Rhode Island Advisory Opinions February 27, 2009: AGO OM 09-02 (February 27, 2009)

Rhode Island Attorney General Opinions

2009.

AGO OM 09-02.

Dear Mr. Knight:

The investigation into your Open Meetings Act (OMA) complaint against the Pawtucket School Committee (School Committee) is complete. By email correspondence you alleged that the School Committee violated the OMA at the November 6, 2007, November 14, 2006, December 11, 2007, February 11, 2008[FN1] and March 11, 2008 meetings in the following ways:

1. The agendas for the meetings included no specific citation to R.I. Gen. Laws § 42-46-5, nor any statement specifying the nature of the business to be discussed in executive session in violation of R.I. Gen. Laws §§ 42-46-4 and 42-46-6.

2. The School Committee failed to disclose votes taken in executive session once the session reopened in violation of R.I. Gen. Laws § 42-46-4.

3. The School Committee introduced new employees in executive session in violation of R.I. Gen. Laws § 42-46-5.

Additionally, you allege that the School Committee violated the OMA on April 15, 2008 when it failed to post the agenda as required by R.I. Gen. Laws § 42-46-6(c).[FN2]

In response to your complaint, we received a substantive response from the School Committee's legal counsel, Vicki J. Bejma. Attorney Bejma responds as follows:

"2. Introduction of New Employees in Executive Session on November 14, 2006, November 6, 2007, December 11, 2007, and March 11, 2008.

. . .a review of the minutes show, no new employees were 'introduced' at these meetings.

3. Failure to Disclose Votes Taken in Executive Session on November 14, 2006, November 6, 2007, December 11, 2007, and March 11, 2008.

A review of the enclosed minutes demonstrates that no votes were taken in executive session for the dates November 14, 2006, December 11, 2007, and March 11, 2008. As for the meeting of November 6, 2007, there was a vote taken to authorize School Committee counsel to seek waivers from the Commissioner and/or petition the City Council for additional funding. This vote was repeated in public session, as reflected in the minutes.

4. Failure to Include Specific Citation to R.I.G.L. § 42-46-5 or State Nature of Business to Be Discussed in Executive Session on November 14, 2006, November 6, 2007, December 11, 2007, and March 11, 2008.

As to the March 11, 2008 meeting, the School Committee properly noted that they intended to go into executive session to discuss personnel and/or possible/pending litigation. The topic of the proposed meeting was possible litigation under R.I.G.L. § 16-2-21.4 for additional funding for the 2007-2008 fiscal year. As the minutes show, however, there was no collective discussion amongst the collective School Committee members regarding the budget or action thereupon. Instead, the School Committee members listened to a presentation by their attorney, Steven M. Robinson and School Department consultant, Mr. Sweeney, regarding the budget deficit . . . Because this presentation involved no collective discussion or action, there was no 'meeting' as defined under the Act. . .Therefore, that session did not come under the structures of the Open Meeting Act, and there could be no violation.

For similar reasons, there could have been no violation as to the November 14, 2006 executive session. The agenda indicated that personnel, collective bargaining, and/or potential litigation might be the topic of discussion. Once again, however, there was no collective discussion amongst School Committee members, or action upon any matter. Instead the School Committee conducted an interview of a potential candidate for an administrative position. As to the interview, there was no collective discussion or action. Instead the members addressed questions to the candidate. . .

As for the executive session of December 11, 2007, it was noted that personnel/collective bargaining and/or litigation issues were the proposed topic. Admittedly, this reference was somewhat confusing. The School Committee should have indicated a more specific reference to the fact that the Superintendent's job performance was the subject of discussion. However, the discussion that took place was entirely legitimate for executive session, in that it involved the Superintendent's job performance insofar as it related to the complaints of some members of the School Committeea

The agenda for the executive session of November 6, 2007, the agenda indicated that personnel, collective bargaining, and/or possible/pending litigation were to be the subject. The School Committee in fact listened to a presentation from their legal counsel and experts regarding the potential litigation on the budget. This potential litigation was a legitimate discussion for executive session."

Additionally, Attorney Bejma provided affidavits of Linda A. Coyle, Clerk of the Pawtucket School Committee and Gordon M. Gould, Chair of the Pawtucket School Committee.

Clerk Coyle's affidavit states in relevant part:

"2. I posted the agenda for the April 15, 2008 meeting on a bulletin board in the Administration Building.

3. Said bulletin board is in the waiting area of the main lobby of the Administration Building.

5. . . .

6. After reconvening into open session at the meetings of November 14, 2006, November 6, 2007, December 11, 2007 and March 11, 2008, the School Committee revealed in public session their votes to seal the minutes of the public session from which the Committee had just emerged."

Clerk Coyle's supplemental affidavit states in relevant part:

"2. As a matter of routine, the Pawtucket School Committee posts its agenda in the School Administration Building, and also in its individual schools.

4. The votes to adjourn the executive session and seal the minutes were announced to the public once the School Committee re-convened into public session on November 14, 2006, November 6, 2007, December 11, 2007 and March 11, 2008."

Chairman Gould's affidavit states in relevant part:

"2. No new employees were introduced to the School Committee during the executive sessions for November 14, 2006, November 6, 2007, December 11, 2007, and March 11, 2008. There was no meeting February 11, 2008.

3. No votes were taken in executive session for the dates November 14, 2006, December 11, 2007, and March 11, 2008 except for those taken to the [sic] adjourn the executive session and seal the minutes. These votes were included in the open meeting minutes, and the vote on sealing the minutes was revealed when the Committee reconvened into open session. As for the meeting of November 6, 2007, there was a vote taken to authorize School Committee counsel to seek waivers. . . This vote was repeated in public session, as reflected in the minutes."

Before this Department considers your allegations we pause to note that in examining complaints under the OMA, we are mindful that our mandate is to interpret and enforce the OMA as the General Assembly has written this law and as the Rhode Island Supreme Court has interpreted its provisions. In other words, we do not write on a blank slate.

I. Posting of the April 15, 2008 agenda in accordance with R.I. Gen. Laws § 42-46-6(c).

The OMA requires that public bodies provide "supplemental written public notice of any meeting within a minimum of forty-eight (48) hours before the date." R.I. Gen. Laws § 42-46-6(b). "Written public notice shall include, but need not be limited to posting a copy of the notice at the principal office of the public body holding the meeting, or if no principal office exists, at the building in which the meeting is to be held. . ." R.I. Gen. Laws § 42-46-6(c).

You have alleged that "the agenda was not posted anywhere within the School Administration building." In this case we have been presented with evidence that the notice was posted in the School Administration Building. Specifically, we note Clerk Coyle's affidavit that attests that the notice/agenda for the April 15, 2008 meeting was posted in "the School Administration Building, and also in its individual schools." Accordingly, we find no violation.[FN3]

II. Introduction of new employees in executive session during the November 14, 2006, November 6, 2007, December 11, 2007 and March 11, 2008 meetings.

As a starting point, the OMA requires that all meetings of a public body must be convened in open session unless the subject matter of the meeting falls within one of ten enumerated exceptions. See R.I. Gen. Laws § 42-46-5(a)(1)-(10). Upon this Department's review of the executive session minutes of these meetings, and with consideration of the affidavit of Chairman Gould (which specifically states that no such introduction of new employees occurred), we find no evidence that new employees were introduced during the executive sessions of these meetings. We also observe that since it does not appear that you attended the executive sessions in question, it is unclear to us the basis of your knowledge. Accordingly, we find no violation.

III. Failure to Include Specific Citation to R.I.G.L. § 42-46-5 or State Nature of Business to Be Discussed in Executive Session in the Notices for November 14, 2006, November 6, 2007, December 11, 2007 and March 11, 2008 meetings.

The OMA requires that all public bodies give supplemental notice of meetings at least 48 hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). "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." Id. (Emphasis added).

In Tanner v. Town Council of East Greenwich, 880 A.2d 784 (R.I. 2005), the Rhode Island Supreme Court considered the previously emphasized language and determined that an agenda item indicating "Interviews for Potential Boards and Commission Appointments" did not adequately apprise the public of the nature of the business to be discussed. The Tanner Court held that "the Legislature intended to establish a flexible standard aimed at providing fair notice to the public under the circumstances, or such notice, based on the totality of the circumstances, as would fairly inform the public of the nature of the business to be discussed or acted upon." Id. at 796. Further, with respect to an executive session notice, this Department indicated in Graziano v. Lottery Commission, OM 99-06, that:

"[i]f the matter to be discussed is one of public record, such as a pending court case or the well publicized negotiation of a principal or executive director's contract, the public body should cite the name of the case or reference that it will discuss the contract. However, where the matter to be discussed in executive session is not yet public, the public body may limit its open call to the nature of the matter, such as 'litigation' or 'personnel.'"

Turning to the meetings at issue, the notice for the March 11, 2008 meeting stated:[FN4]

"The Pawtucket School Committee will be meeting in executive session on Tuesday March 11, 2008 @ 6PM in accordance with Title 42, Chapter 46, Subsection 5A.1 and 5A.2 of the R. I. General Laws for the purpose of discussing personnel and litigation. The committee will be meeting in public immediately following executive session".[FN5]

Looking solely at these agendas, it is impossible to ascertain what and how many matters/issues would be discussed during the executive sessions. See Brackett v. Coventry Town Council OM 06-65. (The Town Council violated the OMA when it met in executive session to discuss two personnel matters without advertising how many matters would be addressed.) While we realize, pursuant to Graziano, that certain non-public items may be noticed in broad terms, Graziano is not intended to be used as boilerplate language allowing the public body leeway to discuss whatever general subject matter it desires. More important to our finding, the School Committee's response does not indicate that the matters discussed were not yet public, and pursuant to Graziano did not need to be advertised with specificity. Indeed, the School Committee even states that:

"As for the executive session of December 11, 2007, it was noted that personnel/collective bargaining and/or litigation issues were the proposed topic. Admittedly, this reference was somewhat confusing. The School Committee should have indicated a more specific reference to the fact that the Superintendent's job performance was the subject of discussion. However, the discussion that took place was entirely legitimate for executive session, in that it involved the Superintendent's job performance insofar as it related to the complaints of some members of the School Committeea" (Emphasis added).

Since the School Committee has presented no evidence for us to determine that the executive sessions fell within Graziano, we must find that these notices violated the OMA.[FN6]

IV. Failure to disclose votes taken in executive session during the November 14, 2006, November 6, 2007, December 11, 2007 and March 11, 2008 meetings.

The OMA requires that all votes taken in executive session "shall be disclosed once the session is reopened; provided, however, a vote taken during closed session need not be disclosed for the period of time during which its disclosure would jeopardize any strategy negotiation or investigation undertaken pursuant to discussions conducted under § 42-46-5(a)." R.I. Gen. Laws §42-46-4.

Upon a review of the executive session minutes of the meetings at issue, and taking into consideration Clerk Coyle's affidavit that no votes were taken in executive session for the November 14, 2006, December 11, 2007, and March 11, 2008 meeting except for those taken to adjourn the executive session and seal the executive session minutes, this Department finds no evidence that any other votes were taken during the November 14, 2006, March 11, 2008 or December 11, 2007 meetings. This Department finds that, in accordance with Clerk Coyle's affidavit, these votes were included in the open meeting minutes, and the vote on sealing the minutes was revealed when the Committee reconvened into open session.

The executive session minutes of the November 6, 2007 meeting evidence that the School Committee took two votes. The open session minutes reflect that both votes were announced and recorded in the open session minutes of the meeting. See R.I. Gen. Laws § 42-46-7(a)(3). Accordingly, we find no violation.

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the Superior Court. R.I. Gen. Laws § 42-46-8(a). 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 find that neither remedy is appropriate. There is no evidence that the School Committee knowingly or willfully violated the OMA. Moreover, although the executive session agendas were deficient as discussed herein, no allegation has been made that the executive session subject matter was inappropriate, and except for authorizing its attorney to conduct further actions, no action was taken by the School Committee. Thus, injunctive relief is not appropriate. However, the School Committee is cautioned that this finding may serve as evidence of a willful or knowing violation in any similar future situation.

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 from the date 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.

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

Very truly yours,

Laura Marasco

Special Assistant Attorney General

Extension 2297

LM/pl

cc: Vicki J. Bejma, Esq.

1. According to Attorney Bejma, "[a] meeting was scheduled for that date, [February 11, 2008] but unfortunately the Pawtucket Times failed to publish the agenda. Because of the Times' mistake, the Pawtucket School Committee decided to cancel the meeting in order to avoid an Open Meeting Violation." Therefore, we will not consider this date for your allegations.

2. You also alleged that the School Committee violated the OMA by not handing out the amended agenda before its April 15, 2008 meeting. This Department advised you that nothing within the OMA requires a public body to hand out the agenda before a meeting. You also alleged that the School Committee violated the OMA by failing to disclose executive session minutes once the justification for sealing the minutes no longer existed. However, nothing in the OMA places a requirement on a public body to take that action so we did not pursue this allegation.

3. We note that R.I. Gen. Laws § 42-46-6(b) also requires notice to be posted "in at least one other prominent place within the governmental unit, and electronic filing of the notice with the secretary of state. . . [and] in the case of school committees, the required public notice shall be published in a newspaper of general circulation." R.I. Gen. Laws § 42-46-6(c). You have not alleged any violations of these provisions so we will not consider them.

4. All four meetings at issue had very similar notices so we will consider them together. The notice for the November 14, 2006 meeting stated: "The Pawtucket School Committee will meet in executive session on Tuesday November 14, 2006 under Title 42, Chapter 46, Subsection 5.1 and 5.2 for the purpose of discussing personnel and/or possible litigation. The executive session will begin at 6PM. The Pawtucket School Committee will hold a Regular Meeting on Tuesday, November 14, 2006. . .The Regular Meeting will be open to the public immediately after the executive session." The notice for the November 6, 2007 meeting stated: "The Pawtucket School Committee will meet in executive session on Tuesday November 14, 2007 at 6:00 PM in accordance with RI General Laws Chapter 42-46-5 Subsection 5A and Subsection 5A.2 for the purpose of discussing personnel, Collective bargaining and/or possible/pending litigation. Meeting is open to the public immediately following executive session." Lastly, the December 11, 2007 notice stated: "The Pawtucket School Committee will meet in executive session on Tuesday December 11, 2007, in accordance with provisions under Title 42, Chapter 46, Subsection 5.1 and 5.2 of the RI General Laws Chapter for the purpose of discussing personnel and/or Collective bargaining and/or potential litigation."

5. A public body may only enter into executive session by following the OMA-dictated procedures, including an open call, a vote on the question, and the recording of the vote and reason (citing the applicable purpose from R.I. Gen. Laws § 42-46-5(a)) for the meeting, which must take place in open session. See Duckworth v. Coventry Town Council, OM 06-23. Put another way, the Pawtucket School Committee cannot begin a meeting in executive session and than enter into open session.

6. This Department would like to pause and note that for two of the meetings the School Committee states that the executive session consisted of a presentation and no collective discussion or action, and therefore, no 'meeting' as defined under the Act. According to the School Committee these sessions did not come under the structures of the Open Meeting Act, and therefore could be no violation. This Department brings the School Committee's attention to Seamans v. Rhode Island School for the Deaf, OM 08-34. In Seamens, it was alleged that the School improperly convened in executive session and the School argued that it 'had no collective discussion or action by the Board regarding Mr. Seamans. Because of that lack of collective discussion or action, there was no 'meeting' as defined under the [OMA] regarding Mr. Seamans.'" This Department concluded that "because the School convened a properly noticed meeting to discuss and/or act upon School business, and the issue at hand was adequately advertised on the agenda," we found that the OMA applied. We continued in Seamens to explain that there is no 'exception' to the OMA simply because a majority of the body chooses not to speak on a matter properly noticed and included within the meeting. To find otherwise would circumvent the OMA."