Rhode Island Advisory Opinions March 03, 2006: OM 06-28 (March 3, 2006)

Rhode Island Attorney General Opinions

2006.

OM 06-28.

Garceau v. Narragansett Town Council

Dear Mr. Leeson and Mrs. Garceau:

The investigation into your Open Meetings Act [OMA] complaint is complete. By separate letters of complaint, you have each alleged a violation of the Open Meetings Act by the Narragansett Town Council. We will address your complaints collectively in this finding because your primary complaints derive from the same alleged actions by the Town Council. Specifically, you indicate that four members of the Town Council held a special meeting on September 19, 2005, in order to conduct interviews of 13 applicants for the Narragansett Zoning and Platting Board of Review. After the interviews were conducted and the special meeting adjourned, you allege that the four members of the Town Council met privately in revolving groups of two to decide whom they would select. Three individuals were selected for the Zoning Board at the Town Council's regularly scheduled meeting, which was held immediately after the special meeting and alleged private discussions. You allege that, by these actions, town business was conducted outside of the public purview in violation of the OMA.

Mr. Leeson, although not present for the meeting, refers us to a September 20, 2005 Providence Journal article in support of this allegation. Specifically, the article, captioned "Unusual process used by council to name three to zoning board," states that "the four council members .. met privately in groups of two to decide whom they would select, reforming the duos several times so all of the members had a chance to meet face to face."

Mrs. Garceau describes the actions by the Town Council after the September 19, 2005 special meeting as a "prearranged" and "private gathering/meeting consisting of four members" "to discuss and nominate and vote to appoint/reappoint three individuals to the Town's Zoning and Platting Board of Review." In reference to the regular Town Council meeting held later that evening, she states that she "believe[s] public business was not conducted at this meeting. Business was conducted in secret at an earlier private meeting."

Additionally, Mrs. Garceau alleges that the Council has violated R.I. Gen. Laws § 42-46-7(b), first, because the minutes from meetings do not reflect "how each member voted on each issue." By way of illustration, she highlights the fact that the "written information" that was provided to the general public after the September 19th regular Town Council meeting does not reflect how each member voted on agenda item 05-08-268, which was the item under which appointments were made to the Zoning Board. Second, she alleges that minutes to the special meeting of September 19, 2005 were not timely made available to her as required by R.I. Gen. Laws § 42-46-7(b). She indicates that she made a request for said minutes after the regularly scheduled Town Council meeting of October 3, 2005. She states that she was denied these minutes because, she was told, "the minutes needed to be approved by the Council first."

This Department has received a substantive response from Mark A. McSally, Solicitor for the Town of Narragansett. With regard to the allegation of private discussions by members of the Town Council after the special meeting of September 19, 2005, Mr. McSally describes the special meeting as commencing at 6:00 P.M. and lasting until 6:45 P.M. At this meeting, thirteen individuals were interviewed by four of the five Town Council members for positions on the Narragansett Zoning and Platting Board of Review. Present were council members Anne-Marie Silveira, Council President, George M. Tracy, Council President Pro Tem, James Durkin and Krista Garrett. After forty-five (45) minutes elapsed, the regular Town Council meeting commenced at 7:30 P.M. As advertised by agenda, these same four council members by unanimous vote made three appointments to the Narragansett Zoning and Platting Board of Review during this regular meeting. Mr. McSally describes what happened immediately after these votes to possibly explain the statements made in the newspaper article later relied on by Mr. Leeson. He writes as follows: "After the vote was taken, a member of the audience asked how a decision was reached. The Council President responded with words to the effect that between the special meeting and the regular meeting some discussion regarding preferences occurred between members of the Council. She added, however, that at no time were there more than two members present; and, therefore, a quorum had not been reached. Presumably, based upon these comments, the newspaper wrote the article that was attached to the complaint."

Mr. McSally indicates that he interviewed the four Town Council members involved. Based upon these interviews, he denies that there was "any convening of a meeting nor a quorum of Council members during the break between the posted meetings." Instead he describes the scene as follows: "At the conclusion of the special meeting, many members of the public, potential appointees, and the Council members were present in the Council chambers. There were numerous discussions going on between all different groups of people at this point in time. There never was a nonpublic discussion amongst the Council to decide whom to appoint to these positions. Rather, any discussions regarding preferences were general in nature, took place amongst no more than two Council members, and were in the open public area for any person to overhear or participate in."

To support this assertion, Mr. McSally describes each council member's recollection as follows:

According to Councilwoman Garrett, in the intervening period she left the Council table to use the rest facilities and to speak with a friend in the audience. She also spoke to a number of other people in the area. She did speak briefly to Councilman Durkin with a question about where one of the applicants resided, and she never spoke with Councilman Tracy. She also made the statement to anyone that was listening that she would not be in favor of appointing anyone who was associated with any state agency. This was because among the candidates were an employee of CRMC and an employee of DEM.

Council President Silveira indicates that she had brief discussions with or did hear comments made by each of the Council members. During the break between Council meetings, she recalled that Councilman Tracy was not present much of the time. She also believes that Councilwoman Garrett like herself had a sheet with names on it from the interview with comments from the interview process. She also recalled Councilman Durkin making a statement that he would prefer to reappoint the existing candidates. This was something that Council President Silveira would not agree with. She also recalls general discussion regarding the individuals that were ultimately appointed. She supported Mr. Brunetti because he had been an applicant on many occasions for this and other appointments. She also is familiar with Ms. Baris because she attends many meetings in Town. Finally, with respect to Mr. Mulligan, she believed that, because of his family's involvement in the Town and his experience, he would be a good choice. She further recalls at the end of the break suggesting to Councilman Tracy that it was her perception that a majority would support the appointment of Mr. Brunetti, Ms. Baris, and Mr. Mulligan and, therefore, suggesting that he nominate those individuals if he was comfortable with it. She did this so as to avoid embarrassing the other candidates if in fact these three were to be appointed.

Councilman Tracy indicates that he was not present at the Council table during much of the recess between meetings. Rather, he was in the chambers talking to individuals. At one point he did go back up to the Council table and had a brief discussion with Council President Silveira, wherein she indicated that certain Council members would probably not support certain individuals for the position. He also had some generalized discussion with Councilman Durkin, and he had his own list of preferences as to whom he would like to support. He also recalls raising a question about the identity of one candidate, as there were two with the same last name. Finally, shortly before the regular meeting commenced, he spoke with the Council President, and she indicated that, based upon what she had surmised, there would be support for the three individuals who are eventually appointed. She further suggested that, in order to avoid embarrassment of the other candidates, nomination of these three may be treated favorably.

Finally, Councilman Durkin indicates that he was in and out of the Council chambers after the conclusion of the special meeting. He did make a statement at one point that he would support the three sitting members for reappointment. He also recalls Councilwoman Garrett indicating that she would not support the appointment of any employee of CRMC or DEM. With respect to the three individuals appointed, he had no problems with any of them and, if asked during the course of the discussions, probably would have said so.

Based on his discussions with these four council members, Mr. McSally asserts that these members did not break up into groups of two by two so as to discuss who best to appoint to these positions. He writes, "[r]ather it appears that a break in between meetings, while the public was still present in the Council chambers, and as part of many generalized conversations, certain questions were raised and names were bandied about as potential candidates." Further, he writes that the "Council President, in order to avoid the potential embarrassment of individuals who were not to be considered, suggested that from her observations there appeared to be a consensus for the three individuals that were ultimately appointed. When their names were put forward, they were appointed, and the matter was concluded." Mr. McSally defends that "there was no intent to circumvent the requirements of the Open Meeting Act, and, if these generalized discussions amongst Council members in a public setting do technically violate the Act, they were inadvertent violations."

The OMA requires that "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5." R.I. Gen. Laws § 42-46-3. Consistent with this Department's previous findings and with applicable case law, the OMA is implicated whenever a quorum of a public body meets. 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(a). See Zarella et al. v. East Greenwich Town Planning Board, OM 03-02. A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(d).

Although the above definitions are seemingly straightforward, it is noteworthy that a quorum may be created, and a meeting "convened," by unconventional means. In particular, this Department 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. See 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); 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); D'Andrea v. Newport School Committee, OM 98-11 (violation of the OMA when Committee members used head signals to vote on a matter); International Brotherhood of Police Officers v. Barrington Town Council, OM 96-01 (OMA prohibited communication by fax to obtain the endorsement of Council members of a newspaper editorial); Dempsey v. Rhode Island Ethics Commission, OM 94-14 ("[d]espite the caller's best intentions, a phone call may result in a substantive discussion which should be conducted in the public forum").

It is undisputed that during the interval between the special and regular meetings of September 19th, four of the five Narragansett Town Council members participated, to some extent, in conversations concerning the candidates seeking appointment to the Narragansett Zoning and Platting Board of Review. We believe that the topic of these candidates/vacancies is a "matter over which the public body has supervision, control, jurisdiction, or advisory power." R.I. Gen. Laws § 42-46-2(a). The Town Council does not refute this particular belief. However, what remains to be determined, and what is in dispute, is whether a quorum - at a minimum, three out of the five Town Council members - engaged in a collective discussion on this topic. Based on the evidence, we believe that it did.

Mr. McSally characterizes this interval time period as comprised of "generalized conversations" and "certain questions" that "were raised and names [that] were bandied about," by council members with, and in the presence of, members of the public. He denies that a quorum of the Town Council members ever convened a meeting at this time, or that any discussions were held outside of the public purview. Notwithstanding, by the council members' own observations, preferences/questions/concerns about particular candidates were communicated to/from the four council members who conducted the interviews. Most notably, it is clear that Council President Silveira held discussions with all three council members present during the break so that a poll could be conducted of his or her respective positions on the candidates. As Mr. McSally represents, Council President Silveira "suggested that from her observations there appeared to be a consensus for the three individuals that were ultimately appointed." As a result of the special meeting conversations, the Town Council President was in a position to determine that the Town Council had arrived at a consensus for the three nominees.

Over the course of the forty-five (45) minute break between formal public meetings, we find that the council obtained a walking quorum on this matter of Town Council business. We find that their actions negated the purpose for which the OMA was enacted: to ensure that "public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." R.I. Gen. Laws § 42-46-1. Although these series of one-on-one conversations between fellow council members may have been held in the presence of the general public with multiple conversations occurring simultaneously, this event was public only to the extent that those who by happenstance were present may have overheard these conversations. Further, the public was afforded no notice of this event. Hence, we believe that the informal discussions held before the regular Town Council meeting violated the requirements of the OMA.

We next address Mrs. Garceau's allegations concerning the adequacy and availability of the September 19th minutes. First, she alleges that the minutes do not reflect "[a] record by individual members of any vote taken." R.I. Gen. Laws § 42-46-7(a)(3). Specifically, she refers to the agenda item concerning the appointment of persons to the Narragansett Zoning and Platting Board of Review. She alleges that the minutes do not reflect a breakdown of how each member voted on this item. To evidence a pattern, Mrs. Garceau has provided us a copy of documents from the August 15th and September 6th regular Town Council meetings in which the agenda matters and actions are summarized, but without a break down of how each member voted. We note that these documents generally report the events of each respective meeting, however, the headings do not indicate that these are "Minutes." Ms. Garceau also provided a copy of the September 19th special and regular meeting minutes, which she forwarded to this Department on or around November 7th .

In response to this allegation, Mr. McSally indicates that "[i]t is the practice of the Town Clerk's office, on the day after a Council meeting, to type a summary of the action taken by the Town Council on the agenda. This is then made available to the public. However, these are not the minutes of the Town Council meeting. The minutes are prepared by the Town Clerk and then submitted to the Town Council for their review and approval." Mr. McSally has enclosed for our review a certified copy of the September 19th regular Town Council meeting minutes as evidence that "the official minutes contain the votes of each member of the Town Council."

A review of the September 19th regular Town Council meeting minutes confirms Mr. McSally's assertion that the minutes, at least those maintained for the September 19th regular meeting, do reflect the votes of each member of the council. Notably, the majority of votes recorded on September 19th state "It is unanimously VOTED[.]" For the two votes for appointments to the Narragansett Zoning and Platting Board of Review, the minutes respectively state, "Vote is recorded as follows: Aye - Council President Silveira, Council Members Durkin, Garrett and Tracy. Recuse - Council Member Handrigan." Because the meeting minutes initially record what members are present, we find that the notations after each vote sufficiently informs the public of the "record by individual members of any vote taken." R.I. Gen. Laws § 42-46-7(a)(3). Particularly in the case of the appointments, we find that the minutes adequately indicate that four members voted in favor, and one member recused, on the vote.

We believe that Mrs. Garceau's complaint derives from the "action summaries" that are provided to the public shortly after any Town Council meeting and not the minutes. Indeed, she is correct that these summaries do not list how each member voted on any particular item. However, the OMA only requires that "[a] record of all votes taken at all meetings of public bodies, listing how each member voted on each issue, . shall be available, to the public at the office of the public body, within two (2) weeks of the date of the vote[,]" and that "unofficial minutes shall be available, to the public at the office of the public body, within thirty-five (35) days of the meeting or at the next regularly scheduled meeting, whichever is earlier." R.I. Gen. Laws § 42-46-7(b). The OMA does not require or provide for the summaries immediately proceeding a meeting that the Narragansett Town Council elects to produce.

Mr. McSally indicates that the Town Council's minutes, which include the required "record of all votes taken at all meetings," are routinely made available to the public at the next regularly scheduled meeting, "which are usually two weeks later[.]" These minutes, he states, have previously been utilized to satisfy the requirement of providing "[a] record of all votes taken at all meetings of public bodies, listing how each member voted on each issue . at the office of the public body, within two (2) weeks of the date of the vote." We find that this practice, which we are assured has since been changed, is a violation of the OMA to the extent that regularly scheduled meetings sometimes convene more than two weeks apart. In these past instances, a record of how each member voted was not made available to the public within two weeks of the meeting. Nevertheless, Mr. McSally informs this Department that the Town Council will henceforth comply with all aspects of R.I. Gen. Laws § 42-46-7(b), and he indicates that the Town Council has already implemented a new policy to ensure compliance. Effective for more than one month, the Town Council now makes available the day after any meeting a summary sheet which includes the details of how each council member voted and what member made or seconded any particular motion.

Finally, Mrs. Garceau alleges that she was denied the September 19th special meeting minutes upon her request at the regular council meeting of October 3rd. Mr. McSally admits that Ms. Garceau was not provided the special meeting minutes from September 19th in a timely manner. He states that the minutes were withheld because their approval was not listed on the agenda for the October 3rd meeting, and that it was the long-standing practice of the town clerk to await the release of minutes until they are approved. He states that "[t]his policy has been changed, and draft minutes are now available as required under the statute."

Although we note that the minutes need only be provided at the office of the public body and not at the meeting, see R.I. Gen. Laws § 42-46-7(b), we find that the Town Council violated the OMA when it denied Mrs. Garceau the minutes because the minutes had not yet been approved. The OMA requires that minutes be available to the public by the earlier of thirty-five (35) days of the meeting or the next regularly scheduled meeting; the OMA does not make exception for approved or unapproved minutes. In this case, the October 3rd meeting, a regularly scheduled meeting, came before the thirty-five day time limit. Regardless of whether the minutes had been approved, the Town Council was required to provide the minutes to Mrs. Garceau at this time. Its failure to do so was a violation of the OMA. See Warfel v. Block Island Sewer Commission, OM 05-10, PR 05-11 ("The OMA is silent, however, on the approval of minutes. Hence, by implication, minutes must be made available to the public within the time restrictions stated, regardless of whether the minutes have been approved").

Upon a finding of an OMA violation, the Attorney General "may file a complaint on behalf of the complainant in the superior court against the public body." R.I. Gen. Laws § 42-46-8(a). "The court may issue injunctive relief" and/or "may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members" for a willful or know violation. R.I. Gen. Laws § 42-46-8(d). In the instant case, we find neither remedy to be appropriate and conclude that court action is unwarranted. Although we find that, based on the member's own admissions, the Narragansett Town Council violated the requirements of the OMA when a quorum met to discuss appointees, we have been presented no evidence to conclude that this violation was willful or knowing. We rely on the council members' representations that they believed the discussions held before the regular meeting were informal, generalized discussions among and with the public. We also observe that all appointments made on the evening of September 19th were made at the regular Town Council meeting in an open forum in conformance with the OMA. Hence, injunctive relief would be unavailing in this case. See Tanner v. Town Council of the Town of East Greenwich, et al., 880 A.2d 784, 802 (R.I. 2005) (finding public body's subsequent vote for appointees at meeting in compliance with the OMA to be a "significant factor" in determining remedy and award of legal fees, stating that "the acts of the town council were sufficient to redress its original non-willful violation of the OMA"). Moreover, we note that Mrs. Garceau is now in possession of the special meetings minutes that she sought at the October 3rd meeting. Finally, we rely on the Town Council's representations that it has instituted a new practice and policy to ensure that minutes, regardless of whether they have been approved, and a record of how each council member has voted, are available within the time required by law. We expect the Town Council to fully adhere to these requirements and, by this finding, we place the Town Council on notice that any future violations consistent with the violations found herein may be considered willful and knowing.

Although the Attorney General will not file suit in this matter, nothing in the OMA precludes an individual from pursuing an OMA complaint in the Superior Court. The complainants may do so within ninety (90) days from the date 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 that we are closing our file as of the date of this letter.

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

Very truly yours,

Christy Hetherington

Special Assistant Attorney General

CLH/pl

cc: Mark A. McSally, Esq.