Rhode Island Advisory Opinions March 03, 2006: OM 06-29 (March 3, 2006)

Rhode Island Attorney General Opinions

2006.

OM 06-29.

Dear Ms. Epke:

The investigation into your Open Meetings Act [OMA] complaint against the Tiverton Town Council is complete. You allege five instances in which the Tiverton Town Council violated R.I. Gen. Laws § 42-46-6(b) by actions taken at the Special Meeting of the Tiverton Town Council held on August 2, 2004. You allege that the Town Council: (1) failed to provide public notice that a discussion would occur concerning legal issues for 2 of 30 Charter amendment ballot questions; (2) failed to provide sufficient public notice that the Town Council would hold a public hearing on ballot questions to amend the town Charter, as opposed to a public hearing on proposed additions/amendments to the Charter; (3) failed to provide public notice that a discussion of a proposed Charter change would be brought forth by a person other than a Town Council member; (4) failed to provide public notice that the Town Council would recess so that the ballot questions could be drafted or that the Town Council would vote on the ballot questions/forward the ballot questions to the Board of Canvassers; and (5) failed to provide public notice that the Town Council would take two agenda items out of order. Before beginning, we observe that although your complaint raises several issues involving alleged Town Charter violations, this Department has no jurisdiction to enforce these Charter matters and accordingly our sole focus in this case is whether the actions you allege violated the OMA.

By way of background, prior to the August 2, 2004 Special Meeting, the Tiverton Town Council, and the Tiverton Charter Review Committee, were working toward amending the Tiverton Town Charter. However, because amendments to the Charter require voter approval, any proposed amendments had first to be drafted in the form of ballot questions and put on an election ballot. Because R.I. Gen. Laws § 17-19-7 requires that ballot questions be provided to the Secretary of State's office 90 days before the election, the August 2nd meeting was scheduled in order to offer public hearing and to obtain Town Council approval on several outstanding ballot questions before this deadline expired for an upcoming special election in November.

The amendments discussed at the August 2nd meeting were in addition to 34 amendments proposed by the Tiverton Charter Review Committee that had already been approved by the Town Council. As a result of the August 2nd Special Meeting, 9 questions concerning proposed amendments to the Town Charter were forwarded to the Tiverton Board of Canvassers (for certifying and transmitting to the Secretary of State's office) to be placed on the ballot for the November 2, 2004 election. In total, the evidence indicates that 43 questions were submitted to the Secretary of State's office from the Tiverton Board of Canvassers. Notably, however, the Board of Canvassers requested on August 4, 2004 that the Secretary of State withdraw all 43 Charter amendment questions based on concerns that the questions were not properly certified in an open forum and that the questions were null and void. The Elections Division of the Secretary of State's office honored this request and removed the 43 Charter questions from the Tiverton ballot layout. Hence, none of the Charter amendment questions were presented to the citizens of Tiverton at the election on November 2, 2004, including those discussed and approved at the August 2, 2004 Special Town Council Meeting.

A careful review of the agenda, minutes and videotape of this meeting indicates the following. Notice for the meeting, posted on July 28, 2004, listed the following agenda: "1. Appointment of Filing Coordinator, Secretary of State's 'Town Crier Website'[; and] 2. Public Hearing - Town Council Charter Amendments[.]" In addition, in connection with the "Charter Amendments" matter, the town posted a "Notice of Public Hearing," indicating the same time, date and place of the August 2, 2004 Special Meeting, and including a summary of 10 Charter matters due to be considered at the meeting. This "Notice of Public Hearing" gave notice of the following: "The proposed additions/amendments, may be altered or further amended prior to the close of the public hearing without further advertising, as a result of further study or because of views expressed at the public hearing. Any alterations or amendment must be presented for comment at the public hearing. A copy of the Charter Addition/Amendment proposals is available for public inspection and/or may be obtained in the office of the Town Clerk between the hours of 8:30 a.m. and 3:30 p.m., Mondays through Fridays."

As scheduled, the August 2, 2004 Special Meeting convened at 7:00 P.M. at the Town Hall in Tiverton. Present were the seven Town Council members, Mr. Bollin, Ms. Durfee, Mr. Cabral, Mr. Connors, Ms. Doyle, Mr. Fernandes and Ms. Linhares. The meeting began with a brief introduction by the council chair that the meeting was a public hearing "for the questions that the Town Council wants to put on the ballot." However, prior to addressing the specific Charter amendments planned for the meeting, a question was posed to Town Solicitor J. William W. Harsch by council member Linhares regarding the legality of 2 of 30 Charter amendment ballot questions previously prepared by the Charter Review Committee. The 30 questions were distinct from the nine questions drafted and approved later this evening. For approximately fifteen minutes a discussion ensued between council members, some members of the Charter Review Committee, and the Solicitor regarding the matter, until the Solicitor ceased the conversation by pointing out to the council that this subject was not on the agenda. Thereafter the Solicitor distributed a report summarizing a legal review of the questions to be placed on the ballot. Discussion and questions to the Solicitor went back and forth for approximately ten additional minutes. Council member Bollin suggested that the conversation cease, again based on concerns that the matter was not an item on the agenda.

The meeting proceeded, addressing agenda item "2. Public Hearing - Town Council Charter Amendments." For approximately one hour and twenty minutes, members of the council addressed the proposed Charter amendments one at a time. Members of the council voted on each item after discussion. Some Charter amendments were defeated/opposed, however a majority of the "amendment questions" were voted to be placed on the ballot. Several of the amendments addressed were proposed and previously submitted by the Chairman of the Budget Committee, who clarified questions from the council at this time. At approximately 9:17 P.M. the council voted to recess the meeting to allow the Solicitor, Clerk and Administrator to draft the questions as they would appear on the ballot. The meeting was recessed until approximately 10:30 P.M., at which point the council voted to close the public hearing. With aid from the Solicitor, seated council members agreed upon the language of the Charter amendment ballot questions and voted to approve and forward each question to the Board of Canvassers.

Lastly, the council took up agenda item "1. Appointment of Filing Coordinator, Secretary of State's 'Town Crier Website'." The matter was discussed for approximately five minutes, at which point the council affirmatively voted to fill the position of Filing Coordinator. The meeting adjourned. The instant complaint alleging insufficient public notice was filed.

J. William W. Harsch, Esq., the Tiverton Town Solicitor present at the August 2nd meeting, submitted a substantive response to the allegations on behalf of the Tiverton Town Council. Included with an Affidavit by the Solicitor were various supportive documents concerning the travel of the ballot question matter after the August 2, 2004 Special Meeting. Also included were the minutes to the August 2 and September 27, 2004 Town Council meetings, and an Affidavit from Council Member Linhares, Council President from November 2002 to November 2004. The relevant portions of the town's response will be addressed below as we address each of your complaints seriatim.

The five complaints you have filed concern the sufficiency of public notice for the August 2, 2004 Tiverton Town Council Special Meeting. Specifically, you allege a violation of R.I. Gen. Laws § 42-46-6(b) of the OMA, which requires that supplemental notice of a public meeting include "a statement specifying the nature of the business to be discussed." Section 42-46-6(b) further provides that a public body, other than a school committee, may add "additional items to the agenda by majority vote of the members.. for informational purposes only and [that such items] may not be voted on except where necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official."

First, you allege that the questions to legal counsel and the discussions held for the first twenty minutes of the meeting concerning the legal implications of certain Charter amendment ballot questions, some of which had already been approved by the Town Council and Charter Review Commission, were in violation of the OMA. You separate the meeting into 5 "Parts" and believe that this first part was a distinct subject separate and apart from "Part 2" in which the council took up the matters of the advertised agenda item #2, "Public Hearing - Town Council Charter Amendments" for approximately one and a half hours. As such, you believe that the first twenty minutes of discussion were on matters that were not noticed to the public 48 hours in advance of the meeting as required by law.

In his responsive Affidavit, Solicitor Harsch characterizes the meeting as "an open and continuous exchange of ideas in order to properly address issues raised by proposed amendments to the Town Charter" and that "there was no division of the Council meeting into segments." He states that what you label as "Part 1" was simply an introduction or beginning discussion of so-called "Part 2." Additionally, he asserts that "[t]he discussion of the legal aspects of the Charter Amendments was adequately noticed in the Agenda" when it stated "Public Hearing - Town Council Charter Amendments" because it "informed the public that there was a public hearing to be held in regards to the proposed Charter Amendments and [it] adequately noticed individuals that a discussion of various issues relating to the Charter Amendments would occur." Moreover, he asserts that "the discussion of the legal aspects of the proposed Charter Amendments was adequately noticed in the Public Hearing Notice." He argues that "[t]his notice informed the public that a number of issues and 'views expressed,' including those legal in nature, might be discussed at the Special Meeting." Finally, the Solicitor represents that legal comments and recommendations from the Solicitor are the normal course during any council meeting and that the advice given "does not appear as a separate item for discussion on the meeting's agenda as appearance on the agenda is not required."

Rhode Island General Laws § 42-46-6(b) requires that "[p]ublic bodies shall give supplemental written public notice of any meeting within a minimum of forty-eight (48) hours before the date. This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed." (Emphasis added). This Department has previously addressed this requirement on numerous occasions. See Strahl v. Town of Hopkinton, OM 05-06; Cervasio v. Town of Foster, OM 04-09; see also Schmidt v. Ashaway Fire District, OM 98-34; Payne v. Town of New Shoreham Town Council, OM 97-17.

Upon viewing the August 2nd Special Meeting by videotape, we find that the meeting was a continuous exchange of ideas and that the first twenty minutes were seemingly considered by the council as an introduction, or precursor, to the advertised public hearing on the Town Council Charter Amendments. The topics discussed during the initial twenty minutes of the meeting - the legality of ballot questions presented by the Charter Review Committee and a broad legal review/analysis of the questions to be placed on the ballot -- generally related to the ongoing matters that were facing the Council concerning the Charter amendment task. Accordingly, we find no violation.

Second, you allege that the agenda item "Public Hearing - Town Council Charter Amendments" did not sufficiently apprise the public of the nature of the business to be discussed at the meeting. Specifically, you contend that the notice indicated that the council would hold a public hearing on proposed additions/amendments to the Charter, and not on ballot questions to amend the Charter. You believe that the agenda was inadequate because a member of the public would be unaware, based on the notice provided for the August 2, 2004 meeting, that in order for amendments to be made to the Charter, questions must first be presented to the citizens of the town for a vote, and/or that at this very meeting, such ballot questions would be drafted and approved by the council. You contend that a strict reading of the agenda leaves the impression that only the proposed amendments would be addressed at the meeting; a member of the public, assuming he were aware that Charter amendments must go before the citizens for a vote, might believe that the ballot questions would be addressed at a meeting of a later date and time.

Solicitor Harsch indicates that, although the specific language of the proposed ballot questions was not provided to the public prior to the meeting, nor was specific language regarding ballot questions indicated on the agenda, he contends that the council was "voting on proposed Charter amendments and ballot questions which had been under continuous development since the Charter Review Commission had submitted its various recommendations in December of 2003." Moreover, he opines that "there is no legal requirement that there be a separately noticed public hearing on the specific final language of ballot questions that are before the Council for consideration and approval, amendment or rejection." Further, as cited above, he states that the "notice informed the public that there was a public hearing to be held in regards to the proposed Charter Amendments and adequately noticed individuals that a discussion of various issues relating to the Charter Amendments would occur." Based on the totality of the circumstances, the town defends the notice as sufficient.

We find that the general notice of "Public Hearing - Town Council Charter Amendments," coupled with the separate notice of public hearing, adequately informed the public that ballot questions reflecting the amendments may be considered that evening. We believe that the actions taken on the ballot questions is synonymous with the process by which the Town Charter is amended; indeed, the Tiverton Charter is amended by presenting questions to the citizenry at an election. Hence, we find that the notice was sufficient.

Third, you allege that the Town Council failed to provide advance public notice that the last three amendments discussed and acted upon by the council would be put forth by a person other than a Town Council member. Specifically, you reference the proposal brought about and discussed by the Chairman of the Budget Committee during the council's consideration of Charter amendments at the August 2nd meeting.

On behalf of the town, the Solicitor argues that the public was on notice that proposed amendments would be addressed at the meeting and that the source of the proposal has no bearing on the validity of this notice. For one thing, he states that "[t]he fact that the amendments originally offered by the chairman of the Budget Committee were included in the original materials provided to the public with the Public Hearing Notice and Agenda demonstrates that the amendments were to be considered at the Town Council's public hearing." Moreover, "[a]ll of the proposed amendments included on the Public Hearing Notice, Agenda and related materials were of equal dignity and Ms. Epke's attempt to differentiate the various amendments according to the source is erroneous."

We find no violation. We believe that the public was on notice of the Charter amendments discussed at the public hearing and that the source of the proposals has no bearing on the adequacy of notice. The OMA is silent on the source of material under discussion at a public meeting.

Fourth, you allege that the Town Council failed to give the public advance notice that the Town Council would recess so that the ballot questions could be drafted or that the Town Council would vote on the ballot questions/forward the ballot questions to the Board of Canvassers. Because such action was taken, you believe that these matters required a majority vote by the council to amend the agenda to include these items. You allege that the council's failure to amend the agenda was a violation of the OMA.

Solicitor Harsch opines that the Town Council "may call a recess during a meeting at its own discretion. There is no requirement that the Council shall provide advance notice for a recess that may be called at one of its meetings. There was ample notice of the process that the Council proposed to follow in having staff finalize the ballot questions." Further, he writes that the "Town Council did not vote on added agenda items. The Council was merely voting on proposed Charter amendments and ballot questions which had been under continuous development since the Charter Review Commission had submitted its various recommendations in December of 2003."

The OMA is silent on the requirement that a public body indicate on its agenda that a recess will be held. For this reason, we find that the recess did not require an amendment to the agenda, and the Town Council did not violate the OMA for failing to amend its agenda to reflect a recess. Further, consistent with our finding on your second allegation, above, we find that the Council's act of voting on the ballot questions was properly noticed and an amendment to the agenda was therefore unnecessary.

Lastly, you allege that the council failed to provide public notice that the Town Council would take two agenda items out of order. Specifically, you highlight the fact that the public hearing on the Charter amendments was handled before the matter concerning the position of Filing Coordinator, despite the fact that these items were published on the agenda in the reverse order.

Solicitor Harsch writes as follows: "Section 42-46-6(b) of the Rhode Island General Laws does not require that the public body (Town Council) address each agenda item according to its number as listed upon the Agenda for the meeting."

This Department has previously opined that whether or not taking agenda items out of order violates the OMA depends on whether such actions may cause a member of the public to miss a portion of the meeting based on his or her reliance on the agenda. See Crowell v. Little Compton School Committee, OM 05-09 (recognizing that misinformation concerning when the public portion of a meeting will commence may compromise the public's ability to opt to be present). If the public is able to attend those portions of the meeting desired, then arguably "public business [has been] performed in an open and public manner" and the citizens have been "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 ("Public policy"). In this case, we have no evidence that a member of the public relied on the agenda to his or her detriment. Indeed, a person attending the first portion of the meeting with an expectation of viewing the matter of "Appointment of Filing Coordinator, Secretary of State's 'Town Crier Website'" - the first of just two items listed on the agenda - would be put on notice at the onset of the meeting that the matter was not addressed first. We find no violation.

Although this Department will not pursue further action on your behalf in Superior Court, nothing within the 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: J. William W. Harsch, Esq.