Rhode Island Advisory Opinions June 13, 2018: AGO OM 18-13B (June 13, 2018)

Advisory Opinion Text

Christopher J. Behan, Esq.

Peter F. Kilmartin, Attorney General

Mr. Ryan Belmore

Dear Mr. Belmore:

This correspondence serves as a supplemental finding to Belmore v. Newport City Council , OM 18-13, released on May 16, 2018. In Belmore , we reviewed your Open Meetings Act ("OMA") complaint and concluded that the Newport City Council ("City Council") violated the OMA when a walking quorum of its members collectively discussed the selection of a new City Councilor outside of the public purview. The sole issue to be addressed in this supplemental finding is whether the City Council's violation was willful or knowing.

In response to our finding, Department received a response from City Solicitor, Christopher J. Behan, Esquire. Solicitor Behan's response states, in relevant part:

"The City of Newport must respectfully disagree with these findings and takes the position that the evidence submitted does not show that such interactions constituted a quorum or the convening of a meeting. *** However, in order to address your need to make a further finding of whether the alleged violation found by your department constitutes a willful and knowing violation, we will assume your findings of a violation in this particular case are accurate.

***

The City would submit that the communications in question were inadvertent and anecdotal. The facts and circumstances of this case should be put in context. It is not often that City councils are faced with the need to fill a vacancy as a result of the resignation of a council person. Also, these conversations took place during a period from November 22, 2017 through January 8, 2018. The only issue on the Council docket for December 13, 2017 was the acceptance of the resignation of Councilor Florez and then thereafter the issue on the docket for the January 8,2018 meeting was to vote to fill the vacancy. A review of the affidavits submitted by the City shows that Mayor Winthrop stated that he only had two phone conversations with other council persons. The Department pointed out that two other council persons also said that they had conversations with the Mayor. The Mayor has submitted herewith a supplemental affidavit which states that he only recalls having telephone calls with Councilors Ceglie and Napolitano. He believes that Councilors Bova and Taylor may be referring to a brief conversation he had with them after what he believes was the December 13,2017 Council meeting. These conversations were brief and occurred while they were leaving the meeting and the building. He believes they asked about a 'process for selecting the replacement' and he responded that the process was already in place by way of the charter and would be handled by City staff. He states that this conversation lasted no more than a minute. At the time, he did not believe he was engaged in a 'discussion about determining which process to use' but was merely telling them what he was informed as to what would take place.

In fact, the Mayor's supplemental affidavit states that any discussion he had with Councilors was limited to his telling them what he was advised would take place by the City Manager and Solicitor.

*** Councilor Taylor had three conversations between December 13 and 19 in which she stated that she felt the interviews should be in public. Councilor Ceglie had initial discussions concerning the process during which she was informed by the Mayor of what the City Manager and City Solicitor had told him would happen. She then had discussions with two councilors about the interview process. Finally, she had discussions with three councilors after the interviews in which she conveyed her thought that Marco Camacho was the strongest candidate. The evidence shows that she conveyed her own opinion on this and such affidavit does not support the finding by the Department that three councilors discussed appointing the candidate that was selected. ***

What is present in this case is a hodge-podge of discussions in which there is no indication that councilors involved knew who else was involved other than the ones that they had talked to. Although Councilor Ceglie did eventually talk to five separate councilors over the course of time, the discussions concerned different issues.

According to Mayor Winthrop, he believes all councilors are careful to avoid rolling quorums. *** He believes that what may be at issue here is that not all councilors were thinking that the conversations dealt with the overall issue of the vacancy but that their conversations dealt with particular subject matters that they were then discussing. Such a position is reasonable and can be taken in good faith, even if it is found to be wrong. ***

*** The Council members were trying to avoid moving or walking quorums on particular issues that came up. For example, at first there were questions as to what process would be followed, then the issue became the interviews and eventually the need to pick a replacement. Council members were not thinking of the interactions as dealing with the overall vacancy issue.

In summary, the City believes that the City councilors in question attempted to act reasonably and in good faith."

The response also included the supplemental affidavit of Mayor Henry F. Winthrop

The Rhode Island Supreme Court examined the "knowing and willful" standard in Carmody v. Rhode Island Conflict of Interest Comm'n, 509 A.2d 453 (R.I. 1986). In Carmody , the Court determined that:

"the requirement that an act be 'knowingly and willfully' committed refers only to the concept that there be 'specific intent' to perform the act itself, that is, that the act or omission constituting a violation of law must have been deliberate, as contrasted with an act that is the result of mistake, inadvertence, or accident. This definition makes clear that, even in the criminal context, acts not involving moral turpitude or acts that are not inherently wrong need not be motivated by a wrongful or evil purpose in order to satisfy the 'knowing and willful' requirement." See id. at 459.

In a later case, DiPrete v. Morsilli , 635 A.2d 1155 (R.I. 1994), the Court expounded on Carmody and held:

"that when a violation of the statute is reasonable and made in good faith, it must be shown that the official 'either knew or showed reckless disregard for the question of whether the conduct was prohibited by [the] statute * * * Consequently an official may escape liability when he or she acts in accordance with reason and in good faith. We have observed, however, that it is 'difficult to conceive of a violation that could be reasonable and in good faith. In contrast, when the violative conduct is not reasonable, it must be shown that the official was 'cognizant of an appreciable possibility that he [might] be subject to the statutory requirements and [he] failed to take steps reasonably calculated to resolve the doubt." Id . at 1164 (internal citations omitted).

After reviewing all the evidence presented, we respectfully find insufficient evidence of a willful or knowing violation. We concur with the City Solicitor's contention that this matter presents "a hodge-podge of discussions in which there is no indication that councilors involved knew who else was involved other than the ones that they had talked to." While ultimately violative of the OMA, in our opinion, the City Council's actions reflected a careless and freewheeling process, not a willful or knowing violation of the OMA.

As a starting point, we note that the inconsistent City Councilor affidavits described in our May 16, 2018 finding were largely resolved by Mayor Winthrop's supplemental affidavit. Mayor Winthrop confirms that two City Council members approached him at the conclusion of the December 13, 2017 Council meeting and describes these interactions as non-substantive and lasting "no more than a minute or so." Equally important, these discussions did not include a discussion regarding a preference for a particular candidate(s), but rather Mayor Winthrop noted that "I told them that the procedure was in place in the Charter and that City staff would handle the details." These discussions do not implicate the OMA and on these facts, given the limited nature of these interactions, we find no evidence that Mayor Winthrop showed "reckless disregard" for the OMA's requirements. DiPrete , 635 A.2d at 1164. Nor does it appear that Mayor Winthrop had any "specific intent" to enter into discourse outside of the public purview. Carmody , 509 A.2d at 459. On this point, we observe Mayor Winthrop's representation that "I did not believe that I was doing anything wrong in doing so by merely repeating what I had been told." Although not dispositive, such good faith belies a finding of a willful or knowing violation. See DiPrete , 635 A.2d at 1164.

Additionally, we observe that Councilor Ceglie appears to have believed that each of the series of discussions was about a different issue such that these discussions would not accumulate into a walking quorum. This argument is not without some merit for our present purposes. We have previously described the determination of a walking or rolling quorum as a "murky question" that "literally require us to 'connect the dots.'" Apperson v. South Kingstown School Committee , OM 17-30. As the City Solicitor notes, "at first there were questions as to what process would be followed, then the issue became the interviews and eventually the need to pick a replacement." Although a close question, we do not find on these facts that Councilor Ceglie had a "specific intent" to violate the OMA and the argument that these multiple conversations concerning a different but related topic mitigate against finding a willful or knowing violation. Carmody , 509 A.2d at 459. This conclusion is supported by the City Solicitor's averment that Councilor Ceglie's expression of the merits of one particular candidate was not collectively discussed or commented on by other City Council members, even though it was done in their presence. In other words, even when Councilor Ceglie raised the prospect of a particular candidate, a quorum of the City Council did not engage in a walking or rolling quorum discussion of this subject-matter.

In sum, we find the City Council's actions did not willfully or knowing violate the OMA. DiPrete , 635 A.2d at 1164. Notwithstanding, our conclusion should in no way be seen by the City Council, or any public body, as approval by this Department of the City Council's practices here. Indeed, we emphasize that if the applicable standard of intent were lower than "willful" or "knowing" our conclusion may be different and even with this higher standard the City's Council's actions have caught our attention. As indicated in our initial finding, our investigation into the allegations raised great concerns. We trust that these issues will be addressed through future strict adherence to the OMA's prohibition on walking quorums. This finding serves as notice 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 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. 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,

Sean Lyness, Special Assistant Attorney General.