Rhode Island Advisory Opinions January 05, 2009: AGO OM 09-01 (January 5, 2009)

Rhode Island Attorney General Opinions

2009.

AGO OM 09-01.

Dear Ms. O'Neill:

The investigation into your Open Meetings Act (OMA) complaint against the Warwick School Committee (School Committee) is complete. By email correspondence you allege that the School Committee violated the OMA when it denied your request to "schedule a meeting in open session regarding [your] employment status." You allege that you "requested several times prior to and also at the meeting itself to have the school committee meeting in open session." Contrary to your wishes, the August 21, 2008 session relating to your employment took place in executive session.

In response to your complaint we have received a substantive response from Rosemary Healey, Esq., Director of Compliance and Human Resources for the Warwick Public Schools.

This matter arises out of a variety of incidents and allegations stemming back many months. For purpose of this complaint we will only look at circumstances relative to the August 21, 2008 executive session.

By letter dated August 15, 2008, the Superintendent of the Warwick Public Schools, Dr. Peter Horoschak sent you a letter informing you that your employment would be the subject of an executive session to take place on August 21, 2008. The letter advised that, "You do have the right, however, to have that meeting held in open session." By letter dated August 16, 2008, you advised Dr. Horoschak that you were "exercising your right to a hearing in OPEN SESSION."

On August 19, 2008, Attorney Healey sent Toll Gate building principal Stephen Chrabaszcz an email notifying him that on Thursday, August 21, 2008, the Superintendent would be recommending your termination for making false and/or misleading accusations against him (Mr. Chrabaszcz). Attorney Healey indicated that because she believed it would involve Mr. Chrabaszcz and the allegations against him, in his scope as an employee, Mr. Chrabaszcz could opt to have this discussion in open or closed session.

By letter dated August 19, 2008, Mr. Chrabaszcz requested that the hearing be held in executive session.

It is undisputed that you requested the August 21, 2008 hearing in open session while Mr. Chrabaszcz requested the same hearing in executive session. As we turn to the OMA, we pause to note that in examining complaints, we are mindful that our mandate is to interpret and enforce the OMA as the General Assembly has written this law and as the Rhode Island Supreme Court has interpreted its provisions. In other words, we do not write on a blank slate. The OMA mandates that all meetings of all public bodies be held in open session, unless otherwise exempt. R.I. Gen. Laws § 42-46-3. Among the enumerated exceptions is R.I. Gen. Laws § 42-46-5(a)(1) (often referred to as the "Personnel" exception), which permits a public body to convene into executive session for "[a]ny discussions of the job performance, character, or physical or mental health of a person or persons provided that such person or persons affected shall have been notified in advance in writing and advised that they may require that the discussion be held at an open meeting."

This Department addressed a similar issue in Barrs vs. Westerly School Committee, OM 94-23. In Barrs, the school committee interviewed three candidates for the position of Interim Superintendent. At his request, Mr. Barrs was interviewed in open session and the other two candidates were interviewed in closed session. After the three personal interviews the school committee evaluated all three candidates in closed session. Mr. Barrs alleged that the school committee violated the OMA by discussing him in closed session. This Department determined that because the school committee's deliberations concerned all three candidates and discussions pertaining to one candidate could not be segregated there was no violation of the Open Meetings Act. The Department reasoned that it would prejudice the rights of other candidates that had requested a closed session to hold an open meeting unless all "persons affected" requested an open meeting. See also, In re Warwick Police Department OM ADV 99-13.

In the instant complaint, after a review of all of the evidence, including the transcript [FN1] of the executive session held on August 21, 2008, this Department believes that the discussion of you and Mr. Chrabaszcz was not segregable. A major portion of your defense against termination was the alleged actions of Mr. Chrabaszcz. In the transcript your attorney, David Scher, references the "job performance" and "character" of Mr. Chrabaszcz multiple times. Since, Mr. Chrabaszcz' "job performance, character, or physical or mental health" was to be discussed, he was entitled to the protections set forth in R.I. Gen. Laws § 42-46-5(a)(1). In fact, no evidence or argument has been presented that Mr. Chrabaszcz was not entitled to the protections of R.I. Gen. Laws § 42-46-5(a)(1). In this instance, because your termination could not be discussed separately without the "job performance" and "character" of Mr. Chrabaszcz being discussed, the rule set forth in Barrs and In re Warwick Police Department, controlled. Therefore, this Department finds no violation of the OMA.

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.

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

Very truly yours,

Laura Ann Marasco

Special Assistant Attorney General

Extension 2297

Cc: Rosemary Healey, Esquire

1. All parties agreed that this transcript would be sealed and only used in the context of this matter; it will not be discussed in detail.