Rhode Island Advisory Opinions April 03, 2017: AGO OM 17-05 (April 03, 2017)

Advisory Opinion Text

Peter F. Kilmartin, Attorney General

Nicholas Denice, Esq.

Timothy A. Williamson, Esquire

RE: Stranahan v. West Warwick Board of Canvassers

Dear Mr. Denice:

The investigation into your Open Meetings Act ("OMA") complaint filed on behalf of your client, Mr. William Stranahan, against the West Warwick Board of Canvassers ("BOC") is complete.

You allege that the BOC violated the OMA in the following ways, in relevant part:

"On July 18, 2016 William H. Stranahan [] filed a complaint [] with the [BOC] pursuant to R.I. Gen. Laws § 17-14-13 challenging Angelo A. Padula Jr.'s [] eligibility to run for the office of Town Council in West Warwick[.] The [BOC] scheduled an emergency meeting on July 20, 2016 at 3:30 p.m. at the West Warwick Town Hall to discuss the Complaint. The [BOC] and its legal counsel suggested that a briefing schedule for the Petitioner and Respondent be agreed upon. The Solicitor had consulted with the attorney for the State Board of Elections and indicated that a resolution to the Complaint was required, with enough time to allow either party its right of appeal to the Board of Elections, prior to September 20,2016 in order to allow enough time for ballots to be printed. After the July 20 meeting was adjourned, the Chairman of the [BOC], Raymond Lambert, discussed the merits of the case with Vice Chairwoman Nancy Leblanc and Burt Mollohan while they were still in the Town Council Chamber. [] Mr. Lambert stated to Mrs. Leblanc and Mr. Mollohan that 'the matter was expunged,' showing them a copy of the expungement statute, stating that the Petitioner had run against the Respondent multiple times, and that this case was 'moot.' Mr. Lambert then asked the Respondent Mr. Padula how long he had been a member of the Town Council to which the Respondent answered 'ten years.' Mr. Lambert then stood up and as he walked out of the room patted Mr. Padula on the back and said 'thank you for your service.'

The parties agreed upon a briefing schedule at the July meeting and the [BOC] advertised a 'status' conference on August 9, 2016.1 specifically asked the [BOC] clerk [] that the hearing was for the purposes of setting a time for the hearing and I was told that it was for 'status.' Additionally, in a phone call with the Solicitor that day, Petitioner's counsel was told that the hearing was a scheduling conference for the purpose of scheduling a hearing on the merits.

At the August 9 meeting, the [BOC] [] proceeded to vote to deny Petitioner's Motion for Issuance of Subpoenas to the Respondent, Mr. Padula. No action items were on the [BOC's] agenda for the August 9 meeting nor did the [BOC] vote to add any of these items to the agenda. On multiple occasions during the meeting, Petitioner's counsel stated that the parties were there for a status hearing and that this evidentiary issue should be determined when properly noticed at the upcoming hearing."

In response to this Complaint, this Department sent you an acknowledgment letter stating, in pertinent part:

"It appears your client attended both meetings. Within ten (10) business days, please provide this Department with evidence as to how or why your client was aggrieved by the alleged lack of notice. See Graziano v. Rhode Island Lottery Commission , 810 A.2d 215 (R.I. 2002)."

You responded to this prompt with the following, in relevant part:

"The following violations of the [OMA] occurred:

1. The [BOC] held an unlawful meeting on July 20, 2016 by discussing the merits of the Petitioner's Complaint, with a quorum, after having adj ourned its meeting in violation of § 42-46-4 and § 42-46-6.

2. The [BOC] voted to deny the issuance of subpoenas to the Respondent when it was not noticed on the agenda at its August 9, 2016 meeting in violation of § 42-46-6.

3. The [BOC] improperly discussed the merits of the Complaint at its August 9, 2016 meeting when that topic was not on the agenda. The agenda stated "STRANAHAN VS. PADULA HEARING STATUS" and did not indicate that any discussion on the merits would occur at that meeting in violation of § 42-46-6. The [BOC] improperly took action on an item not on the agenda by voting to deny the issuance of Petitioner's Motion for Issuance of Subpoena in violation of § 42-46-6.

4. [BOC] members Lambert and Leblanc both provided extrinsic evidence (Lambert stating that he had researched the Respondent's criminal record and Leblanc providing evidence from her service on the 1996 Charter Review Committee) and therefore violated the due process of the Petitioner. Thus, both

Mr. Lambert and Mrs. Leblanc should be required to recuse themselves from further proceedings. My client was aggrieved by the lack of notice because (1) the notice was misleading, (2) his request for the issuance of a subpoena on a key evidentiary issue was denied, the ability to examine Angelo Padula on the issue of his cocaine felony conviction, (3) the [BOC] refused to cure its failure at the following meeting and did not act on Petitioner's Renewed Motion for Issuance of subpoenas, (4) Petitioner's due process was violated as a result, (5) [BOC] members Lambert and Leblanc voted on the original denial and recused themselves at the hearing on the merits on advice from the Town Solicitor due to conflicts of interest and bias (Petitioner filed a Motion for Recusal and both members recused) due to the statements they made and actions they took at the improperly posted meeting. The [BOC's] willful and knowing conduct prejudiced the entire proceeding and robbed Petitioner of due process and the ability to have a fair and impartial hearing."

The BOC filed a substantive response through its Solicitor Timothy Williamson, Esquire. Attorney Williamson responded to your allegations, in pertinent part, as follows:

"Lambert's statements standing alone, without response from either Mollohan or LeBLanc [sic] does not constitute a meeting. It constitutes one person' opinion on that particular day and time. As this is still a country that provides for and champions free speech; an appointed member of a Board is not prohibited from exercising that right. Mr. Stranahan's affidavit provides no evidence that Mollohan or LeBlanc heard the statements not responded to same [sic]. Normally there are many people milling about and talking about matters after a meeting has adjourned. Without a specific response from the other two members of the [BOC] to the alleged remarks of Lambert, this complaint must be dismissed and denied. ***

The notice requirement for the contested matter of Stranahan v. Padula was complied with when the Respondent provided the general public with the announcement that there was to be a status conference on the 9 day of August 2016. The Respondent, acting as a judicial panel and/or quasi-judicial body were well within its rights to address motions and act upon same without more specific notice to the general public.

The Respondent did not violate RIGL [§] 42-46-6 for the simple reason that all of the discussion centered around information that had been provided by legal counsel from both parties. Judicial bodies and/or judges have to have the ability to be flexible when addressing matters that are before them. In real time and within the context of a judicial body, the Respondent was well within its rights to address matters such as Motions for Subpoenas, and or discussion about the case without having to be a [sic] specific as the Petitioner wishes.

Petitioner was not prejudiced by any action of the Respondent. In fact, Petitioner by and through his legal counsel participated in the discussion and actions of the Respondent on the date in question."

You filed a rebuttal stating, in relevant part:

"Here, the [BOC] failed to properly notice that a substantive hearing would occur. In fact, the [BOC] Clerk and Town Solicitor, acting as legal counsel to the [BOC], had indicated that the meeting was to handle procedural matters in scheduling the too-be-heard [sic] hearing on the merits. Taking the Respondent's view, any quasi-judicial agency could simply schedule 'notice hearings' with no detail, no specificity, and no procedural due process to a party and the OMA would not apply.

If the [BOC] truly believed the OMA did not apply, they would not even need to notice the hearing in the first place. The fact that the clerk did, at the Solicitor and [BOC] Chair's request, indicates an understanding that the OMA still required proper notice even when acting as a quasi-judicial body."

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 the law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the BOC violated the OMA. See R.I. Gen. Laws §§ 42-46-8. In other words, we do not write on a blank slate.

In order for the OMA to apply, a "quorum" of a "public body" must convene for a "meeting" as these terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown , 723 A.2d 294 (R.I. 1999). For purposes of the OMA, a "public body" is defined as "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government." R.I. Gen. Laws § 42-46-2(3) (emphasis added). A "meeting" is defined as "the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." R.I. Gen. Laws § 42-46-2(1). A "quorum" is defined as "a simple majority of the membership of a public body." R.I. Gen. Laws § 42-46-2(4).

As a preliminary matter, we note that your allegations regarding improper use of extrinsic evidence and due process violations are not OMA violations and thus beyond this Department's jurisdiction to investigate. See R.I. Gen. Laws § 42-46-8(a). Accordingly, these allegations will not be addressed and our sole focus is on the OMA allegations.

Your remaining allegations appear to concern the adequacy of notice for a BOC meeting on July 20, 2016 and the sufficiency of the agenda item "STRANAHAN V. PADULA HEARING-STATUS" listed on the agenda of the BOC's August 9,2016 meeting. Although we have concerns regarding the sufficiency of the August 9, 2016 agenda item, especially considering case law and our many prior findings, before this Department can address these allegations raised in your complaint, we must determine as a threshold matter whether you are an aggrieved party and have legal standing to bring these OMA complaints. See Grieb v. Aquidneck Island Planning Commission , OM 15-16. Indeed, this Department sent you a correspondence requesting that you supply evidence demonstrating that you were aggrieved by the allegation raised in your complaint.

The OMA provides that "[a]ny citizen or entity of the state who is aggrieved as a result of violations of the provisions of this chapter may file a complaint with the attorney general." R.I. Gen. Laws § 42-46-8(a). In Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215 (R.I. 2002), the Rhode Island Supreme Court examined the "aggrieved" provision of the OMA. There, an OMA lawsuit was filed concerning notice for the Lottery Commission's March 25, 1996 meeting wherein its Director, John Hawkins, was terminated. At the Lottery Commission's March 25,1996 meeting, Mr. Hawkins, as well as his attorney, Ms. Graziano, were both present. Finding that the Lottery Commission's notice was deficient, the trial justice determined that the Lottery Commission violated the OMA and an appeal ensued.

On appeal, the Rhode Island Supreme Court found that it was unnecessary to address the merits of the OMA lawsuit because "the plaintiffs Graziano and Hawkins have no standing to raise this issue" since "both plaintiffs were present at the meeting and therefore were not aggrieved by any defect in the notice." Id at 221. The Court continued that it:

"has held on numerous occasions that actual appearance before a tribunal constitutes a waiver of the right of such person to object to a real or perceived defect in the notice of the meeting. * * * It is not unreasonable to require that the person who raises the issue of the defect in notices be in some way disadvantaged or aggrieved by such defect. While attendance at the meeting would not prevent a showing of grievance or disadvantage, such as lack of preparation or ability to respond to the issue, no such contention has been set forth in the case at bar. The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice." Id at 221-22.

Here, pursuant to R.I. Gen. Laws § 42-46-8(a), and the standard established in Graziano , you must demonstrate that you are "in some way disadvantaged or aggrieved by such defect" in the notice. Id . at 221. Importantly, the test is not whether the public is aggrieved, but whether you, as an individual are aggrieved. See Riggs v. East Bay Energy Consortium , PR 13-25, OM 13-30.

A review of the undisputed evidence indicates that your client was present at both the July 20, 2016 and August 9,2016 BOC meetings. In response to this Department's request that you indicate how your client was aggrieved by any of the allegedly insufficient notices or agenda items despite attending these meetings, you failed to articulate how the allegations of inadequate notice and insufficient agenda items specifically disadvantaged your client. Cf, Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 793 (R.I. 2005) ("[E]ven an individual who actually attends a meeting still may establish standing through demonstrating that he or she was aggrieved or disadvantaged by, for example, the lack of preparation or inability to respond to an issue."). Instead, you reiterated your previously stated allegations that the notice and agenda were insufficient and that your client was deprived of due process. More specifically, although you contend that the BOC continued its discussion after the July 20, 2016 meeting adjourned, Mr. Stranahan's affidavit makes clear that he was present for this continued discussion and overheard its contents. Having not been provided with any indication of how, specifically, the allegedly inadequate notice and agenda items disadvantaged your client, we fail to see how the present case is distinguishable from Graziano . See Block v. Board of Elections , OM 13-25 (noting that the facts demonstrated "a situation no different than Graziano , i.e., a person who complains about the sufficiency of notice, but nonetheless attends the meeting and provides no evidence of any particular detriment or injury.").

Indeed, this conclusion is supported by the audio recording from the August 9, 2016 meeting, which demonstrates that you, speaking on behalf of your client, had ample opportunity to voice your opinions and concerns during the nearly forty-five-minute discussion you had with the BOC. Nothing in the audio recording could be fairly construed to show that you were unprepared for or unable to respond to the agenda items discussed and you made no assertion during this meeting that your client was aggrieved due to an insufficient agenda. See Rider v. Foster Town Council , OM 14-11. In fact, in response to our request that you advise this Department concerning how you were aggrieved by an insufficient notice, i.e., concerning the issuance of a subpoena, you noted that your client's "request for the issuance of a subpoena on a key evidentiary issue was denied." The fact that your client apparently raised the subpoena issue, but now complains that there was insufficient notice that this issue would be discussed, further supports our conclusion. Since you have presented no evidence to the contrary, and because we find no evidence indicating otherwise, this Department finds that your client is not an "aggrieved" party and therefore has no standing to object to the notice or agenda for either the July 20, 2016 or August 9, 2016 BOC meetings. See Curt-Hoard v. Woonsocket School Board , OM 14-20. Accordingly, we find no violations.

Although the Attorney General will not file suit in this matter, nothing within the OMA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c). We are closing this file as of the date of this correspondence.

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

Very truly yours,

Sean Lyness, Special Assistant Attorney General

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Notes:

Your complaint also contained, inter alia , an affidavit from Mr. Stranahan supporting the allegations regarding the events of July 20, 2016.

Your complaint alleges that the BOC "held an unlawful meeting on July 20, 2016 by discussing the merits of the Petitioner's Complaint, with a quorum, after having adjourned its meeting in violation of § 42-46-4 and § 42-46-6." It is unclear how R.I. Gen. Laws § 42-46-4, which provides the procedures for convening into executive session, is implicated by this allegation. This leaves your remaining allegation of violation, R.I. Gen. Laws § 42-46-6, which concerns notice for public meetings.

Your complaint advances two separate allegations: (1) that "[t]he [BOC] voted to deny the issuance of the subpoena to the Respondent when it was not noticed on the agenda at its August 9, 2016 meeting;" and (2), "[t]he [BOC] improperly discussed the merits of the Complaint at its August 9, 2016 meeting when that topic was not on the agenda." Each allegation asserts that the agenda item "STRANAHAN VS. PADULA HEARING-STATUS" was inadequate. Accordingly, we address both allegations together.

See, e.g., Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education , 151 A.3d 301, 305-07 (R.I. 2016); see also Beagan v. Albion Fire District , OM 10-27B (civil lawsuit filed).

The August 9, 2016 BOC meeting audio was provided to this Department as an attachment to your Complaint.

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