Rhode Island Advisory Opinions September 08, 2006: OM 06-54 (September 8, 2006)

Rhode Island Attorney General Opinions

2006.

OM 06-54.

Dear Mr. Gorham and Mr. Bevilacqua:

On December 13, 2004, pursuant to R.I. Gen. Laws § 42-46-8(f), the Department of Attorney General initiated an Open Meetings Act [OMA] investigation into the events surrounding the Foster Town Council meeting of December 9, 2004. In the days following December 13th, this office received several related complaints from Council Members Harold Shippee, Colette Matarese, and citizens Myra Mercier and Mary DiLibero. To the extent that said complaints alleged a violation of the Open Meetings Act, the five currently seated Foster Town Council members were asked to answer the allegations posed by these "aggrieved" parties and asked to answer the questions posed by this Department. See R.I. Gen. Laws § 42-46-8(a). This investigation is now complete. The pertinent travel of this case, the evidence compiled over the course of this investigation, and this Department's findings are as follows.

History and Travel

The following events herein described are garnered from the evidence compiled and presented in the course of this investigation, including sworn affidavits, tape recordings, documentary evidence, and deposition testimony.

On November 2, 2004, the date of the general election, citizens of the Town of Foster elected to the Town Council the following five (5) individuals from approximately ten (10) eligible candidates: Republican candidates Steven Bellucci [Bellucci], Ralph Berkowitz [Berkowitz] and Heidi Rogers [Rogers], and Democratic candidates Colette Matarese [Matarese] and Harold Shippee [Shippee]. From this point forward, Bellucci, Berkowitz, Rogers, Matarese, and Shippee were officially members-elect to the Foster Town Council, and hereafter shall be referred to as the "Town Council."

Consistent with the Foster Town Charter, a December 9, 2004 Town Council "transitional" meeting was scheduled. Consistent with past practice, and as reflected in the posted agenda provided to this office, the outgoing Town Council members were scheduled to meet to conclude old business at this meeting. Thereafter, incoming Council members were to be sworn-in in order to conduct new business. Specifically, the meeting as planned was to begin with outgoing Town Council members conducting agenda items (1) through (6), followed by item (7), entitled "Oath of Office," wherein the Town Council members-elect, Town Clerk and "Other" elected officials were to be sworn in and the Council organized. Thereafter, the remaining agenda items (8) through (12) were to be conducted by the five newly sworn-in Town Council members. Most notable of the agenda matters to be handled by the "new" Town Council were those matters listed under item (9), entitled "New Business." These matters were listed on the agenda as follows:

A. Appointment of Town Solicitor;

B. Swear in Town Solicitor;

C. Personnel Policy;

D. Personnel Board;

E. Appointments - Board/Commissions, Town Officials;

F. Swearing in Appointment - Board/Commissions, Town Officials;

G. Department of Public Works Contract;

H. Resignation Letter Steven Bellucci;

I. Resignation Letter Colette J. Matarese;

J. Renewal 2005 Town License;

K. Request for committee members for Regional District School Building Committee/Letter of interest Warren Ducharme;

L. December 23, 24, 30, 31 town hall closings; and

M. Town Council Meeting 12-23-04.

It is the events that unfolded this evening that prompted the instant investigation.

At approximately 6:55 P.M. on December 9, 2004, minutes before the transitional Town Council meeting was scheduled to begin, newly elected Town Council members Rogers, Bellucci and Berkowitz assembled at the Town Council's head table. Members Matarese and Shippee took their seats in the audience, as did the remaining members of the "outgoing" Council. Prior to being seated, however, Matarese and Shippee were individually approached, informed that Rogers, Bellucci and Berkowitz had already been sworn-in earlier that day, and asked if they would like to take the oath of office at the onset of the meeting so that the full/new Town Council could conduct the meeting in its entirety. Matarese and Shippee declined, opting instead to follow the agenda as advertised and awaiting item (7) to take the oath of office.

By way of general summary, the Town Council meeting proceeded as follows: With councilpersons Rogers, Bellucci and Berkowitz seated at the Town Council table, the December 9, 2004 meeting began. At the onset, Council member Rogers announced that the agenda would be taken out of order, and after some divided discussion among outgoing and incoming council members, as well as advice from the outgoing and incoming Solicitors, an affirmative vote was taken by the three seated Council members to conduct several agenda item matters out of order. First conducted was Item (7) entitled "Oath of Office" for elected officials. Sworn in to office was a member of the Tax Board of Review, Town Sergeant, and two District Clerks. Thereafter, Rogers, Bellucci and Berkowitz voted Rogers to serve as Council President and Bellucci to serve as Vice-President. Next addressed were matters A through F of item (9), entitled "New Business." This included the appointment and swearing-in of Town Solicitors Bradford Gorham, Esq. and Jane G. Gurzenda, Esq., a debate and vote regarding the Town's Personnel Policy and Personnel Board, and the appointment of over thirty individuals as Department Heads, officials on Boards and Commissions, and Constables, some of whom represented new appointments. The three seated council members next addressed various routine matters, including "Old Business." Next, Council members Matarese and Shippee took the oath of office, and the remaining agenda items were addressed in order by the fully-seated Council until the meeting was adjourned at 9 P.M. The foregoing events almost instantly became controversial, see Rosenbaum, S.I. and Warchut, Katie, "In Foster, the Ousted Vow to Fight Council Coup[,]" The Providence Journal Bulletin, 11 Dec. 2004, Northwest Edition, and ultimately became the focus of the instant OMA allegations.

For instance, an audiotape and minutes from the meeting reflect that when the "Personnel Policy and Personnel Board" item was addressed early in the meeting, Council member Bellucci moved, and Berkowitz seconded, to "remove and eliminate the current Personnel Policy and disband the Personnel Board." Although this motion stirred debate and many questions from the audience, as well as sporadic comments from individual Council members, there was no collective discussion among the three seated Council members concerning this matter. Even after member-elect Matarese, outgoing Council member Baribault, and citizens from the audience expressed concerns about the legality of the Town being without a Personnel Policy if the motion were to pass, Council member Rogers made various comments, including that she did not see the purpose of the Policy, and that the Council would like to make a new Policy. When pressed about how and from whom this decision had come, and whether the Policy had been talked about previously, Rogers answered, "I've discussed it, but we haven't acted on it," and stated that the matter was on the agenda in order for a vote to be taken. Ultimately, the three Council members voted to remove all but what is required by law of the Personnel Policy and to disband the Personnel Board.

In another instance, Council member Bellucci moved, and Berkowitz seconded, for thirty-six (36) individuals to be appointed to positions within the town's government, and for twenty-seven (27) individuals to be assigned as Constables. In making this motion, Bellucci read from a pre-prepared document that he brought to the December 9, 2004 meeting. This document contained a typewritten form, prepared and delivered to Bellucci by Attorney Gurzenda some time after the election, naming all town positions. Following each typed position listed, Bellucci handwrote the name of the proposed appointee. Of the names read aloud, several proposed appointees were replacements for individuals then-currently holding these respective positions, such as the Chief of Police, the Public Works Department Director, the Tax Collector, the Recreation Director, the Probate Judge and the Town Solicitor. Also filled was a newly created position of "Administrative Official - Land Development and Subdivision Regulations." The motion for appointments unanimously passed without further discussion or debate among Councilors Rogers, Bellucci, or Berkowitz. At a later point in the meeting, however, Bellucci clarified that by making an appointment for the new "Administrative Official" position, this "meant that the position of Town Planner [was] eliminated." Although some assorted discussion ensued regarding the legalities of these actions, both at the time that the appointments were named and when the matter was later revisited, no collective discussion occurred between seated Councilors Rogers, Bellucci, or Berkowitz. Other pertinent facts will be set forth as needed.

In brief, the foregoing events raised several OMA issues. For instance, in the words of the complaints filed by Shippee and Matarese, the "lack of discussion [regarding] these actions clearly indicate that official town business was previously discussed and decided somewhere else." The complaints received by this Office also took issue with the sufficiency of the posted notices and the fact that advertised agenda items were taken out of order during the December 9, 2004 meeting. We review these allegations below.

The Open Meetings Act

The Open Meetings Act requires that "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to [certain exceptions provided for in this law]." R.I. Gen. Laws § 42-46-3. In order for the OMA to apply, a "quorum" of a "public body" must convene for a "meeting" as these terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). All three of these elements (a quorum, meeting, and public body) must be present in order for the OMA to apply; the OMA is not applicable when one or more of these elements is absent.

Here, there is little question that the Town Council is a "public body," and there is no doubt that three (3) members of the five (5) member Town Council comprises a "quorum." Likewise, in determining whether the "public body," or the "quorum" elements have been satisfied, there does not appear to be any disagreement that council members-elect must be considered. See Schanck v. Glocester Town Council, OM 97-03. Accordingly, for the moment, we focus on the "meeting" requirement.

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). Several cases from this Department have reviewed this "meeting" requirement and determined that either "action" or a "collective discussion" by a quorum of the public body at issue is required to satisfy the "meeting" element, and thus, trigger the OMA and its attendant requirements.

For instance, in Neubert v. Governor's Office and Exeter Town Council, OM 98-09, we examined whether the convening of several individuals, including members of the Exeter Town Council, to attend an informational presentation on the development possibilities for the Ladd Center, constituted a "meeting." At this session, the Exeter Town Council members "did not take any votes, discuss the issues among themselves, render any collective decisions, or take any action." Based upon these facts, this Department found that informational session did not constitute a "meeting," pursuant to R.I. Gen. Laws § 42-46-2(a), because the members of the Exeter Town Council did not collectively discuss and/or act upon a matter over which it had jurisdiction. We warned, however, that "had the council members discussed and/or acted upon matters over which it had jurisdiction or advisory power, the council would have held a 'meeting' as defined by the [OMA]." See also In re North Kingstown Town Council, ADV OM 99-05 (informing government leaders of concerns relating to the proposed Quonset Point Development, not a "meeting" provided that members of the Town Council "maintain a similar passive role as the Exeter Town Council members" in the above-cited case); Johnson v. Exeter Town Council, OM 06-06; Mageau v. Charlestown School Committee, et al., OM 06-44.

Similarly, in In re Providence School Board, ADV OM 99-08, we examined whether an information session held by the then-President of Brown University and attended by members of the Providence School Board was a "meeting" as defined by R.I. Gen. Laws § 42-46-2(a). In that case, we noted that President Gee would present general information regarding the search, and answer the Board members' questions. Based upon these factors, we determined that for purposes of the OMA, a "meeting" would not convene. Specifically, we observed that based upon the facts presented, the Board members were not engaging in a collective discussion, nor were the Board members taking any action over matters they had supervision, control, jurisdiction, or advisory power. See R.I. Gen. Laws § 42-46-2(a).

Also instructive on this point is this Department's advisory opinion in In re Rhode Island Ethics Commission, ADV OM 00-03, an opinion cited by the Town Council to support its position in this case. Since the Town Council relies on this opinion to support the legality of its actions, extended discussion is appropriate.

In In re Rhode Island Ethics Commission, this Department was asked to opine on "whether, during the course of [the Ethics Commission's] hearings held in open session, the Commission may withdraw to deliberate or to seek legal advice in closed session even when none of the exceptions to the Open Meetings Act apply." We began our advisory opinion by observing a Rhode Island Superior Court case wherein a Justice of that Court rendered a decision affecting the Zoning Board of Review for the Town of Charlestown. As a result of this judicial decision, the Charlestown Solicitor prepared and distributed a memorandum to the Zoning Board of Review members, and subsequently, met, outside the public's purview, with one or two Zoning Board of Review members to discuss the memorandum and to answer questions. Based upon legal counsel's consultations with the one or two Board members outside the public's purview, an OMA complaint was filed in the Rhode Island Superior Court.

In his written decision, then-Justice Williams stated that:

"this Court does not believe that such discussions fall within the spirit or requirements of our Open Meetings Act. There was neither a convening of a public body nor a quorum. More importantly, this Court believes in the free and unhindered discussions between lawyer and client. Quite simply, that is what occurred in this case, and such discussions should not be, nor are they, subject to the requirements of the Open Meetings Act, especially where there is no meeting of a public body." Fischer v. Zoning Board for the Town of Charlestown, WC No. 93-0624, aff'd on other grounds, 723 A.2d 294 (R.I. 1999)(Emphasis in original).

Having reviewed the Superior Court's Fischer decision, as well as this Department's finding/advisory opinion in Neubert and In re Providence School Board, we concluded that "based upon [legal counsel's] representations, Commission members who merely address questions to legal counsel (and receive answers from legal counsel) will not constitute a 'meeting' for purposes of the OMA." In re Rhode Island Ethics Commission, p. 3. In the next sentence, however, we emphasized that "[t]his Department's opinion is limited to the fact that the Commission members are engaged in a colloquy with legal counsel and that Commission members are not collectively discussing and/or acting upon any matter over which the Commission has supervision, control, jurisdiction, or advisory power." Id. (Emphasis in original). Later in our advisory opinion, in what was surely meant to serve as a warning to those who might try to circumvent the OMA, we:

"caution[ed] the Commission that if its members engage in a collective discussion, vote, or take other action while asking questions to legal counsel, a 'meeting,' as defined by the OMA, will convene and the requirements of the OMA will [] apply. Any attempt by the members of the Commission to engage in a collective discussion under the guise of asking questions to legal counsel will be deemed by this Department to be a 'meeting.'" Id. at 4 (Emphasis added).

With this as background, we address the specifics of this case.

Facts

This Department has evaluated the information gathered from the complaints, meeting minutes and audiotape, and affidavit and deposition testimony with an eye for determining whether or not, at any time after the election, but before the December 9th meeting, a quorum of the council members-elect conducted a "meeting" in violation of the OMA, as that term is defined by the OMA. In other words, did the council members-elect ever engage in discussions, or actions, that implicated the OMA, because the three threshold requirements (quorum, meeting, and public body) were met, such that the public should have been privy to these actions? Based upon the complaints we received, the immediate area of inquiry concerns whether the Town Council improperly convened outside the public purview to discuss appointments to town positions, and if the Town Council did not improperly convene to discuss appointments, how and why did these matters pass with little to no discussion. The facts represented are as follows:

Contacts Regarding Appointments:

Based upon the evidence presented, it is apparent that two distinct groups were formed within the Town Council, along party lines. For instance, Council members (and complainants) Shippee and Matarese, the Democratic Party representatives, affirmed that they had no discussions with any of the newly elected council members prior to the December 9, 2004 meeting. See December 22, 2004 Matarese Affidavit, 6 and Shippee Affidavit, 5. In support of this conclusion, Council member Rogers stated that she had no contact, other than a congratulatory note upon their election, with Councilors Shippee and Matarese. See Rogers Deposition, p. 23.

On the other hand, the evidence also demonstrates that prior to the November 2004 election, extensive and detailed discussions occurred among and between Berkowitz, Bellucci, and Rogers, the Republican Party representatives, as well as with others. For instance, in an affidavit, Councilor Berkowitz explained that "[p]rior to the election on November 2, 2004, the Republican candidates for Town Council had discussed changes they wanted to make in the personnel of the Town." See Berkowitz Affidavit, December 21, 2004, 2. In a later affidavit, Berkowitz added that "[i]n the summer of 2004, I went to two campaign meetings with the other candidates on the Republican ticket. There was a discussion of appointment of Public Works Director, Chief of Police, Town Solicitor, Tax Collector and Recreation Director." See Berkowitz Affidavit, May 31, 2005, 2.

Similarly, Councilor Bellucci affirmed that "[b]efore the November 2, 2004 election, the Republican Town Council candidates discussed appointments they would make if they were elected." See Bellucci Affidavit, December 22, 2004, 2. Bellucci added that, prior to the November 2004 election, "[w]e had agreed that we would appoint a new Police Chief, a new Public Works Director, a new Probate Judge, a new Town Solicitor, a new Recreation Director and a new Tax Collector [and that w]e discussed these positions and a need for new people to serve in them at campaign meetings attended by all the council candidates." Id.

Councilor Rogers also represented that "[d]uring the 2004 election campaign, we had discussed what positions we needed new people for and we discussed it with those people." Rogers Affidavit, December 29, 2004, 2. Councilor Rogers' affidavit then goes on to detail various discussions either she had, or that she was aware Bellucci had, to gauge the interest of the various individuals who would eventually become newly appointed town officials, namely Robert Davignon, Probate Judge; Pamela Fontaine, Tax Collector; Walter May, Public Works Director; Michael Gawel, Police Chief; and David Costa, Recreation Director. Id.

In pursuit of our investigation, we also requested, and received, affidavits from the six (6) individuals whose new appointments were announced at the December 9, 2004 meeting. Believing that few, if any town councils, would announce a series of new appointments without first determining the interest of the appointed individuals, our goal with respect to these affidavits was to determine these individuals' recollection concerning if, when, and how they were asked to serve in their newly appointed positions. In large part these affidavits support the representations made by Berkowitz, Bellucci, and Rogers.

For instance, then-Sgt. Gawel explained that his first discussion concerning becoming Chief of Police occurred with Bellucci during a chance encounter in January 2004. Gawel added that he had another discussion with Bellucci in July 2004, and that he would occasionally see Rogers during 2004 (in connection with Rogers' work with the Foster Ambulance Corps) where they might discuss his interest in becoming Chief of Police. Significantly, Gawel's affidavit states that "[a]fter the November 2, 2004 elections, I had no discussions with any of the elected councilors." Gawel Affidavit, January 5, 2005.

Similarly, Pamela Fontaine states that "Mr. Bellucci approached me at the end of August 2004 . . . [and] asked me if I was interested in being returned to the Office of Tax Collector." Fontaine's affidavit states that she told Bellucci that she was interested in returning and that Fontaine was "at several campaign meetings during August, September and October and at one of those meetings, I was asked by the candidates for Town Council if I was still interested in the appointment." Like Gawel, it is significant that Fontaine's affidavit states that "[a]fter the election, I had no discussions or meetings with any of the elected councilors about the Tax Collector position." Fontaine Affidavit, January 5, 2005.

Walter May's affidavit represents that he "had discussions with Mr. Berkowitz and Mr. Bellucci concerning returning to the Director's job in June of 2004," and that he agreed. May's affidavit continues that he "was reminded of this commitment at campaign meetings during July, August and September," and that "[a]fter the November 2, 2004 election, I did not discuss the appointment to Director of Public Works with any of the candidates." May Affidavit, January 5, 2005. Likewise, David Costa's affidavit related that both Bellucci and Berkowitz mentioned the Recreation Director's position to him and that he had discussed the position toward the end of July 2004. Costa also states that "[n]o one talked to me about the position after the November 2, 2004 election." Costa Affidavit, January 10, 2005. Lastly, Richard Grant "was asked by Mr. Bellucci in mid October 2004 whether I was interested in [the Administrative Official] position." Grant indicated that he was willing to serve and that "[t]he only contact after the November 2, 2004 election was a phone call from Mr. Bellucci to confirm that I was still interested in the position." Grant responded that "I was." Grant Affidavit, January 5, 2005.

Based upon the foregoing, we have little trouble in answering one of the areas of our inquiry and determining that prior to the election Berkowitz, Bellucci, and Rogers had extensive collective discussions amongst themselves, and with others, concerning town appointments should the Town Council majority turn Republican. Since all of these discussions occurred prior to their November 2004 election, the OMA simply did not regulate the actions of these then-candidates, and accordingly, we find no OMA violation here. See Schanck v. Glocester Town Council, OM 97-03.

Furthermore, we observe that although the foregoing concerned pre-election discussions, and therefore, did not implicate the OMA, with respect to appointment of town officials, we find only one instance where post-election discussions occurred, although this discussion did not concern a quorum of the Town Council, and therefore, also did not violate the OMA. In this instance, Councilor Rogers acknowledges that after the election, she telephoned then Councilor-elect Bellucci to recommend Robert Davignon as Probate Judge, see Rogers Affidavit, 2. Similarly, in response to a deposition question concerning whether Councilor Bellucci sought any guidance from any person with respect to compiling the list of appointments that was read during the December 9, 2004 meeting, Councilor Bellucci responded:

"No, Heidi Rogers called me with maybe one other person for a Board, I'm not sure if somebody that they knew wanted to be on the Recreation Committee and asked to put that name on,[ ] and Judge Davignon, and that was it, the rest of the people I put on, I talked to them myself, and I spent hours putting the list together." Bellucci Deposition, p. 16.

Even here, assuming as the evidence suggests that two council members-elect discussed town business outside the public purview, since a quorum - three members - of the Town Council did not participate in this, or any other discussion, this contact did not violate the OMA. See Fischer at 294.

This, however, does not end our inquiry because, despite the explanation for a lack of discussion concerning appointments at the December 9, 2004 meeting, we nonetheless sought to determine whether a majority of the Town Council, or its members-elect, violated the OMA by conducting an unnoticed "meeting," as defined by the OMA, after the November 2004 election, but prior to the December 9, 2004 meeting. Although some recollections differ, we determine that on four (4) occasions - November 9, 2004, November 23, 2004, December 2, 2004, and December 9, 2004 - a majority of the Town Council gathered together. As demonstrated by Neubert and In re Providence School Board, as well as other cases, this alone does not violate the OMA and we examine each occasion separately to determine whether a "meeting" convened.

November 9, 2004

On November 9th council members Rogers, Berkowitz and Bellucci met with attorneys Gorham and Gurzenda at the Law Offices of Gorham & Gorham. Council members Bellucci and Rogers recollect that Attorney Gorham or Gurzenda had called the council members to arrange the meeting. All accounts of this "meeting" are consistent. Council member Bellucci, when asked to explain his understanding of the purpose of this meeting, stated that the meeting was to "[f]ind out procedures, and [Mr. Gorham] advised us on there was a specific ruling, I believe, that we couldn't discuss, more than two of us, or come to any conclusions or discuss anything, because then it would be a violation of the Open Meetings Law, and he gave us a booklet with the rules and regulations that explained where - what we, you know, what we couldn't do, and just to that effect." See Transcript of Bellucci Deposition, page 12.

At the beginning of this approximately one-hour meeting, attorney Gurzenda provided to the three members-elect the "Guide to Open Government," an informational and educational booklet on Rhode Island's Open Government laws published by this Department. She further described for the three council members-elect two findings from this Department, Schanck and In re Rhode Island Ethics Commission, abovementioned. Gurzenda informed them that pursuant to the Schanck case, the Open Meetings Act applies to members-elect to a public body, and that as such, they were presently subject to the OMA.

Further, the members were informed that, pursuant to In re Rhode Island Ethics Commission, each council member-elect could address questions to legal counsel and receive answers without convening a "meeting," provided it was only a colloquy with counsel and no collective discussions were held or actions were taken on any matter. As described by councilwoman Rogers, they were advised that "council members could ask questions of counsel to address any questions we had and counsel could advise us, but we could not agree on a course of action or take any votes [outside the public purview as members-elect to the town council]." See Rogers Affidavit, December 29, 2004, 2.

Following this advice, council member Bellucci proceeded to ask legal counsel various questions and receive answers. For example, at some point, Bellucci asked legal counsel how the council could best make the appointments planned for the December 9th meeting. Bellucci was advised to make out a list of the particular positions and the proposed appointments to those positions on his own and without consulting the other members, to bring the list to the meeting, and to take up discussions about the appointments, if any, at the public meeting. See Berkowitz Affidavit, May 31, 2005, 3; Rogers Affidavit, December 29, 2004, 2; Transcript of Bellucci Deposition, page 14-15.

Further, Council member Bellucci indicates that he asked Mr. Gorham whether or not the creation of the new position of "Administrative Official - Land Development and Subdivision Regulations" would be feasible. Bellucci described this inquiry at deposition as follows:

A: " .[Mr. Gorham] advised us on what it said in the State regulations, and that we could do that and that's what we did.

Q: ..[H]ad you discussed with either Ms. Rogers or Mr. Berkowitz the creation of this position at any time?

A: I don't believe I did, they were here when I asked Mr. Gorham about it, I believe, at the meeting, and he came back with the information about what the - about the position.

Q: And did they acknowledge agreement that this position should be created?

A: Nobody said a word. I just asked him about the position and asked him if I could do that, and he said he believed I could, and that was it. See Transcript of Bellucci Deposition, page 17.

November 23 and December 2:

On November 23 and December 2, the same group of individuals again convened at the home of Attorney Gorham. On one of these occasions, councilman Bellucci asked legal counsel when the Town Council terms begin, and he was advised that, pursuant to the Town Charter, the terms began as soon as members were sworn in on the Thursday after the first Monday in December. December 9th fell on this Thursday and Bellucci was so advised. Bellucci then asked if the council members could be sworn in "early" to conduct the entire transitional Town Council meeting scheduled for December 9th; Bellucci was advised, in the presence of the other two council members, that they could meet at Attorney Gorham's home and be sworn in. The evidence consistently demonstrates that the November 23rd and December 2nd meetings, each apparently no more than one hour in length, consisted of council members Rogers, Berkowitz and Bellucci sitting down with attorneys Gorham and Gurzenda to attend a question and answer session. The evidence demonstrates that Bellucci asked questions and others sat and listened. See Transcript of Bellucci Deposition, pages 14 and 19; Transcript of Rogers Deposition, page 12.

December 9:

On the morning of December 9, 2004, council members Rogers, Berkowitz and Bellucci again arrived at the home of Attorney Gorham, and, in the presence of attorneys Gorham and Gurzenda, collectively took the oath of office to be sworn-in as members of the Foster Town Council. This event was described as approximately five minutes in length. Each council member describes the meeting by stating that, "[We] had no discussions. There were no votes. [We] were simply sworn in." See 1 of the Affidavits of council members Bellucci, (signed December 22, 2004), Rogers (signed December 29, 2004) and Berkowitz (signed December 21, 2004). None of the five "new" Council Members would meet or speak again until the Town Council meeting held later on the evening of December 9, 2004.

Findings

Prior to the Meeting of December 9th:

Returning to the first question posed as part of this investigation: After the November 2, 2004 election, but prior to the December 9th meeting, did a quorum of the members-elect of the Foster Town Council hold any "meetings" outside the public purview in violation of the OMA? After careful review of all the evidence available to this Department, we conclude that it did not.

As discussed, 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). Based on this principle, although a quorum, or 3 members, of the Foster Town Council (albeit the town council-elect, see Schanck) did convene on four occasions prior to the public Town Council meeting on the evening of December 9th, we find that these gatherings did not constitute a "meeting" for purposes of the OMA. It is the absence of the threshold requirement that a "meeting" convene that leads this Department to find no violation by the Foster Town Council, quite simply, because, based upon the evidence gathered, the OMA was not implicated when council members Rogers, Bellucci, and Berkowitz convened together on November 9, November 23, December 2, and the morning of December 9, 2004.

In Fischer, the Rhode Island Supreme Court addressed allegations that several members of the Charlestown Zoning Board met privately with legal counsel in violation of the OMA. In that case, one or two members of the Board met in the Town Hall cafeteria with the town solicitor to seek answers to questions concerning the outcome of litigation against the Board. The Court found no violation because, among other reasons, "there was never any convening of a meeting of a public body as envisioned by the act[.]" Id. at 295.

Further, consistent with Fischer, this Department has recognized instances where the OMA does not govern without the presence of a "meeting." In particular, in In re Rhode Island Ethics Commission we advised that a private colloquy with legal counsel would not violate the OMA. The rationale for this determination hinged on the interpretation of a "meeting" as an event involving collective discussion and/or action by members of a public body. Any gathering not involving collective discussion and/or action among members would not constitute a meeting, and therefore, would not be subject to the procedural requirements of the OMA. Hence, based on the nature of the "colloquy" with legal counsel, strictly limited to questions and answers directed to and from legal counsel, such a gathering may be held outside the public purview because the Supreme Court has held that the threshold requirement of a "meeting" is not met. That said, however, of course, a public body may not engage in this gathering in order to "circumvent the spirit or requirement of" the OMA's notice provision. R.I. Gen. Laws § 42-46-6(c).

In a parallel advisory opinion, in In Re Providence School Board, ADV OM 99-08, this office advised legal counsel for the Providence School Board that an informational session was not subject to the OMA. In that instance, the School Board sought to convene with the President of Brown University concerning the search process to name a new Superintendent for the Providence Public Schools. Anticipated at this meeting was the presentation of general information by President Gee regarding the search process, and an update concerning its status. Further, it was expected that members of the Board would ask questions of the presenter. Based on representations that no collective discussion or action would occur by the Board, this office opined that "this informational session is not a 'meeting' as defined by the OMA [and that] [c]onsequently, the requirements of the OMA do not govern this situation." As with Fischer and In re Rhode Island Ethics Commission, the lack of a "meeting" was the determinative factor for our advice that the Board would not be violation of the OMA.

Keeping in mind the above Supreme Court interpretation of the OMA, and based on the evidence available to us in the instant case, we conclude that the meetings held by council members Rogers, Bellucci, and Berkowitz with legal counsel on November 9, November 23, and December 2 did not violate the OMA because these events did not involve collective discussion or action(s) concerning town matters. Instead, primarily one member-elect directed questions to attorneys Gorham and/or Gurzenda and received frank answers in return; the result of these actions are similar to those discussed in Fischer, in In re Rhode Island Ethics Commission, and in In re Providence School Board, insofar as no collective discussions occurred.

Likewise, we find that the swearing-in at the home of Mr. Gorham on December 9, 2004, although comprised of a quorum of the town council members-elect, was not a meeting. Three members arrived separately, took the oath of office together and departed. We find that the mere formality of reciting an oath in unison with fellow members of a public body is not an event engaging in collective discussion or taking action "upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." R.I. Gen. Laws § 42-46-2(a). Although the oath enables these members to conduct town business, or to take action on behalf of the town, the oath in and of itself is not action over which the town council has supervision, control, jurisdiction or advisory power. Moreover, we recognize that oaths are routinely given twice: once officially, and then at a public ceremony. See, e.g., Burrell v. City of Mattoon, 378 F.3d 642, 645 (7th Cir. 2004) (city council members-elect sworn in after the election in a private ceremony).

At the Meeting of December 9th:

We next address our second inquiry concerning the events surrounding the public Foster Town Council meeting of December 9, 2004: Was the public adequately apprised of the nature of the business to be discussed at the December 9, 2004 Town Council meeting as required by the OMA, and did members of the "new" Foster Town Council violate the OMA when advertised agenda matters were taken out of order?

The OMA requires that "[p]ublic bodies shall give supplemental written public notice of any meeting within a minimum of forty-eight (48) hours before the date. This notice shall include 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 42-46-7(b). With regard to the "statement specifying the nature of the business to be discussed[,]" this Department has consistently recognized that a public body "must advise the general public of the nature of the business to be discussed." See Strahl v. Town of Hopkinton, OM 05-06; see also Parks v. Cumberland School Committee, OM 06-19; Cervasio v. Town of Foster, OM 04-09; Schmidt v. Ashaway Fire District, OM 98-34; Payne v. Town of New Shoreham Town Council, OM 97-17. Although whether or not an agenda is sufficiently specific is determined on a case-by-case basis, the rule-of thumb for any agenda is that it must not be misleading to the public. See Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784 (R.I. 2005).

In Strahl, for example, this Department found that public notice advertising "Town Manager's Performance Evaluation" was sufficient to apprise the general public that the Hopkinton Town Manager's job would be addressed; the fact that a vote was taken to terminate the manager from his position under this agenda item did not change this Department's assessment that the agenda was not misleading. However, it is noteworthy that the determination of the adequacy of the agenda was made based on the totality of the circumstances and evidence presented in that particular case.

Turning to the particular circumstances and evidence before us in the instant case, we find that the agenda item 9(E) entitled "New Business: Appointments - Board/Commissions, Town Officials" adequately apprised the general public that the Town Council would appoint individuals to designated town positions at that time. We believe that whether or not appointments would be made to the position of Town Planner (which there was not) and/or to the new position of Administrative Official (to which there was), was a matter that the public could reasonably contemplate given notice that "Appointments - Board/Commissions, Town Officials" was to be addressed. This determination is based in part on the well-known transitional nature of this meeting, including that the "new" Council was scheduled to commence and organize its new administration that evening. For the same reason, we find that the agenda items 9(C) and 9(D), "New Business: Personnel Policy and Personnel Board," sufficiently apprised the public to expect that the subject matter of the Personnel Policy and/or Board would be discussed. Hence, we find that the Foster Town Council did not violate the OMA when it voted to modify the Personnel Policy and disband the Personnel Board. Such actions were consistent with the purpose and nature of the meeting, and clearly relate to the advertised items. This determination is based on our review of the totality of the circumstances surrounding the December 9th meeting. See Tanner at 797 ([the Court's] "task is to determine whether the notice provided by the town council fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted) (Emphasis added). Moreover, we recognize that the standard of how specific a notice agenda should be is a flexible one, not subject to "specific guidelines or 'magic words.'" Id.

We do not believe the Town Council's actions of taking agenda items out of order was a violation of the OMA. The OMA does not specifically address whether or not a public body may take agenda items out of order. Notwithstanding, when a public body drastically deviates from its stated agenda a member of the public might arrive to a meeting after an agenda item has been addressed earlier than anticipated. Such actions run the risk of circumventing the spirit of the OMA. See Crowell v. Little Compton School Committee, OM 05-09 (recognizing that misinformation concerning when the public portion of a meeting will commence may compromise the public's ability to opt to be present); R.I. Gen. Laws § 42-46-6(c) ("Nothing contained herein [concerning public notice] shall be used in the circumvention of the spirit and requirements of this chapter.") However, in the instant case, we have been presented no evidence that any individual missed portions of the December 9, 2004 meeting based on a reliance that, for example, the "Old Business," advertised as agenda item (6), would be addressed prior to the "New Business," advertised as agenda item (9), which was addressed out of order early on in the meeting. For this reason, we find no violation.

Conclusion:

Upon conclusion of this Department's thorough investigation into the actions taken by the Foster Town Council-Elect prior to and during the transitional meeting of December 9, 2004, there is insufficient evidence to conclude that the OMA was violated. 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. Be advised that complainants Matarese, Shippee, Mercier, and DiLibero may do so within ninety (90) days from the date of the Attorney General's closing of the complaint. 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

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