Rhode Island Advisory Opinions March 09, 2012: AGO OM 12-12 (March 9, 2012)

Rhode Island Attorney General Opinions

2012.

AGO OM 12-12.

Re: Costantino v. Smithfield School Committee

Dear Mr. Costantino:

The investigation into your Open Meetings Act ("OMA") and Access to Public Records Act ("APRA") complaint against the Smithfield School Committee ("School Committee") is complete. By correspondence dated October 21, 2011, you allege that the School Committee violated the OMA when it improperly convened into executive session during its April 21, 2008 meeting. You also allege the School Committee violated the APRA when it improperly denied your APRA request dated September 22, 2011 seeking the April 21, 2008 executive session minutes. (fn1)

In response to your complaint, we received a substantive response from the School Committee's legal counsel, Katherine J. Duncanson in affidavit form. We note that Mr. Robert O'Brien, the Superintendent of Schools for the Town of Smithfield, also signed this affidavit and provided his own affidavit. Attorney Duncanson states, in pertinent part:

"Mr. Constantino requested a copy of the sealed minutes of the April 21, 2008 executive session and an explanation of what occurred in the executive session meeting. On September 23, 2011[ ], response was sent to Mr. Constantino stating that the April 21, 2008 executive session minutes were sealed and therefore the School Committee is not required to produce the sealed minutes.

* * *

The minutes of executive sessions of school committee meetings are kept in a binder in the office of the Assistant Superintendent of the Smithfield School Department. When issues [ ] surrounding the April 21, 2008 executive session and what occurred in the session [arose], the Superintendent pulled the binder to look at the minutes from the meeting. The minutes from the executive session on April 21, 2008 were missing from the binder. * * * The Superintendent conducted an exhaustive search of all possible locations of the minutes and could not locate them. The School Department has no knowledge of what happened to the minutes or where the minutes are. Neither the Superintendent nor any School Committee members knowingly destroyed or mishandled the executive session minutes so as to intentionally cause their disappearance. * * *

The April 21, 2008 meeting of the Smithfield School Department had two executive sessions. * * * Both executive session minutes were sealed on April 21, 2008 immediately following the executive sessions. [ ].

On advice of the former legal counsel for the School Committee, the School Committee went into executive session to receive and discuss legal advice regarding the DATTCO bus contract. * * * The executive session was proper for legal counsel to give appropriate legal advice.

Nevertheless, even if it is determined that some violation of the Open Meetings Act occurred on April 21, 2008 by the Smithfield School Department Mr. Constantino's complaint concerns actions that took place over three years ago. Mr. Constantino was present at the April 21, 2008 meeting and knew what occurred. * * * He has waited over three years to raise any issues with what occurred at the April 21, 2008 meeting. R.I.G.L. §42-46-8 provides a 180 day statute of limitations on actions alleging violations of the Open Meetings Act. Mr. Constantino has not complained of the April 21, 2008 meeting or given any notice to the School Department that he had an issue with the April 21, 2008 meeting until September of 2011. Since the law provides the 180 day limitation and since Mr. Constantino was present at the meeting and knew what went on, therefore, the Attorney General's office is without the authority to file any complaint concerning the alleged actions of the School Committee."

You replied to the School Committee's response and challenged the statute of limitations allegation. Specifically, you related that you were not aware of the alleged OMA violations until September 2011.

At the outset, we note that in examining whether a violation of the OMA or APRA 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 and the APRA as the General Assembly has written these laws and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the School Committee violated the OMA and the APRA. See R.I. Gen. Laws §§42-46-8; 38-2-8. In other words, we do not write on a blank slate.

Citing R.I. Gen. Laws §42-46-8 and the time that elapsed between the April 21, 2008 meeting and the filing of your October 21, 2011 complaint, Attorney Duncanson claims that review of this complaint is barred by the statute of limitations. 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." (Emphasis added).

Based upon the evidence presented, the minutes of the April 21, 2008 executive session meeting were sealed on April 21, 2008 upon the School Committee returning to open session. The meeting minutes were approved at the School Committee's May 5, 2008 meeting. Rhode Island General Laws §42-46-8(b) 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. 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.

In this case, you allege that the School Committee improperly convened into executive session on April 21, 2008. Considering that the statute of limitations requires us to determine when the School Committee revealed the alleged violation, the best evidence in this case appears to be your complaint. Indeed, as pointed out earlier, you contend that on April 21, 2008, the School Committee discussed a matter not appropriate for executive session, i.e., the DATTCO contract, and you were in fact present at the April 21, 2008 open session meeting. Although you later contend that you did not become aware of this alleged violation until September 2011, we conclude that the evidence is clear that the action by the School Committee revealing this alleged violation occurred years earlier.

Specifically, in your original complaint you provide a more detailed description of what transpired after the School Committee returned to open session. You state that:

"the School Committee went into closed session to discuss the contracts under per RIGL 42-46-5(a)(2). The Chairperson on the audio mentions 'contract' after reading the agenda item #4, that a report and approval of a contract in transportation be given." (Emphasis in original).

Your complaint continues that "immediately after the open session resumed the school committee voted on item #4 that a report and a change in transportation be given and then approved without discussion in open session, the school committee, 'approved extending the contract with Dattco for the next three years,' as noted in the meeting minutes." (Emphasis in original). Our review of the April 21, 2008 video provided by you is consistent with your complaint and demonstrates that upon reaching open session agenda item #4, which was labeled as "[t]hat a report and approval of a change in transportation be given," the School Committee Chairperson indicated that upon advice of legal counsel the School Committee would convene into executive because the matter to be discussed "involves contracts." Subsequently, the School Committee reconvened into open session and voted to approve the Dattco contract.

Based upon the foregoing, we conclude that the date of "the public action of a public body revealing the alleged violation" occurred at the very least when the April 21, 2008 meeting minutes were approved on May 5, 2008. This occurred more than 3½ years prior to the filing of your complaint. While you contend that you were not aware of the alleged violation until September 2011, the evidence presented, namely your complaint, makes clear that all of your allegations are based (or supported) by evidence that was available, at the latest, on May 5, 2008. Indeed, your complaint concerning the alleged improper executive session is based upon the School Committee's agenda, the video and the meeting minutes. You were also present at the open session meeting and provided this Department with excerpts of what transpired prior and subsequent to the executive session. Perhaps most telling, the School Committee indicated in open session it would convene into executive session for a matter that involved a contract and upon reconvening into open session approved the Dattco contract. Respectfully, all of this evidence was available prior to May 5, 2008 and we have been unable to discern any evidence that you have presented that was not publicly available as of May 5, 2008.

As noted above, R.I. Gen. Laws §42-46-8(b) prohibits this Department from filing a complaint one hundred eighty (180) days from the 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, one hundred eighty (180) days from the public action of the public body revealing the alleged violation, whichever is greater. We must conclude that the statute of limitations for this Department to file a complaint in the Superior Court expired well before your October 21, 2011 complaint was received by this Department. 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 e.g., 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; Block v. Rhode Island Board of Elections, OM 12-05. Accordingly, we decline to review whether the School Committee improperly convened into executive session on April 21, 2008 due to the statute of limitations.

We now turn to your allegation that the School Committee violated the APRA when it refused to provide you with a copy of the sealed executive session meeting minutes for the April 21, 2008 meeting.(fn2) The APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or to copy such records. See R.I. Gen. Laws §38-2-3(a). The APRA exempts from public disclosure "[a]ny minutes of a meeting of a public body which are not required to be disclosed pursuant to [the OMA]." R.I. Gen. Laws §38-2-2(5)(i)(J).(fn3) We observe that the OMA provides that "[t]he minutes of a closed session shall be made available at the next regularly scheduled meeting unless the majority of the body votes to keep the minutes closed pursuant to §§42-46-4 and 42-46-5." R.I. Gen. Laws §42-46-7(c)(emphasis added). Other OMA provisions contain similar language. See R.I. Gen. Laws §42-46-7(b)("The minutes shall be public records and unofficial minutes shall be available * * * except where the disclosure would be inconsistent with §§42-46-4 and 42-46-5.").

Based on the factual observation that the executive session minutes you requested were sealed, we must conclude that the School Committee did not violate the APRA by denying you access to these records on those grounds. Clearly, under the APRA, properly sealed executive session minutes are not public. See R.I. Gen. Laws §38-2-2(5)(i)(J). We therefore find that the School Committee did not violate the APRA when it refused to provide you with the sealed executive session meeting minutes of April 21, 2008.

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,

Lisa A. Pinsonneault

Special Assistant Attorney General

LP/pl

Cc: Katherine J. Duncanson, Esquire

1. You supplemented your complaint with correspondence dated November 5, 2011, wherein you further allege that votes taken during the April 21, 2008 and July 7, 2009 meetings to extend certain contracts were "illegal." (You indicated the meeting was April 7, 2009 but we determined that was an error and the meeting was actually July 7, 2009). This Department is charged with, inter alia, enforcing the OMA and APRA. To the extent you allege violations of other state laws, municipal purchasing laws and the Town Charter, those allegations will not be addressed in this finding because jurisdiction is outside this Department's purview. As such, this Department will not determine whether those contract extensions were legal or void as illegal.

2. You also allege the School Committee "refused" to vote to approve the unsealing of the April 21, 2008 executive session meeting minutes. We find no authority in the OMA or the APRA, nor have you presented us with any, that requires a public body to unseal sealed minutes.

3. Although we conclude the executive session minutes are exempt, it bears noting that the evidence reveals that the April 21, 2008 executive session meeting minutes cannot be located.