Rhode Island Advisory Opinions April 11, 2017: AGO OM 17-08 (April 11, 2017)

Advisory Opinion Text

Peter F. Kilmartin, Attorney General

Peter D. Ruggiero, Esq.

Ms. Jean Esposito

Member, Scituate School Committee

Ms. Coleen Pendergast

Member, Scituate School Committee

RE: Esposito, et al v. Scituate School Committee and Superintendent Search Subcommittee

Dear Ms. Esposito and Ms. Pendergast:

The investigation into your Open Meetings Act ("OMA") complaint filed against the Scituate School Committee ("School Committee") and Superintendent Search Subcommittee ("Search Subcommittee") is complete.

You allege that the School Committee and Search Subcommittee violated the OMA in the following ways, in relevant part:

"4. The February 2, 2016 [S]chool [C]ommittee agenda was insufficient to provide the necessary advance[d] public notice that a search committee would be announced or had even been formed. The item was discussed under item F. entitled 'Superintendent's Report.' The public, nor we, as members of the school committee, were unaware [sic] that this committee had been appointed or would be announced since the Superintendent's report was not made available to us until the evening of the actual meeting. [] The mere heading of 'Superintendent's] Report' does not provide advance notice to anyone as to what will be discussed under that heading and therefore is too vague to comport with the notice requirement of the OMA. See, Tanner v. East Greenwich [sic]

5. As a subcommittee with advisory powers to recommend to the full school committee the District's next superintendent, the screening committee, which included the Chair of the [S]chool [C]ommittee, Marylou Umbriano and another school committee member, June Guglielmi, was required to post notice of their meeting on February 9, 2015 [sic, should be February 9, 2016]. No such notice was posted.

6. At the March 1, 2016 executive session of the school committee, we inquired whether the February 9, 2015 [sic] meeting was in compliance with the OMA and was told by counsel of the [S]chool [C]ommittee that no such posting was necessary or needed based on prior [S]chool [C]ommittee practice.

7. As your office has previously] held, 'regardless of whether it was through the full Council or the Council's President, nonetheless selected or appointed a group of individuals to perform public business over which the Council had jurisdiction and control' and is therefore subject to the OMA. See Finnegan v. Town of Scituate (March 17, 1997). Much like the Town Council in the Finnegan matter who had sole authority to appoint a police chief, under R.I.G.L. [§] 16-2-9(12), the School Committee is charged with the duty to employ a superintendent of schools. Therefore, the search committee violated the OMA when it failed to post its meeting of February 9, 2016 and keep minutes of its meeting. Their failure to do so deprived the public and other members of the [S]chool [C]ommittee the ability to learn who was in attendance at the meeting, the criteria they used in making their selection, and the general nature of their selection process."

This Department notified you in its acknowledgment letter of the following:

"[Y]ou allege the School Committee violated the OMA when the item, 'Superintendent's Report' listed on the agenda for the February 2, 2016 meeting did not adequately inform the public of the nature of the business to be discussed. You may wish to supplement your complaint and indicate how you were aggrieved by this defect in notice. See R.I. Gen. Laws § 42-46-8(a); Graziano v. Rhode Island Lottery Commission , 810 A.2d 215 (R.I. 2002)."

You did not provide any additional information in response to this prompt.

The School Committee filed a substantive response through its Solicitor David D'Agostino, Esquire. Attorney D'Agostino responded to your allegations, in pertinent part, as follows:

"[T]he Search Team is not a 'public body' as defined in the OMA. General Laws, § 42-46-2(3), defines, 'public body' as, 'any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government....' There is no question that the School Committee is a 'public body' within the meaning of the OMA; however, the Search Team's sole purpose was to vet - administratively - the volume of applicants for the position of Superintendent. There is an important distinction between vetting of applicants administratively, to develop a candidate or candidates for the School Committee to then interview and eventually hire/select, or not.

I point this out because the Search Team, as used by the School Committee[,] is different than the 'citizens committee' mentioned and described in Finnegan v. Scituate Town Council , OM 97-05. The reason the Search Team is different (than the citizens committee in the Finnegan case) is because, the School Committee did not delegate to the Search Team any of its hiring authority. The hiring decision(s) were made by the School Committee. The Search Team's only role was to select potential candidates (from the rather large universe of applicants) for the Superintendent's position. Those potential candidates were then presented to the School Committee for interview and selection. The School Committee retain[s] all the authority to interview, negotiate with, and select (or, as the case may be, to reject) potential candidates for the position of Superintendent.

1. That the School Committee violated the OMA when the item 'Superintendent's Report' from the February 2, 2016 meeting did not adequately inform the public of the nature of the business to be discussed.

The [School] Committee did not violate the OMA on February 2, 2016 regarding the item 'Superintendent's Report.' Complainants allege a violation of the OMA because under the 'Superintendent's Report' section, the School Committee Chair reported on the activities of the Search Committee. This is not a violation. Merely because the Superintendent was a member of said Search Committee, it was within the spirit of the OMA to have a report of his activities, including the activities of the Search Committee. Whether or not the update (to the School Committee) was given by the Superintendent or the Chair, is immaterial and of no moment.

Second, the Complainants were fully aware of the Search Committee from an earlier School Committee meeting, namely, the January meeting. The School Committee video-tapes its' meetings and the actual discussion can be viewed by the public via Clerk Base. In particular, reference is made to the January 5, 2016 meeting beginning at 1:03.28 where the Committee discusses the Search Team process. At 1:06.15, the Committee discusses the salary range for the position. Beginning at 1:54.01, the Committee engages in a detailed discussion about the search process, including the role of the Search Committee/Team. Given this discussion vis-a-vis the Complainants' allegations, the undersigned wonders whether this presents a standing-related issue under the OMA and Graziano v. Rhode Island Lotter[v] Commission , 810 A.2d 215 (R.I. 2002). Respondent is not specifically arguing standing, but only points out that the Complainants were aware of the Search Committee/Team process and were invited to be a part of it, although they were not.

2. That the Search Committee met for a meeting on February 9,2016 with no advance written notice to the public.

The Search Committee did not violate the OMA when it met on February 9, 2016 with no advance written notice to the public because it was not required to do so under the OMA.

As set forth above, it is Respondent's position that the Search Committee/Team is not a 'public body' under the OMA. Since the OMA requires only public bodies to post written notice (i.e. agendas) of their meetings, and since the Search Committee/Team is not a public body, no OMA notice was required.

3. That the Search Committee failed to maintain minutes of the February 9, 2016 meeting.

The Search Committee/Team was not required to maintain meeting minutes for its February 9, 2016 meeting, because it was not a public body under the OMA.

The importance of vetting a Superintendent candidate cannot be overstated. The ideal candidate must reflect the District's goals, and share the Committee's objectives and vision for education. None of this was done by the Search Committee/Team - this was all and at all times, the purview of the School Committee. In fact, the School Committee undertook this process in Closed/Executive Session at the March meeting.

Lastly, Respondent rejects the allegations that are raised by Complainants. By way of further response, to the extent that a violation of the OMA is found by the RI Attorney General's Department to have occurred, Respondent suggests that a thorough review of the video recording of the January[] 2016 and February 2016 School Committee meeting minutes, demonstrates that the entire Committee was invited to be part of the search process; that the search process was conducted, initially, as an administrative task, by group that was not by definition a 'public body' under the OMA; and, that the School Committee's ability to vet, meet with, consider, and evaluate a Superintendent candidate was neither usurped nor supplanted by the administrative actions of the search group."

You filed a rebuttal stating, in relevant part:

"In this matter, it is undisputed that the so-call[ed] 'search team' reviewed applications for the position of superintendent of Scituate's schools, ranked the applicants, and then made a recommendation for appointment to the entire school committee. It is important to note that the search team only recommended one candidate after their search process, and all other potential candidates were not able to be considered by the school committee. In fact, no public or private interviews were conducted of any of the applicants by the search team or the school committee.

The nine-member superintendent search committee or 'team' was appointment [sic] by the Chairwoman of the Scituate School Committee, Marylou Umbriano, who under the by-la[w]s of the Scituate School Committee, appoints all committees of the Scituate School Committee. Thus, the sole authority of the appointing authority stems directly from the by-laws of the Scituate School Committee whom counsel freely admits is a 'public body' under the OMA. [] Once appointed, the nine-member school so-called 'search team' met without any prior public notice to gather and review potential applicants to fill the highest appointed position in the Scituate School Department, its superintendent, as well as make a recommendation for appointment. Thus, it was clear that a great deal of authority and discretion was vested in this search team, and they had sole control and discretion as to whether to accept, reject, or recommend any one person or person(s) to be the next superintendent for the district. In fact, in exercising this discretion, this search team only forwarded one name to the entire school committee for appointment.

Lastly, the make-up of the committee, which was composed of the Chair of the School Committee and another member, the president of the local teacher's union, two principals within the district who are employed by the District, the current superintendent, a special education director, and a parent/teacher all weighs heavily that this was a very broad based committee charged with the awesome task of reviewing and recommending the District's next superintendent.

At the very least, the search team was charged with advisory powers to review the submitted applications for superintendent of the school district and make a recommendation for appointment. As mentioned above, they only recommended one applicant for appointment. Therefore, a strong argument exists that this search team actually selected the district superintendent. Surely, an advisory group which [sic] such power must fall under the ambit of the state's OMA which mandates that 'public business be performed in an open and public matter.' R.I.G.L. § 42-46-1. This committee acted far from public scrutiny." (Emphasis in original).

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 School Committee and/or Search Subcommittee 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).

Your first allegation concerns the adequacy of the item "Superintendent's Report" listed on the agenda of the School Committee's February 2, 2016 meeting. Although we have concerns regarding the sufficiency of the agenda item, especially considering case law and our many prior findings, before this Department can address this allegation raised in your complaint, we must determine as a threshold matter whether you are an aggrieved party and have legal standing to bring this OMA complaint. See Grieb v. Aquidneck Island Planning Commission , OM 15-16. Indeed, this Department's acknowledgment letter to you requested 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. Respectfully, despite our suggestion to do so, you have not provided us with any evidence that you were aggrieved by the allegedly insufficient agenda item. A review of the evidence before us, including the meeting minutes and a video recording of the meeting, indicates that you were both present at the February 2, 2016 meeting and that you had ample opportunity to voice your opinions and concerns on this issue. Furthermore, nothing in the video recording could be construed to show that you were disadvantaged by the agenda item in any way. See Rider v. Foster Town Council , OM 14-11. Since you have presented no evidence to the contrary, and because we find no evidence indicating otherwise, this Department finds that you are not "aggrieved" parties and therefore have no standing to object to the agenda. See Curt-Hoard v. Woonsocket School Board , OM 14-20. Accordingly, we find no violation.

We turn next to your allegations that the Search Subcommittee failed to post written notice and meeting minutes for its February 9, 2016 meeting. The School Committee contends that these OMA requirements do not apply to the Search Subcommittee because the Search Subcommittee is not a "public body" under the OMA. Accordingly, our inquiry is focused on whether the Search Subcommittee is a "public body" under the OMA.

We have previously noted that determining whether a particular entity is or is not a "public body" is "a fact-intensive question not subject to 'bright line' rules." See Oliveira v. Independent Review Committee , OM 04-10. Previously, this Department has also opined that a citizen search committee appointed by a Town Council President - where the Town Council maintained the ultimate appointing authority - constituted a "public body" and was subject to the OMA. See Finnegan v. Scituate Town Council , OM 97-05 ("where a public body appoints citizens to a committee, the citizens' entity is a public body"). Since Finnegan , the Rhode Island Supreme Court has also twice examined this issue.

In Solas v. Emergency Hiring Council , 774 A.2d 820 (R.I. 2001), the Rhode Island Supreme Court considered the application of the OMA to an entity formed by two executive orders of then-Governor Lincoln Almond to "manage and control the state's hiring practices and its fiscal resources." The Emergency Hiring Council consisted of five senior executive branch staff members who met on a biweekly basis "to determine whether creating a new position in state government or filling a vacancy is absolutely necessary." Id. at 824. It was the Governor's intent that "no person or persons other than the Council shall have the authority to make any determinations in this regard." Id. (internal quotation omitted). Based on these facts the Supreme Court concluded the Council was subject to the OMA:

"[T]he EHC [Emergency Hiring Council] is composed of a group of high level state officials that convenes to discuss and/or act upon matters of great interest to the citizens of this state. In addition, our reading of the executive orders creating the council persuades us that the EHC possesses significant supervisory and executive veto power over creating or filling state employment positions. At the very least the council functions in an advisory capacity in state hirings. Whether supervisory or advisory, both functions are regulated by the act. As the plain language of the statute provides, a council's exercise of advisory power is enough to bring it under the act's umbrella." Id . at 825.

The Court in Solas examined the text of the executive orders under which the Emergency Hiring Council was established, the scope of its stated authority, its actual authority, the nature of the public business delegated to it, and its membership and composition. We have found each of these factors relevant, to varying degrees, in findings issued by this Department. See Finnegan , OM 97-05; Montiero v. Providence School Board Nominating Commission , OM 02-25; In re: Prudence Island Volunteer Fire Department , ADV OM 16-03.

The Rhode Island Supreme Court more recently addressed this issue in Pontarelli , where the Rhode Island Board Council on Elementary and Secondary Education ("RIDE") created a Compensation Review Committee ("CRC"), which was tasked with reviewing requested and proposed salary adjustments to Rhode Island Department of Elementary and Secondary Education employees. 151 A.3d at 302-03. The CRC was described as an '"informal, ad hoc working group with a strictly advisory role' and with no legal status or authority[,]" and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Court held that the CRC was not a public body, stating:

"Unlike the EHC in Solas , the CRC in this case does not meet on a regular basis, nor was the CRC created by an executive order. Instead, the undisputed evidence in this case is that the CRC acted as an informal, strictly advisory committee. Although the CRC was composed of a group of high-level state officials and operated under a charter, these two factors alone are insufficient to place them into the 'public body' umbrella. Importantly, the CRC's sole function is to advise the commissioner of RIDE, who in turn has to make a recommendation to the council . At this point in the process, if the commissioner decided to present any proposal to the council for the council's required approval, the public would have an opportunity to be informed of and object to such proposal." Id . at 308 (emphasis added).

Consistent with the foregoing case law and findings, the dispositive factor concerns the Search Subcommittee's scope of delegated authority. It is undisputed that the Search Subcommittee screened all the applicants for the superintendent position, interviewed candidates, and eliminated from consideration various applicants. (Indeed, the Search Subcommittee advanced only one candidate to the School Committee.). In performing these activities, the Search Subcommittee distinguished itself from the CRC, which "sole function" was to advise the commissioner who would then make a recommendation to the council. Pontarelli , 151 A.3d at 308. See also Boss v. City of Woonsocket School Board Review Committee , OM 14-19 ("the Committee took action when they reviewed the twenty eight (28) applications, narrowed them down to fourteen (14) applicants to interview, and then further narrowed the list to eight (8) candidates"). Accordingly, the Search Subcommittee took action, an exercise of authority which is markedly distinguishable from the CRC's "informal, strictly advisory" role. Cf Pontarelli , 151 A.3d at 308. As a result, on these specific facts, the Search Subcommittee was "perform[ing] a task under [the School Committee's] jurisdiction," such that "the appointed group itself is covered by the OMA." Sinapi v. University of Rhode Island Student Senate , OM 14-23. As such, the Search Subcommittee is subject to the OMA's requirements and, consequently, we find that the Search Subcommittee violated the OMA when it failed to post written notice and meeting minutes for its February 9, 2016 meeting. See R.I. Gen. Laws §§ 42-46-6(b), 42-46-7(a).

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the Superior Court. R.I. Gen. Laws § 42-46-8(a). There are two remedies available in suits filed under the OMA: (1) "[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];" or (2) "the court may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members found to have committed a willful or knowing violation of [the OMA]." R.I. Gen. Laws § 42-46-8.

In this case, we find neither remedy appropriate. Based on the totality of the circumstances, including the fact that the School Committee made the ultimate decision, we find that injunctive relief is not appropriate. Additionally, although Pontarelli was decided after the events in this case, we find that the nature of the slightly changed legal landscape after Pontarelli counsels against a finding of a willful or knowing violation. Moreover, we note that we have not been presented with - nor do we find - any evidence to support a finding of a willful or knowing violation. Accordingly, we decline to take further action with respect to these violations. Nonetheless, this finding serves as notice that the Search Subcommittee's actions violated the OMA and may serve as notice of a willful or knowing violation for any future similar cases.

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:

See , e.g. , Pontarelli v. Rhode Island Board Council on Elementary and Secondary Education , 151 A.3d 301, 305-06 (R.I. 2016); see also Beagan v. Albion Fire District , OM 10-27B (civil lawsuit filed).

Accessible through the Town of Scituate website, the video recording is available at http://vid.opengovideo.com/playvideo.asp?sFileName=http://video. clerkshq.com/RI_Scituate_Sc hoolCommittee_20160202.

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