Rhode Island Advisory Opinions March 12, 2004: OM 04-02 (March 12, 2004)

Rhode Island Attorney General Opinions

2004.

OM 04-02 (2004).

Dear Mr. Toste:

The investigation into your October 24, 2003, Open Meetings Act [OMA] complaint against the Cumberland Fire District [District] is complete. You allege the District violated the OMA by failing to post a list of its annual meetings.

We have received a response from the District in the form of an affidavit from Marcel Bacon, Chairman of the District. With his response, Mr. Bacon has submitted a meeting schedule from 2003-2004 that he claims was posted by the District Secretary at the Fire Station. He also submitted a revised annual notice that he asserts was posted after your complaint was filed. The revised annual notice differs from the original in that it includes the location and time of each regularly scheduled meeting.

The OMA requires that "public bodies shall give written notice of their regularly scheduled meetings at the beginning of each calendar year. The notice shall include the dates, times, and places of the meetings and shall be provided to members of the public upon request. . .." R.I. Gen. Laws § 42-46-6(a). As Mr. Bacon has recognized, the annual notice that had been provided was deficient to the extent it did not include the "times, and places of the meetings. . .." Accordingly, we conclude the District's annual meeting notice violated the OMA.

There are two remedies in suits filed under the OMA: (1) "[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];" or (2) "[t]he court may impose a civil fine not exceeding five thousand ($5,000) dollars against a public body or any of its members found to have committed a willful or knowing violation of [the OMA]." R.I. Gen. Laws § 42-46-8(d).

In this case, we deem neither remedy to be appropriate. We find that the District's acts were not a willful or a knowing violation of the OMA. We acknowledge that in DiModica v. Cumberland Fire District, OM 04-01 (issued March 5, 2004), we recently concluded the District violated the notice provisions of the OMA by failing to indicate on a supplemental agenda that elections were going to be conducted at a meeting. That matter was still under review when you submitted your complaint, and the District did not have formal notice that it was in violation of the OMA. That said, this finding serves as notice that the actions discussed herein violated the OMA, and that subsequent, comparable violations may be considered willful and/or knowing.

We also conclude that injunctive relief is not appropriate because the illegal annual notice was revised to comply with the OMA immediately after the violation was brought to the District's attention. In effect, the District remedied its own violation by promptly revising the notice.

Although the Attorney General will not file suit in this matter, nothing within 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, we are closing our file as of the date of this letter.

Sincerely,

Joe Gaeta

Special Assistant Attorney General

Extension 2425

JG:pl

pc: Albert B. West, Esq.