Rhode Island Advisory Opinions June 14, 2018: AGO OM 18-17 (June 14, 2018)

Advisory Opinion Text

Raymond A. Marcaccio, Esq.

Peter F. Kilmartin, Attorney General

Mr. Ken Block

RE: Block v. Rhode Island Board of Elections

Dear Mr. Block:

The investigation into your Open Meetings Act ("OMA") complaint filed against the Rhode Island Board of Elections ("Board") is complete.

On October 5, 2017, you filed a complaint alleging that the Board violated the OMA by failing to timely post minutes on the Secretary of State's website for the following meetings:

"4/28/17 Workshop on Security

4/26/17 Machine Testing

10/19/16 Full meeting

9/28/16 Full meeting

9/19/16 Full meeting

9/28/16 Work session

9/14/16 Full meeting

8/31/16 Full meeting

8/24/16 Full meeting

8/3/16 Full meeting

7/25/16 Full meeting

7/20/16 Full meeting

4/27/16 Full meeting

4/25/16 Full meeting"

It should be noted that with respect to your most recent allegation (the April 2017 minutes), your complaint was filed months after you allege the minutes should have been posted on the Secretary of State's website, and with respect to most other allegations, your complaint was filed with this Office more than a year after you contend minutes should have been posted on the Secretary of State's website.

In response to a preliminary inquiry from this Department, you provided the following, in pertinent part:

"I was not personally in attendance at any of the meetings listed in this complaint. *** I am aggrieved due to the Board's failure to post minutes on the Secretary of State's website as their violation of the law has hampered my research of Board actions related to changes in election law. Without published minutes, I cannot continue my research examining how elections in Rhode Island are being conducted. The disadvantage I now experience terminates my research and does not allow me to further support the policies I believe are being incorrectly promulgated by the Board. If I am found not to be 'aggrieved', then Rhode Island's OMA law has truly lost its way and is no longer protecting the right of individuals, and the public, to know what our governmental bodies are doing. ***

For the meetings held after 4/5/2017, there should be no question as to whether the statute of limitations applies or not. The 180-day time period has not yet expired.

***

The Board has not provided 'public approval' for many of the meetings listed because meetings held subsequent to the many meetings with missing minutes are also missing their minutes. Accordingly, equity dictates that the statute of limitations is tolled until such time as the missing minutes are published. ***

[I]n my case, I am very interested in Board meetings that occurred in the summer of 2016, and only in the last month became aware of how important it is to understand what the Board did and decided in the critical window before the 2016 general election." (Emphasis in original).

In response to your Complaint, this Department received a substantive response from the Board's legal counsel Raymond A. Marcaccio, Esquire, which states, in relevant part:

"Each set of these minutes were publicly approved by the Board and were available at the Board, upon request. [] As discussed below, Mr. Block never requested any of these minutes, whether in final approved form, or in draft form before the Board's votes. [] Had he done so, he would have been provided a complete copy immediately, consistent with the Board's policy and longstanding practice. []

The Board notes that Mr. Block refers to 14 meeting dates in his amended complaint. There actually were 11 Board meetings on the dates in question. [] The April 26, 2017 date refers to the testing of voting machines, which was conducted by the Board staff, not the Board members. Thus, it was not a meeting under R.I.

Gen. Laws § 42-46-2(1). ** *

[T]he minutes of the October 19,2016 meeting were approved on January 18,2017; and the minutes of the workshop of April 28,2017 were approved on June 21,2017.

The Board notes that, save for the April 28, 2017 workshop session, all of the meetings had minutes approved more than 180 days from to [sic] the date of Mr. Block's complaint. ***

As a separate consideration, Mr. Block cannot establish that he is an aggrieved person under the OMA. * * *

Mr. Block has not alleged how or why access to the minutes in question disadvantaged him or when he sought access, and to which sets of minutes." (Emphasis in original).

Attached to the substantive response was an affidavit from Board Executive Director Robert B. Rapoza, which corroborated claims made in the substantive response.

We acknowledge your rebuttal.

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

Your complaint lists fourteen meetings of the Board for which you allege minutes were not timely posted with the Secretary of State and these allegations span the course of one year - from April 25, 2016 to April 28, 2017. However, you do not dispute the Board's contention that the April 26, 2017 "Machine Testing" was not a "meeting" of the Board because no Board members attended and instead this date concerned staff. We also note that you do not contest the Board's assertion that the Board's meetings on April 25 and 27,2016 were canceled, and, as a result, have no meeting minutes. Further, you do not dispute that the meeting and work session held on September 28, 2016, although separately noticed, were approved under a single vote. Without a "meeting" the OMA is not implicated, and accordingly, the Board did not violate the OMA with respect to the April 26, 2017, and April 25 and 27, 2016 allegations. Similarly, because the September 28, 2016 meeting and work session minutes were approved together, we consider it a single allegation.

With respect to the remaining ten meetings, there is no question that the Board filed its official/approved minutes on the Secretary of State's website in an untimely manner and this violated the OMA. See R.I. Gen. Laws § 42-46-7(d). Indeed, the Board acknowledges that the meeting minutes were not timely posted with the Secretary of State, as required by the OMA, at the time you filed your complaint with this Office. Frankly, considering we found a similar violation in Block v. Board of Elections , OM 13-25, the repeat nature of this violation - not to mention the breadth of the ten meetings spanning over a one year time period - is of great concern. The fact that these meeting minutes have since been posted - many months after the OMA required these minutes to be posted - is of little consolation to the citizen who sought timely online access.

While the Board's repeated violation and this Office's concern is not in doubt, the issue we must consider is what, if any, remedy is appropriate. To be sure, the Board has already posted its official/approved minutes that are the subject of this complaint on the Secretary of State's website. Accordingly, injunctive relief is not appropriate. The only other remedy provided by the OMA is a civil lawsuit seeking monetary fines against the Board, but for the reasons discussed below, we conclude the OMA forecloses this remedy.

In relevant part, Rhode Island General Laws § 42-46-8(b) prohibits the filing of an OMA complaint in the Superior Court by this Department after 180 days from the date of the public approval of the meeting minutes at which the alleged violation(s) occurred. This Department has declined to review OMA complaints filed with this Office after - or even shortly before - the expiration of the statute of limitations because under these circumstances the OMA prohibits this Department from filing an OMA lawsuit in Superior Court. See e.g. , Costantino v. Smithfield School Committee , OM 12-12 ("when the statute of limitations has expired or is about to expire before a complaint is filed within [this] Department, we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion").

Here, according to the undisputed evidence, the two most recent Board minutes implicated by your complaint - for the meetings held on October 19, 2016 and April 28, 2017 - were approved by the Board in open session during its public meetings on January 18, 2017 and June 21, 2017, respectively. All other meetings subject to your complaint either did not occur, or occurred and the meeting minutes were approved prior to January 18, 2017. Pursuant to R.I. Gen. Laws § 42-46-8(b), the 180-day statute of limitations began running as of "the date of public approval of the minutes," i.e., January 18,2017 and June 21,2017. Therefore, with respect to the October 19,2016 meeting (and all other meetings that occurred and had the minutes approved prior to January 18, 2017), the time for this Office to file a lawsuit in the Superior Court on your behalf expired on or about July 17, 2017, well prior to you filing this complaint with this Office on October 5, 2017 . This calculation holds for all meetings held prior to October 19, 2016, thus time barring all but your April 28,2017 allegation. Indeed, you acknowledge this fact by requesting in your complaint that this Department "toll" the statute of limitations and by stating that with respect to all meetings occurring after April 5, 2017, "there should be no question as to whether the statute of limitations applies or not." Implicit is your acknowledgement that for all meetings occurring before April 5, 2017, the statute of limitations bars any type of enforcement action. As stated above, our sole authority is to interpret and enforce the OMA as the General Assembly has written this law.

With respect to the sole remaining set of minutes - the April 28, 2017 meeting - we address the Board's contention that you are not aggrieved by the violation and, therefore, have no standing to bring this complaint. 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 determined 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.

Graziano's aggrieved requirement has been applied in circumstances similar to those presented in this case. See e.g. Novak v. Western Coventry Fire District , OM 18-11.

Consistent with R.I. Gen. Laws § 42-46-8(a) and the standard established in Graziano , we accordingly look to whether you have demonstrated that you are "in some way disadvantaged or aggrieved" by the Board's failure to timely post minutes on the Secretary of State's website for its April 28, 2017 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. Importantly, the test is not whether the public is aggrieved, but whether you, as an individual, are aggrieved. See Riggs v. East Bay Energy Consortium , PR 13-25, OM 13-30.

Here, based on the evidence presented and much consideration, we must conclude that with respect to your allegation concerning the April 28, 2017 minutes, you are not aggrieved. As you explain, "in my case, I am very interested in Board meetings that occurred in the summer of 2016, and only in the last month because aware of how important it is to understand what the Board did and decided in the critical window before the 2016 general election." Clearly, the April 28, 2017 minutes - the sole issue remaining for our consideration - falls outside the window you describe. In addition, you provide no evidence or argument to support that access to the April 28, 2017 minutes during the time period for which they were unavailable was of any particular import to your research. In brief, you fail to allege - and the evidence fails to demonstrate - how the untimely posting of the April 28, 2017 minutes in any manner injured you or otherwise hindered your research.

Our conclusion that an enforcement action is not available in this matter - either because you are not aggrieved (for the April 28,2017 minutes) or because you filed your complaint after the statute of limitations had already expired (for all the other minutes) - does not obscure the basic facts of this case, i.e., the Board failed to post timely its official/approved minutes on the Secretary of State's website as required by the OMA. We are also cognizant that in Block v. Rhode Island Board of Elections , OM 13-25, you complained, inter alia , that the Board had failed to timely post its March 11, 2013 minutes on the Secretary of State's website. We found this allegation meritorious and noted that there was no evidence of a willful or knowing violation, yet warned that our finding in Block , OM 13-25 "serves as notice to the Board that the conduct discussed herein is unlawful and may serve as evidence of a willful or knowing violation in any similar future situation." Recognizing the foregoing, and in light of the fact the majority of remaining allegations fall within the "summer of 2016" time frame you describe as the "critical window" in which you are aggrieved, we attempted to resolve this matter with the Board in a manner in which we considered appropriate, notwithstanding that the statute of limitations relating to the allegations in which you were aggrieved had expired before you filed the instant complaint. Regrettably, we were unable to do so. The Board is advised that this finding serves as notice to the Board that the conduct discussed herein is unlawful and may serve as evidence of a willful or knowing violation in any similar future situation.

Although the Attorney General will not file suit in this matter, nothing within the OMA prohibits an individual or entity from instituting an action in Superior Court. "[T]he individual may file suit in superior court within ninety (90) days of the attorney general's closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later." See R.I. Gen. Laws § 42-46-8(c). Whether the foregoing provision applies to allegations barred by the statute of limitations before your complaint was filed with this Office, we leave to the determination of the Superior Court, as appropriate. 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,

Michael W. Field, Assistant Attorney General

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Notes:

As noted, supra , the Board explains that eleven Board meeting dates are at issue. This discrepancy appears to involve the September 28, 2016 meeting, which you list twice due to the allegations of a full Board meeting and a workshop meeting. Since the minutes from these two meetings were approved under a single vote, we treat your allegation likewise. Ultimately, whether one allegation or two allegations is of no moment to our finding.

In all but one case (the April 28, 2017 minutes), the official/approved minutes were filed within hours of you filing the instant complaint with this Office on October 5, 2017. The April 28, 2017 official/approved minutes were filed on October 6, 2017.

You ask this Department to "toll" the statute of limitations, but you provide no legal support for this request. The OMA does not provide for tolling the statute of limitations, particularly in this situation where the minutes were "public[ly] approv[ed]" as set forth in R.I. Gen. Laws § 42-46-8(b). The basis of your tolling argument appears to be that the minutes at issue were not "public[ly] approv[ed]" because the subject minutes were not posted on the Secretary of State's website. This argument, however, confuses the plain language of R.I. Gen. Laws § 42-46 8(b), which begins the statute of limitations period upon "public approval of the minutes," not upon the posting of the approved minutes on the Secretary of State's website. Our conclusion is supported by the OMA. Specifically, the present language at issue, Le., the statute of limitations begins upon the "public approval of the minutes," has been found within R.I. Gen. Laws § 42-46-8(b) since at least 1998. See P.L. 1998, ch. 379, § 1. The Board and other state entities, however, were not required to post their approved minutes to the Secretary of State's website until July 2004, and municipal entities were not required to post their approved minutes to the Secretary of State's website until January 1, 2018. See P.L. 2017, ch. 333, § 1; P.L. 2017, ch. 214, § 1; P.L. 2003, ch. 305, § 1; P.L. 2003, ch. 362, § 1. Because the statute of limitations language referenced above, i.e., "public approval of the minutes," pre-dated any requirement to file approved minutes on the Secretary of State's website, your argument that failing to post minutes to the Secretary of State's website must toll the statute of limitations must be rejected. Accordingly, it would exceed our jurisdiction to consider your allegations relating to all Board meetings including and before October 19, 2016. This conclusion is consistent with our precedent, including Block v. Rhode Island Board of Elections , OM 12-05.

In your rebuttal, you express disdain for the OMA's statute of limitations and aggrieved requirement, asking this Department to overlook these express statutory provisions in favor of adjudicating (and presumably enforcing) the allegations on their merits. You submit that "[i]f [you are] found not to be 'aggrieved', then Rhode Island's OMA law has truly lost its way and is no longer protecting the right of individuals, and the public, to know what our governmental bodies are doing." The irony does not escape us that you seek to hold the Board responsible for not complying with the strict wording of the OMA, yet ask this Office to forego the plain language of the OMA (and Rhode Island Supreme Court precedent) in order to reach the merits of your OMA complaint. Respectfully, such a course of action would grossly exceed our statutory authority, as well as our ethical obligations. Any suggestion in your rebuttal that this Office should ignore statutory or constitutional protections to reach a particular conclusion - and that if we do not the OMA has "truly lost its way" - is emphatically rejected. Rather, such policy concerns are outside of our jurisdiction and better aimed at the General Assembly.

We assume, but not need decide, that you are aggrieved for these allegations.

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