Rhode Island Advisory Opinions December 01, 2009: AGO OM 09-17 (December 1, 2009)

Rhode Island Attorney General Opinions

2009.

AGO OM 09-17.

Dear Ms. Gallo:

The investigation into your Open Meetings Act [OMA] complaint against the East Greenwich School Committee [School Committee] is complete. By email correspondence dated July 1, 2009, you allege that the School Committee violated the OMA when it voted, acted and/or discussed School Committee business prior to the June 16, 2009 meeting. In particular, your complaint references an article posted on www.my02818.com, which "appeared to indicate polls had already taken place" regarding the appointment of a new superintendent. Subsequent to the posting of the article, on June 16, 2009, the School Committee approved a new Superintendent.

In response to your complaint, Attorney Matthew T. Oliverio responded on behalf of the School Committee providing his own sworn affidavit, as well as that of School Committee members Jean Ann Guliano, Anne Palumbo, Deirdre Gifford, Susan Records, Robert J. Durant, Jr. and Mary Ellen Winters.

The affidavits of Anne Palumbo, Deirdre Gifford, Susan Records, Robert J. Durant, Jr. and Mary Ellen Winters all state that:

"2. As part of the process by which we hired a new superintendent, Dr. Victor Mercurio, the school committee interviewed Dr. Mercurio on June 8, 2009. This interview was conducted in executive session pursuant to the Rhode Island General Laws.

3. After the committee had interviewed Dr. Mercurio, we were informed by Chairperson Jean Ann Guliano that the other candidate to whom the school committee had offered a second interview had withdrawn his application, leaving Dr. Mercurio as the lone finalist.

4. With that information, the committee needed to determine whether the application of Dr. Mercurio would be put to a vote or whether the committee would begin a new search and hire a temporary superintendent.

5. At the meeting each member of the school committee voiced their comments regarding Dr. Mercurio and whether it would be preferable to put his candidacy to a vote at the next school committee meeting or whether we would begin anew.

6. From the positive comments of the people regarding Dr. Mercurio and the interview process, it was clear that Dr. Mercurio would likely be approved if a vote were taken and that the consensus of the group would be to submit Dr. Mercurio's application for a vote. There was not, however, any polling of or vote taken by the committee members."

The affidavit of Anne Palumbo further went on to state:

"My statement as reported by Robert Plain, a reporter for My02818.com, was not intended to indicate that Victor Mercurio's appointment was a certainty. Rather, it was intended to explain that the School Committee had done extensive background research on the candidate. Further, we were confident as a group that he had the qualifications necessary to lead the district, if appointed."

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. As a starting point, the OMA requires "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5." R.I. Gen. Laws § 42-46-3. Similarly, the purpose of the OMA declares that it is "essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be 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.[FN1]

Turning to the substance of your complaint, you have alleged that the School Committee violated the OMA when it voted, conducted a poll, came to a consensus and/or otherwise discussed the appointment of the Superintendent prior to the June 16, 2009 meeting. Specifically, you allege, "[a]t the June 16, 2009 meeting, a new Superintendent was appointed. Earlier that day, an article was posted on www.my02818.com that appeared to indicate polling had already taken place."[FN2] Based upon the evidence presented, specifically the affidavits of the School Committee, this Department finds that the School Committee did not violate the OMA by improperly discussing the Superintendent's appointment outside properly posted meetings. Rather, at the June 8 and June 10, 2009 meetings, the School Committee discussed Mr. Mercurio and whether they wished to put him up for a formal vote at the June 16, 2009 meeting. Both the June 8, 2009 and the June 10, 2009 agendas provided notice that the School Committee would evaluate the candidates for Superintendent at these meetings. Considering these prior properly noticed discussions along with the fact that by June 10, 2009 Mr. Mercurio was the sole candidate for the Superintendent's position, it is not surprising that members of the School Committee would be quoted[FN3] expressing support and confidence that Mr. Mercurio would be appointed after the June 10, 2009 meeting, but before the June 16, 2009 vote. At the very least, this article does not support a violation. Therefore, this Department finds no violation.

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.

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

Very Truly Yours,

Laura Ann Marasco

Special Assistant Attorney General

Extension 2297

LM/pl

Cc: Matthew T. Oliverio, Esq.

1. Although not explicitly raised, it appears that the East Greenwich School Committee began the June 16, 2009 meeting in executive session without first entering into open session. We say this because even though the executive session minutes reveal a vote to go into executive session at 5:35 pm, the open session minutes reveal the call to order at 7:40 pm. This Department pauses to note that 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; Knight v. Pawtucket School Committee, OM 09-02. Put another way, the East Greenwich School Committee cannot begin a meeting in executive session and then enter into open session. Moreover, a public body's open session minutes must record the convening of an executive session as discussed, supra.

2. The article, entitled "Mercurio To Be Named Next EG Superintendent" states that the "East Greenwich School Committee is poised to name Victor Mercurio as the next superintendent of schools at its meeting tonight, according to members of the committee. '[t]he consensus among the group,' said School Committee Vice Chairwoman Anne Palumbo, 'is we have all done our homework and we feel very comfortable with him taking over and leading the district.'" It continues that "[t]he school committee will vote on Mercurio at its regular meeting tonight, 7 p.m."

3. Assuming the accuracy of the article.