Rhode Island Advisory Opinions May 30, 1995: AG 95-07 (May 30, 1995)

Rhode Island Attorney General Opinions

1995.

AG 95-07.

Our File No.: OM95-0142

Dear Ms. Martin:

The investigation into your Open Meetings Act complaint against the West Warwick School Committee's Budget and Review Committee (the "Budget Committee") is complete. You allege that in violation of R. I. Gen. Laws §§42-46-1 et seq., the Open Meetings Act (the "Act"), the Budget Committee held a closed meeting on March 2, 1995 to discuss its recommendations concerning the 1995-96 school budget.

In response to your complaint, this Department contacted attorney David G. Lussier who represents the Committee. The Budget Committee consisted of six members appointed by the West Warwick School Committee. According to Mr. Lussier, the purpose of the Budget Committee was to make recommendations to the School Committee regarding the 1995-96 school budget. The Budget Committee had no decision making authority with respect to the preparation of the budget; that authority rests with with the School Committee. See R. I. Gen. Laws §16-2-18. Consequently, the School Committee would have to approve the Budget Committee's recommendations in order for those recommendations to become part of the budget. According to Attorney Lussier, on April 10, 1995 the School Committee adopted its budget during an open meeting. Also on that date, the Budget Committee disbanded.

It is Mr. Lussier's position that the Committee should not be subject to the requirements of the Act because it was an advisory committee and had no decision making authority. Thus, Mr. Lussier contends that the Budget Committee is not subject to the provisions of the Act. This Department disagrees.

The Open Meetings Act governs the conduct of public bodies and provides that "[e]very meeting of all public bodies shall be open to the public ..." unless properly closed for the reasons set forth in the Act. R.I. Gen. Laws §42-46-3. A "public body" includes any department, agency, commission, committee, board, council, bureau or authority of state or municipal government, or any subdivision thereof. R. I. Gen. Laws §42-46-2(c). A "meeting" is defined as "... the convening of a public body to discuss and/or act upon a matter over which the pubic body has supervision, control, jurisdiction or advisory power". R. I. Gen. Laws §42-46-2(a) (emphasis added).

The Budget Committee falls squarely within the Act's definition of a public body. The Budget Committee is a committee of municipal government which convened to discuss matters over which it had advisory power. Consequently, it is the opinion of this department that the Budget Committee is subject to the provisions of the Act.

The next issue is whether the Committee violated the Act by holding an executive session on March 2, 1995 to discuss recommendations concerning the school budget, allegedly pursuant to R. I. Gen. Laws §42-46-5(a)(2). The Act requires that " ... public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." R. I. Gen. Laws §42-46-1. The Act, therefore, is designed to protect the public's right to be informed through ensuring open meetings of public bodies. However, the Rhode Island General Assembly recognizes the need for some meetings to be held confidentially and provides exceptions to the Act. The Budget Committee contends that discussions were properly held in closed session pursuant to

R. I. Gen. Laws §42-46-5, which provides in pertinent part:

(a) A public body may hold a meeting closed to the public pursuant to §42-46-4 for one or more of the following purposes:

(2) Sessions pertaining to collective bargaining or litigation, or work sessions pertaining to collective bargaining or litigation.

R. I. Gen. Laws § 42-46-5(a)(2) (hereinafter the "collective bargaining exemption").

The pertinent facts are as follows. The Warwick School Department advertised in local newspapers that the Budget Committee would meet on March 2, 1995 in closed session "for negotiations and personnel." The Committee's meeting was called into open session 1 on March 2, 1995 at 6:00 p.m. by Gary Parente, Chairman of the West Warwick School Committee and a member of the Budget Committee. In addition to Mr. Parente, the following Budget Committee members were recorded in the minutes as present: James Langlais, Michael Morin, Diane DeRuosi and Ronald Messier. 2 The Budget Committee in open session accepted nominations for and elected its co-chairs and Clerk. (See Footnote 1). The open minutes of the March 2nd meeting make no reference to a closed session or a vote being taken in open session to go into closed session. The closed session minutes, however, reflect that a motion was made, seconded and passed unanimously, to hold a closed meeting pursuant to § 42-46-5(a)(2) for the purpose of discussing "contract negotiations and personnel impacts in those negotiations." 3

According to the closed minutes of the March 2nd meeting, the Committee discussed numerous recommendations. The Budget Committee concluded that each of the recommendations raised issues which it alleges must be addressed in contract negotiations. It is Mr. Lussier's position that since the Committee's recommendations concerning the school budget would need to be addressed in negotiations, the discussions were properly closed pursuant to § 42-46-5(a)(2). Based upon a review of the minutes of the closed session, I disagree.

It is the opinion of this department that the collective bargaining exemption was designed to permit public bodies to engage in closed-door collective bargaining negotiations and to permit confidential discussions concerning work sessions for such negotiations. The Budget Committee is not a party to the labor negotiations; the Budget Committee has no role in labor negotiations. Consequently, the Budget Committee's reliance on the collective bargaining exemption is misplaced. This exemption does not authorize executive sessions concerning recommendations to a school budget which, if accepted, could potentially affect labor negotiations. Indeed, it could be argued that any budget recommendation could raise potential issues in labor negotiations.

Consequently, I find that the Budget Committee violated the Act by:

1. Convening in closed session to discuss budget recommendations;

2. Failing to record in its minutes that member Louis Vastano was not present at either the open or closed sessions, as required by R.I. Gen. Laws § 42-46-7(a)(2); and

3. Failing to advise the public, by newspaper advertisement or otherwise that it would hold elections for its Chair and Clerk in open session prior to convening in closed session.

4. Failing to take an open call vote to go into closed session.

Based upon the above, I am instituting suit in Kent County Superior Court against the West Warwick School Committee Budget and Review Committee and its members in order to obtain relief on behalf of the complainant and the public, as well as a court ruling that the actions of the Budget Committee were a violation of the Open Meetings Act.

Finally, this department notes the following. The Chairman of the West Warwick School Committee was a member of the Budget Committee. The School Committee appointed members to the Budget Committee. The School Committee delegated to the Budget Committee advisory power to make recommendations. The Budget Committee's minutes reflect that it is a "subcommittee" of the School Committee. Based upon these facts, a copy of this opinion has been forwarded to each member of the School Committee. The West Warwick School Committee is hereby on notice that this department considers any subcommittee appointed by the School Committee to be subject to the provisions Act.

Thank you for your interest in keeping government open and accountable to the public.

Very truly yours,

Jeffrey B. Pine

Attorney General

State of Rhode Island

JBP:LDD:mlc:ncp

1 The newspaper advertisement concerning this meeting indicated that the Budget Committee would meet in closed session. It did not indicate that the Budget Committee would first meet in open session to elect chairperson and clerk. Consequently, I find that the Budget Committee violated the Act by failing to notice and advertise its open meeting and instead indicating that the March 2 meeting would be closed to the public.

2 The minutes do not reflect that member Louis Vastano was not present. The Act requires that minutes include the "members of the public body recorded as either present or absent." R. I. Gen. Laws § 42-46-7(a)(2). I therefore find that the Committee also violated the Act by failing to record in the minutes that Mr. Vastano was not present.

3 The proper procedure for going into closed session is for the public body, by open call, to vote to hold a meeting closed to the public. R.I. Gen. Laws § 42-46-4. The minutes of the March 2, 1995 meeting reflect that the vote to go into closed session was taken in closed session, not in open session. Assuming that the minutes are accurate, the Budget Committee also violated the Act by failing to take an open call vote to go into closed session.