Rhode Island Advisory Opinions March 19, 2012: AGO OM 12-14 (March 19, 2012)

Rhode Island Attorney General Opinions

2012.

AGO OM 12-14.

Dear Mr. Clapp:

The investigation into your Open Meetings Act ("OMA") complaint(fn1) against the Newport City Council ("City Council") is complete. You allege the City Council violated the OMA when the agendas for its May 25, 2011 and December 14, 2011 meetings did not adequately inform the public of the nature of the business to be discussed. More specifically, you allege item number 12 on the agenda for the May 25, 2011 meeting and item number 7 on the agenda for the December 14, 2011 meeting were inadequate.

In response to your complaint, we received a substantive response from legal counsel for the City Council, Joseph J. Nicholson, Jr., Esq. Attorney Nicholson states, in pertinent part:

"The May 25, 2011 agenda item No. 12 indicates that a resolution was to be considered by the City Council at its regular meeting held on May 25, 2011 at 6:30 p.m. The topic of the Resolution as indicated on the agenda under item No. 12 was to consider a resolution 'In support of a Doris Duke Memorial Monument in Queen Anne Square.' The resolution that was voted on and adopted by the City Council on that date, [ ] was indeed a resolution in support of a 'proposal for a monument to Doris Duke and historic preservation with related landscape design, to be installed and maintained by [Doris Duke Monument Foundation], who also agrees to assist the City in maintaining the site...'

I would strongly suggest [ ] that the agenda item as noted in item No. 12 is an accurate reflection of what occurred at the public meeting on May 24, 2011 [ ].

* * *

The December 14, 2011 meeting posted agenda item No. 7 indicates the following:

'Communication from Marion Oates Charles, President, Doris Duke Monument Foundation, requesting consideration of the Foundation's offer to configure Queen Anne Square with a design by Maya Lin and Edwin VonGal, with accompanying Agreement between the City of Newport and Foundation (Referenced Plans are on file in the City Clerk's Office for review)

* Memorandum from the City Manager, re: Queen Anne Square Proposal (Staff Comments)

* Resolution approving the Agreement between the City and the Doris Duke Monument Foundation for Rehabilitation and Modification to Queen Anne Square and Maintenance Thereof.'

The City Council considered the aforementioned and adopted the Resolution that approved the '...agreement for improvements to Queen Anne Square between the City of Newport and the Doris Duke Monument Foundation...'

I am constrained to understand the allegation that this item did not adequately inform the public of the nature of the business to be discussed. The agenda item accurately notes in more than enough detail the topic under consideration that evening. In fact, the agenda topic was so noteworthy that it received local, state and limited national media coverage. * * * It was, in my memory, one of the most publicized and well-attended public meeting I have experienced during my 20+ years here with the City of Newport all because of the noted agenda items."

We acknowledge your reply dated February 28, 2012.(fn2)

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 regarding 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. Furthermore, our statutory mandate is limited to determining whether the City Council violated the OMA. See R.I. Gen. Laws §42-46-8. In other words, we do not write on a blank slate.

The OMA requires all public bodies give supplemental notice of meetings at least 48 hours in advance of the meeting. See R.I. Gen. Law §42-46-6(b). "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." Id. (Emphasis added). The level of specificity that must be detailed for each agenda item depends on the facts and circumstances surrounding each item. In Tanner v. Town Council of the Town of East Greenwich, (R.I. 2005), the Rhode Island Supreme Court discussed what constitutes a statement specifying the nature of the business to be discussed at a meeting. The Court stated that "the Legislature intended to establish a flexible standard aimed at providing fair notice to the public under the circumstances, or such notice, based on the totality of the circumstances, as would fairly inform the public of the nature of the business to be discussed or acted upon." Id.; See McFadden v. Exeter/West Greenwich Regional School Committee, OM 06-48, Mudge v. North Kingstown School Committee, OM 06-34.

In Tanner, the Court found that the agenda item "Interviews for Potential Boards and Commission Appointments" did not adequately apprise the public of the nature of the business to be discussed at a Town Council meeting. Specifically, after conducting interviews as indicated on the notice, the East Greenwich Town Council proceeded to vote to appoint various individuals to the planning and zoning boards for the Town. The Court found that, although the standard is "somewhat flexible," the contents of the notice "reasonably must describe the purpose of the meeting or the action proposed to be taken." Id. at 797-98. Although the Court provided no bright line rule regarding the specificity of a posted notice, the Court viewed the "totality of the circumstances" and found that the notice was misleading since it implied that merely "interviews" would be conducted, and that a vote or other action would not take place. The Court also observed "that the OMA places an affirmative duty on the public body to provide adequate notice of meetings." Id. at 799.

While "[w]e acknowledge that reasonable minds can differ on what notice constitutes 'fair notice' in any given situation," id. at 802, we conclude that the May 25, 2011 and the December 14, 2011 agendas provided adequate notice. 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. 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.(fn3) It is noteworthy, however, 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.

In the instant case, item number 12 on the May 25, 2011 meeting agenda under the heading "Resolution" stated, "[i]n support of a Doris Duke Memorial Monument in Queen Anne Square." Based upon the evidence presented, the Town Council passed a resolution to:

"create a design proposal for a monument to Doris Duke and historic preservation with related landscape design, to be installed and maintained by the [Doris Duke Monument Foundation], who also agrees to assist the City in maintaining the site."

Item number 7 on the December 14, 2011 meeting under the heading "Communications and Petitions" stated,

"[c]ommunications from Marion Oates Charles, President, Doris Duke Monument Foundation, requesting consideration of the Foundation's offer to configure Queen Anne Square with a design by Maya Lin and Edwina VonGal, with accompanying Agreement between the City of Newport and Foundation. (Referenced Plans are on file in the City Clerk's Office for review).

* Memorandum from the City Manager, re: Queen Anne Square Proposal (Staff Comments)

* Resolution approving the Agreement between the City and the Doris Duke Monument Foundation for Rehabilitation and Modification to Queen Anne Square and Maintenance Thereof."

You contend an average person would not think that these agenda items meant "reconstructing the entire park, taking down trees, [or] accepting a gift of more than $3 million dollars." We conclude that both agendas adequately informed the public of the nature of the business to be discussed in accordance with Tanner. On May 25, 2011, the Town Council considered and passed the resolution that was advertised. On December 14, 2011, the Town Council discussed the "rehabilitation and modification to Queen Anne Square and [m]aintenance [t]hereof." Based upon the evidence presented, and applying the above case-by-case analysis, this Department opines that the items listed on the agendas at issue adequately advised the public as to the nature of the business to be discussed. The agendas advised the public that aspects of this specific project would be discussed. Consistent with Tanner, the OMA only requires a statement specifying the "nature" of the business to be discussed, not a verbatim list of every potential aspect that might be discussed in relation to that topic. See Gugliemo v. Scituate Town Council, OM 11-34 ("[W]e do not find the posted agenda deficient because it failed to list the size of the proposed cemetery."). We conclude that both the May 25, 2011 and the December 14, 2011 meeting agendas were proper and met the Tanner standard. As such, the City Council did not 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 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,

Lisa Pinsonneault

Special Assistant Attorney General

LP/pl

Cc: Joseph J. Nicholson, Jr., Esquire

1. We pause to note that the original complaint was filed by another citizen. That citizen withdrew his complaint and you adopted or asserted the arguments made by this other citizen. Additionally, the City does not raise a statute of limitations defense regarding your complaint and we therefore do not address it.

2. In your complaint and your reply, you assert a number of allegations regarding potential violations of the City Charter, competitive bidding laws, prevailing wage laws and deed restrictions. You also allege potential violations that involve the Department of Environmental Management, the Internal Revenue Service, the Rhode Island Board of Examiners of Landscape Architects, and the Board of Elections. This Department is charged with, inter alia, enforcing the OMA and the Access to Public Records Act ("APRA"). As such, these additional allegations will not be addressed in this finding because jurisdiction is outside this Department's purview.

3. This Department has previously opined that a public body need not indicate on its notice that it intends to vote on an item, as long as the notice is not misleading. See, e.g., Warfel v. New Shoreham Town Council, OM 00-26.