Rhode Island Advisory Opinions February 07, 2006: OM 06-16 (February 7, 2006)

Rhode Island Attorney General Opinions

2006.

OM 06-16.

Dear Ms. Levesque:

The investigation into your Open Meetings Act [OMA] complaint against the Portsmouth Town Council is complete. In your letter, you allege that the town council met in private on at least two occasions. Specifically, you contend that the town council violated the OMA surrounding its August 10, 2004 and September 15, 2004 town council meetings at which a school committee member vacancy was announced and a new appointment was made, respectively. Regarding the August 10th meeting, you allege that the town "council met at least once in between the receipt of [school committee member Judy Wrathall's] resignation and the public acknowledgement of it." Moreover, regarding the September 15th meeting, you allege that private discussions were held and a decision made by the town council prior to this meeting where a new member was appointed. You base this allegation on your understanding that town council member "Heaney stated 'we had a hard decision[,]'" when he made a motion to appoint one of the candidates at the September 15th meeting.

Your allegations relate to the following undisputed events. By letter dated July 14, 2004 and received by the town on July 15, 2004, Portsmouth School Committee member Judy Wrathall submitted her resignation from her position as school committee member. This matter was placed on the August 10, 2004 town council meeting agenda, and the town council accepted the resignation at this meeting. Then-council president McIntyre stated at the meeting that letters of interest from those persons interested in filling the vacancy would be accepted until September 8, 2004 at noon. Thereafter, nine (9) candidates, including you, submitted letters of interest. Appointment to this position was placed on the September 15, 2004 town council meeting agenda, and one of the nine candidates was appointed at this time.

We have received a thorough substantive response from Donato Andre D'Andrea, Esq., on behalf of the Portsmouth Town Council. Provided with this response are affidavits from six of the seven town council members who were present and involved in the matter of the school committee member vacancy addressed at the August 10, 2004 and September 15, 2004 town council meetings. Also included are an affidavit from the town clerk, Kathleen Viera-Beaudoin, relevant minutes and agendas from the meetings, a tape recording of the September 15th meeting, and a transcript of the relevant portion of the tape of the September 15th meeting.

Town Clerk Viera-Beaudoin states in her affidavit that the town received school committee member Wrathall's letter of resignation on July 15, 2004 and that she "discussed the letter with the Portsmouth Town Council president" on that date. Ms. Viera-Beaudoin indicates that "[h]e asked me to place the letter on the agenda for the next regular town council meeting, which was scheduled for August 10, 2004. I did so." Further, she states that "School Committee Member Wrathall's letter was treated the same way as any other correspondence, including letters of resignation [her] office has received from other town board members."

The minutes of the August 10th meeting demonstrate that, as advertised, the town council took up the matter of Ms. Wrathall's resignation on this date. Upon motion by council member Little, seconded by council member Buddemeyer, the council unanimously voted to accept the resignation. Thereafter, Solicitor D'Andrea spoke to the council on the advisable course of action for filling the vacancy in light of the Portsmouth Town Charter and the deadlines required to meet candidacy deadlines for an election. He advised that the council appoint an individual to the school committee to serve until the election to be held in November of 2006. At this point, council member McIntyre "stated that anyone interested in the position can submit a letter to the Council prior to September 8th at 12 noon." Thereafter, council member Rice made a motion, seconded by council member Staven, "to consider a special election concurrent with the General Election filling the unexpired seat for two years." After a ten-minute break, the council took a vote on the motion and the motion failed 6-1 with all but council member Rice opposed.

The transcript/audio tapes of the town council meeting of September 15th demonstrate that, as advertised, the town council made its appointment to the school committee vacancy at this time. In sum, at the onset of addressing the matter, council member Heaney made a motion, seconded by council member Buddemeyer, to appoint Roy R. Twaddle for the position. According to the town council's transcript, council member Heaney stated the following:

We had nine candidates who put their names in, all well-known candidates throughout the town, with varied backgrounds, lots of experience. It was a very difficult decision. Unfortunately, we don't have the chance to work with these people one on one, but I'd like to. There was two persons that put in a full resume, and one of those persons I'd like to make a motion to appoint..

Immediately following this, and after brief discussion regarding who had the floor to speak, council member Rice made a statement concerning her suggestion that the appointment be made after the November election based on the candidate that previously received the fourth highest vote. Notably, council member Rice began by stating, "But before I speak, I have to respond to Mr. Heaney, because I heard him say, it was a difficult decision, and I'm unaware of any decision that was made prior to this evening. But be that as it may I'll now proceed to my comments." After a lengthy discussion between and among council members and the Solicitor, council member Rice made a motion, seconded by council member Staven, to "table the matter until after the November election and then appoint the fourth highest vote getter." This motion failed 5-2, and the appointment of Mr. Twaddle carried by a majority vote of the council members. Finally, it is noteworthy that amidst this discussion, council member Heaney made an additional statement as follows:

Mr. President, I'd like to address the charge of some sort of open meeting violation or back door, or whatever you'd like to call it. When I said decision, that's a decision that I personally made, for these applicants, I didn't make it at random and I certainly didn't make this on party politics or whatever connotation you guys make."

Council member Heaney's affidavit reaffirms the point he made at the September 15th meeting in reaction to concerns over his choice of language in describing the "decision" to nominate Mr. Twaddle to the Portsmouth School Committee. He writes that "I made a motion to appoint Roy Twaddle to fill the vacancy. In making the motion, I stated 'It was a very difficult decision.' I have read the complaint of Marjorie F. Levesque in which she quotes me as saying 'we had a hard decision.' Her statement is not accurate. We had many qualified people apply for the vacancy and it was not easy for me to make a decision. My quoted statement above referred only to my personal decision making process." With exception of this statement made by council member Heaney, the affidavits of all six council members states the following: "I am not aware of any informal meeting of the town council members to discuss or make a decision about filling the school committee vacancy. The only meeting of which I am aware is the formal meeting of September 15, 2004. I am not aware of any attempt to organize the votes of four or more town council members of the issue."

In reliance on the above-cited evidence, Solicitor D'Andrea explains that your complaint is based on a misunderstanding of what council member Heaney said when explaining how he came to a decision on who to appoint. Moreover, he states that "[t]he allegation as to what Councilman Heaney said is contradicted by the town clerk's affidavit, the tape, and the affidavit from Mr. Heaney himself." He further writes, "[b]eyond that singular allegation, the respondents here are being asked to prove a negative, which is very hard to do. However, the best we can do is to provide the affidavits that we have provided from [the] individual council members that indicate that they were not aware of any informal meeting of members. Nor are they aware of any informal attempt to circumvent the open meetings law by doing by telephone or conferences what they would not be allowed to do at an unadvertised meeting."

The OMA provides that "[i]t is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that citizens be advised of and aware of the performance of public officials and deliberations and decisions that go into the making of public policy." R.I. Gen. Laws § 42-46-1. In accordance with this policy, R.I. Gen. Laws § 42-46-3 mandates that all meetings of a public body shall be open to the public unless closed pursuant to one of the exceptions enumerated in R.I. Gen. Laws § 42-46-5(a). 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).

Based upon the evidence presented, we find no violation. In particular, we have been presented no evidence to substantiate your belief that members of the Portsmouth Town Council privately met "at least once in between the receipt of [school committee member Judy Wrathall's] resignation and the public acknowledgement of it" on August 10, 2004. We observe the town clerk's representation that Ms. Wrathall's resignation letter was treated like any other correspondence, including resignation letters, received by the town, and that the decision to put the matter on the August 10th agenda was made by the town council president during a private conversation between the town clerk and the president. Actions and discussion by and between a town employee and one member of the town council do not implicate the OMA because the OMA only applies when a quorum of a public body meet. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999); Stycos v. Cranston School Committee, OM 02-19. A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(d). Further, the minutes of the August 10th meeting support a finding that the matter of Ms. Wrathall's resignation had not previously been handled during an illegal meeting. Specifically, although a vote to accept the resignation was taken without significant discussion or debate between members of the town council, the matter of how best to fill the position was discussed at the meeting, including suggestions from the Solicitor and Town Council Member Rice. The subsequent discussion at the meeting supports the town council's contention that the resignation/appointment matter was not previously determined by the members of town council.

Likewise, we find no evidence to support the allegation that the town council held private discussions and/or made a decision on the school committee appointment prior to the discussion and vote held on September 15, 2004. It appears that your allegations may be derived from a misunderstanding of the statement made by council member Heaney at the meeting when he moved to appoint Mr. Twaddle to the school committee position. We find that Mr. Heaney's statement that "[i]t was a very difficult decision" was intended to represent only Mr. Heaney's personal decision making process, and that the evidence does not support a finding that a collective decision was made prior to the September 15th meeting. As further support for this finding, we rely on the clarification given by Mr. Heaney at the same meeting in order to quell any concerns that a decision had been previously made. Council member Heaney stated, "When I said decision, that's a decision that I personally made, for these applicants[,]" and council member Rice stated, "I'm unaware of any decision that was made prior to this evening." This Department has previously relied on a later point of clarification when a statement made by a member of a public body has been misunderstood to mean that a meeting was held in secret. See Delponte v. Johnston School Committee, OM 02-24 (finding that no meeting convened outside of the public purview despite misquote that informal decision was made on Superintendent's replacement after special meeting to award bids). Finally, as further support, we note that the transcript of the September 15th meeting is abundant with lengthy discussions back and forth among and between council members, the Town Solicitor, and members of the audience. We believe these actions are consistent with a public body that conducts its business in public. We find that the allegations are not supported by any factual basis. See McNeely v. Coventry Town Council, OM 99-34.

Although this Department will not pursue further action on your behalf in Superior Court, nothing within the OMA prohibits an individual from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in the Superior Court. Please be advised that we are closing your file as of the date of this correspondence. We thank you for your interest in keeping government open and accountable to the public.

Very truly yours,

Christy Hetherington

Special Assistant Attorney General

CH/pl

cc: Donato Andre D'Andrea, Esq.