quorum was attained through these communications, the record, including the affidavits submitted by the implicated Councilmembers, does not reflect that Councilmembers engaged in a “collective” discussion such that the OMA was triggered by these electronic communications.

Conclusion

Although the Attorney General has found no violation as to the Council and will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. R.I. Gen. Laws § 42-46-8(c). The Complainant may pursue an OMA complaint within “ninety (90) days of the attorney general’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later.” 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/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General