Rhode Island Advisory Opinions August 02, 2017: AGO OM 17-23 (August 02, 2017)

Advisory Opinion Text

Peter F. Kilmartin, Attorney General

Mathew Jerzyk, Esq.

Ms. Edna Poulin

Dear Ms. Poulin:

RE: Poulin v. City of Central Falls

The investigation into your Open Meetings Act ("OMA") complaint filed against the City of Central Falls ("City") is complete. By email correspondence dated May 22, 2017, you alleged that the City violated the OMA when the notice for its May 15, 2017 meeting was not posted within a minimum of forty-eight (48) hours in advance of the meeting. You also allege the City Council voted on the acceptance of all the Budget Ordinances for fiscal year 2018, yet the agenda item was not sufficient as it did not indicate a vote would be taken.

In response to your complaint, we received a substantive response, in affidavit form from the City's Solicitor, Matthew T. Jerzyk, Esquire. We note that you did not file a rebuttal. We do, however, note in your complaint that you attended the May 15, 2017 meeting and you "spoke to the Council President and noted [your] objection of holding the meeting as it violated the Open Meeting[s] Law."

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

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 , you, as the complainant, must demonstrate that you 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. This Department, in fact, by correspondence dated June 28, 2017, requested that you provide evidence of how you were aggrieved by the alleged defect in notice since you attended the May 15, 2017 meeting. We received no response from you.

Having examined this issue closely, we conclude that you have not satisfied the Graziano burden and we find that the specific facts presented indicate that you are not aggrieved by the alleged defect in the notice. 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. 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."). Accordingly, we conclude that you do not have standing to bring these allegations. Our conclusion is compelled by the specific facts and our precedent. We find no violations.

Although the Attorney General will not file suit in this matter and has found no violation, 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,

Lisa Pinsonneault, Special Assistant Attorney General