Rhode Island Advisory Opinions December 26, 2013: AGO OM 13-34 (December 26, 2013)

Advisory Opinion Text

Mr. Paul E. Vadenais

RE: Vadenais v. North Smithfield Town Council

Dear Mr. Vadenais:

The investigation into your Open Meetings Act ("OMA") complaint filed against the North Smithfield Town Council ("Town Council") is complete. By correspondence dated July 10, 2013, you allege the Town Council violated the OMA when discussions about Town business occurred among Town Council members outside the purview of the public between the December 12, 2012 and December 17, 2012 meetings. To support this allegation you aver that because Mr. Steve Archambault was appointed Assistant Town Solicitor at the December 17, 2012 public meeting when you believed (based on the Town Council's December 12, 2012 discussion) another candidate was going to be appointed, you allege discussions among the Town Council members must have occurred between these two (2) meeting dates. In your August 23, 2013 letter, you further indicated that you had a conversation with an unnamed Town Council member who conveyed that he/she spoke with the Town Administrator about a specific candidate for Assistant Town Solicitor.

In your August 23, 2013 letter you also raise the allegation that "[m]y original complaint stated my belief that a decision was made however the agenda only stated that discussion was to take place." We note that this allegation, namely that the agenda only listed a discussion and not that a vote would occur, was not raised in your initial complaint. Additionally, in this Department's acknowledgement letter to you dated July 22, 2013, we indicated that "[i]f you had additional information that you wish this Department to consider, or if this acknowledgment letter does not accurately reflect your complaint, please contact me within five (5) business days." You did not contact this Department with this additional allegation. Accordingly, it is unnecessary for this Department to consider this issue.

In response to your complaint, we received a response from the Solicitor for the Town Council, James Lombardi, Esquire, who included affidavits from all five (5) Town Council members. The information contained in the affidavits is set forth below. Mr. Zwolenski and Ms. Alves state, in pertinent part:

"I attended the meeting on December 12, 2012.

I attended the meeting on December 17, 2012.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 do not recall speaking to any other Councilperson about the appointment of the assistant solicitor."

Mr. McGee states, in pertinent part:

"These meetings occurred nearly eight months ago and to the best of my knowledge, I [ ], did not speak to any other member of the North Smithfield Town Council, outside of a Council meeting, in regards to the appointments of Town Solicitor, Assistant Town Solicitor, Probate Court Judge or Municipal Court Judge."

Mr. Flaherty states, in pertinent part:

"I attended the Town Council meeting on December 12, 2012.

I attended the Town Council meeting on December 17, 2012.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012 I do not recall speaking to any councilperson about the appointment of the assistant solicitor. I may well have spoken with one other councilperson or the Town Administrator, I simply do not recall.

As a rule, I do not speak with more than one councilperson about the same topic outside of a duly convened meeting of the Town Council."

Mr. Yazbak states, in pertinent part:

"I did NOT attend the Special North Smithfield Town Council meeting held at the North Smithfield Town Hall Conference Room on December 12, 2012 due to work related commitments.

I did attend the regularly scheduled North Smithfield Town Council meeting at the Kendell-Dean School Auditorium on December 17, 2012.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 spoke only to North Smithfield Town Clerk Debra A. Todd to request an appointment to review the audio tapes of the meeting of December 12, 2012 and all prior meetings conducted during the period of December 4, 2012 and December 12, 2012 inclusive.

I listened to the tapes * * * at the office of the North Smithfield Town Clerk on Thursday December 13, 2012.

Other than North Smithfield Town Clerk Debra A. Todd, I did not have any conversation with any other appointed or elected officials (including fellow North Smithfield Town Council Members) of the Town of North Smithfield on the subject of the Town Appointments to the positions of Solicitor, Assistant Solicitor, Municipal Court Judge or Probate Court Judge appointments between the dates of December 12, 2012 and December 17, 2012."

We acknowledge your reply dated August 23, 2013 wherein you state, in pertinent part:

"[T]here is no mention of communication by email. I have had a conversation with a seated council member since I filed the complaint and it was stated to me, by that member, that they called the Town Administrator to discuss the appointment of Assistant] Solicitor and a specific candidate. According to this member, the conversation was relayed to other councilors. This resulted in Mr. Archambault being nominated subsequent to an extensive meeting and discussion of the Town Council on December 12, 201[2] * * * speaking towards the selection of Mr. John Doe.

Therefore, I believe that Mr. Flaherty's and other members of the Council's memory should be followed up, did they get a call or email from the Town Administrator after the Council member made his preference known to the Administrator. My information and belief is that the Town Administrator's office is being used as a conduit to discuss Council business possibly via her email account not necessarily personal phone conversations."

In response to your reply, we requested that the Town Council members and the Town Administrator provide additional affidavits to address whether any Town Council member engaged in email or telephone conversations using the Town Administrator as a conduit. This Department also requested that the Town Administrator file an affidavit addressing this same inquiry. We received these affidavits with the exception of Mr. McGee's affidavit on September 24, 2013. The information contained in the sworn affidavits is set forth below.

Mr. Flaherty states, in pertinent part:

"Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 may have spoken with the Town Administrator about the appointment of the assistant solicitor " I simply do not recall.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 have record of receiving one email from Councilman Yazbak * * * concerning his attendance at the 12-12 meeting to discuss candidates. I have no record of any other emails or texts to or from other councilors concerning the selection of Assistant Solicitor during this period.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012 I have record of receiving one email * * * from the Town Administrator about the appointment of the assistant solicitor. I have no record of sending any emails or texts to the Town Administrator concerning the selection of Assistant Solicitor during these dates."

Mr. Yazbak states, in pertinent part:

"I specifically state that the word 'conversation' used [in the original affidavit] includes verbal, written, telephone, email or any other type of communication. To be perfectly clear, I had no conversation with any elected or appointed official in any manner except for the Town Clerk, this includes other Town Council Members and the Town Administrator on the appointment of Solicitors or Judges."

Ms. Alves states, in pertinent part:

"Subsequent to the meeting of December 12, 2012, and prior to the meeting of December 17, 2012, 1 do not remember speaking to the Town Administrator about the appointment of the Assistant Solicitor.

Subsequent to the meeting of December 12, 2012, and prior to the meeting of December 17, 2012, 1 did not send or receive any emails or texts to or from any Council person about the appointment of the Assistant Solicitor.

Subsequent to the meeting of December 12, 2012, and prior to the meeting of December 17, 2012, 1 did not receive any emails or texts from the Town Administrator about the appointment of the Assistant Solicitor."

Mr. McGee states, in pertinent part:

"To the best of my knowledge I did not have any conversations with other North Smithfield Town Council members or the Town Administrator regarding the hiring/appointment of an Assistant Town Solicitor."

Mr. Zwolenski states, in pertinent part:

"Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 do not remember speaking to the Town Administrator about the appointment of the assistant solicitor.

To the best of my knowledge, the conversation was (if applicable) NA.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 did not send or receive any emails or texts to or from any Councilperson about the appointment of the assistant solicitor.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012 I did not receive any emails or texts from the Town Administrator about the appointment of the assistant solicitor."

Town Administrator Hamilton states, in pertinent part: "This affidavit is the first to be submitted by me.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 did not speak or do not remember speaking to the Town Council about the appointment of the assistant solicitor.

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012, 1 did send emails to some Councilors about the appointment of the assistant solicitor. * * *

Subsequent to the meeting of December 12, 2012 and prior to the meeting of December 17, 2012 I did not receive any emails or texts from the Town Council members about the appointment of the assistant solicitor."

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 Town Council violated the OMA. See R.I. Gen. Laws § 42-46-8. In other words, we do not write on a blank slate.

The OMA requires that "[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. Consistent with this Department's previous findings and with applicable case law, the OMA is implicated whenever a quorum of a public body has a meeting. See R.I. Gen. Laws § 42-46-3; Fischer v. Zoning Board for the Town of Charlestown, 723 A.2d 294 (R.I. 1999). For purposes of the OMA, 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). A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(d).

Although the definitions listed above are seemingly straightforward, it is noteworthy that a quorum may be created and a meeting may be "convened, " by unconventional means. In particular, this Department has previously recognized the "rolling" or "walking" quorum where a majority of the members of a public body attain a quorum by a series of one-on-one conversations or interactions including communications via email. See In Re: South Kingstown School Committee Electronic Mail Policy, ADV OM 04-01 (series of email communications among a quorum of a Committee would satisfy the quorum requirement and implicate the OMA); D'Andrea v. Newport School Committee, OM 98-11 (violation of the OMA when Committee members used head signals to vote on a matter).

Reference to a "walking" or "rolling" quorum typically involves the situation where public business is conducted in a series of encounters that may not individually constitute a quorum, but which collectively do so. For instance, using a five member public body as an example where three members are a quorum, A may speak to B about a particular public matter and then B may speak to C about the same matter. Neither encounter, by itself, constitutes a quorum, but collectively a majority of the public body was able to discuss public business using B as a conduit. Any time members of a public body engage in collective contact, they run the risk of circumventing the requirements of the OMA, the purpose of which is to ensure 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. See also, In Re: Pawtucket City Council, ADV OM 05-01 (warning against the "walking quorum, " where public business is conducted in a series of individual encounters that may not constitute a quorum, but which collectively do so).

It appears the Town Council in its effort to appoint various Town positions such as Solicitor, Assistant Solicitor, Municipal Court Judge and Probate Court Judge, held interviews over the course of three (3) days in open session. These interviews occurred on December 6, 7 and 8, 2012. The Town Council then conducted a subsequent discussion of the candidates at an open meeting on December 12, 2012 and finally voted on the selection of the Solicitor, Assistant Solicitor, Municipal Court Judge and Probate Court Judge on December 17, 2012 during an open meeting.

In their initial sworn affidavits, Mesers. Zwolenski and McGee, and Ms. Alves, state that they do not recall speaking to other Town Council members or the Town Administrator between the December 12, 2012 and the December 17, 2012 meetings concerning the appointment of the Assistant Solicitor. Mr. Yazbak in his original and supplemental affidavits states that he did not have any communication, including verbal, written, telephone, email or any other type of communication with other Town Council members or the Town Administrator between the December 12, 2012 and the December 17, 2012 meetings concerning the appointment of the Assistant Solicitor. In their supplemental affidavits, Mr. Zwolenski and Ms. Alves state that they neither sent nor received any emails or texts to or from any other Council member or from the Town Administrator. Mr. Flaherty in his original and supplemental affidavits states that he did not recall speaking to other Town Council members between the December 12, 2012 and the December 17, 2012 meetings concerning the appointment of the Assistant Solicitor, but admits that he may have spoken to the Town Administrator or one other Town Council member. Mr. Flaherty also states he has a record of receiving one (1) email from the Town Administrator regarding the appointment of the Assistant Solicitor, but had no record of sending any emails or texts to the Town Administrator concerning the selection of the Assistant Solicitor.

Legal counsel for the Town Council provided, for this Department's in camera review, copies of emails. Our review of these emails confirms that all emails except for one (1) concerned scheduling or were procedural, rather than substantive, in nature. More importantly, all of these emails predated the December 12, 2012 meeting " and therefore cannot support your allegation that a discussion took place between December 12, 2012 and December 17, 2012 " and none of these emails evince a "walking" or "rolling" quorum. As stated supra, a "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-42(d). Even if Mr. Flaherty did in fact speak with the Town Administrator regarding the appointment of the Assistant Solicitor, this did not implicate the OMA because no evidence has been presented that a quorum of the Town Council spoke with the Town Administrator about public business, either as a "quorum" or as a "walking" or "rolling" quorum. Additionally, the fact that Mr. Flaherty received an email from the Town Administrator regarding the appointment of the Assistant Solicitor also does not implicate the OMA.

In In Re: South Kingstown School Committee Electronic Mail Policy, ADV OM 04-01, this Department opined that "list serves" (which are email distribution lists through which subscribers receive information on a particular topic in the form of electronic mail) do not violate the OMA because the receipt of information alone, even if a quorum of the public body receives that information, does not constitute a "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." See R.I. Gen. Laws § 42-46-2 (a). The sending of an email alone is not enough to constitute a violation because there is no collective communication. Thus, if a quorum of members creates a chain of communication and responses, through any electronic media, about any matter that a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, then the OMA may be violated. See R.I. Gen. Laws § 42-46-5(b)(1). Based upon the facts and evidence before this Department, there is insufficient evidence to conclude that the Town Council collectively, through a "walking" or "rolling" quorum or the use of a conduit, namely the Town Administrator, discussed the appointment of the Assistant Solicitor outside public purview.

In support of your complaint you allege that Mr. Archambault was selected as Assistant Solicitor "subsequent to an extensive meeting and discussion of the Town Council on December 12, 201 [2] speaking towards the selection of Mr. [Doe]." You allege that it was "quite obvious" that the Town Council's "choice [for Assistant Solicitor] was going to be [Mr. John Doe] based on the comments made by various members." You provided this Department with copies of the audio tapes, minutes for the December 6, 7, 8, 12 and 17, 2012 meetings and a copy of the December 12 meeting transcript. A review of the December 12, 2012 transcript simply provides us with a different conclusion. We set forth below pertinent portions of the December 12, 2012 meeting.

Mr. Flaherty: "Mr. Archambault struck me as being very strong on prosecution."

Mr. McGee: "You're right. That's what struck me, too."

Mr. Flaherty: "Prior to doing police work[, ] I think on the zoning work I sensed that he had " he was " he was fairly strong with that."

Mr. McGee: "Well, I felt that too." (page 8 of transcript)

Mr. McGee: "And I gotta tell ya, my favorite was - -1 hate to say it, but that guy Steve [Archambault] was ambitious. He was young. He did zoning. He did prosecution. That's definitely what we're looking for."

Mr. Zwolenski: "Was a police officer."

Mr. McGee: "Right."

Mr. Zwolenski: "Walked the walk, and now he's doing prosecution." (page 10 of transcript)

Mr. McGee: "So if we took [Mr. Archambault] - - in my opinion, if we took him, he's the all-around guy. You know, he's - -you know, he's well known. He looks like a hard worker." (page 11 of the transcript)

Ms. Alves: "I'm torn between [Doe] or Archambault. I don't know." "Archambault is pretty strong." (page 19 of the transcript).

Ms. Alves: I'm just concerned with Archambault being just too busy..."

Mr. McGee: I think the other guy seemed busy too."

Mr. Zwolenski: "Meaning [Doe]?"

Mr. McGee: Yeah. He seemed busy too. I don't know how he's gonna get to all these places. He's everywhere. I like the guy. I just thought he had to be in a lot of places at once." (page 24 of the transcript)

Ms. Alves: "I think between [Doe] and Archambault it's a tough choice." (page 25-26 of the transcript).

Mr. Zwolenski: "Sounds like - - sounds - - "

Mr. McGee: "- - we're looking at those two guys."

Mr. Flaherty: "- - sounds like there's - - there's - -1 don't' want to say a consensus, but it sounds like there's a consensus as to what people feel comfortable with." (page 28-29 of the transcript). (Emphasis added).

M. Zwolenski: "[Doe] is - - [Doe] is out [of the running for Solicitor] now because - - "

Mr. McGee: "He's out."

Mr. Zwolenski: " - - we're considering him for Assistant Solicitor."

Mc. McGee: "Yes. Yup. Yup." (page 32 of the transcript).

(Emphases added).

After our review of all the evidence, we respectfully disagree that it was "quite obvious" that the Town Council's "choice [for Assistant Solicitor] was going to be [Mr. John Doe] based on the comments made by various members." Our review of the audio tapes, the meeting minutes and the transcript confirm the conclusion that the choice for Assistant Solicitor came down to two (2) candidates and that Mr. Archambault received favorable reviews during the Town Council's discussion. As noted above, on page thirty-two (32) of the transcript " at the end of the discussion on the Assistant Solicitor position " the transcript makes clear that there are two candidates for this position and that Mr. Doe was being considered for the position of Assistant Solicitor. Lastly, although your August 23, 2013 letter alleges that a Town Council member advised you that the Town Administrator was used as a conduit for the Town Council to discuss this matter, you do not identify this Town Council member and this hearsay allegation falls well short to support an OMA violation in light of the evidence presented.

Based upon the evidence presented, including the sworn affidavits and supplemental affidavits from all Town Council members, and the sworn affidavit from the Town Administrator, the transcript of the December 12, 2012 meeting, the meeting minutes, the audio tapes and the emails presented for this Department's in camera review, we cannot conclude that a quorum of the Town Council discussed public business outside the public purview between the December 12, 2012 and the December 17, 2012 meetings, nor can we conclude that members of the Town Council had communications through a conduit, such as the Town Administrator, to constitute a rolling or walking quorum outside the public purview. Accordingly, we find no violation.

Although this Department has found no violations, nothing within the OMA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c). The OMA allows the complainant to file a complaint 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. See id. Please be advised that we are closing this 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,

Lisa Pinsonneault, Special Assistant Attorney General

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Notes:

We make an additional point regarding this allegation. The OMA, specifically R.I. Gen. Laws § 42-46-8(b), sets forth the applicable statute of limitations and provides:

"[n]o complaint may be filed by the attorney general after one hundred eighty (180) days from the date of public approval of the minutes of the meeting at which the alleged violation occurred, or, in the case of an unannounced or improperly closed meeting, after one hundred eighty (180) days from the public action of the public body revealing the alleged violation, whichever is greater." (Emphasis added).

Rhode Island General Laws § 42-46-8(b) provides two timetables for the statute of limitations, the first prohibits the filing of a complaint after 180 days from the date of the public approval of the meeting minutes at which the alleged violation occurred, and the second, prohibits the filing of a complaint after 180 days from "the public action of the public body revealing the alleged violation, " but only in the case of an unannounced or improperly closed meeting. It appears the minutes of the December 17, 2012 meeting were approved on February 19, 2013. You raised this allegation concerning improper notice on August 23, 2013 beyond the applicable timeframe. This allegation, therefore, would be barred by the statute of limitations. We deem it noteworthy though if this Department were to look at the merits of this allegation, the agenda item states "Appointment of * * * Assistant Town Solicitor." (Emphasis added).

We decline to name this individual for privacy reasons and the fact that this person's identity is of no moment to our analysis.

We received Mr. McGee's affidavit on October 16, 2013.

Attached to Administrator Hamilton's affidavit were copies of emails for this Department's in camera review. All of these emails pre-date the December 12, 2012 meeting, and therefore, cannot support an OMA violation in this case.

These affidavits were submitted in August, September and October 2013 addressing what occurred between December 12, 2012 and December 17, 2012.

Mr. Flaherty also acknowledges receiving an email from Mr. Yazbak regarding Mr. Yazbak's attendance at the December 12, 2012 meeting but that is of no moment to the issue at hand.

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