Rhode Island Advisory Opinions September 08, 2006: OM 06-59 (September 8, 2006)

Rhode Island Attorney General Opinions

2006.

OM 06-59.

Dear Mr. Riley:

The investigation into your Open Meetings Act complaint against the East Providence Board of Canvassers [Board] is complete. You allege that the East Providence Board of Canvassers violated the OMA when certain of its members met in private at an unknown place sometime on or before April 14, 2006, to discuss and/or decide upon the transfer of Ms. Julie Silva from the Canvassing office to the Municipal Court.

In response to your complaint, East Providence City Solicitor, William J. Conley, Jr., provided a detailed account of the history leading up to the events presently at issue. According to Attorney Conley, after a member of the East Providence City Council passed away leaving the Ward 2 seat vacant, a special election was scheduled by the City Council to fill the vacancy. A primary date of May 23, 2006, and a special election date of June 27, 2006, was set by the City Council. Brian Silva, the husband of Julie Silva, a clerk in the Canvassing office, announced his candidacy for the Ward 2 City Council seat. The first date potential candidates could pick up their nomination papers at the Canvassing office was Monday, April 17, 2006. In November 2003, Mr. Silva had contemplated being a candidate for City Council office at that time and Mrs. Silva had requested an advisory opinion from the Rhode Island Ethics Commission as to whether she could continue to exercise all of her duties in the position of mail ballot clerk. The Ethics Commission opined that Mrs. Silva could continue to serve in the position of mail ballot clerk notwithstanding her spouse's potential candidacy for a seat on the East Providence City Council provided that Mrs. Silva did not exercise discretionary decision-making authority with respect to the City Council election.

Notwithstanding this opinion, the City Solicitor concluded that it would be impossible with only two mail ballot clerks in the office to "construct a nonporous wall between Mrs. Silva and anything related to the impending special election in which her husband would be a candidate." According to Attorney Conley there are times during the course of the day when only one of the mail ballot clerks is present answering phones, helping those with questions regarding the election, and meeting people that would be turning in papers for the election. In addition, Mrs. Silva's continued presence in the office during a special election in which her husband is a candidate for a City Council seat creates an appearance of impropriety. The City Solicitor concluded that legal issues could arise from Mrs. Silva's continued presence in that office and orally advised the Clerk of the Canvassing Authority as well as the Acting City Manager of his opinion.

According to Mr. Solomon, Chairman of the Board, he stopped by the Canvassing office in City Hall during the week of April 10th. Mr. Solomon anticipated that Mrs. Silva's husband, Brian Silva, was planning on running for the vacant Ward 2 City Council seat and Mr. Solomon hoped to locate the previous Ethics Commission opinion on the matter. According to Mr. Solomon, since he was already in City Hall, he decided to walk down to the City Solicitor's office and that Maryann Callahan, Canvassing Authority Clerk, took a walk with him. Mr. Solomon and Ms. Callahan found both the City Solicitor and the Acting City Manager, Jeanne M. Boyle, in their offices and began discussing the matter with them. The City Solicitor expressed his opinion that, if possible, Mrs. Silva should be temporarily transferred to another clerk position during the term of the special election. Ms. Boyle noted Mrs. Silva was a member of the Steelworkers Union Local 15509A and that any temporary transfer to another position would require the Union's agreement. Ms. Boyle observed there was a vacancy in the clerk's position in Municipal Court and perhaps a temporary transfer to that position should be discussed with the Union. According to Attorney Conley, immediate action was required because, as of Thursday, April 13th, candidates would be eligible to submit papers.

An April 12, 2006, meeting was scheduled for 8:45am to meet with Mrs. Silva and Union representatives. The meeting was attended by the City Solicitor, the Acting City Manager, the Canvassing Authority Clerk, Mrs. Silva, and Union Steward, Mr. Louis Coutu. The City Solicitor explained his concerns to Mrs. Silva and Mr. Coutu regarding the Ethics Commission opinion and his recommendation to the Acting City Manager that Mrs. Silva be temporarily transferred from her clerk position in the Canvassing Office to another clerk position during the term of the special election. The Acting City Manager advised Mrs. Silva and Mr. Coutu that, based on the recommendation of the City Solicitor, she wished to reach an agreement with them allowing her to temporarily transfer Mrs. Silva to a clerk vacancy in the Municipal Court during the term of the special election. Mrs. Silva agreed to the temporary transfer, which was effective at the conclusion of business on Thursday, April 13, 2006, and on that same day Mrs. Silva reported to the Municipal Court.

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). "Quorum," unless otherwise defined by applicable law, means a simple majority of the membership of a public body. R.I. Gen. Laws § 42-46-2(d). The East Providence Board of Canvassers is comprised of three members; for purposes of the OMA, a quorum is two or more of its members.

Based upon the evidence presented, we find no violation. In particular, we have been presented no evidence to substantiate your belief that a quorum of members of the East Providence Board of Canvassers met in private at an unknown place sometime on or before April 14, 2006, to discuss and/or decide upon the transfer of Ms. Julie Silva from the Canvassing office to the Municipal Court in violation of the OMA. We observe the City Solicitor's representation that the only member of the Board present at the April 10th meeting was Michael Solomon, Chairman of the Canvassing Authority. Also present at the meeting were the Clerk of the Canvassing Authority, the Acting City Manager and the City Solicitor, none of who are members of the Board. The evidence presented further suggests that no members of the Board were present for the April 12, 2006 meeting at which the Canvassing Authority Clerk, City Solicitor, Acting City Manager, Union Steward Coutu, and Mrs. Silva were present. Since there is no evidence to suggest that a quorum of the Board of Canvassers met to discuss and/or decide upon Ms. Silva's transfer, we find no violation. See Levesque v. Portsmouth Town Council, OM 06-16; Crowell v. Little Compton School Committee, OM 04-24.

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 complainant 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.

We 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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