Background

·         The first Complaint

The Complainant takes issue with the Council’s decision to not appoint him to the Little Compton Recreation Committee. The Complainant alleges that three candidates were interviewed for a position on the Recreation Committee. He alleges that the two other candidates were “interviewed privately by two councilors in meetings that were not publicly posted” while he was “the only candidate interviewed in a public meeting before the full Council.” He asserts that this “demonstrates that different standards were applied to different candidates during the appointment process.”

The Complainant further alleges that “[f]ollowing the meeting, Councilor Moore stated that he had spoken with [a different candidate] prior to the appointment discussion” and when “Councilor Moore was asked how he could vote for [this different candidate] without interviewing him, he stated that Councilor Talbot had provided him with details from the private interviews.” The Complainant asserts that these “communications indicate a rolling quorum involving Councilors Moore, Talbot, and McHugh, in which substantive discussion related to the appointment occurred outside of a properly noticed public meeting.”

The Council submitted a substantive Response to the instant Complaint through Little Compton Town Solicitor Anthony DeSisto, Esq., along with sworn affidavits from Councilors Talbot and Iriarte-Moore. The Council asserts that the Complainant’s “assertion that Vice President Talbot shared details of the private interviews is incorrect.” The Council asserts that Councilors Talbot and Iriarte-Moore’s sworn affidavits confirm that “Talbot simply informed Councilor Iriarte-Moore that the ‘interview of [another candidate for the Recreation Committee] went well.’” Further, Councilor Iriarte-Moore states that “he did not tell [the Complainant] that Vice President Talbot ‘shared details from the private interviews.’” The Council additionally asserts that “Vice President Talbot’s comment did not generate a discussion” as Councilor Iriarte-Moore states that “Talbot and I did not engage in a conversation or discussion regarding the interview [of the candidate] because, as previously mentioned, I was already familiar with [the candidate].” Councilor Talbot likewise stated that she did not engage in a discussion with Councilor Iriarte-Moore.

The Council asserts that the factual record does not establish a rolling quorum. It asserts that even the Complainant’s own allegation does not establish a rolling quorum as he only alleged that one member of the Council shared information with another, not details about a conversation with another member of the Council. This fails to establish a rolling quorum as the Council has five members and as such three members are needed to establish a quorum.

We acknowledge the Complainant’s Rebuttal.

·         The second Complaint

Following his submission of the first Complaint, the Complainant then submitted a second Complaint. This Complaint involves the same Council meeting, however it alleges that the Council provided insufficient notice that it was going to appoint members of the Harbor Commission, Recreation Committee, Tree Warden, Housing Trust, Board of Canvassers, and Historical Preservation Advisory Committee.

The Complainant alleges that the meeting agenda stated: “‘Receive letters of interest for’ the respective boards.” He asserts that “[a]ny action taken should have been to receive letters of interest only and not to appoint any potential member.” He asserts that the Council violated R.I. Gen. Laws § 42-46-6(b).

The Council submitted a substantive Response to the instant Complaint through Solicitor DeSisto. The Council argues that the Complainant is not an aggrieved party under the OMA and thus “has not established standing to file a violation under the OMA.”

The Council further asserts that even if this Office does consider the second Complaint, it should find no violation. It asserts that the Complainant “has failed to note the bolded language at the top of the agenda that states ‘[a]ll items on this agenda are to be discussed and/or acted upon.’” It asserts that “[b]ased on this language, as well as the language of the specific line items, the Town Council not only fairly informed the public that it would be receiving letters of interest, but also informed the public that it might discuss and act on the substance of those letters.”

We acknowledge the Complainant’s Rebuttal.

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.

·         Standing

As an initial matter, we address the Council’s argument that the Complainant lacks standing to bring his second Complaint. Pursuant to R.I. Gen. Laws § 42-46-8(e), this Office may initiate a complaint on behalf of the public interest. As the second Complaint implicates the public interest, we need not address whether the Complainant qualifies as an aggrieved person under the OMA. Pursuant to our statutory authority, we proceed to consider the alleged violations set forth in both Complaint on the merits. See Jerzyk v. Central Falls Detention Facility Corporation, OM 19-03; Solas v. North Kingstown School Committee, OM 22-24.

·         First Complaint/Alleged Rolling Quorum

The OMA applies when 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 “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 five members and thus three would constitute a quorum. 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 (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.

Conclusion

The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA. 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.