Rhode Island Advisory Opinions September 25, 2012: AGO OM 12-31 (September 25, 2012)

Rhode Island Attorney General Opinions

2012.

AGO OM 12-31.

Dear Mr. Knight:

The investigation into your Open Meetings Act ("OMA") complaints against the Pawtucket School Committee ("School Committee") is complete. By letters dated April 1, April 2, April 3, and April 4, 2012, you allege that the School Committee violated the OMA in the following ways. The School Committee, during its March 13, 2012 meeting, failed to properly disclose the vote regarding the "insurance issue" after returning to open session from executive session. You allege the agendas for the March 13, 2012 executive session meeting and the March 20, 2012 special meeting did not fairly inform the public of the nature of the business to be discussed. You allege the posting of the March 20, 2012 agenda did not include legally sufficient places for the general public to view. You also allege the requirement of those needing handicapped assistance could not be met. You further allege the School Department had several meetings of a committee to negotiate an agreement to temporarily supersede the teachers' collective bargaining agreement yet no notice of these meetings was posted.

In response to your complaint, we received a substantive response from the School Committee's legal counsel, Vicki J. Bejma, Esquire. Attorney Bejma states, in pertinent part:(fn1)

"March 13, 2012 meeting

Mr. Knight's Complaints:

1. The School Committee failed to properly disclose its vote after returning from executive session.

Mr. Knight complains that the School Committee failed to properly disclose its vote after returning from executive session. An examination of the minutes demonstrates that the School Committee complied with all requirements [ ] regarding disclosure of the vote. The nature of the vote taken was clearly stated, i.e., that 'athe committee voted six to one to deny the Pawtucket Teachers Alliance request to enter into a Memorandum of Agreement extending insurance benefits to domestic partners.' The identity of the single dissenting voter was announced. The identity of the single dissenting voter having been provided, a reasonably informed member of the public could readily infer the identities of those who had voted for the denial. Thus, the announcement was entirely sufficient.

2. The agenda failed to fairly inform the public of the nature of the business to be discussed.

Mr. Knight's complaints regarding the agenda are similarly unfounded. The agenda clearly indicated that the School Committee intended to discuss the 'Pawtucket Teachers Alliance Insurance Policy Coverage Change.' A review of the minutes demonstrates that that is precisely what was discussed at that meeting, at the request of the Pawtucket Teachers Alliance - the teachers' collective bargaining agent. * * *

The March 20, 2012 meeting

Mr. Knight's Complaints:

3. The agenda did not adequately inform the public of the nature of the business to be discussed.

It is impossible for the School Committee to respond to this portion of Mr. Knight's complaint. His letter simply states that 'I believe this notice was misleading.' He provides absolutely no specifics to what portion of the notice he believes was misleading.

4. The posting of the agenda did not include legally sufficient places for the general public to view.

With respect to this portion of the complaint . . . Mr. Knight lacks 'aggrieved party' status. Mr. Knight had full knowledge of and did attend the March 20, 2012 meeting in question. Mr. Knight was present in the School Department administration building at a School Committee meeting of March 17, 2012 [ ] when the School Committee contemplated a meeting for March 20, 2012. Mr. Knight was also present at the March 20, 2012 meeting itself, and spoke during the Public Comment session.

* * * R.I.G.L. §42-46-6(c) requires that meeting notices be posted '. . . at the principal office of the public body holding the meeting . . . and in at least one other prominent place within the governmental unit.' The meeting notice must also be posted electronically to the Secretary of State website. These notices must be posted within 48 hours of the meeting.

The Pawtucket School Committee complied with these requirements. The physical postings of the meeting notice were done on the afternoon of March 17, 2012. These postings were in publicly accessible places. One posting was at the Pawtucket School Department's Central Administration Building on 286 Main Street. The other posting was at the Jenks/JMW Complex, the contemplated site for the meeting. [ ] The electronic posting was similarly done on the afternoon of March 17, 2012.

At the March 17, 2012 School Committee meeting, Mr. Knight had objected to the posting of the March 20, 2012 meeting based upon the fact that the posting for a Monday meeting was being done on a Saturday. He was of the opinion that weekends did not count towards the 48-hour period. * * * R.I.G.L. §42-46-6(c) does not exclude weekends from the 48-hour notice period. Therefore, we must assume that the General Assembly had never intended such an exclusion.

* * *

All postings of the March 20, 2012 meeting were made in areas accessible to the public. The one at Central Administration was left on the outside glass door. The one at Jenks/JMW was similarly left on the outside glass door. Postings have been made at these sites on a number of occasions in the past. Further, the Jenks/JMW building is frequently visited by the public for various community and recreational activities on the weekends. For example, when the Clerk made the posting, the Community Players were holding a rehearsal in the auditorium, and observed the Clerk making the posting. Four other groups used the Jenks/JMW building on the following day, Sunday March 18, 2012 from the period of 8:00 a.m. to 6:30 p.m. The Jenks/JMW also houses the City's skateboard park, which was in intensive use at the time, with skateboarders and their parents present. [ ]

* * *

5. Those needing handicapped assistance could not have their needs met.

* * * Mr. Knight's status as an 'aggrieved party' is in doubt. * * * He attended the March 20, 2012 meeting, and, as reflected in the minutes, even participated in the public comment portion thereof.

* * *

[T]here is no evidence that any individual with a disability was prevented from attendance. * * * The meeting site, Jenks/JMW, is a public school building. As such, it has long been required to be accessible to individuals with disabilities. * * *

6. Mr. Knight alleges that '. . . the School Department has had several meetings of a committee to negotiate an agreement to temporarily supersede the teachers' collective bargaining agreement yet no notice of these meeting [sic] was posted.'

* * * [I]t appears that Mr. Knight has failed to state a claim of breach of the Open Meetings Act. The Open Meetings Act governs only 'public bodies.' [ ] Mr. Knight's complaint goes to members of the 'School Department.' It is well-understood that individual employees of a particular agency do not constitute a 'public body,' and can therefore [ ] meet and discuss issues without running afoul of the Act."

At the outset, we note that in examining whether a violation of the OMA has occurred, we are mindful that our mandate is not to substitute this Department's independent judgment concerning whether an infraction has occurred, but instead, 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. Furthermore, our statutory mandate is limited to determining whether the School Committee violated the OMA. See R.I. Gen. Laws §42-46-8. In other words, we do not write on a blank slate.

We will address each allegation in order. You initially allege the School Committee, at its March 13, 2012 meeting, failed to disclose its executive session vote by individual member after returning to open session. The agenda for this executive session stated, in pertinent part:

"Possible recess to executive session in accordance with provisions under Title 42, Chapter 46, Subsection 5(a)(2) legal advice and litigation/collective bargaining of the General Laws of the State of R.I. for the purpose of discussing and/or acting upon:

1. Pawtucket Teachers Alliance Insurance Policy Coverage Change

2. Non Certified Negotiations

3. Seal Executive Session Minutes"

Rhode Island General Laws §42-46-4(b) states that:

"[a]ll votes taken in closed sessions shall be disclosed once the session is reopened; provided, however, a vote taken in a 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)."

By its plain language R.I. Gen. Laws §42-46-4(b) provides that a public body must disclose all votes taken in executive session, but allows a public body not to disclose a vote during the time period in which the disclosure of the vote would "jeopardize any strategy negotiation or investigation undertaken pursuant to discussions conducted under §42-46-5(a)." Although we have some doubts whether R.I. Gen. Laws §42-46-4(b) requires the disclosure of individual votes upon reconvening into open session, in this instance, upon our review of the open session minutes of the March 13, 2012 meeting, the School Committee disclosed in the open session minutes the individual vote taken in executive session regarding the Pawtucket Teachers Alliance Insurance Policy Coverage Change. Moreover, legal counsel's response, attested to by the School Committee's Chairperson, indicates that the dissenting executive session vote was disclosed upon reconvening into open session. We find no violation.

You further allege the agendas for the March 13, 2012 executive session meeting and the March 20, 2012 special meeting did not fairly inform the public of the nature of the business to be discussed. We first address the March 13, 2012 executive session agenda, which is listed supra. You claim that the agenda item "Pawtucket Teachers Alliance Insurance Policy Coverage Change" was insufficient because it failed to identify the nature of the insurance at issue.

The OMA requires 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). The level of specificity that must be detailed for each agenda item depends on the facts and circumstances surrounding each item. In Tanner v. Town Council of the Town of East Greenwich, (R.I. 2005), the Rhode Island Supreme Court discussed what constitutes a statement specifying the nature of the business to be discussed at a meeting. The Court stated 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.; See McFadden v. Exeter/West Greenwich Regional School Committee, OM 06-48; Mudge v. North Kingstown School Committee, OM 06-34.

In Tanner, the Court found that the agenda item "Interviews for Potential Boards and Commission Appointments" did not adequately apprise the public of the nature of the business to be discussed at a Town Council meeting. Specifically, after conducting interviews as indicated on the notice, the East Greenwich Town Council proceeded to vote to appoint various individuals to the planning and zoning boards for the Town. The Court found that, although the standard is "somewhat flexible," the contents of the notice "reasonably must describe the purpose of the meeting or the action proposed to be taken." Id. at 797-98. Although the Court provided no bright line rule regarding the specificity of a posted notice, the Court viewed the "totality of the circumstances" and found that the notice was misleading since it implied that merely "interviews" would be conducted, and that a vote or other action would not take place. The Court also observed "that the OMA places an affirmative duty on the public body to provide adequate notice of meetings." Id. at 799.

While "[w]e acknowledge that reasonable minds can differ on what notice constitutes 'fair notice' in any given situation," id. at 802, we conclude that the March 13, 2012 agenda provided adequate notice. With regard to the "statement specifying the nature of the business to be discussed[,]" this Department has consistently recognized that a public body "must advise the general public of the nature of the business to be discussed." See Strahl v. Town of Hopkinton, OM 05-06; see also Parks v. Cumberland School Committee, OM 06-19; Cervasio v. Town of Foster, OM 04-09. In Strahl, for example, this Department found that public notice advertising "Town Manager's Performance Evaluation" was sufficient to apprise the general public that the Hopkinton Town Manager's job would be addressed; the fact that a vote was taken to terminate the manager from his position under this agenda item did not change this Department's assessment that the agenda was not misleading. It is noteworthy, however, that the determination of the adequacy of the agenda was based on the totality of the circumstances and the evidence presented in that particular case.

This Department's in camera review of the executive session meeting minutes reveals that the discussions involved a frank conversation between members of the School Committee and its legal counsel regarding a change in the insurance policy coverage. Legal issues regarding this change were addressed. The executive session minutes revealed that the discussions did not stray from the advertised agenda. As such, the agenda item was properly advertised and the School Committee did not violate the OMA with respect to this allegation. Moreover, although your complaint is not precisely clear, it appears that you may contend that this executive session was improper. Having reviewed the executive session minutes we conclude that the discussion properly fell within the "litigation" exception set forth in R.I. Gen. Laws §42-46-5(a)(2). As our prior findings have made clear, the fact that a litigation case was not pending in court is of no moment. See The Barrington Times v. Barrington School Committee, OM 09-10.

The agenda for the March 20, 2012 special meeting stated, in pertinent part:

"III. Discussion Item

a. Presentation of High School Transformation Plan"

You present very little details to support your allegation that this topic was misleading. Nonetheless, in the spirit of completeness, we continue with our analysis. A review of the open session meeting minutes reveals seven (7) of the ten (10) pages of minutes are focused on the presentation of the high school transformation plan. Among the items discussed under this topic were grants, ideas from other school districts, technology, support facilitators and team leaders. As indicated in these minutes, you were present at the March 20, 2012 meeting, thus raising the issue of whether you were aggrieved pursuant to R.I. Gen. Laws §42-46-8(a). See also Graziano v. Rhode Island Lottery Commission, (R.I. 2002). Nonetheless, we leave that issue to the side and continue with our analysis.

We conclude that the agenda adequately informed the public of the nature of the business to be discussed in accordance with Tanner. The agenda item informed the public that the School Committee was going to present the high school transformation plan. As the meeting minutes indicate, the School Committee presented such ideas as "monitor[ing] attendance and student's failure and intervention," "more engagement with parents" and "home visits." Further topics included discipline and an Alternative Learning Program to better meet students' needs. As noted herein, your complaint merely indicates the agenda was "misleading," but provided no further details. Based upon the evidence presented, and applying the above case-by-case analysis, this Department opines that the item listed on the agenda at issue adequately advised the public as to the nature of the business to be discussed. Consistent with Tanner, the OMA requires a statement specifying the "nature" of the business to be discussed, not a verbatim list of every potential aspect that might be discussed in relation to that topic. See Gugliemo v. Scituate Town Council, OM 11-34 ("[W]e do not find the posted agenda deficient because it failed to list the size of the proposed cemetery."). We conclude that the March 20, 2012 meeting agenda was proper and met the Tanner standard. As such, the School Committee did not violate the OMA with respect to this allegation.

You further allege the School Committee violated the OMA because the posting of the agenda for the March 20, 2012 meeting did not include legally sufficient places for the general public to view. The School Committee proffers that its postings complied with the OMA and that you were not an aggrieved citizen. We respectfully agree. Here, there is no question that you attended the March 20, 2012 School Committee special meeting. "The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice." Graziano, 810 A.2d at 222. Therefore, considering our mandate and the evidence before us, we conclude that because you had actual notice and attended the March 20, 2012 special meeting, you are not an "aggrieved" citizen by the alleged failure of the School Committee to post its agenda in locations accessible to the public. See R.I. Gen. Laws §42-46-8(a). Accordingly, because we conclude that you are not aggrieved, we do not proceed to the merits of this allegation.

You further allege that those needing handicapped assistance for the March 20, 2012 meeting could not have their needs met. The agenda stated that those needing handicapped assistance for the Tuesday, March 20, 2012 meeting should notify the Superintendant's office at least forty-eight (48) hours prior to the meeting. You allege that could not be accomplished as the office was closed on the weekend. Respectfully, no evidence has been presented that anyone needing handicapped assistance could not (or did not) attend this meeting based upon the lack of time needed to make arrangements, nor has any evidence been presented that anyone's opportunity to witness the meeting was hindered.

Finally, you allege the School Department held "several meetings of a committee to negotiate an agreement to temporarily supersede the teachers' collective bargaining agreement." Pursuant to this Department's request, the School Committee provided an affidavit dated June 21, 2012 from Mr. Alan Tenreiro, Chair of the School Committee, who was mentioned in the newspaper article you reference. Mr. Tenreiro states, in pertinent part:

"At no time relevant to the Open Meeting Complaints of Joseph Knight dated April 1, 2, 3, and 4, 2012 did I sit on a committee to negotiate an agreement that would temporarily supersede the teachers' collective bargaining agreement."

Based upon the facts presented, and the absence of evidence to support your position, we conclude that the School Department did not violate the OMA with respect to this allegation. See Operation Clean Government v. R.I. Commission on Judicial Tenure and Discipline, (R.I. 1999) (The content of newspaper articles would not be admissible as evidence in any court proceedings).

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,

Lisa Pinsonneault

Special Assistant Attorney General

Extension 2297

LP/pl

Cc: Vicki J. Bejma, Esquire

1. We note you filed a reply dated April 4, 2012.