Rhode Island Advisory Opinions September 13, 2002: OM 02-17 (September 13, 2002)

OM 02-17 (2002).

Dear Mr. Cervasio:

The investigation into your Open Meetings Act ("OMA") complaint filed against the Town of Foster ("Town") is complete.

By letter dated July 31, 2002, you allege that a meeting was convened on April 4, 2002 to hire a town planner. You are on the Planning Board and wanted to attend this meeting as a spectator, but when you attempted to do so, you were told that the April 4, 2002 meeting was not open to the public. You contend that the April 4, 2002 meeting was improperly closed to the public.

In response to your complaint, we received a substantive response from the Town Solicitor, Robert Craven, Esquire. Mr. Craven relates that the April 4, 2002 meeting was a job interview for the two (2) finalists for the position of Town Planner. According to Mr. Craven, "[t]he Town Council as a whole did not oversee or conduct the hiring of the new Town Planner," but the "President of the Town Council asked two (2) members of the council to serve on the committee to hire the new planner and gather other qualified members to serve." One additional non-Town Council member served on the committee. Mr. Craven relates that "[t]hese (3) men then proceeded to conduct the interviews, select the two finalists, and report to the Town Council." As such, Mr. Craven argues, "the meeting that Mr. Cervasio speaks of would not be classified as a meeting that would violate the Open Meetings Act." We disagree.

It is axiomatic that in order for the OMA to apply, a "quorum" of a "public body" must convene for a "meeting." See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). The OMA defines a "quorum" to be "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(d).

Based upon the evidence presented, we have been provided no evidence that a "quorum" of the Town Council convened. In fact, the evidence presented demonstrates that only two of the five Town Council members served on the committee, and therefore, the OMA did not attach to the Town Council for the April 4, 2002 meeting. This conclusion does not end our inquiry, however, because the OMA does not only apply to an entity, such as the Town Council, but it may also apply to subcommittees or advisory committees.

In other words, a "public body" is defined as "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government." R.I. Gen. Laws § 42-46-2(c). Although a "quorum" of the Town Council may not have convened on April 4, 2002, all three members of this committee did convene on April 4, 2002, and it is our opinion that this three member committee is a "public body." See R.I. Gen. Laws § 42-46-2(c)(defining "public body" as "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government."). Our conclusion is supported by the facts of this case and the Rhode Island Supreme Court.

Specifically, although Mr. Craven asserts that the "Town Council as a whole did not oversee or conduct the hiring of the new Town Planner," it is acknowledged that the President of the Town Council "asked two (2) members of the council to serve on the committee to hire the new planner and gather other qualified members to serve." Mr. Craven also relates that the committee was to narrow the candidate field to two (2) candidates and "report to the Town Council." Under these circumstances, we find that the three member committee is a subdivision or subcommittee of municipal government, and therefore, must abide by the OMA. See Solas v. Emergency Hiring Council, 774 A.2d 820, 825 (R.I. 2001)("At the very least the council functions in an advisory capacity in state hirings. * * * As the plain language of the statute provides, a council's exercise of advisory power is enough to bring it under the [OMA's] umbrella.").

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 available in suits filed under the OMA: (1)