Rhode Island Advisory Opinions April 03, 2017: AGO OM 17-06 (April 03, 2017)

Advisory Opinion Text

Peter F. Kilmartin, Attorney General

Timothy A. Williamson, Esquire

Mr. Felix Appolonia

RE: Appolonia v. West Warwick Board of Canvassers

Dear Mr. Appolonia:

The investigation into your Open Meetings Act ("OMA") complaint filed against the West Warwick Board of Canvassers ("BOC") is complete.

You allege that the BOC violated the OMA when it discussed and voted on a matter that was not listed on the meeting's agenda. Specifically, you allege, in relevant part:

"On August 9, 2016, at 4:00 p.m. the [BOC] held a public meeting.

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Item 8 on the meeting agenda referred to Stranahan vs[.] Padula Hearing-Status.

Since the meeting agenda listed status only, I did not attend the meeting because there was no specific reference to an action item or a specific issue or that a formal vote would be taken.

It is my understanding, the Town Solicitor in the August 9 meeting, stated the meeting was to discuss status only but the [BOC] members continued to initiate and purse [sic] discussion and a vote for [an] item not on the agenda, even after being advised by legal counsel.

By discussing an item not on the agenda and taking a formal vote, the [BOC] did not allow myself or any other member of the public to know that this would be addressed, and voted on. By stating the item was on the agenda for Status, this clearly meant it was procedural only, to set the date for the future meeting on August 17."

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

"Mr. Appolonia's allegations would appear to based [sic] upon mere conjecture and speculation as it relates to his interpretation and definition of 'status conference' within the context of the Respondent's duties and obligations as an appointed board. Under RIGL [§] 17-8-10 and West Warwick Home Rule Charter ARTICLE II, Sections 201 - 203 the Respondent is charged with the duties and responsibilities as provided in RIGL [§] 17-8-5. Acting as a judicial panel and following all of the rules of Civil and sometimes Criminal Procedure, the Rules of Evidence and having to act as judge and jury is a foreign concept for a lot of the local municipal boards.

Th[e] notice within the agenda regarding status conference cannot be a violation as it relates to motions heard and motions voted upon by the Respondent. In this matter regarding Mr. Stranahan's complaint cannot be reviewed and analyzed as other notice requirements in which Town Councils, School Committees or other Boards and Commissions are held. In this matter, the appointed Respondent was acting as a judicial body even though that requirement is very rarely utilized by the Respondent. As such the Attorney General must review this case as they would a judicial matter.

In such judicial matters, it would impossible [sic] to list a variety of motions that either party, representing themselves pro se, or by through legal counsel that could possibly be raised during the course of the hearing (including both pre-hearing matters, matters arising during the hearing and post-hearing matters). In addition, when acting in this judicious manner; the audience of people in attendance do not have the opportunity to question any of the discussion matters, issues or controversies. This is not an open meeting wherein the audience has the opportunity to take an active role in the proceedings. This is a quasi-judicial matter wherein the Respondent has to take matters under advisement and may have to make a ruling on same in real time within the context of the issue being presented.

Was RIGL [§] 42-46-6 violated within this context? No. Conferences are normally held in all of the Rhode Island courts; on a daily basis. Sometimes, all the court docket indicates is the names of the parties and the case number. No more, no less, yet activity is undertaken, sometimes on the record and sometimes not.

Was public business performed in an open and public manner in this case? Absolutely. A broad construction and interpretation is necessary in this case because of the courtroom analogy addressed above. The nature of the Stranahan v. Padula case was advertised and made part of the agenda. The general public was provided with fair notice as to the status conference in the hearing involving the two candidates."

You did not file a rebuttal.

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).

The OMA requires all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 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 of East Greenwich , 880 A.2d 784 (R.I. 2005), the Rhode Island Supreme Court examined the OMA's requirement that a public notice contain "a statement specifying the nature of the business to be discussed." The Court determined 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 concluded 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. The Court added that a flexible "approach accounts for the range and assortment of meetings, votes, and actions covered under the OMA, and the realities of local government, while also safeguarding the public's interest in knowing and observing the workings of its governmental bodies." Id at 797. Although the Court provided no bright line rule regarding the level of specificity of a posted notice, the Court determined the appropriate inquiry is "whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted." Id.

The Rhode Island Supreme Court re-examined this provision in Anolik v. Zoning Board of Review of the City of Newport , 64 A.3d 1171 (R.I. 2013). The relevant facts of that case are as follows. In November of 2008, defendants received a letter from counsel for Congregation Jeshuat Israel requesting an extension of the time in which to substantially complete certain improvements to Congregation Jeshuat Israel's property that had been approved by a previous zoning board decision. Id. at 1172. That previous decision expressly contained a condition to the effect that there be substantial completion of the improvements within two years. Id The agenda item for the February 23, 2009 meeting stated:

"IV. Communications:

Request for Extension from Turner Scott received 11/30/08 Re: Petition of Congregation Jeshuat Israel"

At the meeting, the board voted unanimously to approve the request for an extension of time, which required that the "improvements must be started and [[be] substantially complete [by] February 23, 2011." Id. at 1173. On August 21, 2009, the plaintiffs filed a complaint in Superior Court alleging that the agenda item violated the OMA because it was "a 'vague and indefinite' notice to the public and one lacking in specificity." Id The Superior Court granted defendants' motion for summary judgment. Id On appeal, the Supreme Court looked to Tanner and noted that R.I. Gen. Laws § 42-46-6(b) requires the "public body to provide fair notice to the public under the circumstance, 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. at 1175 (internal quotations omitted). The Court held that the agenda item was "completely silent as to which specific property was at issue; the agenda item provided no information as to a street address, a parcel or lot numbers, or even an identifying petition or case number." Id. (Emphasis in original). The agenda item "fails to provide any information as to exactly what was the reason for the requested extension or what would be its duration." Id. at 1176.

The Rhode Island Supreme Court more recently addressed this issue in Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education et al„ 151 A.3d 301 (R.I. 2016). The pertinent agenda item stated: "7.b. Approval of RIDE's Executive Pay Plan and Organizations Chart." Next to this agenda item was a description that noted "Enclosure 7b." Id at 303.

The Supreme Court analyzed the sufficiency of this agenda item as follows:

"After a careful review of the record and consideration of the undisputed facts before us, it is this Court's opinion that the agenda provided by defendants, as it relates to the September 8, 2014 meeting, falls short of satisfying the statutory requirements of notice set forth in § 42-46-6 (a). Although the notice placed on the Secretary of State's website undeniably informed the public that '[a]pproval of RIDE's Executive Pay Plan' was on the agenda for the council meeting, there was no indication that more than one pay plan would be considered. Moreover, there was also no indication that the additional pay plans (ultimately considered and decided by the council at the meeting) would relate to retrospective fiscal years dating back to 2012. Additionally, while the 7b enclosure that should have been attached would have informed the public that the meeting would involve pay plans from fiscal year 2012 and forward, it is undisputed that the enclosure was not available on the Secretary of State's website as required by § 42-46-6.

It is our opinion that based on the totality of the circumstances of this case— including that the term 'plan' was in the singular and that the stated 'Enclosure 7b' was not actually available on the Secretary of State's website—adequate public notice was lacking. The public had the statutory right to receive a more complete notice of what would be discussed and decided at the council meeting; this is especially true where the matters relate to expenditures of taxpayer monies. The agenda did not provide the public with fair notice 'of the nature of the business to be discussed' where it completely omitted any information that one could construe to mean that more than one pay plan would be discussed." Id , at 306.

Accordingly, the Supreme Court concluded that the agenda item violated the OMA. Id.

Here, the agenda item for the BOC's August 9, 2016 meeting stated "STRANAHAN VS. PADULA HEARING-STATUS." Based on this Department's review of the meeting audio recording, we note that the BOC first determined a future date for a hearing on the merits of the matter. The BOC then discussed and heard arguments concerning's the petitioner's motion for issuance of a subpoena. After a discussion lasting over thirty minutes, the BOC denied petitioner's motion.

Based on the totality of the circumstances, and consistent with the Rhode Island Supreme Court's precedent, we find that the present agenda item did not sufficiently specify the nature of the business to be discussed and therefore violated the OMA. See R.I. Gen. Laws § 42-46-6(b). By stating that the purpose of the meeting was for "hearing-status" only, the agenda item provided no indication that petitioner's motion for issuance of a subpoena would be considered. See Pontarelli , 151 A.2d at 306. Indeed, similar to the agenda item in Anolik, the agenda item here contained "vague and indefinite notice to the public" and was "lacking in specificity[,]" providing only the barest of information. Anolik , 64 A.3d at 1175; see also Fagnant v. Woonsocket City Council , OM 15-17. As such, "[t]he public had the statutory right to receive a more complete notice of what would be discussed and decided" at the BOC meeting. Anolik , 64 A.3d at 1175.

Furthermore, we are not persuaded by the BOC's assertion that it was acting in a quasi-judicial capacity and that, therefore, leniency from the OMA's requirements must be afforded. We first note that this argument rests upon the implicit admission that the BOC is a "public body" under the OMA and thereby subject to its requirements. Second, nothing in the statute cited by the BOC - R.I. Gen. Laws § 17-8-5 - provides any support for the notion that the BOC is a quasi-judicial body. See R.I. Gen. Laws § 17-8-5. Rather, the statute describes the BOC and other local canvassing authorities as legislative bodies whose powers and duties are derived from their respective town councils. See R.I. Gen. Laws § 17-8-5(a)(2) ("Each canvassing authority shall have all of the functions, powers, and duties of the town council concerning nominations, elections, [etc.]") (emphasis added). Third, the BOC does not identify - nor do we find - any statutory provision that indicates an intent to preempt the OMA's requirements.

Moreover, even if we were to assume, arguendo , that the BOC is a quasi-judicial body, the OMA makes no mention of - or exception for - quasi-judicial bodies. Instead, the OMA expressly excludes judicial bodies. See R.I. Gen. Laws § 42-46-5(c) ("This chapter shall not apply to proceedings of the judicial branch of state government or probate court or municipal court proceedings in any city or town."). While the General Assembly certainly has it within its authority to exempt entities such as the BOC from the OMA requirements, thus far it has failed to do so and by negative inference, the OMA's requirements do apply to the BOC.

Finally, we note that the BOC's request for flexibility in conducting meetings is already provided for by the OMA, which expressly allows a public body to amend its agenda. See R.I. Gen. Laws § 42-46-6(b) ("Nothing contained [in the OMA] shall prevent a public body ... from adding additional items to the agenda by majority vote of the members."). With respect to any amended matter, however, "[s]uch additional items shall be for informational purposes only and may not be voted on except where necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official." Id. Moreover, while the precise timing of events is unknown to us, it is our understanding that the Motion for Issuance of a Subpoena was filed prior to the August 9, 2016 meeting, and as such, there is a significant question in our minds why notice of such a Motion could not have been provided within the forty-eight (48) hours required by the OMA. See R.I. Gen. Laws § 42-46-6(b).

In sum, we find that the agenda item describing a "hearing-status" did not adequately inform the public that the BOC would hear arguments on and decide the disposition of petitioner's motion for issuance of a subpoena. Accordingly, we find that the BOC violated the OMA. See R.I. Gen. Laws § 42-46-6(b). We note that our conclusion comports with jurisprudential trends; each of the three times our Supreme Court considered this issue it found the agenda item at issue insufficient. See Tanner , 880 A.2d at 798; Anolik , 64 A.2d at 1175; Pontarelli , 151 A.2d at 1175.

Upon a finding of an OMA violation, the Attorney General "may file a complaint on behalf of the complainant in the superior court against the public body." R.I. Gen. Laws § 42-46-8(a). "The court may issue injunctive relief and/or "may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members" for a willful or knowing violation. R.I. Gen. Laws § 42-46-8(d).

Here, we find insufficient evidence that the BOC knowingly or willfully violated the OMA. Although we found the agenda item insufficiently precise, supra , we note that the term "hearing-status" is susceptible to at least some interpretation such that the BOC could have thought it adequate and within its legal counsel's advice. Furthermore, the only evidence that you present in support of a knowing or willful violation is Appolonia v. West Warwick Board of Canvassers , OM 15-06, but in that case the October 27, 2014 and November 4, 2014 agenda items where far more general than the instant August 9, 2016 agenda. By itself, Appolonia , OM 15-06, is instructive, but not dispositive, concerning whether the instant matter represents a willful or knowing violation. Additionally, we do not find injunctive relief appropriate, particularly in light of the fact that the underlying merits of the matter have already been adjudicated. Nevertheless, this finding serves as notice to the BOC that the conduct discussed herein is unlawful and may serve as evidence of a willful or a knowing violation in any similar future situation.

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 alleged that the BOC violated the OMA by not following the guidance of the BOC's legal counsel, but this allegation does not appear to implicate or violate the OMA. This Department's jurisdiction is limited to allegations of violations of the OMA. See R.I. Gen. Laws § 42-46-8(a). Arguably, this factor may be relevant to whether any violation is willful or knowing.

Provided to this Department as part of a separate complaint filed against the BOC regarding the August 9, 2016 meeting. See Stranahan v. West Warwick Board of Canvassers , OM 17-05.

The October 27, 2014 agenda provided no agenda item and the November 4, 2014 agenda listed a "general discussion" agenda item.

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