Rhode Island Advisory Opinions March 25, 2003: OM 04-08 (2004) (March 25, 2003)

OM 04-08 (2004).

Dear Mr. Garon:

The investigation into your Open Meetings Act [OMA] complaint against the Cumberland Fire District [District] is complete. By letter dated October 4, 2003, you contend the District violated the OMA when its Personnel Subcommittee met with you without providing notice as required by R.I. Gen. Laws § 42-46-6. Specifically, you relate that on September 19, 2003, Mr. Bacon and Mr. Mardo, two of the three members of this Subcommittee, met with you to discuss an incident concerning your personal computer and the alleged use of surveillance equipment.

By way of response from the District, we have received an affidavit from Marcel Bacon, the District's Chair. In that affidavit, Mr. Bacon admits that the Personnel Subcommittee was not in the practice of following the OMA because "[t]he requirement for posting notices of Sub-committee Meetings [had] never been explained" to him or other members of the District. Mr. Bacon further asserts that "all of [the District's] sub-committes [sic] will hereafter post notices of all their future meetings in a timely fashion. Upon our request, Mr. Bacon submitted an additional affidavit describing the content of the September 19th conversation and the regularly scheduled meeting on October 1st.

In order for the OMA to apply, a "quorum" of a "public body" must convene for a "meeting" as the OMA defines those terms. Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). 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) (emphasis added). 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(a). A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(d). "A literal reading of the act demonstrates that all meetings to discuss or act upon matters over which the [public body] has supervision, control, or advisory power, are required to be open to the public." Solas v. Emergency Hiring Council, 774 A.2d 820, 825 (R.I. 2001). In light of the OMA's application to "any subdivision" of a public body, we conclude that the September 19, 2003 meeting of two of the three members of the Personnel Subcommittee was subject to and violated the OMA.

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 this case, we deem neither remedy to be appropriate. We find that the District's acts were not a willful or a knowing violation of the OMA. We acknowledge that in DiModica v. Cumberland Fire District, OM 04-01 (issued March 5, 2004), we recently concluded the District violated the notice provisions of the OMA, but by failing to indicate on a supplemental agenda that elections were going to be conducted at a meeting. In addition, that matter was still under review when you submitted your complaint and the District did not have formal notice that it had violated the OMA. That said, this finding serves as notice that the actions discussed herein violated the OMA, and that subsequent, comparable violations may be considered willful and/or knowing.

We also conclude that injunctive relief is not appropriate under these facts. Based on Mr. Bacon's account of the September 19th subcommittee meeting and the October 1st District meeting, no actions were taken that would be appropriate to declare null and void. At the September 19th meeting, Mr. Bacon interrogated you about allegations that you had installed a video camera without approval from the Board or the Firefighters Union. These allegations were aired at the October 1st Board meeting, and by a vote of four to three you were given a vote of confidence on the issue.

Although the Attorney General will not file suit in this matter, nothing within the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The complainant may do so 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. Please be advised, we are closing our file as of the date of this letter.

Sincerely,

Joe Gaeta

Special Assistant Attorney General Extension 2425

JG/pl

cc: Albert West, Esq.