Rhode Island Advisory Opinions March 05, 2004: OM 04-01 (March 5, 2004)

Rhode Island Attorney General Opinions

2004.

OM 04-01 (2004).

Dear Mr. DiModica:

The investigation into your Open Meetings Act [OMA] complaint against the Cumberland Fire District [District] is complete. By letter dated July 17, 2003, you allege the District violated the OMA "by conducting elections of officers and appointments of committee chairpersons without posting the elections on the agenda. . .." In support of your complaint, you submitted the agenda from the July 17, 2003, meeting, which confirms that no elections were noted in the public notice.

We have received a response from Albert West, Esq., legal counsel for the District. That response was accompanied by an affidavit from Marcel Bacon, Chairperson of the District's Board of Commissioners. Mr. Bacon confirms that the election "was not listed on the agenda for the meeting by oversight." He goes on to explain that upon being notified that an OMA complaint had been filed, "a subsequent meeting was scheduled, at which the election of Chair and Assistant Chair and Appointed Committee Members was listed on the properly posted agenda for a meeting scheduled for August 1, 2003." The August 1st notice and minutes confirm this account.

The OMA requires that at least 48 hours before a meeting a public body post notice that includes "the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed." R.I. Gen. Laws § 42-46-6(b). Because the District did not indicate in its public notice that elections would be conducted at its July 17, 2003, meeting, it was not permitted to conduct these elections. By doing so, it 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 as we are not aware of any other instances in which the District has been found in violation of the OMA for similar acts. We also conclude that injunctive relief is not appropriate because the illegal elections were conducted at a properly-noticed meeting on August 1, 2003. In effect, the District remedied its own violation by promptly conducting another election.

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:mb

pc: Albert West, Esq.

Marcel Bacon