Rhode Island Advisory Opinions September 05, 2019: AGO OM 19-18 (September 05, 2019)

Advisory Opinion Text

Mr. Blake Dickinson

Mr. Hugh Murphy

Peter D. Ruggiero, Esquire,

Town Solicitor, Town of Jamestown

David R. Petrarca, Jr., Esquire,

Assistant Town Solicitor, Town of Jamestown

RE: Dickinson v. Jamestown Board of Canvassers Murphy v. Jamestown Board of Canvassers

Dear Messrs. Dickinson and Murphy and Attorneys Ruggiero and Petrarca:

The investigation into the Open Meetings Act ("OMA") complaints filed by Mr. Blake Dickinson and Mr. Hugh Murphy (collectively, "Complainants," individually "Mr. Dickinson" and "Mr. Murphy") against the Jamestown Board of Canvassers ("Board") are complete. Since both complaints were submitted against the same entity and contain similar allegations, this Office will address both complaints in a single finding. For the reasons set forth herein, we find that the Board violated the OMA.

Background

By email correspondences sent to this Office in March 2019, the Complainants allege that the Board violated the OMA when it met outside the public purview to discuss instructing Conanicut Sanctuary to "cure" signatures submitted in a petition drive. Along with his Complaint, Mr. Murphy submitted a transcript excerpt from the Board's February 27, 2019, meeting at which the following exchange occurred:

MR. MURPHY: Well, I would just like to say in your letter you said that the Jamestown Board of Canvassers requested that Conanicut Sanctuary obtain signatures for printed names on the petitions as well as additional new signatures.

I would like to say that any new information solicited outside noticed meetings, . . . business and agenda is considered a violation of the Open Meetings Act.

MR. NEWMAN: I would like to respond to that. I was also concerned about this in the complaint [filed by Conanicut Sanctuary]. The complaint states that the Board of Canvassers asked for cured signatures and additional signatures. As I mentioned in the previous Town Council meeting, that is not the case.

I passed on a suggestion to the Petitioners from the Executive Director of the Board of Elections. Prior to doing that, I spoke with all of the members of the Board of Canvassers with the exception of Hugh Murphy. I left two messages for him, but he did not call me back.

I did speak with Melissa Burrows, and I was very clear in those conversations that this was a suggestion on the part of Bob Raposa [sic], the Executive Director [of the Board of Elections], but it was not an action of the Board of Canvassers. If the Board of Canvassers had made that action, they would have taken a vote and then contacted the Petitioners. . .

The Board's legal counsel, David R. Petrarca, Jr., Esquire, submitted a substantive response on behalf of the Board, which includes an affidavit from Board member Kenneth Newman and a transcript of the February 27, 2019 Board meeting. Attorney Petrarca concedes that "this string of conversations [referenced in the February 27, 2019 transcript] constitutes a 'rolling quorum' of the Board," however, he disputes that these conversations constituted a "meeting" as defined in the OMA. Attorney Petrarca asserts that the Board did not collectively discuss or act upon a matter over which it had jurisdiction.

Essentially, the Board argues that Mr. Newman's suggestion that Conanicut Sanctuary cure the signatures was an individual action and that his conversation with other Board members about that topic did not constitute a discussion about a matter over which the Board had authority. Specifically, Attorney Petrarca states, in pertinent part:

"Here, the conversations between Mr. Newman and other members of the Board concerned a suggestion from the Board of Elections Executive Director that a group of petitioners, known as the 'Conanicut Sanctuary,' should attempt to 'cure' alleged defective signatures and obtain more signatures on a Town Charter Initiative Petition that was being appealed to the Board of Elections. See Aff. ¶ 5. In these conversations, Mr. Newman merely informed the other members of the Board of his intention to pass along this advice of the Board of Elections Executive Director. Id. ¶ 6. Further, at the time of these conversations, that particular issue was not before the Board of Canvassers. Ultimately, however, at its meeting of February 8, 2019 and again at its February 27, 2019 meeting, the Board of Canvassers was asked to rule on the admission of 'cured' and new signatures obtained by Conanicut Sanctuary."

The Board informed this Office that after it determined that it would not accept any new or cured signatures offered by Conanicut Sanctuary, the matter was appealed to the Board of Elections. Research by this Office indicates that the appeal was subsequently withdrawn.

The Board further argues that at the time when the rolling quorum occurred, neither Mr. Newman nor the Board "reasonably suspect[ed] that they would be asked to rule on whether it would have to accept such 'cured' and new signatures ... At that point in time, the matter was out of their hands and with the Board of Elections. . . Circumstances changed, but it was not reasonably foreseeable to Mr. Newman or the Board."

The affidavit provided by Mr. Newman specifically reveals that on January 18, 2019, he called Board Chair Carol Nelson Lee and alternate members Kitty Wineberg and Melissa Burrows to "state my intent to contact the Conanicut Sanctuary group with this suggestion from [Board of Elections Executive Director] Mr. Rapoza. I stated that I would be doing this as an individual not on behalf of the" Board. Mr. Newman also attested that he "left two messages for full member Hugh Murphy but did not hear back from him." The Board did not describe the conversations in detail or provide affidavits from Ms. Nelson Lee, Ms. Wineberg or Ms. Burrows. The extended transcript of the February 27, 2019 meeting provided by the Board also contains a statement from Mr. Newman that although his suggestion to Conanicut Sanctuary to "cure" the signatures had been characterized "as having been an action of the Board of Canvassers ... it was not with the exception of having passed that suggestion on ..."

We also note that minutes from the Board's December 11, 2018 meeting reveal that the Town Administrator spoke at the meeting, at which Mr. Newman, Chair Nelson Lee, and Board members Wineberg and Burrows were present, and stated that the petition process and determining whether to accept the signatures presented by the petitioners is under the discretion of the Board.

We acknowledge both Complainants' rebuttals. Mr. Dickinson's rebuttal disputes Attorney Petrarca's contention that "at the time of these conversations, that particular issue was not before the" Board, by stating that, "[t]he petition matters were indeed open and before the" Board due to a related complaint filed by Mr. Dickinson with the Board of Elections initiated on January 16, 2019 that was "remanded back to the [Board] on February 5, 2019" and heard before the Board on February 8, 2019. Mr. Dickinson's rebuttal also provided a copy of a letter dated February 20, 2019 from Helen O'Grady in her capacity as "Facilitator" for Conanicut Sanctuary. That letter states, in pertinent part, "[t]he Jamestown BOC requested that CS obtain 'signatures' for printed names on the petition as well as additional new signatures." Mr. Murphy likewise argues that there is evidence that Conanicut Sanctuary understood Mr. Newman's suggestion about curing the signatures to constitute an action of the Board.

With that background in place, we turn to the relevant law and substantive arguments that support our findings.

Relevant Law and Findings

When we examine an OMA complaint, our authority is to determine whether a violation of the OMA has occurred. See R.I. Gen. Laws § 42-46-8. In doing so, we must begin with the plain language of the OMA and relevant caselaw interpreting this statute. We also note that our decision in this matter is limited to considering whether the OMA was violated and that we do not opine on any substantive issues pertaining to election law or the petition signatures.

For the OMA to apply, a "quorum" of a "public body" must convene for a "meeting" as these terms are defined by the OMA. See Fischer v. Zoning Board of 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(1). All three of these elements—a quorum, a meeting, and a public body—must be present in order for the OMA to apply; the OMA is not applicable when one or more of these elements is absent. See Ahlquist v. Energy Facilities Siting Board, OM 17-25.

Although the definitions under R.I. Gen. Laws § 42-46-2 are seemingly straightforward, a quorum may be created, and a meeting "convened," by unconventional means. In particular, this Office 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: 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); 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).

Here, there is no question that the Board is a "public body" and it is undisputed that a "rolling quorum" of the Board, facilitated by Mr. Newman, had discussions via telephone on or about January 18, 2019. We now turn to a consideration of whether this "rolling quorum" of the Board convened a "meeting" outside the public purview. Several cases from this Office have reviewed the "meeting" requirement and determined that either "action" or a "collective discussion" by a quorum of a public body on matters over which the public body has "supervision, control, jurisdiction, or advisory power" satisfies the "meeting" element and triggers the OMA and its attendant requirements. See, e.g., The Valley Breeze v. Cumberland Fire Committee, OM 15-04. See also Caldwell v. East Greenwich Town Council, OM 18-01. Conversely, if a "quorum" of a "public body" convenes, but does not collectively discuss and/or act upon matters over which they have "supervision, control, jurisdiction, or advisory power," a "meeting" has not convened. Id.

The Board represents that Mr. Newman had individual "conversations" with a quorum of the Board concerning "a suggestion from the Board of Elections Executive Director that a group of petitioners, known as 'Conanicut Sanctuary,' should attempt to 'cure' alleged defective signatures and obtain more signatures on a Town Charter Initiative Petition." The Board contends that these conversations were only for Mr. Newman to "inform" the other members about his intended course of action, but the Board does not expressly argue that these conversations did not constitute a "discussion" (as opposed to a one-way unilateral communication by Mr. Newman). Despite this Office's request that the Board provide "detailed affidavits from the Board members indicating any conversations they engaged in with any other Board members outside of a public meeting about" this topic, the Board only provided this Office with one affidavit from Mr. Newman and did not provide a detailed account of what was said by whom in each individual conversation that took place between Board members about this topic. In light of that failure and the lack of evidence to the contrary, the evidence will be construed against the Board and this Office concludes that the Board members engaged in a "discussion."

There is also no question that the Board had authority over the topic of the petition signatures since the Board ultimately determined that it would not accept the "cured" signatures. Although Mr. Newman contends that he reached out to Conanicut Sanctuary in his individual capacity, it is telling that before doing so, he discussed this course of action with other Board members before proceeding. Indeed, during the February 27, 2019 Board meeting, Mr. Newman stated that his conversation with Conanicut Sanctuary was not an action of the Board "with the exception of having passed that suggestion on . . ." (Emphasis added.). Additionally, during the December 11, 2018 Board meeting, it was discussed how the petition process is under the discretion of the Board and how the Board has authority to accept the signatures presented by the petitioners. Moreover, the undisputed evidence demonstrates that the issue of the Conanicut Sanctuary petition was pending before the Board well before the rolling quorum occurred. See also Murphy v. Jamestown Board of Canvassers, OM 19-09 (referencing January 9, 2019 Board meeting that included an agenda item related to an objection filed by Mr. Murphy pertaining to Board's certification of signatures on the Conanicut Sanctuary petition). The Board's contention that it did not anticipate being asked to review the signature issue after the time when the rolling quorum occurred is irrelevant. This was clearly a topic over which the Board exercised authority at the time the rolling quorum occurred. In light of this information, we find that the January 18, 2019 individual communications collectively formed a rolling quorum of the Board, wherein they discussed a matter over which the Board has "supervision, control, jurisdiction, or advisory power." Accordingly, we find the Board violated the OMA.

Conclusion

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the Superior Court. R.I. Gen. Laws § 42-46-8(a). There are two remedies in suits filed under the OMA: (1) "[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];" or (2) "[t]he court may impose a civil fine not exceeding five thousand ($5,000) dollars against a public body or any of its members found to have committed a willful or knowing violation of [the OMA]." R.I. Gen. Laws § 42-46-8(d).

In the instant case, insufficient evidence has been presented that the Board knowingly or willfully violated the OMA. Although the Board should have been cognizant of the fact that it was discussing a matter within its authority, we credit the uncontested assertion of the Board that it believed the matter was with the Board of Elections. It appears based on the undisputed evidence presented that Mr. Newman and the other members involved in the rolling quorum were acting on a good faith belief that Mr. Newman's suggestion to Conanicut Sanctuary about curing signatures was not intended to be an official action of the Board. We also note that there are no findings regarding any recent similar violations by the Board.

We also do not believe that injunctive relief is appropriate. The Board did not take any action pursuant to the rolling quorum with the exception of suggesting that Conanicut Sanctuary attempt to "cure" the signatures, but the Board ultimately voted to not accept the cured signatures and the matter was appealed to the Board of Elections and then later withdrawn. As such, injunctive relief is not appropriate in this case.

This finding serves as notice that the conduct discussed herein is violative of the OMA and could in the future serve as evidence of a willful or a knowing violation.

Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. The Complainant may pursue an OMA complaint 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." R.I. Gen. Laws § 42-46-8. We consider this matter closed as of the date of this decision.

We thank you for your interest in keeping government open and accountable to the public.

Sincerely,

Kayla E. O'Rourke, Special Assistant Attorney General

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Notes:

The record in this case indicates that "Conanicut Sanctuary" is a group of Jamestown residents concerned with enacting measures to protect immigrants.

The Complainants also alleged that an individual Board member, Mr. Ken Newman, took actions on his own related to this issue involving Conanicut Sanctuary. As this Office already explained to the Complainants, the OMA is only implicated when a "quorum" of a "public body" has a "meeting[,]" as those terms are defined in the OMA. See R.I. Gen. Laws § 42-46-2. A single member is not a "public body" under the OMA. See R.I. Gen. Laws § 42-46-2(3) (defining "public body" as "any department, agency, commission, committee, board, council, bureau or authority or any subdivisions thereof of state or municipal government"). Accordingly, the Complainants' allegations about a Board member's individual actions do not implicate the OMA.

This Office has not been provided with information regarding the total number of Board members or the distinction between a full member and an alternate member, but that information is immaterial because the Board concedes that a rolling quorum occurred.

The Complainants' rebuttals proffer additional allegations beyond the scope of the initial Complaints, including the allegation that the Board failed to timely file minutes with the Secretary of State for its February 8, 2019 meeting and that the Board met outside the public purview in an unnoticed, unrecorded "meeting" with the Board of Elections and/or the Board of Elections Executive Director regarding the issue of curing signatures. The acknowledgment letters sent by this Office to the Complainants at the start of this matter expressly provided that the Complainant's rebuttal should be limited to the matters addressed in the Board's response and should not raise new issues that were not presented in this complaint or addressed in the Board's response. In accordance with our usual practice and precedent, this Office declines to review issues which are raised for the first time in a rebuttal since the public body does not have an opportunity to respond. See Mudge v. North Kingstown School Committee, OM 12-35. Complainants are free to submit a new complaint(s) based on additional facts provided that the statute of limitations has not expired.

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