Rhode Island Advisory Opinions October 03, 2003: OM 03-06 (October 3, 2003)

Rhode Island Attorney General Opinions

2003.

OM 03-06 (2003).

Dear Mr. Calci:

The investigation into your May 31, 2003, Open Meeting Act [OMA] complaint against the Coventry Fire District [the District] is complete. You allege that the District violated the OMA during its annual meeting December 10, 2002, by the following acts:

(1) local taxpayers were not allowed into the meeting if they were not "in the tax books;"

(2) the moderator prohibited members of the public from speaking or clapping;

(3) the moderator refused to recognize taxpayers or allow them to speak at the end of the meeting; and

(4) the moderator answered questions addressed to Chief Mruk.

In response to your complaint, this Department received a substantive response from legal counsel, David J. Szerlag, Esquire. According to Mr. Szerlag, the Fire District did not violate the OMA, and in fact, Mr. Szerlag contends that under the specific facts of this situation, the OMA does not even apply. To support this assertion, Mr. Szerlag analogizes the annual Fire District meetings to a financial town meeting and cites the Rhode Island Supreme Court's opinion in Pine v. McGreavy, 687 A.2d 1244 (R.I. 1997).

In order for the OMA to apply, 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). For purposes of 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(a). A 'public body' is defined as "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government." R.I. Gen. Laws § 42-46-2(c).

In Pine v. McGreavy, 687 A.2d 1244 (R.I. 1997), the Rhode Island Supreme Court was confronted with a situation where a moderator of a financial town meeting caused a reporter to be ejected. This Department filed a complaint in the Superior Court claiming that such actions violated the OMA. A justice of the Superior Court, however, disagreed and dismissed the complaint on the ground that a financial town meeting did not fall within the definition of a public body.

On appeal, the Rhode Island Supreme Court agreed and held that a financial town meeting of qualified electors did not fall within the definitional section of a "public body." In particular, the Court reasoned that a financial town meeting is a quintessential example of an open meeting where the meeting will be open to all qualified electors. Pine, 687 A.2d at 1245. Furthermore, the Supreme Court observed that the OMA "was designed to prevent public bodies of a different type from holding meetings in closed sessions [and] was not directed at financial town meetings that by their very nature cannot be closed and cannot be other than highly public." Id.

Based upon the reasoning articulated by the Supreme Court in Pine, as well as the evidence presented in this case, we find no violation of the OMA because the OMA does not apply. In particular, we observe that similar to the financial town meeting in Pine, the evidence presented in this case demonstrates that the instant meeting "by [its] very nature cannot be closed and cannot be other than highly public." Pine, 687 A.2d at 1245. Specifically, like the financial town meeting in Pine, the evidence presented in this case demonstrates that the instant sessions were an assembly of electors qualified to vote on Fire District matters. We note that the agenda to the meeting indicated, "YOU MUST BE A REGISTERED VOTER IN THE TOWN OF COVENTRY AND A TAXABLE INHABITANT OF THE COVENTRY FIRE DISTRICT IN ORDER TO PARTICIPATE IN THE MEETING," and that the minutes indicate that 145 taxpayers participated. We also note that the minutes establish that you and other taxpayers were present at and participated in this meeting. Following the Supreme Court's reasoning in Pine, we conclude that the OMA does not apply to the December 10, 2002, meeting of the Coventry Fire District because this meeting is analogous to the financial town meeting in Pine. See also Sexton v. Shelter Harbor Fire District, OM 00-11. Accordingly, we have no jurisdiction under the OMA to review your allegations.

Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The complainant may do so 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." R.I. Gen. Laws § 42-46-8. Please be advised that we are closing our file as of the date of this letter.

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

Sincerely,

Joe Gaeta

Special Assistant Attorney General

Extension 2425

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