Rhode Island Advisory Opinions June 30, 2017: AGO OM 17-19 (June 30, 2017)

Advisory Opinion Text

William Conley, Esquire

Peter F. Kilmartin, Attorney General

Mr. David Brunetti

RE: Brunetti, et al. v. Town of Johnston

Dear Mr. Brunetti and additional Complainants:

The investigation into your Open Meetings Act ("OMA") complaint against the Town of Johnston ("Town") is complete. Along with twenty-two (22) other complainants, you filed the instant OMA Complaint regarding the Town Council's meeting on January 10, 2017. Because all twenty-three complaints raise similar legal and factual issues regarding three alleged OMA violations, we address all the complaints in this finding. While some complainants may raise unique facts - and we will supplement those facts below as necessary - the relevant facts are nearly identical and undisputed.

We accordingly proceed to examine all three issues raised in the twenty-three complaints - (1) the alleged defect in the notice for the meeting, (2) the alleged insufficient venue, and (3) the alleged rolling quorum held outside the public purview - seriatim . In doing so, we note that while most complaints raise only one or two of the above issues - and while we question whether some complainants are aggrieved within the meaning of R.I. Gen. Laws § 42-46-8 - collectively the complaints raise all three of these issues.

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 the law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the Town violated the OMA. See R.I. Gen. Laws § 42-46-8. In other words, we do not write on a blank slate.

1. Notice of the January 10, 2017 Meeting;

Four complainants allege that the supplemental notice of the January 10, 2017 meeting was insufficient in violation of R.I. Gen. Laws § 42-46-6(b). As complainant Mr. Steven Ahlquist noted, in pertinent part:

"[I]t was impossible to know what the meeting was about in a timely fashion, giving me no time to arrange suitable coverage of the meeting, which is the whole point of the Open Meetings Act, which is to inform the public in a timely way. Searches for key words such as 'Clear River' 'Invenergy' and the like revealed nothing until the amended notice went out, giving me much less than the required three days notice [sic]."

The agenda for the January 10, 2017 meeting was posted on January 6, 2017. The agenda stated, in relevant part:

"Resolution 2017-5: A resolution ratifying and authorizing the Mayor to enter into a Water Supply and Economic Development Agreement between the Town and Clean River Energy, LLC[.]" (Emphasis added).

A second agenda for the January 10, 2017 meeting was posted at 9:24 AM on January 9, 2017. This agenda stated, in pertinent part:

"Resolution 2017-5: A resolution ratifying and authorizing the Mayor to enter into a Water Supply and Economic Development Agreement between the Town and Clear River Energy, LLC (The sole purpose of this correction is to correct a typographical error in the original posting; correction to change the word 'Clean' to 'Clear[.]')" (Emphasis added).

Complainants allege that this error, though consisting of one letter, had a significant effect on their ability to be notified of the meeting. Several complainants maintain that they use Google Alerts to track certain keywords and that, accordingly, the term "Clean River Energy, LLC" never set off alerts for "Clear River Energy, LLC." Accordingly, these complainants contend that they did not receive notice of the meeting until the second agenda was posted on January 9, 2017, less than forty-eight (48) hours before the January 10, 2017 meeting. See R.I. Gen. Laws § 42-46-6(b).

Before we can reach the merits of this allegation we must, as a threshold matter, determine whether any of these four complainants have standing to bring their complaints.

The OMA provides that "[a]ny citizen or entity of the state who is aggrieved as a result of violations of the provisions of this chapter may file a complaint with the attorney general." R.I. Gen. Laws § 42-46-8(a). In Graziano v. Rhode Island State Lottery Commission , 810 A.2d 215 (R.I. 2002), the Rhode Island Supreme Court examined the "aggrieved" provision of the OMA. There, an OMA lawsuit was filed concerning notice for the Lottery Commission's March 25,1996 meeting wherein its Director, John Hawkins, was terminated. At the Lottery Commission's March 25,1996 meeting, Mr. Hawkins, as well as his attorney, Ms. Graziano, were both present. Finding that the Lottery Commission's notice was deficient, the trial justice determined that the Lottery Commission violated the OMA and an appeal ensued.

On appeal, the Rhode Island Supreme Court found that it was unnecessary to address the merits of the OMA lawsuit because "the plaintiffs Graziano and Hawkins have no standing to raise this issue" since "both plaintiffs were present at the meeting and therefore were not aggrieved by any defect in the notice." Id . at 221. The Court continued that it:

"has held on numerous occasions that actual appearance before a tribunal constitutes a waiver of the right of such person to object to a real or perceived defect in the notice of the meeting. * * * It is not unreasonable to require that the person who raises the issue of the defect in notices be in some way disadvantaged or aggrieved by such defect. While attendance at the meeting would not prevent a showing of grievance or disadvantage, such as lack of preparation or ability to respond to the issue, no such contention has been set forth in the case at bar. The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice." Id . at 221-22.

Here, pursuant to R.I. Gen. Laws § 42-46-8(a), and the standard established in Graziano , the complainants must demonstrate that they were "in some way disadvantaged or aggrieved by such defect" in the notice. Id . at 221. Importantly, the test is not whether the public is aggrieved, but whether the complainant, as an individual, is aggrieved. See Riggs v. East Bay Energy Consortium , PR 13-25, OM 13-30.

Having examined this issue closely, we conclude that no complainant has satisfied the Graziano burden and we find that the specific facts presented indicate that no one is aggrieved by the alleged defect in the notice. We note that two of the four complainants who raised this issue - Ms. Jean Lynch and Sister Mary Pendergast - admit that they attended the meeting. See Block v. Board of Elections , OM 13-25 (noting that the facts demonstrated "a situation no different than Graziano , i.e., a person who complains about the sufficiency of notice, but nonetheless attends the meeting and provides no evidence of any particular detriment or injury."). While the Supreme Court made clear that attendance does not, by itself, prohibit a person from showing they were aggrieved by the lack of notice, no such showing has been demonstrated in this case. Although it is unclear if the other two complainants - Mr. Justin Boyan and Mr. Steven Ahlquist - attended the meeting, at the very least, neither complainant contends that they missed the meeting because of the late notice. See Clark v. West Glocester Fire District , OM 14-40 (finding no standing where "[w]e have been presented no evidence concerning whether [the Complainant] attended the meetings in question, sought to attend the meetings in question, or did not attend the meetings in question because of the allegedly deficient notice."). Indeed, these two complainants brought this issue to this Department's attention before the January 10, 2017 meeting, thus indicating that both complainants had notice of the intended subject-matter, albeit perhaps on less than forty-eight (48) hours notice. Upon this Department raising the aggrieved issue with Mr. Ahlquist, who is one of the two complainants who wrote to this Department before the meeting occurred, Mr. Ahlquist advised that the late notice afforded him "no time to arrange suitable coverage of the meeting[.]" Respectfully, this assertion, by itself, is insufficient to show that Mr. Ahlquist was specifically disadvantaged. Our conclusion - that the Graziano standard requires more than a conclusory statement - is in accordance with Graziano and our previous findings. See Graziano , 810 A.2d at 222 ("The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice."); see also Plunkett v. Westerly School Committee , OM 17-18 ("This failure to sufficiently articulate how the alleged deficient posting disadvantaged you individually is fatal to your claim."). Based on the totality of the circumstances, we find that no complainant is aggrieved by the alleged defect in the notice. In other words, no complainant has identified any evidence to suggest that they did not attend the January 10, 2017 meeting because of an insufficient or untimely posted agenda, or that they were otherwise aggrieved within the meaning of R.I. Gen. Laws § 42-46-8(a). Accordingly, no complainant has standing to bring these allegations. Our conclusion is compelled by the specific facts and our precedent. We find no violations.

2. Venue

Twenty complainants allege that the venue chosen for the January 10 meeting was improper, both in that they were unable to attend the meeting because of the size of the venue and that the Town failed to respond to what the complainants describe as reasonable requests to change the venue. Sister Mary Pendergast's complaint is illustrative and provides, in relevant part:

"I arrived at 6:10 pm for a 7:00 meeting. The fire marshall told me that the room was already filled to capacity and that I could not enter. The room was indeed filled to capacity with union members in every seat! I asked the fire marshall to get a change of venue because a large crowd was gathering in the hallway. He did not know that it was common practice to accommodate people who want to participate, even if it is just to observe proceedings. He said he asked somebody and there would be no change of venue and that he 'didn't make the rules.' ***

I [] contend that a public meeting should be held in a space that can accommodate the public. *** I believe Johnston violated the OMA by not accommodating the people that showed up for that meeting, by offering preferential seating to those that they wanted in that room."

The Town submitted three affidavits in response to these allegations. Town Clerk Vincent P. Baccari, Jr., provided the following information in his affidavit, in pertinent part:

"11.1 entered the room at the Johnston Municipal Court in which the meeting was being held at approximately 6:10 p.m. on the evening of January 10, 2017 in order to prepare for the meeting, which was scheduled to be called to order at 7:00 p.m.

12. Upon my arrival, I noticed that the gallery was almost, if not completely full; however, I do not recall seeing individuals gathering outside of the meeting room in the hallway.

13. While I do recall seeing a few Town officials and/or employees preparing for the meeting, the majority of individuals seated in the gallery were not known to me. ***

15. At some time after my arrival, the meeting room did reach its capacity and the overflow of members of the public congregated in the hallway immediately outside of the meeting room.

***

17. Seating in the meeting room is available to members of the public on a first come, first served basis, and no preference is given to any particular groups or individuals, including residents and non-residents of the Town. ***

25.1 personally did not receive a request to change the venue prior to the meeting; nor was I aware of any such request being made to the administration for the Town of Johnston prior to the meeting. Rather, I only became aware of a request to change the venue when I heard individuals chanting 'Change the venue' in the hallway at the beginning of the meeting. ***

28. *** Clear River Energy, LLC's deadline for securing a water supplier was set to expire on January 11, 2017, and therefore, postponing the meeting to secure a larger venue would have very likely foreclosed the opportunity for the Town of Johnston to secure such an agreement."

Fire Chief Timothy P. McLaughlin stated in his affidavit, in relevant part:

"5. In accordance with the State Fire Safety Code, the maximum capacity for the meeting room at the Johnston Municipal Court is eighty-seven (87) occupants. ***

11. Upon completing the task of counting the number of persons in the meeting room, I confirmed that the room was at capacity, and thus I did not allow anyone else to enter the room[.] ***

12. Seating in the meeting room is available to members of the public on a first come, first served basis, and no preference is given to any particular groups or individuals, including resident and non-residents of the Town. ***

16. *** [I]n recognition of the fact that the matter on the Town Council's agenda was of importance to those assembled in the hallway, I allowed them to remain in the hallway as long as they remained close to the walls and kept the middle of the hallway clear. ***

18. Approximately fifteen (15) to twenty (20) individuals remained in the hallway throughout the duration of the meeting."

Police Chief Richard S. Tamburini generally corroborated these facts in his submitted affidavit.

We note as a preliminary matter that although some complainants may not have standing to bring these allegations, numerous complainants alleged they were denied entry to the January 10, 2017 meeting and, accordingly, are aggrieved pursuant to R.I. Gen. Laws § 42-46-8(a) and the standard established in Graziano . We therefore proceed to address the merits of these allegations.

The OMA provides that 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. Additionally, 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.

While several complainants assert that the OMA requires that every interested person be able to attend and witness a public body's open meeting, the OMA does not support such a conclusion. This Department has previously observed that the OMA "does not require a public body to provide unlimited seating." See In re Town of West Warwick , ADV OM 99-02; see also Daniels v. Warwick Long Term Facilities Planning Committee , OM 14-02. Specifically, in In re Town of West Warwick , this Department issued an advisory opinion to the Town of West Warwick in anticipation of a meeting that was expected to exceed capacity, concluding that the OMA did not require the termination of the meeting if attendance exceeded the legal limit of 700 people. Id . In Daniels , we similarly found that the OMA did not require the public body at issue to move its meeting to provide more seating where attendance exceeded the room's capacity of 52.

Although the facts and travel of the instant matter differ from our previous findings, the central conclusion that the OMA "does not require a public body to provide unlimited seating" applies with equal force in this case. Id . Respectfully, we have been directed to no provision within the OMA, nor have we found one, that requires unlimited seating to public. Notwithstanding, in the appropriate case we could envision a situation where the OMA is violated where available seating is so sparse as to effectively eliminate the public's attendance, but, considering the instant facts, we conclude this is not that case.

Here, we note that the maximum room occupancy was eighty-seven, a number large enough to provide for considerable public attendance and larger than the capacity at issue in Daniels . We are also advised that the location of this meeting was at the location where Town Council meetings are typically held. Additionally, we note that approximately twenty people remained in the hallway, permitted to do so by the fire marshall. Although not seated in the room itself, depending on one's location in the hallway, those in the hallway could conceivably still observe the meeting's proceedings. See Sister Pendergast rebuttal, ¶ 23 ("Some people in the hallway might be able to hear[.]"). Such accommodation belies any contention that the Town sought to eliminate the public's attendance.

Furthermore, we observe that the affidavits submitted by the Town reveal no evidence of preferential treatment with respect to seating, no evidence that the Town knew the attendance would exceed the meeting space until about an hour before the meeting was scheduled to begin, and no evidence that moving the meeting to a larger space was feasible or possible. Indeed, we note the Town's undisputed insistence that it could not postpone the meeting due to the time-sensitive nature of the business to be discussed. While some suggestion was made by various complainants that the Town could have moved its meeting to a different location but still held its meeting on January 10, 2017, the Town decided against this course for concern that such action would have violated the OMA. See R.I. Gen. Laws § 42-46-6(b)(requiring public notice to be posted 48 hours before the meeting and to include, inter alia, the "place of the meeting"). Because the Town did not post its meeting for one location, yet convene its meeting at a different location, we need not evaluate whether such action would have violated the OMA. The evidence establishes, however, that this concern - and perhaps others - was part of the Town's decision making process not to relocate the January 10, 2017 meeting. On these facts, we cannot conclude that such a determination violated the OMA.

As further support for this conclusion, we recognize that our nation's courtrooms are open to the public. Despite this principle, courts routinely impose capacity limitations and other restrictions far more restrictive than those imposed by the Town in this case. Although stated in the context of a criminal defendant's right to a public trial, the following except from United States Supreme Court Justice Harlan provides insight into the principle at issue in this case:

"[o]bviously the public trial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the 'public' will be present in the form of those persons who did gain admission. Even the actual presence of the public is not guaranteed. A public trial implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process." Estes v. State of Texas , 381 U.S. 532, 588-89 (1965) (Harlan, J., concurring).

"As a courtroom can only seat a finite number of the public, [subject to the above caveat], the Open Meetings Act similarly does not expressly impose a requirement of unlimited seating." In re Town of West Warwick , ADV OM 99-02.

This is not to say we are unsympathetic towards those who were unable to be seated at the public meeting. In fact, our review of the video recording finds senior citizens standing in the hallways while able-bodied and young men sit in limited seats, some of whom were laughing (and arguably taunting) those who stood in the hallway. We understand the frustration of those who not only could not enter the meeting room but also were subjected to such conduct. However, our opprobrium of this conduct does not supplant our sole role to interpret and enforce the OMA as the General Assembly has written the law and how it has been interpreted. Applying this standard, we simply find nothing in the OMA that required the Town to move its January 10, 2017 meeting beyond its scheduled location under these circumstances. Our precedent and the language of the OMA compel this conclusion. Accordingly, we find no violations.

3. Rolling Quorum

Six complainants allege that a series of meetings prior to the January 10, 2017 meeting between the Town Mayor and various Town Council members constituted a "rolling" or "walking" quorum and violated the OMA. Ms. Jean Lynch's complaint is illustrative, stating, in relevant part:

"With regard to the 'rolling quorum' violation, in an article published by the Johnston Sunrise [a local newspaper] on January 11, 2027 [sic], Mayor Polisena was quoted as follows:

'I met with the council one on one, which is perfectly legal. I obviously showed them what the offer was and told them what the offer was,' he said. 'They were obviously on board; it's money that comes to the town for doing absolutely nothing but selling water.' []

The Mayor's consecutive one-on-one meeting[s] with members of the council, which he claims were 'perfectly legal' I have been told were in fact a violation of the 'rolling meeting' or 'walking meeting' quorum prohibition. These actions constituted a meeting. No notice was provided for such a meeting."

The Town submitted affidavits from the five Town Council members and the Mayor. In his affidavit, Mayor Joseph M. Polisena states, in pertinent part:

"2. On Wednesday, January 4, 2017, at approximately 10:00 a.m., I participated in a telephone conference with the President of the Johnston Town Council, Anthony Verardo with regard to the terms of the proposed Water Supply and Economic Development Agreement between the Town of Johnston and Clear River Energy, LLC (hereinafter the 'Proposed Agreement').

3. Also present at Johnston Town Hall during this telephone conference were my Chief of Staff, Douglas Jeffrey; the Town Solicitor, William J. Conley, Jr.; and Town Council Member Robert V. Russo.

4. During the conversation, I explained the terms of the Proposed Agreement to Council President Verardo and Councilperson Russo.

5. No other members of the Johnston Town Council were present at and/or participated in the telephone conference.

6. None of the participants in the conversation discussed the thoughts, actions, opinions, or the like of any other members of the Town Council.

7. The purpose of this conversation was to provide the two (2) council members with the essential terms of the Proposed Agreement so that they would have the opportunity to process the proposal in advance of the Johnston Town Council meeting and be able to make an informed decision at the meeting.

8. At the conclusion of the meeting, Solicitor Conley reminded President Verardo and Councilperson Russo that they were not to discuss the Proposed Agreement or any other such matters with other members of the Town Council, as to do so would constitute a violation of the Open Meetings Act. ***

10. Also on Wednesday, January 4, 2017, at approximately 12:00 p.m., I met with Town Councilperson Richard DelFino, III at Johnston Town Hall for the purpose of explaining the relevant terms of the Proposed Agreement to him. ***

11. At some point after the meeting began, then Town Councilperson-elect Robert Civetti joined the meeting. ***

13.1 explained the terms of the Proposed Agreement to Councilperson DelFino and then Councilperson-elect Civetti.

14. No other members of the Johnston Town Council were present at and/or participated in the meeting.

15. None of the attendees at the January 4, 2017 meeting discussed the thoughts, actions, opinion, or the like of any other members of the Town Council.

***

17. At some time in the week prior to the [sic] January 10, 2017, during a chance meeting at Johnston Town Hall with David Santilli, the Vice President of the Town Council, I explained the terms of the Proposed Agreement to him.

18. No other members of the Johnston Town Council were present at and/or participated in this chance meeting with Vice President Santilli.

19. We did not discuss the thoughts, actions, opinions, or the like of any other members of the Town Council related to the Proposed Agreement.

25. At no time did I act as a conduit between Town Council Members; rather I merely presented the terms of the Proposed Agreement to the Councilors at the respective meetings so that they could make thoughtful, informed votes at the scheduled Town Council meeting."

All five Town Council members referenced in the Mayor's affidavit filed their own individual affidavits that corroborate the relevant details.

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 meets. 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); see also Zarella et al. v. East Greenwich Town Planning Board , OM 03-02. 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 above definitions are seemingly straightforward, it is noteworthy that a quorum may be created, and a meeting "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. 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); 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); D'Andrea v. Newport School Committee , OM 98-11 (violation of the OMA when Committee members used head signals to vote on a matter); International Brotherhood of Police Officers v. Barrington Town Council , OM 96-01 (OMA prohibited communication by fax to obtain the endorsement of Council members of a newspaper editorial); Dempsey v. Rhode Island Ethics Commission , OM 94-14 ("[d]espite the caller's best intentions, a phone call may result in a substantive discussion which should be conducted in the public forum"). Importantly, our findings have centered on the nexus between these one-on-one conversations and whether they serve as a chain of communication sufficient to constitute a collective discussion. See Guarino, et al. v. Rhode Island Atomic Energy Commission , OM 14-07 ("[I]f a quorum of members of a public body creates a chain of communication and responses, through any electronic media, about any matter over which a public body has supervision, jurisdiction, control or advisory power, other than to schedule a meeting, the OMA may be violated."). Moreover, our previous findings have left open the possibility that a non-public body individual could serve as a conduit between public body members if they supplied the missing link connecting collective discussion between and among public body members.

Here, based on our prior findings and the undisputed facts, we find no violation. As an initial matter, we note that the Mayor is not a "public body" under the OMA and therefore is not subject to the OMA's requirements. See R.I. Gen. Laws § 42-46-2(3). Any suggestion that the Mayor violated the OMA must fail as a matter of law.

The Town provides uncontroverted evidence in affidavit form that the Mayor had three separate communications with various Town Council members. None of these three separate communications individually contained a quorum of the Town Council. While the absence of a quorum during one meeting does not preclude a "rolling" or "walking" quorum as discussed above, according to the affidavits produced by the Town, "none of the participants in the[ir respective] conversation[s with the Mayor] discussed the thoughts, actions, opinions, or the like of any other members of the Town Council." And the affiants specifically note that after their respective meetings with the Mayor there was no communication between or among other Town Council members on this issue. Based on these particular undisputed facts, we find no evidence that the Mayor served as a conduit that connected the three communications with Town Council members and therefore find no evidence of any nexus between the communications. See Guarino , OM 14-07. Therefore, we cannot find that a collective discussion between or among Town Council members occurred and, accordingly, do not find a rolling or walking quorum. Without a quorum, the OMA is not implicated and, as such, we find no violations. See R.I. Gen. Laws § 42-46-3.

One final matter warrants mention. Some complaints noted that the January 10, 2017 meeting did not provide for public comment. The OMA, however, is silent on the issue of the public's right to speak publicly at meetings. See R.I. Gen. Laws § 42-46-6(d)("Nothing contained in this chapter requires any public body to hold an open forum session, to entertain or respond to any topic nor does it prohibit any public body from limiting comment on any topic at such an open forum session."). Accordingly, since the OMA does not address whether the public has the right to speak during a public comment portion of an open meeting, nor does the OMA address whether a public body must receive public comment, respectfully we are constrained to find no violation. See Vargas v. Providence School Board , OM 02-12, PR 02-06; Gorman v. Tiogue Fire District Council OM 97-23.

In sum, we find no violations. We note that it is apparent by the sheer number and content of the complaints that there is at least some public dissatisfaction with the process that led to the January 10,2017 meeting. However, our acknowledgment of the negative public response that this meeting engendered is not tantamount to a finding of a violation of the OMA. As described supra , nothing in the submitted uncontroverted evidence substantiates a violation of the OMA, which is all we have jurisdiction to determine. While some may view this finding as a victory - while others may view this finding as defeat - as always, the final determination will be cast by the voters of Johnston. Our sole area of review is the OMA, and on this matter, we find no violation.

Although the Attorney General will not file suit in this matter, 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). We are closing this 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,

Sean Lyness, Special Assistant Attorney General

ADDENDUM A

LIST OF COMPLAINANTS ADDRESSED BY THIS FINDING

David Brunetti

Jean Lynch

Mary Pendergast

Justin Boyan

Steven Ahlquist

Alan Cohen

Lauren and Kevin Cleary

Lynn Clark

Cheryl Casserly

Kimberly Branchaud

Jessica Stensrud

Irene Peloquin

Rhoda-Ann Northrup

Lauren Niedel

Garrett Mancieri

Thomas Kimberley

Douglas Jobling

Justin Hartshorn

Richard Dionne

Nick Katkevick

Keni Fagan

Mike Scurka

Cynthia Crook-Pick

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Notes:

Your Complaint was the first received by the Department after the January 10, 2017 Town Council meeting, and for this reason, we list you as the "lead" complainant. We mean no disrespect to any of the other twenty-two complainants and each of their individual complaints, supporting materials, and where applicable rebuttals, have been reviewed by this Department. As noted, supra , this finding addresses all complainants. See Addendum A for a complete list of the complaints addressed by this finding.

We note that all complainants raised one or more of these three issues.

These agendas are available at http://sos.ri.gov/openmeetings/?page=meeting&id=209753.

Several complainants also assert that the notice was not posted on the Town's website or its calendar. The OMA, however, contains no requirement to post notice on a Town's website or its calendar, and therefore, these allegations do not violate the OMA.

Numerous complaints allege that union workers were provided preferential treatment and/or advanced notice of this meeting. Respectfully, there is simply no evidence to support that the Town provided this preferential treatment and/or advanced notice. While the union members may have organized - and there is evidence that many union workers were at the meeting location and occupying seats at least one hour before the meeting - as best as we can tell this organization occurred at the union level and not the Town level.

Some complainants reference In re: Town of Glocester , ADV OM 99-03 in support of their positions. Respectfully, we do not find In re: Town of Glocester to be applicable here. There, we were asked to opine on the application of the OMA to situations involving a gathering of Glocester Town Council members that did not constitute a quorum. With no quorum present, we found that no "meeting" would occur and, accordingly, that the OMA was not implicated. As it is undisputed that a quorum of the Johnston Town Council was present for the January 10, 2017 meeting, we find In re: Town of Glocester to be of little utility here.

As an additional matter, we note that the Mayor actually signed the Proposed Agreement on January 6, 2017, prior to the January 10, 2017 meeting. Pursuant to Article IV, § 4-6(6) of the Town's Charter, this signing was not final until the Town Council approved the Proposed Agreement on January 10, 2017. The necessity of the Town Council's approval of the Mayor's signature weighs against the contention by several complainants that the Proposed Agreement was authorized before the January 10, 2017 meeting. A representative of the Town Council signed the Proposed Agreement on January 10, 2017, as authorized by the Town Council.

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