Rhode Island Advisory Opinions February 13, 2012: AGO OM 12-05 (February 13, 2012)

Rhode Island Attorney General Opinions

2012.

AGO OM 12-05.

Dear Mr. Block:

The investigation into your Open Meetings Act ("OMA") complaint against the Board of Elections ("Board") is complete. By letter dated November 9, 2011, you alleged that the Board violated the OMA during its February 24, 2010 and April [21], 2010 meetings.(fn1) Specifically, you relate that the agenda for the February 24, 2010 meeting, which indicated "Emergency Amendment to Rules and Regulations for Voter Registration to bring the rule into compliance with recent changes to R.I.G.L. 17-9.1," and the April 21, 2010 agenda, which indicated "Hearing on Rules and Regulations for Voter Registration," provided insufficient public notice. With respect to both meetings, you claim that the:

"rules and regulations that the [Board] ultimately passed as a result of these agenda items and theoretically in response to R.I.G.L. 17-9.1 made additional changes to the Rhode Island Voter Registration Form (VRF) that had nothing to do with R.I.G.L. 17-9.1. These additional changes were not advertised by the [Board], were discussed during the [Board's] public meeting * * * and had a material adverse impact on the Moderate Party of Rhode Island." (fn2)

You also claim that the February 24, 2010 minutes violated the OMA since they were "so generic and non-descriptive of what occurred during these meetings that the minutes are useless as filed."

In response to your complaint, this Department received a substantive response from the Board's legal counsel Raymond A. Marcaccio, Esquire, and a supporting affidavit from the Board's Director, Robert Kando, Esquire. Mr. Marcaccio claims that your complaint is barred by the statute of limitations since the minutes to the February 24, 2010 meeting were approved on March 24, 2010 and the minutes from the April 21, 2010 meeting were approved on June 22, 2010. Citing R.I. Gen. Laws §42-46-8(b) and the time that elapsed between the approval of the respective meeting minutes and the filing of your November 9, 2011 complaint, Mr. Marcaccio claims that review of this complaint is barred. It may also be worth nothing that on the substance of your complaint, Mr. Marcaccio argues that the Board's notice satisfied the OMA and that you had actual notice of the purpose of the meeting since the Moderate Party was sent a notice by the Board on March 3, 2010 indicating that new rules and regulations were being proposed and that the proposed new rules and regulations were available for inspection.

By an undated letter received on December 9, 2011, you responded to the Board's arguments. In particular, you acknowledged that there "is no doubt that [the time period set forth in R.I. Gen. Laws §42-46-8(b)] has passed since the minutes of the meetings in question were approved." Notwithstanding this conclusion, you "respectfully request that the Rhode Island Attorney General's office take into consideration the issue of when the OMA violations were discovered and the circumstances surrounding why discovery occurred outside [the statute of limitations]." You claim that it "was not possible to know that the Board of Elections committed a violation of the Open Meetings Act for this meeting until [you] filed an Access to Public Records Act request for the audiotape to this meeting, which was filed with the Board of Elections September 26, 2011." Your reply continued that "[i]n the case of a substantive violation of the OMA law, it is reasonable that the statute of limitations should begin running from the moment of discovery of the violation if the body's filed OMA documents make discovery impossible." (Emphasis in original). You claim it was "not possible to ascertain that the [Board] committed an OMA violation in their February 24, 2010 meeting and OMA filings until [you were] notified by a Moderate Party member that the Voter Registration Form no longer had a multiple choice option for party choice in Box 9 AND [you were] able to obtain the proof of the violation by requesting the audiotape from the meeting." Lastly, you counter the Board's assertions that the allegations raised in your complaint did not violate the OMA.

At the outset, we note that in examining whether a violation of the OMA has occurred, we are mindful that our mandate is not to substitute this Department's independent judgment concerning whether an infraction has occurred, but instead, 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, specifically R.I. Gen. Laws §42-46-8(b), sets forth the applicable statute of limitations and provides:

"[n]o complaint may be filed by the attorney general after one hundred eighty (180) days from the date of public approval of the minutes of the meeting at which the alleged violation occurred, or, in the case of an unannounced or improperly closed meeting, after one hundred eighty (180) days from the public action of the public body revealing the alleged violation, whichever is greater."

You acknowledge that "there is no doubt that a time period of more than 180 days has passed since the minutes of the meetings in question were approved." Indeed, the minutes of the February 24, 2010 meeting were publicly approved on March 24, 2010, and the minutes of the April 21, 2010 meeting were publicly approved on June 23, 2010. Therefore, there is little question that the statute of limitations in this case expired well before you filed your complaint in November 2011 and while the expiration of the statute of limitations for this Department to file a lawsuit in Superior Court does not necessarily bar this Department from reviewing a complaint and issuing a finding, under similar circumstances when the statute of limitations has expired or is about to expire before a complaint is filed within Department, we have consistently, but respectfully, declined to issue what would essentially be a non-binding advisory opinion. See Tingle v. Chariho School Committee, OM 98-21; Valentine v. Narragansett Bay Commission, OM 98-22; Engelhard v. Jamestown School Committee, OM 98-27; Portsmouth Democratic Town Committee v. Portsmouth Town Council, OM 11-33.

Notwithstanding the above, you relate that it was not possible for you to determine what you label as an OMA violation until after you received the audio tapes of the meetings at issue, which you requested pursuant to the Access to Public Records Act in September 2011. You continue, in relevant part, that it "was not possible to ascertain that the [Board] committed an OMA violation in their February 24, 2010 meeting and OMA filings until [you were] notified by a Moderate Party member that the Voter Registration Form no longer had a multiple choice option for party choice." As a result of the foregoing, you submit that "[i]n the case of a substantive violation of the OMA law, it is reasonable that the statute of limitations should begin running from the moment of discovery of the violation if the body's filed OMA documents make discovery impossible." (Emphasis in original).

Respectfully, we must reject this so-called "discovery" rule for a number of reasons. First and foremost, the General Assembly has set forth the statute of limitations for filing an OMA complaint and has provided that:

"[n]o complaint may be filed by the attorney general after one hundred eighty (180) days from the date of public approval of the minutes of the meeting at which the alleged violation occurred, or, in the case of an unannounced or improperly closed meeting, after one hundred eighty (180) days from the public action of the public body revealing the alleged violation, whichever is greater." R.I. Gen. Laws §42-46-8(b)(emphasis added).

The above language provides two timetables for the statute of limitations, the first prohibits the filing of a complaint after 180 days from the date of the public approval of the meeting minutes at which the alleged violation occurred, and the second, prohibits the filing of a complaint after 180 days from "the public action of the public body revealing the alleged violation," but only in the case of an unannounced or improperly closed meeting. You make no assertion that the latter clause controls this case and we can discern no facts that this case concerned an "unannounced or improperly closed meeting." R.I. Gen. Laws §42-46-8(b). Moreover, R.I. Gen. Laws §42-46-8(b), and in particular the first clause, simply provides no language to support the so-called "discovery" rule that you seek to advance. As noted above, this Department is bound to apply the law as the General Assembly enacted it and for more than a decade this Department has declined to review OMA complaints filed after the expiration of the statute of limitations for this Department to file a lawsuit.

It also bears noting that even if we ignored the plain language of R.I. Gen. Laws §42-46-8(b), we have serious concerns whether the principle you advance - that discovery was not possible for you to detect until after you requested and reviewed the applicable audio tapes - would apply to this case. On this note, while you suggest that you were not aware of an alleged OMA violation until a Moderate Party member alerted you to the change in the voter registration forms, no evidence has been submitted concerning when this Moderate Party member discovered that the voter registration form had been changed and no evidence has been submitted concerning when you learned that the voter registration form had been changed. Moreover, while for the sake of argument, we acknowledge your argument that the Board's February 24, 2010 minutes did not contain information concerning the change to Box 9 on the voter registration form, even with this acknowledgement, the Board's minutes - at least substantively - do not appear to violate the OMA. See R.I. Gen. Laws §42-46-7(a)(3)(requiring minutes to contain "[a] record by individual members of any vote taken").(fn3) Although it is unnecessary for us to fully examine this argument, it seems difficult to establish some type of "discovery" rule based upon the alleged insufficiency of the open session minutes when the Board's open session minutes, at least substantively speaking, do not appear to violate 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(c). Whether this timeframe still applies considering the statute of limitations issue expressed in this finding is a decision for the courts and not this Department. 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,

Michael W. Field

Assistant Attorney General

MWF/pl

Cc: Raymond A. Marcaccio, Esquire

1. Your complaint relates this meeting occurred on April 14, 2010, but the Board asserts the proper date of this meeting was April 21, 2010. The agendas cited by both you and the Board relate to April 21, 2010 and you appear to take no issue with the Board's representation that the proper date of this meeting was April 21, 2010. Accordingly, for our purposes, we assume the proper date of this meeting is April 21, 2010.

2. The change to the voter registration form concerned what you label as Box 9. As we understand, prior to February 2010, Box 9 allowed a voter to choose a party affiliation from a list of parties. After the modification, the revised voter registration form requires the voter to write in their choice of party affiliation.

3. Arguably the Board's minutes may not have contained the "place of the meeting" and the "members of the public body recorded as either present or absent." R.I. Gen. Laws §42-46-7(a)(1) and (a)(2). For the reasons articulated above - the expiration of the statute of limitations - we need not examine this issue in depth. We trust that the Board will address any future deficiencies, if any.