Rhode Island Advisory Opinions September 26, 2019: AGO OM 19-22 (September 26, 2019)

Advisory Opinion Text

David M. D'Agostino, Esquire

Legal Counsel

Coventry Town Council

RE: Hevey v. Coventry Town Council

Dear Mr. Hevey and Attorney D'Agostino:

We have completed an investigation into the Open Meetings Act ("OMA") complaint filed by Mr. Bob Hevey ("Complainant") against the Coventry Town Council ("Town Council"). For the reasons set forth herein, we find that the Town Council did not violate the OMA.

Background and Arguments

The Complainant alleges that a quorum of the Town Council met outside the public purview before its March 11, 2019 meeting for the propose of discussing judicial reappointments to the Municipal and Probate Courts. In support, the Complainant notes that during the March 11, 2019 meeting, the Town Council President stated that "we have decided, and me as the president have spoken to other members, we have the votes, we're completely comfortable with [the] status quo. I'm not going to waste everybody's time to interview people when I know we have the votes to install the judges that are already in place, we are completely happy[.]"

Legal Counsel for the Town Council, Attorney D'Agostino, submitted a substantive response along with an affidavit from Town Council President Kerry McGee. The Town Council does not dispute the statement attributed to Town Council President McGee, but nonetheless insists that no quorum or rolling quorum of the Town Council met outside the public purview before the March 11, 2019 meeting. The Town Council notes that the item on the agenda concerned the reappointment of existing judges and that even absent a collective discussion, President McGee knew that a majority of the Town Council supported the reappointment. As President McGee states in his affidavit:

"I was aware that a majority of the Council members supported keeping the individuals presently serving in those respective capacities in place for the next year. I acquired this knowledge through general conversations with other individual Council members where I understood they had confidence in the people currently serving in the respective positions, however, I never engaged any Councilor in a direct discussion about the decision to re-appoint those currently serving in the positions."

President McGee further affirmatively states in his affidavit that there was no discussion between him and any other Town Council member regarding the reappointments.

We acknowledge the Complainant's rebuttal, which notes that the March 11, 2019 meeting minutes indicate the following: "President McGee said after discussing with a few members that he knew he had the 3 votes and he counted to three and stopped there[.]"

This Office sought additional affidavits from the four other Town Council members regarding what, if anything, was discussed with President McGee or any other Town Council member regarding the reappointment of existing judges prior to the March 11, 2019 meeting. We received affidavits from Town Council Vice President Gregory Laboissonniere and Town Council members Ann Dickson, Gary Cote, and Debra Bacon.

Vice President Laboissonniere corroborates President McGee's affidavit in averring that there was no collective discussion outside of the March 11, 2019 meeting of a quorum of the Town Council regarding the reappointment of existing judges. However, Vice President Laboissonniere does note that "at the agenda planning meeting in advance of the March 11, 2019 Council meeting [] I recall informing those gathered *** that I could now vote on matters involving [existing judge] Arthur Capaldi *** [because] I no longer had a conflict[.]" Vice President Laboissonniere avers that only President McGee, the Town Clerk, the Town Manager, and the Town Solicitor attended this agenda planning meeting. Further, Vice President Laboissonniere notes that "I think that my support for him [the existing judge] to remain in the position was obvious at the planning agenda meeting; however, I had no discussion about his reappointment beyond my statement that I could now vote for him." Vice President Laboissonniere additionally avers that "[t]here was no collective discussion , no deliberation , and no substantive consideration between me and any other Councilor concerning the efficacy, or the decision eventually voted on by the Council majority on March 11, 2019." (Emphases in original).

Town Council member Dickson avers that she was not in attendance at the March 11, 2019 Town Council meeting, but that she recalls on a separate occasion "asking Council President McGee about the need to [re]appoint the two judges as their respective terms had expired, based on the Town Charter." Town Council member Dickson further recalls that "Council President McGee responded to me that he did not have to have interviews of applicants for the position(s) and that the judges could be [re]appointed. He did not specifically ask me to vote for any judicial applicant[.]"

Town Council member Cote avers that there was no collective discussion regarding the reappointment of judges outside the public purview prior to the March 11, 2019 Town Council meeting. Town Council member Cote notes that he "had historically supported the municipal and probate court judges" but that he does "not recall any specific conversation with Council President McGee about the appointment of the municipal and probate court judges[.]" Town Council member Cote acknowledges that "I might have said to Council President McGee in passing that I supported the current appointees. If I did mention my support, I do not have any specific recollection of that; however, the fact that I was happy with the current appointees was not a secret as I had openly supported those gentlemen for years in those positions."

Finally, Town Council member Bacon avers, consistent with the other affidavits, that "I had no discussion/conversation with Council President McGee nor with any other Council member concerning the re-appointment of existing judges or the appointment of the Municipal and Probate Court Judges or about the resumes submitted by potential applicants." Town Council member Bacon further notes that "[t]he appointments of the Municipal and Probate Court Judge positions had been an ongoing matter since January 2018" and that the Town Council met in executive session on September 10, 2018 "to discuss the appointment of the Probate and Municipal Court Judges, and the resumes the Town received in April 2018."

Relevant Law

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.

The OMA is implicated whenever a quorum of a public body convenes for 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(1). A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(4).

It is noteworthy that a quorum may be created, and a meeting "convened," by a "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, e.g., 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). 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.").

Findings

It is undisputed that a quorum of the five-member Town Council is three members. Thus, the existence of a quorum or rolling quorum depends on whether three Town Council members engaged in a collective discussion about the judicial reappointments.

Here, the Complainant's allegations rest entirely on the statements President McGee made during the March 11, 2019 meeting, which are corroborated by the meeting minutes. However, we have also been presented with affidavits from all five Town Council members which explicitly deny any collective discussions between Town Council members on this topic. Indeed, President McGee avers that "[t]here was no discussion between me and any other Councilor about the merits of retaining the existing appointees." (Emphasis in original). Although it does appear that President McGee, over time, had some general conversations with individual Town Council members about the process behind judicial reappointments and/or certain individuals serving as judicial officers, there is no evidence of any link between these discussions sufficient to constitute a collective discussion about a matter over which the Town Council has supervision, control, jurisdiction, or advisory power.

For example, Vice President Laboissonniere avers that at the agenda planning meeting in advance of the March 11, 2019 meeting, he and President McGee did not discuss the reappointment of judges other than Vice President Laboissonniere stating that he could now vote on matters involving an existing appointee. However, with only two (2) members of the Town Council present, such a meeting does not constitute a quorum of the Town Council. Importantly, there is no evidence that links that discussion with any other discussion between other Town Council members.

Further, both Town Council members Dickson and Bacon aver in their affidavits that they did not discuss the merits of judicial reappointment with President McGee, nor did President McGee relay any prior conversations to them, which could have established a link. Town Council member Dickson does relate that she asked President McGee about the process for reappointing judges whose terms had expired, but, there is no indication that she voiced her support for any particular candidate or that President McGee solicited such information. There is also no evidence of a link between the conversation between President McGee and Town Council member Dickson and any other conversation involving any other council members. Town Council member Cote's affidavit indicates that he has no specific recollection of any conversation regarding the judicial reappointments and explains that his support for the existing judges was apparent even without an explicit conversation.

Given these undisputed affidavits, we find no evidence that a rolling quorum of at least three Town Council members engaged in a collective discussion regarding the reappointment of judges. Instead, it appears that President McGee had a general understanding, based on intermittent one-on-one conversations over time, that at least two other Town Council members approved of the current judges. Accordingly, based on the uncontested evidence, we do not find that a "quorum" of the Town Council convened for a collective discussion about an issue over which the Town Council has authority, and thus find no violation.

Although we do not find a violation in this matter, we can certainly understand how President McGee's statements during the March 11, 2019 meeting suggest that a collective discussion occurred outside the public purview. The purpose of the OMA is to ensure that "citizens be advised of and aware of the performance of public officials and their deliberations and decisions that go into the making of public policy." R.I. Gen. Laws § 42-46-1. When statements are made by public officials indicating that there is no need for open discussion on a matter because the outcome is already known, it may very well cause citizens to question whether public business is being carried out in an open and transparent manner, as it should be.

Conclusion

Although the Office of the Attorney General does not find a violation and will not file suit in this matter, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court. 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 are closing our file as of the date of this finding.

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

Sincerely,

Peter F. Neronha, Attorney General

Sean Lyness, Special Assistant Attorney General